Thursday, December 09, 2004

Another bad decision from Michigan

A really terrible opinion from my home state of Michigan (not the first in this area) is People v. Bechtol, 2004 WL 2726076 (Mich.App. Nov. 30, 2004), mercifully unpublished.

The case involved home invasion, kidnapping, and murder charges. The prosecution theory apparently was that Bechtol and another had invaded the victim’s home once in an attempt to kidnap her and then two days later came back, kidnapped her, and murdered her. The prosecution introduced evidence of a statement made by the victim, between the two incidents, to police investigating the initial home invasion. The appellate court rejected the confrontaiton argument quite summarily:

[Beginning of quotation]
Crawford held that for testimonial evidence to be admissible at trial, the Sixth Amendment demands that the declarant be unavailable and that the defendant have had "a prior opportunity for cross-examination" of the declarant. Id. at 1374. While the Court decided to "leave for another day any effort to spell out a comprehensive definition of 'testimonial[,]" ' the Court did indicate that "it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations." Id.
The only exemplar on this list that arguably applies is the last--police interrogations. Clearly, the victim is unavailable. We conclude, however, that the victim's statement to the police officer was not the product of a structured police interrogation. Thus, the rule of Crawford does not apply.
[End of quotation]

The "logic" appears to be:

1. “Testimonial” under Crawford includes at a minimum interrogation and other entries on a given list.

2. Interrogation includes at a minimum structured questioning. [Crawford certainly doesn’t imply that structured questioning is a prerequisite for an exchange to be deemed interrogation (assuming that has any significance); it says that the statement in the case itself, in response to structured questioning, qualifies “under any conceivable definition.”]

3. This wasn't in response to structured questioning.

4. "Thus," the statement isn’t testimonial under Crawford.

The decision stands in stark contrast to the decision of the Sixth Circuit -- the circuit governing Michigan -- in Cromer, on which I've sent a post earlier and which takes the (correct, in my view) position that a statement can be testimonial even if it was not made in response to governmental interrogation and even if it was not made to government officials at all. Indeed, the contrast is sufficiently stark that one might suppose the Bechtol decision will be nullified on habeas, if not on direct appeal -- except that the Bechtol court says that if admission of the statement was a violation of the confrontation right the error was harmless. The harmless-error issue may prevent another court from getting to the merits of this very bad and illogical ruling.


spade said...

Great topic for a site. Do you think Crawford will be the first case the Supreme Court applies retroactively under the "watershed rule of criminal procedure" since its decision in Teague.

Richard D. Friedman said...
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Richard D. Friedman said...

I don't know much about retroactivity, but I've just noticed that in People v. Aubrey, 2004 WL 2378400 (Cal.App. 4 Dist. Oct. 25, 2004; not officially published and unciteable) the court says that "Crawford indubitably applies retroactively in this case." There were a couple of good papers on the topic at the session run by the Associaiton of the Bar of the City of New York on September 28. You may be able to get these from Brooks Holland,

Brooks said...

A New York trial judge recently has held that Crawford applies retroactively, in People v. Watson, 2004 WL 2567124 (Sup. Ct. N.Y. Co., Nov. 8, 2004) (M. Kahn, J.). Although Judge Kahn examined Crawford's retroactivity in part under New York's existing case law regarding confrontation and retroactivity, she expressly found Crawford retroactive under Teague, and held: "This court is ... not bound by, and for the reasons previously discussed, declines to follow, the decisions of the lower federal courts which have rejected Crawford's retroactivity on collateral review." Judge Kahn also engaged in a pretty interesting analysis of the substantive Crawford issues, using sort of a blended objective-subjective test to determine which of the subject hearsay statements was testimonial. Worth a read.

Great site, Rich!

Richard D. Friedman said...

I've just noticed that the conclusion in Aubrey that Crawford is "indubitably" retroactive actually has its source in a published opinion, People v. Cage, 120 Cal.App.4th 770 [15 Cal.Rptr.3d 846, 853, which is now on review before the California Supreme Court, probably for other reasons (see my post on Excited Utterances). Cage also says that Crawford "probably would not apply retroactively in a habeas corpus proceeding."

Andrew Fine said...

Regarding retroactivity, there is no doubt that Crawford governs cases still pending on direct review, as does every new Supreme Court constitutional decision. Griffith v. Kentucky, 479 US 314 (1987). The battleground is whether it applies to cases where direct review has become final.

Not surprisingly, the federal circuits thus far have been reluctant to apply Crawford in habeas cases under Teague v. Lane. Himacheta v. Attorney General of California, 2004 WL 1801730 (9th Cir., decided 8/12/04; unpublished); see Brown v. Uphoff, 381 F3d 1219, 1224 n. 4 (10th Cir. 2004); see also Evans v. Luebbers, 371 F3d 438, 444 (8th Cir. 2004) (doubting retroactivity). Most circuits, however, have yet to weigh in. Only one district court has held Crawford to be retroactive to final judgments. Richardson v. Newland, 342 F.Supp.2d 900, 922-924 (E.D. Cal. 2004; this decision also collects other Crawford retroactivity cases, which are uniformly negative). Unfortunately, it did so on the ground that Crawford did not state a new rule and hence is exempt from Teague constraints, a position I believe is analytically untenable. Though the judge pointed to the language in Crawford noting that the Court previously had allowed the introduction of testimonial hearsay under the Confrontation Clause only when the declarant had been unavailable and there had been a prior opportunity to cross-examine, 124 S.Ct. at 1369, it cannot be disputed that the Crawford Court adopted a radically different analytical approach to the Clause and overruled most, if not all, of Ohio v. Roberts.

The better argument is that Crawford falls within the second Teague exception to the general rule barring full retroactivity of cases declaring a new rule: a case is retroactive if it articulates a watershed rule of criminal procedure that improves the accuracy of the fact-finding process. This was the basis of the New York trial court's decision in People v. Watson, 2004 WL 2567124 (Sup. Ct., N.Y. Co., decided 11/8/04), referred to in Brooks Holland's post, holding Crawford to be retroactive to final judgments that are collaterally challenged at the state level.

It should be self-evident that Crawford announced a watershed rule of criminal procedure. And it's quite reasonable to argue that it was designed to improve the reliability of the fact-finding process. Indeed, the Crawford Court noted that even though the Confrontation Clause does not "command[] ... that evidence be reliable," its "ultimate goal is to ensure reliability of evidence," and to achieve that objective, it requires "that reliability be assessed in a particular manner: by testing in the crucible of cross-examination." 124 S.Ct. at 1370. Moreover, both the New York State Court of Appeals (People v. Eastman, 85 NY2d 265 (1995) and the Second Circuit (Graham v. Hoke, 946 F.2d 982, 991 (1991) have held that Cruz v. New York, 481 US 186 (1987), is retroactive under the second Teague exception. Cruz is another Confrontation Clause decision (also authored by Scalia) that excludes another category of testimonial hearsay (a codefendant's confession at a joint trial) because of the lack of an opportunity to cross-examine.

State-court defenders should also keep in mind that Teague analysis should not necessarily control the question of whether a Supreme Court decision can be retroactively applied in a collateral state proceeding. Unless the state court has already adopted Teague in such situations (as New York did in Eastman), there is authority for the view that a state court is free to afford greater protection to criminal defendants by adopting broader retroactivity rules. The principle of comity that animates Teague only applies when a state prisoner tries to undo a state conviction in a federal proceeding.