Case Name: Orlando v. Nassau Cty. Dist. Atty’s Off.
Date of Opinion: February 11, 2019
Opinion by: Judge Droney (majority); Judge Shea (dissent)
In December 2004, a man named Bobby Calabrese was shot and found dead in Long Beach, New York. The following week, Nassau County police detectives interviewed Mark Orlando and Herva Jeannot, who officers believed had been with Calabrese that night. The two men were questioned in separate rooms at the police station. Jeannot confessed to shooting Calabrese and stated that Orlando had hired Jeannot to murder Calabrese in order to avoid paying a gambling debt to Calabrese. During his questioning, Orlando gave two different statements to the police–one before being told that Jeannot had incriminated him, and one after being so informed–but he consistently denied being involved in the murder. Orlando and Jeannot were later both charged with murder for their involvement in Calabrese’s death, and the two men were tried separately.
At Orlando’s trial, Detective McGinn testified for the prosecution and recounted Jeannot’s confession about Orlando’s involvement in the murder. Defendant’s counsel objected on hearsay and Confrontation Clause grounds, but the trial judge allowed the testimony, stating that the testimony was not being offered for the truth of the contents of the statement, but rather to give a clear picture to the jury of what was going on during the interrogation of Orlando. The trial court gave the jury a limiting instruction to use McGinn’s testimony only when considering the circumstances under which Orlando may have made statements and for no other purposes. The trial court also instructed the jury to completely disregard any statement allegedly made by Jeannot when considering evidence against Orlando. McGinn then resumed testifying and stated that after Orlando learned of Jeannot’s confession, Orlando changed his account of the events that night. The jury ultimately convicted Orlando of murder in the second degree, and Orlando was then sentenced to twenty-five years to life in prison. Jeannot was also convicted of the murder in a separate trial.
In 2009, Orlando appealed his conviction to the New York Supreme Court, Appellate Division. Orlando argued that Detective McGinn’s testimony as to Jeannot’s statement had been inadmissible hearsay and also violated Orlando’s Sixth Amendment right to confront witnesses through cross examination, since Jeannot did not testify at his trial. The Appellate Division rejected this argument and found that the trial court properly instructed the jury to use the testimony for the limited purpose of explaining the detective’s actions and their effect on Orlando, and not for the truth of Jeannot’s statement. The New York Court of Appeals denied Orlando’s leave to appeal.
Orlando then filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the Eastern District of New York. The district court denied the petition, and Orlando appealed.
The Second Circuit ruled in favor of Orlando’s petition, agreeing that his Confrontation Clause rights had been violated. In particular, the court’s analysis was based on the United States Supreme Court’s holding in Bruton v. United States. There, the Supreme Court held that a non-testifying witness’s confession that expressly implicates the defendant must not be admitted due to the substantial risk that the jury will not follow instructions to limit its consideration in determining the defendant’s guilt. The Supreme Court also stated that an accomplice’s incriminations may not be reliable and have devastating consequences to the defendant. Thus, the Second Circuit held that the admission of Jeannot’s statement was barred by Bruton. Because McGinn’s testimony had a powerful effect on the jury and was essential evidence needed to persuade the jury of Orlando’s guilt, the Second Circuit found that the admission was not harmless and violated the Confrontation Clause.
Accordingly, the Second Circuit reversed the district court’s denial of Orlando’s petition and remanded the case back to the district court with instructions to issue a writ of habeas corpus to Orlando. Judge Shea dissented.
Summary by: Caitlin Ens