Monday, May 15, 2006

Supreme Court to decide retroactivity of Crawford

The Supreme Court granted cert today in Whorton v. Bockting, No. 05-595, thus agreeing to review the decision of the Ninth Circuit that Crawford applies retroactively to habeas cases. In one sense, this is utterly unsurprising, because the conflict between the Ninth Circuit, on the one hand, and other circuits is very clear. But the Court conferred on the case in January, issued no decision, and then held it without another conference until last Thursday. I had thought maybe the Court was holding the case because it thought the decisions in Davis and Hammon might bear on it, but if that were so one would not expect a decision now. So what's up? An explanation, which seems plausible, offered to me by one knowledgeable Corut-watcher is that there were four but not five votes for summary reversal, and the Court was waiting to see whether the new justice would make five. When the answer was no, the Court had to grant cert.

As I understand it, it is possible the Court may decide the case under a threshold issue, not specific to the Confrontation Clause, that AEDPA severely restricts the retroactive application of Supreme Court decisions in habeas cases.

Comments on any aspect of this case?


Joel Flaxman said...

Even though the Court didn't wait for decisions in Davis and Hammon, couldn't granting cert in Bockting mean that those decisions when they are announced won't moot the application of Crawford to Bockting's facts? That is, if there were votes for the states in Hammon and Davis, the Court could have waited for those decisions and then held that even if Crawford applied retroactively it didn't help Bockting. But since there weren't votes for the states, the Court will hear Bockting. (This could be all wrong if my memory of Bockting's facts isn't right.)

Or not, of course. It's worth noting that since Teague no new rule has ever been held to apply retroactively.

Franny Forsman said...

Davis and Hammon really have no effect on Bockting because there is no question that the statements are testimonial (child's statements to a police officer) and retroactivity wasn't at issue in Davis and Hammon. The reason that no new rule has been held to apply retroactively since Teague is because the court has not seen this case. (I am Bockting's lawyer)