"Why are we arguing this?" the prosecutor asked me as soon as I walked into the Main Courtroom, five minutes before oral argument. I should've paid more attention to the fact that I didn't have a good answer to that question.
The cops suspect a guy named Turner of dealing drugs, so they send an informant, of the confidential and reliable sort, over to the street corner where Turner hangs out. The detective sees the CRI approach Turner, and sees Turner lift his coat, whereupon the CRI promptly retreats back to the detective's car and tells him that Turner has a gun. The detective calls in backup, at which time Turner hands something to a guy named Bulger, who runs into a building. The cops go inside, arrest Bulger, and find a gun hidden nearby. At the trial, the detective is allowed to testify to what the informant told him about Turner having the gun.
If this gives you a feeling of deja vu, you have a good memory, because I told you all about it six months ago when I reviewed the 8th District's decision in State v. Turner. The court had affirmed the admission of the informant's statement, rejecting a claim that it violated Crawford by holding that the informant had no reasonable expectation that his statement would be used as evidence at trial, a point to which I responded with a customarily snarky observation, "What, the guy’s an informant, paid by the police to snitch on people, and he doesn’t expect that what he tells the police is going to be used as evidence?"
So what does Turner have to do with me? I represent Bulger, and it is my task to persuade a different panel why they should come to a different result.
Here's where I had a good idea, and a bad one. The good idea was using the argument that the Turner court hadn't had the benefit of the Supreme Court's intervening decision in Michigan v. Bryant. In Bryant, you'll recall (and if you don't you can read about it here), the Court expanded upon the "primary purpose" test for determining whether a statement is testimonial, which the Court had earlier established in Davis v. Washington: a statement isn't testimonial if the purpose is to assist the police in responding to an ongoing emergency, but is if the purpose is to develop facts for use at trial. Bryant clarified what an emergency was. So I'd just argue that there was no emergency in this case, and therefore the statement was testimonial.
The bad idea was trying to do this in oral argument. In the Abdi case, which I'd discussed on Thursday, I'd filed a motion with the court of appeals right after State v. Johnson came down, getting permission to file a supplemental brief on Johnson's effect on the allied offense issue. That's what I should have done here. The lesson is if you're going to make a complicated legal argument, don't raise it for the first time in oral argument.
Because it was an absolute disaster. One of the judges seemed inclined to hold that the mere presence of a gun on the scene created an emergency. I was prepared for that, and countered with the analogy to Florida v. J.L., where the Court had held that an anonymous tip that a person was carrying a gun was insufficient to warrant a frisk of that person, absent the police observing something corroborating the tip. In J.L., the government had urged the adoption of a "gun exception" to Terry, and the Court flatly rejected it. My argument: if there isn't a "gun exception" for the 4th Amendment, there shouldn't be one for the 6th Amendment. That's a decent argument, and detailed over a couple of pages of a brief, it might have been effective, but it flopped in oral argument. Another judge kept pressing me as I was going through it, noting that this wasn't a J.L. situation, or even a 4th Amendment situation, unaware of where I was going with the argument. I could hardly blame her; it was like one of those jokes where it takes five minutes to get to the punchline.
I walked out of there, completely convinced that I'd screwed up Confrontation Clause law in the 8th District for years to come: the court was going to hold that the mere presence of a gun constituted an emergency, and anything anybody said about it could come in under a hearsay exception. (The State had argued excited utterance in Turner, but the court there had used the present sense impression. Any port in a storm...)
So last week, the decision came out, and I eagerly scanned it to find out what damage I'd wrought. None, it turns out; the court rejected the Crawford argument on the same basis that the Turner court did: "the CRI’s statement was not made in anticipation of trial and is, therefore, not testimonial in nature." The result is questionable, to say the least, but given Turner and the fact that one panel can't overrule another, the court had no real choice.
The opinion did address my Bryant argument, dismissing it in a footnote:
Bulger’s counsel raised at oral argument the application of Michigan v. Bryant, for the proposition that there was no ongoing emergency to allow the CRI’s statement. We find the Bryant case distinguishable because the instant case is not being viewed as an emergency to which police responded.
I'll settle for that. It could have been a lot worse.