Wednesday, March 02, 2005

Retroactivity: Issue Joined?

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.

5 comments:

Franny Forsman said...

I represent Mr. Bockting. I am currently writing the opposition to the petition for rehearing en banc. Just found this site. We are pulling studies and other research on cross-examination (its essential nature for accuracy) to deal with Schriro. If you have any references we can use, please let me know.

Anonymous said...

Do other nations guarantee a right to cross-examination? If so, that would very much substantiate an argument that the right to cross-examination satisfies the second prong of the second Teague exception.

Richard D. Friedman said...

Other common-law nations guarantee a right to cross-examine in the sense that they continue to maintain the rule against hearsay in criminal cases, and to a considerable (but far from perfect) extent the rule confroms to the principle that prior testimonial statements should not be admitted against an accused unless the accused had an opportunity for cross-examination and the declarant is unavailable. Under Art. 6 of the European Convention of Human Rights, the European Court on Human Rights has developed a line of cases protecting the right to confront witnesses -- the Court even uses the term "confront" -- and this includes the right to pose questions to the witness.

Anonymous said...

Is the same true for civl-law nations? Wouldn't the analysis in Schriro also consider those jurisdictions?

Franny Forsman said...

The original panel in Bockting has denied rehearing (while fixing a problem with the harmless error analysis) and the case is pending a vote by the full Circuit on whether to take the case en banc