Using a brother's confession to send a man to death row

Mark Lilly was a star witness for the prosecution in a 1996 murder trial. His testimony was so effective, it helped send his older brother, Ben, to Virginia's death row.

But what is most unusual about Mark's testimony is that he never uttered a word at Ben's trial. In fact, he vehemently refused to testify against his brother.

So how is it possible to be a star witness in a jury trial and yet never actually appear in court? Virginia prosecutors persuaded the judge to allow the jury to hear portions of a confession Mark made to police shortly after his arrest with Ben and a third man, Gary Barker.

The US Supreme Court today considers whether a criminal defendant may be put to death as a result of a trial in which decisive evidence came from a transcript rather than a live witness whose credibility a jury could accept or reject.

For Ben Lilly, the case is literally a matter of life or death. For the rest of the country, the legal implications are also profound.

If the court upholds the practice of using incriminating out-of-court statements made by fellow suspects, it would make it significantly easier to convict alleged criminals. And it might open the door for prosecutors to try to win convictions solely on the basis of statements made to police upon arrest, rather than on the basis of in-court testimony under oath at a trial.

On the other hand, if the court overturns the case, it would help emphasize to prosecutors nationwide that the confrontation of live witnesses at trial is a constitutional right that a majority of the justices take seriously.

Details of the case

The case involves the December 1995 carjacking murder of a young Virginia Tech student. Only the triggerman faced the death penalty.

Ben Lilly said Gary Barker shot the student. Gary Barker pointed at Ben Lilly. On the night of the murder during his police interrogation, Mark broke the tie. He implicated his brother. But months later when it came time to repeat his incriminating statement in court under oath, he refused.

So prosecutors did what they could to save their capital case against Ben Lilly. They used the younger brother's prior statement to police and introduced it as testimony at the trial.

In most cases, that kind of evidence is viewed as unreliable hearsay and thus inadmissible at trial. But the Virginia judge allowed the jury to consider it after deciding that Mark Lilly had little reason to lie to police during his interrogation.

Defense lawyers objected to the admission of Mark's prior statement, arguing that it was a violation of the constitutional principle that a defendant has the right to confront and cross-examine all witnesses against him. There is no way to effectively cross-examine and challenge the veracity of a printed transcript, they said.

The Virginia judge disagreed. And so did the Virginia Supreme Court. Now the US Supreme Court will have an opportunity to weigh in.

"If they agree with us and they use any sort of broad language, it is a tremendously significant case across the country," says William Geimer, a law professor at Washington and Lee University in Lexington, Va., who is active in defending death-penalty cases in Virginia.

Jury as judge of credibility

Legal analysts say if defense lawyers had a chance to cross-examine Mark Lilly, the jury might have understood that he had good reason to tell police less than the whole truth: He was worried about going to prison.

These analysts say this further search for truth during the course of the trial will never take place if prosecutors are allowed to use statements to police in lieu of live testimony.

"The whole concept of confrontation is you get the person in the room, you put them on the witness stand, and look them in the eye," says Marvin Miller of the Virginia College of Criminal Defense Attorneys, a lawyers' association in Alexandria, Va. "The idea is that in public, under oath, they will tell the truth. But in a secret room [with police], who knows what they are going to do?"

If a majority of justices uphold the Lilly verdict, some legal analysts say prosecutors may begin using out-of-court confessions in place of plea bargains.

"Confessions are clearly admissible [as trial evidence] against the people who make them," says Mark Dobson, a law professor at Nova Southeastern Law School in Fort Lauderdale, Fla. "But if they can also be used against their partners in crime, then confessions become important for another reason."

Instead of offering lucrative plea bargains to guilty criminals as an efficient means to make a case, prosecutors might attempt to use pretrial confessions of criminal associates and refuse to plea bargain at all, analysts say.

Potential effects of dealmaking

Such an arrangement offers the advantage that the criminal testifying for the prosecutors can avoid having his or her credibility and motives directly attacked in front of the jury at trial.

Once the statement is made to police, the criminal can avoid testifying at an associate's trial by claiming the Fifth Amendment right to avoid self incrimination, says Margaret Berger, a law professor at Brooklyn Law School who filed a friend-of-the-court brief in the Lilly case on behalf of the American Civil Liberties Union.

She adds, "You could have a prosecutor say, 'Give us a nice statement and you will never have to appear in court. You will never have to undergo that cross examination. Just give us that statement and claim the Fifth, and that's all we need.' "