Representing Hemphill before the Supreme Court on Tuesday, Jeffrey Fisher argued against forfeiture of the confrontation clause when a defendant makes a legitimate argument based on admissible evidence. Fisher emphasized that the confrontation right is at its most urgent when the prosecution’s hearsay evidence contradicts the defense’s theory of a case. Justice Clarence Thomas interjected to ask whether Hemphill sufficiently preserved a Sixth Amendment argument. Fisher responded that objections based on the right of confrontation were made at trial after New York sought to introduce Morris’ plea allocution. Similar arguments were before state courts. Moreover, New York’s motivation for admitting Morris’ allocution was Hemphill’s third-party culpability defense. Since 1899, in Kirby v. United States, a co-defendant’s guilty plea has been deemed inadmissible against the defendant.