Sunday, April 03, 2005

Were you convicted of crime because of hearsay? Crawford and retroactivity. . .

In March 2005, the Ninth Circuit held that the Crawford rule (which redefines hearsay rules in all courts nationwide) is retroactive to cases not still pending on direct appeal. In the Bockting case the Court held that the defendant (a convicted child molester), was entitled to retroactive relief on a 2254.

See full case:$file/0215866.pdf?openelement

The Court reasoned that it did not matter whether Crawford announced a new rule within the meaning of Teague because Bockting was entitled to relief either way. The court reasoned that Crawford announced a new PROCEDURAL rule, and therefore "Crawford merits retroactive application only if it implicates the fundamental fairness of the accuracy of the proceeding' [citations] and reworks our understanding of bedrock criminal procedure."

The Ninth Circuit then goes through a very eloquent discussion of both of these elements and finds that Crawford meets them both. Quoting from Scalia in Crawford, the Ninth Circuit notes that Crawford specifically dissaproves of the old Ohio v. Roberts 'trustworthiness' regime for hearsay rule exceptions. The Ninth also reasons that the because cross examination is a engine designed for improving accuracy of factfinding, and because Crawford re-works the rules of cross-examination, then the first part of the Teague test with respect to new procedural rules is met.

Moving on, the Ninth then distinguishes its rule of retroactivity from that announced by the Tenth Circuit.

How about Mr. Crawford? What happened to him?

Crawford ended up shaving four years off his sentence by pleading guilty and stipulating to a ten year sentence:

Ever wonder what happened to Mr. Blakely?

They certainly taught Mr. Blakely a lesson for daring to appeal his sentence:

Once Blakely won in the USSC, the same DA came up with a snitch and instead of releasing him put him on trial for solicitiation to murder his wife.

Crawford Retroactivity summary:

This is a great summary of retroactivity of Crawford from Professor Friedman's Confrontation Blog. In all the buzz about Booker we may have forgotten about this very important one year old rule changing the very nature of hearsay analysis.

Retroactivity of Crawford:

I don't know much about retroactivity but at least for now there seems to be a split in the federal circuits as to whether Crawford is retroactive for purposes of collateral review. Last week, the Ninth Circuit decided Bockting v. Bayer, 2005 WL 406284 (9th Cir. Feb. 22, 2005), in which a split panel held in favor of retroactivity. I've been on vacation for most of the time since the decision came down, and have not had a chance to read the decision carefully, much less comment on it -- but Brooks Holland has, and you can read his comments, attached to my posting on the Brooklyn conference, by clicking here. (As Brooks points out, there are other interesting aspects of the Bockting decision, and I hope to comment soon on one of them -- unavailability -- in another post.)The day after Bockting was issued, the Sixth Circuit issued Dorchy v. Jones, 2005 WL 415147 (6th Cir. Feb. 23, 2005), which held rather conclusorily that Crawford does not paply retroactively. This is the position that the Second and Tenth Circuits have already taken. Mungo v. Duncan, 393 F.3d 327, 336 (2d Cir.2004); Brown v. Uphoff, 381 F.3d 1219 (10th Cir.2004).Assuming the Ninth Circuit panel is not reversed en banc, therefore, it appears there is a conflict among the circuits, which presumably the Supreme Court will soon feel it necessary to resolve.