O'Brien v. Marshall

United States Court of Appeals
For the First Circuit

No. 05-2512

EDWARD S. O'BRIEN,

Petitioner, Appellant,

v.

JOHN MARSHALL, SUPERINTENDENT,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Mark L. Wolf, U.S. District Judge]

Before

Boudin, Chief Judge,

Lynch and Howard, Circuit Judges.

Edward B. Gaffney for petitioner.
Eva M. Badway, Assistant Attorney General, Criminal Bureau,
with whom Thomas F. Reilly, Attorney General, was on brief for
respondent.

June 27, 2006
 BOUDIN, Chief Judge. Edward O'Brien was convicted of

first-degree murder in Massachusetts state court and sentenced to

life in prison. After affirmance by the Massachusetts Supreme

Judicial Court ("SJC"), Commonwealth v. O'Brien, 736 N.E.2d 841,

854 (Mass. 2000) ("O'Brien I"), O'Brien petitioned for a writ of

habeas corpus, which was denied, O'Brien v. Marshall, 384 F. Supp.

2d 501, 504 (D. Mass. 2005) ("O'Brien II"). O'Brien now appeals

the district court's denial of his habeas petition.

We recite the background facts as determined by the state

court. 28 U.S.C. § 2254(e)(1) (2000). On the evening of July 23,

1995, Janet Downing was stabbed to death in her home in Somerville,

Massachusetts. O'Brien, who was 15 years old at the time, lived

across the street from Downing and was close friends with her son,

Ryan Downing. During the year preceding Downing's death, O'Brien

had developed a preoccupation with her.

At about 9:20 p.m. on the day of the murder, three boys

went to the Downing house to look for Ryan. After they knocked at

the front door and received no answer, one of the boys heard a loud

noise coming from the backyard, which sounded as if someone was

falling through tree branches. O'Brien was discovered crouching in

bushes nearby, and, ignoring calls from two of the boys, O'Brien-

–laughing and with fists clenched and eyes bulging-–walked away.

Ryan Downing, returning home at around 10 p.m., found his

mother lying on the dining room floor; it was later established

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that she had been killed by stabbing, there being 66 stab wounds

and 32 slashes on her body. At about the same hour, O'Brien

entered a store near Union Square in Somerville where he worked on

a part-time basis; he was bleeding from cuts on his hand and had

other cuts and scrapes on his leg, and he claimed to have been

robbed and stabbed in Union Square.

The police were called and later took O'Brien–-with his

father–-to the scene of the alleged robbery in Union Square. It

proved to be a busy and well-lit area with no signs of struggle or

blood. Later, O'Brien's fingerprints were found in blood on the

inside of the front door of the Downing's house and on a wooden

post in the cellar. A knife hilt found in the Downing's house

matched that of a knife owned by O'Brien that police found in his

trash (and he was known to have owned two such knives).

Blood consistent with O'Brien's, with a profile shared by

six percent of the Caucasian population, was found in the front

hallway of the Downing home. DNA tests indicated that blood from

the front door, dining room door, and a dress in the cellar matched

O'Brien's blood sample. Blood taken from O'Brien's right shin

matched Downing's blood type. Police also saw a trail of blood on

the street that corresponded to the route O'Brien had followed when

his friends witnessed his departure from the Downing house.

On August 24, 1995, O'Brien was indicted by a Middlesex

County grand jury for first-degree murder. In order to try O'Brien

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as an adult, the Commonwealth had to prove, by a preponderance of

the evidence, that he was "a significant danger to the public and

. . . not amenable to rehabilitation within the juvenile justice

system." Mass. Gen. Laws ch. 119, § 61 (1994).1 If tried as an

adult, O'Brien faced a mandatory life sentence, id. ch. 265, § 2;

if treated as a juvenile, the maximum sentence was 20 years, id.

ch. 119, § 72.

After an initial transfer hearing, the state-court

district judge ordered O'Brien to be tried as a juvenile, but this

decision was reversed by the SJC, Commonwealth v. O'Brien, 673

N.E.2d 552 (1996); a new judge held a second transfer hearing and

ordered O'Brien to be tried as an adult. After a two-week trial in

the fall of 1997, a jury found O'Brien guilty of first-degree

murder, based on extreme atrocity and cruelty, and he was sentenced

to life in prison. He appealed to the SJC, which affirmed.

O'Brien I, 736 N.E.2d at 854.

In January 2002, O'Brien filed his federal habeas

petition, raising both Fifth Amendment and due process issues. The

district court denied the petition. We review the district court's

legal conclusions de novo, Almanzar v. Maloney, 281 F.3d 300, 303

1
The statute created a rebuttable presumption that a juvenile
charged with murder is dangerous to the public and not amenable to
rehabilitation. Id. § 61. If the juvenile met an initial burden
of producing evidence to the contrary, the burden shifted to the
state, which then had to prove its case by a preponderance of the
evidence. Commonwealth v. Wayne W., 606 N.E.2d 1323, 1326 (Mass.
1993).

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(1st Cir. 2002), cert. denied, 537 U.S. 817 (2002), but must

respect the SJC's conclusions on federal constitutional issues

adjudicated by the SJC unless they "resulted in a decision that was

contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the

United States." 28 U.S.C. § 2254(d).

Both sides assume that the SJC did resolve at least in

some aspects both the Fifth Amendment and due process claims. This

is clear enough as to one claim, less clear as to the other; but it

does not matter, because the result would be the same whether we

deferred to the SJC or reviewed O'Brien's constitutional claims de

novo, as we would do with a claim properly presented to the SJC but

not in fact decided by it. Goodrich v. Hall, 448 F.3d 45 (1st Cir.

2006).

O'Brien's Fifth Amendment claim is that in the transfer

proceeding that led to his subsequent trial as an adult, the state

court judge relied upon O'Brien's silence in deciding that O'Brien

was "not amenable to rehabilitation within the juvenile justice

system." Mass. Gen. Laws ch. 119, § 61. The reliance, according

to O'Brien, is shown by several of the findings on which the state

judge relied in concluding that O'Brien was not so amenable; in

particular, that

- he "has consistently not voiced any need or
desire for treatment";

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 - he had "neither voiced nor exhibited
apparent motivation to change"; and

- he lacked "any overt signs of, recognition
of, . . . anxiety about, or . . . other
emotional distress occasioned by, any problem
or inadequacy he may perceive in himself."

The state judge relied on other findings as well-–for

example, that O'Brien "tended to associate with" inmates who were

"suspicious, antagonistic and contemptuous of clinical services"

and that he had "a lack of apparent motivation for treatment." But

we will assume that the refusal to transfer was in part based on

inferences about his make-up drawn from his failure to say or do

things suggesting a desire for rehabilitation.

In affirming, the SJC said that the judge's findings

"were not based on the defendant's exercise of his right to remain

silent, but on the defendant's failure to see any value in any

treatment programs." O'Brien I, 736 N.E.2d at 849. The district

court agreed, saying that the transfer judge based his decision on

O'Brien's behavior, not his silence, and thus was not "drawing

negative inferences from the petitioner's refusal to talk."

O'Brien II, 384 F. Supp. 2d at 512.

True enough, the transfer court did not infer guilt from

silence; but it did in some measure rely on O'Brien's refusal to

express a need for treatment in concluding that he was not likely

to be rehabilitated. True, too, those assessing him were not

supposed to inquire about the crime; but, O'Brien argues, an

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inference could perhaps be drawn, if he confessed to a need for

treatment, that the confession rested on his commission of the

crime.

If the transfer hearing were treated as a criminal trial,

the sequence would raise problems that would need careful

consideration. What happened does not conflict with the bare

language of the Fifth Amendment, which provides that "[n]o person

. . . shall be compelled in any criminal case to be a witness

against himself," U.S. Const. amend. V; but neither the literal

language nor the history of the amendment is a safe guide to its

full modern reach.2

However, in Estelle v. Smith, 451 U.S. 454 (1981), the

Supreme Court said that the Fifth Amendment did not apply in a

state court hearing to determine whether the defendant was

competent to stand trial--so long as the evidence (information

obtained by a psychiatrist without a Miranda warning) was used only

for the competency hearing. Id. at 465. Although dicta, the

statement was explicit and undermines O'Brien's premise that the

hearing should be equated to a criminal trial.

2
E.g., Miranda v. Arizona, 384 U.S. 436, 460-61 (1966) (police
station questioning); Slochower v. Bd. of Higher Educ. of City of
New York, 350 U.S. 551, 557-59 (1956) (employment qualifications).
Compare Wigmore on Evidence § 2252 (McNaughton rev. 1961)
(describing the history of the privilege), with Griffin v.
California, 380 U.S. 609, 615 (1965).

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 Juvenile court transfer hearings closely parallel

competency hearings. Neither resolves questions of substantive

guilt or innocence; each addresses "whether a defendant should be

exempted from criminal prosecution because he falls within a

category of persons who, in the eyes of the law, are not viewed as

fully responsible for their acts." United States v. A.R., 38 F.3d

699, 703 (3d Cir. 1994). The Third Circuit and the Ninth Circuit

have applied Estelle to juvenile transfer hearings, A.R., 38 F.3d

702-04; United States v. Mitchell H., 182 F.3d 1034, 1035-36 (9th

Cir. 1999), and we agree with our sister circuits.

Although it is sometimes said that a defendant's silence

or refusal to cooperate cannot be used to his disadvantage, this is

a misstatement of the privilege.3 Just as too literal a reading

understates the protection now afforded, such a loose colloquial

description overstates it. Given Estelle, we hold that the Fifth

Amendment did not preclude the state court judge from taking

account of O'Brien's attitude, whether or not characterized as

silence, in determining that he was not likely to be rehabilitated

and should instead be tried as an adult.

3
E.g., Baxter v. Palmigiano, 425 U.S. 308 (1976) (adverse
inference in prison disciplinary hearing); California v. Byers, 402
U.S. 424 (1971) (failure to stop at scene of accident statute);
Baltimore Dept. of Social Servs. v. Bouknight, 493 U.S. 549 (1990)
(failure to produce injured child); United States v. O'Brien, 435
F.3d 36 (1st Cir. 2006) (impeachment by pre-arrest silence).

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 The SJC has elsewhere taken the view that the privilege

applies in transfer hearings. Wayne W., 606 N.E.2d at 1330. Just

what Wayne meant may be uncertain: confusion readily arises in

privilege cases where evidence (or silence) occurs in one forum–-

here, the transfer proceedings–-but its contested use may relate

either to the same proceeding or to a different forum (e.g., a

later trial). Our immediate concern is with use of O'Brien's

silence in the transfer proceeding, as to which we think Estelle's

dictum is clear.

Illustrating this distinction, O'Brien also appears to

make a related but different argument. In addition to directly

attacking the use of his silence as an impermissible basis for his

transfer to adult status, he argues that the transfer punished him

(by denial of juvenile status) for exercising his constitutional

right to refrain from making self-incriminating statements that

could have been used against him to establish his guilt at the

criminal trial.

In Estelle, the Supreme Court assumed that there well

might be a problem if incriminating information, extracted

involuntarily from the defendant in a competency hearing, were then

to be used against him in a criminal trial. 451 U.S. at 468-69.

For federal juvenile transfer hearings, the statute provides formal

protection against this risk. 18 U.S.C. § 5032 (2000). A

comparable privilege was created by the Supreme Court for

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suppression hearings. Simmons v. United States, 390 U.S. 377, 393

(1968).

The problem may often not arise in Massachusetts practice

where the juvenile is not supposed to be questioned about his guilt

at all in the transfer evaluation. Nevertheless, where the fifth

amendment privilege applies, compulsion to secure an admission can

be barred even though the evidence has only a remote likelihood of

implicating the defendant in the specific crime. Hoffman v. United

States, 341 U.S. 479, 486-88 (1951). So, O'Brien may be right in

saying that the prosecution at the criminal trial could have been

aided by O'Brien's explanations as to why he needed treatment, if

he had made such admissions in the transfer hearing evaluations.

Here, it is enough to reject O'Brien's alternative claim

that he never asked the court to protect him against the contingent

threat that he now asserts. It would have been easy enough for

O'Brien to say to the transfer court that he wanted to make

statements to the therapists helpful to his position; that he

feared the use of such information at trial; and that he wanted an

in limine ruling that he could make these statements in opposing

transfer but would be protected against their use against him at

trial.

We have no idea how such a motion would have been

handled: the prosecutor might have agreed, or the court might have

made a protective ruling, or O'Brien's claim of need to make

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incriminating statements might have been explored and found

wanting.4 However, there is no indication that O'Brien ever sought

any such protection, nor does O'Brien appear to have raised this

argument directly before the SJC. Under these circumstances, we do

not think that his argument was properly preserved or is fairly

before us. Martens v. Shannon, 836 F.2d 715, 717 (1st Cir. 1988).

O'Brien's due process claim-–perhaps more sympathetic on

the facts but not much stronger in law--is that at trial the state

court denied him due process by refusing to admit certain evidence.

The evidence in question did not directly counter any of the pieces

of powerful evidence against O'Brien–-presence, motive, behavior,

blood and the knife. Rather, it was intended to suggest that

another person could have committed the crime.

The other person was Aristedes Ortiz. At trial, O'Brien

was allowed to show that Ortiz was Janet Downing's brother-in-law

and had lived in her home with his family until about four months

before the murder; that he could have been the source of blood

found in the victim's house and on the knife hilt; and that

4
In Wayne W., the Massachusetts prosecutor took almost this
position on appeal to the SJC. 606 N.E.2d at 1330. As for a
protective ruling, the SJC earlier said in dictum, Commonwealth v.
Ortiz, 471 N.E.2d 1321, that the statute did not create such a
privilege against later use, but the Ortiz holding leaned heavily
against waiver of the trial privilege by testimony in the transfer
proceeding, and the privilege could also be created by courts.
E.g. Simmons, 390 U.S. at 393.

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immediately after the victim's death, he attempted to get past

police tape to the victim's backyard in order to retrieve his keys.

The court also allowed O'Brien to prove that on the day

of the murder, Downing had had a conversation with a neighbor about

Ortiz. The court, however, did not allow the neighbor's testimony

as to certain facts allegedly learned from Downing--namely, that

Downing had evicted Ortiz from her home for dealing drugs; that

there was a hostile relationship between them including "threats

back and forth"; and that Downing feared Ortiz and had said so to

the neighbor on the day of the murder.

The state court judge excluded the statements as

inadmissible hearsay.5 On appeal, the SJC said that the testimony

sought to be admitted "would have no tendency to prove that Ortiz

was actually the murderer, and would be confusing as no more than

an opinion of Ortiz's involvement," and that given the

"insufficient connecting links between Ortiz and Downing's murder,"

the judge did not abuse his discretion or act unjustly in excluding

the evidence as hearsay. O'Brien I, 736 N.E.2d at 852.

In relevant part, the Sixth Amendment states: "In all

criminal prosecutions, the accused shall enjoy the right . . . to

5
The statements, offered for their truth, are classic hearsay,
since the neighbor had no personal knowledge of relations between
Ortiz and Downing. Downing's statement of her own fear might or
might not be admissible in some courts under a hearsay exception,
e.g., Fed. R. Evid. 803(3), the causes of the alleged fear are what
mattered in this case.

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have compulsory process for obtaining witnesses in his favor."

U.S. Const. amend. VI. Together with the Sixth Amendment's

"confrontation" clause, the "compulsory process" language has been

deployed by the Supreme Court in recent years to police evidence

law in state courts. O'Brien was not denied the use of compulsory

process, but, as with the Fifth Amendment, precedent goes somewhat

beyond the language and history of the clauses.

Yet, the Supreme Court has also made clear that "state

and federal rulemakers have broad latitude under the Constitution

to establish rules excluding evidence from criminal trials."6

Indeed, much of the language used in the cases and most of the

results suggest that something like a classic due process balancing

is at play--namely, that federal rights are violated only when

state rules or particular results are shocking or indefensible.

The key Supreme Court cases overturning the exclusion of

exculpatory evidence bear out the view that a kind of ad hoc

balancing is at work but the threshold is high.

Thus, in Washington v. Texas, 388 U.S. 14 (1967), the

trial court had excluded exculpatory testimony from an accomplice

even though he "was the only person other than [the defendant] who

knew exactly who had fired the shotgun" and who would have

6
United States v. Scheffer, 523 U.S. 303, 308 (1998). Accord
Crane v. Kentucky, 476 U.S. 683, 690 (1986); see also Holmes v.
South Carolina, 126 S. Ct. 1727, 1731 (2006) (violation only when
such rules are "arbitrary or disproportionate to the purposes they
are designed to serve").

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testified that he, rather than the defendant, had fired the fatal

shot. 388 U.S. at 16. The state court's basis for excluding the

testimony was a flat state ban on the defense's use of accomplice

testimony, id. at 16-17, which the Supreme Court found to be

arbitrary, id. at 22-23.

Similarly in Chambers v. Mississippi, 410 U.S. 284

(1973), the Supreme Court said that a defendant in a murder case

had to be allowed to offer evidence that someone else had confessed

to the crime to three separate individuals on three separate

occasions. Id. at 292-93, 302. Such confessions, although

obviously against interest, are viewed with some suspicion under

classic hearsay law when offered to exculpate someone else; but in

Chambers these confessions looked very reliable, id. at 300-01, and

Mississippi law precluded the defendant even from cross-examining

the person who had made the confessions. Id. at 295.

As we have previously noted, the Supreme Court has

"rarely" overturned state convictions because evidence was excluded

and has "in recent years . . . made clear that . . . only in

extreme cases" will such Sixth Amendment claims succeed. Fortini

v. Murphy, 257 F.3d 39, 46 (1st Cir. 2001), cert. denied, 535 U.S.

1018 (2002). The ruling in this case was not mechanical or

arbitrary or extreme. This is so whether one looks at the basis

for the exclusion or at special circumstances that might justify an

exception.

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 The evidence in question was traditional hearsay,

arguably not within any established exception, and without any

indicia of special reliability. It is also not clear that the

defense lacked means other than hearsay for establishing the

reasons for Ortiz's eviction and the alleged back-and-forth

threats; at least on appeal, there is no reference to a proffer on

this point. Compare White v. Coplan, 399 F.3d 18, 24-25 (1st Cir.

2005), cert. denied, 126 S. Ct. 478 (2005).

Nor was the excluded evidence especially powerful.

Compare Chambers, 410 U.S. at 291-93. It is quite true that

O'Brien badly needed the excluded evidence because the

circumstantial case against him was very powerful, and without the

hearsay, there was little to make Ortiz an alternative suspect.

But even with the testimony, the hearsay evidence would not have

had much rational weight as against O'Brien's presence, his

improbable story and the scientific evidence against him.

We no longer think that the "ghostly phantom of the

innocent man falsely convicted," Di Carlo v. United States, 6 F.2d

364, 368 (2d Cir. 1925) (L. Hand, J.), is quite so improbable as

once thought. Thus, the exclusion of powerful evidence, on dubious

grounds and in a close case, prompts scrutiny even in an area

largely governed by state law. But this case has none of these

characteristics. The evidentiary ruling did not violate the

Constitution.

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Affirmed.

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