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When prosecutors in the Bronx brought Eugenio Cortes to trial for attempted murder, they made a routine application to submit a 911 phone call by a witness to the crime. The caller, an unidentified man, told the police he saw a man running with a gun at 138th Street and Cypress Avenue. It was 20 minutes shy of three o’clock in the afternoon on Jan. 29, 2002. The caller said the gunman was Hispanic, bald and wearing a red shirt. Not much more than a minute into the conversation the caller said, “Oh, he’s shooting at him, he’s shooting at him.” Moments later he said, “He’s killing him, he’s killing him, he’s shooting him again.” The gunman ran off, and the 911 operator called an ambulance. The caller cut the conversation short, saying, “I got to hang up because people, people are going to think I’m out calling the cops.” The caller had witnessed an encounter between two men, one of whom was shot but not, as it turned out, killed. Although prosecutors could not track down the caller and bring him to court as a witness, they asked Bronx Supreme Court Justice Phylis Skloot Bamberger to accept the 911 conversation as evidence under a hearsay exception. The testimony would support the prosecution’s theory that the shooter had chased down his victim. Until recently, anonymous 911 calls of this kind were admissible, as long as a judge considered the caller’s account reliable. But the jury that convicted Cortes’ of assault and possessing a weapon, two lesser charges, never heard about this call at Cortes’ March trial. Justice Bamberger reasoned that the call was “testimonial” in nature, a product of interrogation akin to a deposition. As a testimonial statement, she ruled, the call could not be admitted unless the caller was produced and cross-examined. To admit it, the judge said, would violate the confrontation clause of the U.S. Constitution. The date Cortes’ trial began, March 18, is significant. Just two weeks earlier, a unanimous U.S. Supreme Court had overturned a 24-year-old precedent that had routinely allowed testimonial statements into trials without the opportunity for cross examination, as long as they were deemed reliable. In Crawford v. Washington, 124 S. Ct. 1354, a unanimous Court said the earlier decision had led the judiciary away from the Sixth Amendment and the fundamental right of defendants to confront their accusers. It was Ohio v. Roberts, 448 U.S. 56. Justice Antonin Scalia, writing for the Court, said, “Reliability is an amorphous, if not entirely subjective, concept.” He added later: “Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty.” The implications of Crawford are clear: No testimonial statement can be used at a criminal trial unless the witness was cross-examined beforehand or will take the stand. What is less clear is the meaning of the word “testimonial.” THE MEANING OF ‘TESTIMONIAL’ In Crawford, Michael D. Crawford was accused of stabbing a man who had allegedly tried to rape his wife, Sylvia. Ms. Crawford witnessed the stabbing and described it to police officers. She did not testify at her husband’s trial, since Washington state law bars a spouse from testifying without the other’s consent. Nonetheless, the judge handling the trial found that a tape of Ms. Crawford’s statement, suggesting a premeditated attack, was reliable and admitted it under the hearsay exception. Prosecutors played it for the jury and argued that the woman’s view of the crime was “damning evidence” that rebutted her husband’s claim of self-defense. Justice Scalia, in an opinion signed by six other justices, said Ms. Crawford’s statements were given to a police officer and therefore testimonial. The judge said “testimonial” would also encompass all statements resulting from police interrogations, as well as testimony given at a preliminary hearing, before a grand jury or at a prior trial. “We leave for another day any effort to spell out a comprehensive definition of ‘testimonial,’” he wrote. He noted in a footnote that any uncertainty this created — a concern of Chief Justice William H. Rehnquist in a concurring opinion — “can hardly be any worse than the status quo.” The uncertainly is only just beginning to unfold. In New York, two judges have found that 911 phone calls are not testimonial. In the state’s intermediate appellate courts, defense attorneys are beginning to challenge convictions that were based, in part, on unchallenged testimonial statements, usually plea allocutions from co-defendants. These statements by defendants who have pleaded guilty and described crimes committed with others have historically been introduced by prosecutors at trials of co-conspirators. The statements have been allowable as hearsay exceptions. Under Crawford, they are no longer admissible. While prosecutors suggest they will be able to deflect most appeals with a “harmless error” defense, it is clear they will have to spend hours vetting cases they thought were all but closed. “This may be the most significant criminal law decision from the Supreme Court in years,” said Anthony J. Girese, counsel to Bronx District Attorney Robert T. Johnson. “They have thrown out 30 years of analysis.” Girese said it was difficult to discern whether his office would have been able to convict Cortes of attempted murder had Justice Bamberger allowed jurors to hear the 911 call. The judge did admit a similar call by another witness, who was available for trial, and prosecutors did present other evidence. Cortes’ attorney, David K. Bertan, agreed, but he added, “It definitely didn’t hurt.” Cortes claimed that he had not stalked the victim down the street, but was engaged in a struggle with him when his illegal gun went off. The bigger question for both Girese and Bertan is whether or not 911 calls can be considered testimonial. Bertan said this might not always be the case, but “when you are parsing out a call, you’ll have to see if there is a question asked or whether a person just offered a statement.” Michael M. Martin, a professor at Fordham University School of Law and an evidence expert, said he thinks that 911 calls are, for the most part, not testimonial, but he said the question would remain up for debate. “It is very much a matter of how the courts are going to define testimonial,” Martin said. “The Supreme Court gave us absolutely no clue on this, except for classic testimony.” When it comes to clearly testimonial statements, prosecutors have already begun to adjust to Crawford. Girese’s office has instructed its assistants that plea allocutions, often used in gang and drug cases, are no longer allowed. The same instruction has been given to prosecutors in Manhattan and Queens, according to officials in those offices. More than anyplace else, the effects of Crawford are being felt in federal courts, where prosecutors had more opportunities under federal law to introduce unchallenged testimonial statements. Since Crawford was decided, federal prosecutors in both the Eastern and Southern districts of New York have acknowledged that plea allocutions are no longer available to them. In the Eastern District, officials warned their prosecutors about plea allocutions after receiving notice from the U.S. Justice Department. The change has had some effect on the office’s prosecution of alleged organized crime boss Joseph Massino. For that trial, which is ongoing, prosecutors did not seek to submit plea allocutions from 30 other defendants who have pleaded guilty to various racketeering charges. They did, however, ask Judge Nicholas G. Garaufis to allow them to note the fact that 30 others pleaded guilty in an effort to bolster the testimony of cooperating witnesses. Prosecutors said they would not seek to admit the entire plea allocution. Garaufis rejected the request earlier this month, writing, “A guilty plea cannot and does not exist apart from the statement ‘I plead guilty’ or the associated allocution to all of the elements of the crime to which the co-defendant is pleading guilty.” VALID APPEALS? Prosecutors and defense attorneys agree that Crawford applies to all convictions on direct appeal, and for the most part say it is not likely to be found retroactive to cases whose appeals have been exhausted. Mark R. Dwyer, chief of appeals in the Manhattan district attorney’s office, said he hopes that Crawford will not be available for collateral attacks. As it is, he said, the office is finding it difficult to assess how many direct appeals will be slowed, or lost, by Crawford implications. “Many will present Crawford issues even though at the time the cases were tried the judges were fully complying with the law as it stood,” Dwyer said. “In those cases we will obviously have to search for answers to the Crawford problem.” The two most common answers from prosecutors will be to argue that defense attorneys did not preserve a challenge to the testimony, or that overwhelming evidence made admission of the testimony harmless. Dwyer recently made both arguments in the Appellate Division, 1st Department, where attorneys for four stock brokers convicted of fraud are seeking a new trial because seven plea allocutions were used at trial. John L. Pollok, who argued the appeal for the defendants, said the seven-month trial of the A.S. Goldmen brokers, which ended in July 2001, was boring and based largely on complicated documents. The pleas of the other defendants, which were read in court prior to summation, were more exciting, he said, and helped convince the jury that those on trial must have done something wrong. “They had a devastating effect,” Pollok said of the allocutions. “They tied the bow around the trial.” Defense attorney Paul Shechtman of Stillman & Friedman, who himself is seeking Crawford relief for a case in the 2nd U.S. Circuit Court of Appeals, said prosecutors would likely be able to defeat most appeals by claiming harmless error. But that did not stop him from pointing out what he said was the irony in their stance. “It will be one of those marvelous situations where the government fought hard to get something in and now tells you it doesn’t matter,” he said. SUPREME COURT REMANDS The U.S. Supreme Court has already begun to look at cases throughout the country where convictions were affirmed without adequate consideration of possible confrontation clause violations. So far, the Court has ordered five appellate courts in the country to reconsider affirmed convictions. “The consequences of Crawford are awesome,” said Mark M. Baker of Brafman & Ross, who is handling the only one of the five that is in New York. “How it took so long to get a decision like this is beyond belief.” Daniel R. Alonso, chief of the criminal division in the Eastern District, agreed that Crawford does have historical implications, but like most prosecutors, he said the practical results for defendants — in terms of overturned convictions — would be quite small. “I think it is a major restructuring of the way the confrontation clause is interpreted,” he said. “And I think it is a minor win for defendants.” RELATED ITEMS: New York Considers ‘Crawford’ The ‘Crawford’ Questions

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