Tuesday, March 06, 2007

Confrontation Milestone?

I'm still working on my posting on Whorton v. Bockting. But meanwhile, Roger Kirst of the University of Nebraska College of Law, who follows confrontation developments very closely, has sent this message, under the title Confrontation Milestone?, to the evidence professors' e-mail list, and has given me permission to post it here.

For those who follow the details of confrontation doctrine in the Supreme Court there was an interesting denial of certiorari yesterday.

The high-water mark for the Supreme Court's reliability test as a substitute for actual confrontation was New Mexico v. Earnest, 477 U.S. 648 (1986). That was a GVR in which then-Justice Rehnquist added a concurring opinion joined by three others that asserted that Lee v. Illinois had adopted the reliability theory. This was also the last confrontation case the Court decided before Justice Scalia joined the Court. On remand the New Mexico Supreme Court retreated from its earlier conclusion that it was a violation of the right of confrontation to convict on the basis of the confession of an alleged accomplice the defendant could not cross-examine; they declared the confession "reliable" and affirmed the conviction.

After an unsuccessful further petition for certiorari and an unsuccessful postconviction challenge in federal court, Earnest did nothing until Crawford was decided. At that point Earnest filed a postconviction challenge in state court (represented by Tom Sullivan, now at Arkansas-Little Rock). Eventually the state trial court ordered a new trial and the New Mexico Supreme Court affirmed in an opinion that said basically "we were right the first time and Crawford now shows the Supreme Court was in error from 1986-2004 with its reliability test." [119 P. 3d 144 (N.M. 2005)] This time the State filed the petition for certiorari, arguing that Crawford was not retroactive. [New Mexico v. Forbes, No. 05-644]

The Supreme Court was holding No. 05-644 while it heard Whorton v. Bockting. During the wait the State tried to get an untainted conviction, but the alleged accomplice would not testify.

The Court's holding last week that Crawford is not retroactive might seem to suggest at least a GVR in No. 05-644, but that did not happen. Nothing more than a denial of certiorari, meaning the case is now over.

The reliability test was only part of Roberts, so we do not need to revive the debate about when Roberts died, but the decision yesterday is a reminder of how much confrontation doctrine keeps changing.

And Phil Pucillo, of Ave Maria School of Law, now but regrettably not for long of Ann Arbor, had this to say in response (and has also given me permission to post it here):

I just glanced at the New Mexico Supreme Court's opinion. What's fascinating is that the court did not claim to be applying Crawford retroactively. Instead, it emphasized that Crawford did not even announce a new rule, a proposition that the U.S. Supreme Court squarely rejected in Bockting.

It's almost as if the U.S. Supreme Court let this one go because explaining to Mr. Earnest why he won't get a new trial after all would be too embarrassing: "Well, sir, what happened was that the New Mexico Supreme Court was absolutely correct back in 1985 when it reversed your conviction and ordered a new trial for you. But you never got that new trial because, at that time, we thought that the New Mexico Supreme Court was wrong. Well, it turns out that we were wrong, but it took us another 20 years or so to figure it out. But see, the problem now is that you can't receive the benefit of our recent change of heart, because your direct appeal concluded a long time ago. So even though the New Mexico Supreme Court's 1985 decision to grant you a new trial was right on, you're pretty much stuck with our incorrect decision saying that you can't have a new trial. Sorry aboutthat!"


Anonymous said...

(from Andrew Fine)

The state court's view of Crawford not creating a new rule is obviously insupportable as a matter of logic and now, after Bockting, as a matter of law. However, the problem regarding the state's cert petition is that a very strong, and, in my view, persuasive argument can be made that the retroactivity of Supreme Court constitutional precedents to state-court criminal cases is a matter of state law rather than federal law. See Smart v. State, 146 P.3d 15, 17-27 (Alaska App. 2006, fully analyzing issue and collecting cases). Teague v. Lane and its progeny are based in large part on considerations of comity and deference to state courts that simply don't apply to a state-court proceeding.

The issue of whether retroactivity under these circumstances is a state-law question or a federal question has divided state courts and hence might well itself be certworthy. But I doubt that the state framed its pitch that way.

Andrew Fine

Anonymous said...

The Supreme Court denied the last of the Crawford-retroactivity cert petitions today: Drach v. Bruce (Kan.), 06-789.

Anonymous said...

pa superior court finds statement to mom is not testimonial.

I think it is a wrong reading of the crawford decision and later SCOTUS cases. Statement to interviewer for police is testimonial.

Anonymous said...

sorry cite is


Marissa Boyers Bluestine said...

The Pennsylvania case was mine; the court decided, conistent with virtually every other court, that a statement of a non-testifying child to a "forensic interviewer" is testimonial. They found that statements of the child to her mother were non-testimonial. We are filing allocatur on the second part of the decision, since the statement to mother is now the only evidence that client did anything and, a fortiori, must be considered testimonial. The court got the decision absolutely right on the first question, and we will see about the second.