Friday, August 19, 2005

NACDL-PDSDC Amicus in Davis

Here is a link to the amicus brief of the National Association of Criminal Defense Lawyers and the Public Defender Service for the District of Columbia in support of the petition for certiorari in Davis v. Washington. The brief also urges the Court to grant the petition in Hammon v. Indiana, but I expect these organizations will file a separate brief in that case.

A Useful Case on Forfeiture -- and Some Procedural Thoughts

While sitting with the Sixth Circuit, Judge Algenon Marbley wrote the very useful opinion in People v. Cromer, 389 F.3d 662 (6th Cir.2004). It was Cromer that prompted me to begin this blog; see my posting, United States v. Cromer – an important case from the 6th Circuit. Judge Marbley has now written a very useful opinion on forfeiture, United States v. Mayhew, 2005 WL 1847239 (S.D. Ohio Aug. 5, 2005). The facts of Mayhew are quite gruesome. Mayhew was accused of murdering his ex-girlfriend and her fiancĂ©, and then kidnapping and killing his daughter. Before she died, the daughter gave a full rendition of the events to police. It was not disputed that this statement was testimonial. The court properly ruled that the statement could not escape the Confrontation Clause by being characterized as an excited utterance or dying declaration. (Unless I missed something, the court slipped by the question of how the statement would avoid the rule against hearsay, but presumably either of these exceptions would have sufficed.) But forfeiture doctrine did apply. The court here was following the decision in United States v. Garcia-Meza, 403 F.3d 364 (6th Cir. 2005), which had held that the confrontation right can be forfeited even though the wrongful conduct on which forfeiture is based was not taken with the specific intent to render the witness unavailable. But Mayhew added a good deal of elaboration – including a straightforward discussion (with generous citations to my work) of why forfeiture can apply even though the forfeiting act is also the act on the basis of which the crime is charged. Two quibbles: First, I don’t think the operative principle is that the accused should not benefit from his wrongdoing; rather, I believe it is that the accused cannot complain about a situation that he has created by his own wrongdoing. Second, I wish the courts would apply a more stringent standard than preponderance to the forfeiture determination – but for now that is where we are.

Mayhew is also useful more generally in demonstrating that Cromer is not the product of some crazed let-‘em-loose mentality. Cromer and succeeding cases in the Sixth Circuit have taken a broad view of what is testimonial under Crawford – and this is perfectly consistent with a broad view of when an accused should be considered to have forfeited the confrontation right.

Indeed, I believe that many of the cases in which courts have an impulse to let in a statement that really ought to be considered testimonial can best be dealt with by invoking forfeiture doctrine – so long as this is done by proper standards and procedures. Consider in this light State v. Wright, 2005 WL 1903860 (Minn. 2005). In a post of yesterday I have commented critically on Wright's refusal to treat as testimonial key statements made by the accused's girlfriend, referred to as R.R., and her sister. Given that holding, the Minnesota Supreme Court acted properly in declining to consider whether Wright had forfeited his confrontation right. But if the court had held, as it should have, that the statements were testimonial, then the forfeiture issue would have been critical. Here are important facts on that issue as stated by the Minnesota court:
While preparing the case against Wright, the Hennepin County Attorney’s office repeatedly telephoned R.R.’s sister, but was unable to reach her. A police investigator attempted several times to reach R.R., and when R.R. finally answered a telephone call, she told the investigator that she did not want to participate in the case. The investigator went to R.R.’s residence to deliver a subpoena, and when no one answered, he slid the subpoena under the apartment door. A domestic violence victims’ advocate told the court that she had spoken with R.R., who said that she was concerned for her safety and her sister’s safety if they were to testify. R.R. also was concerned that Wright still might have keys to her apartment, and told the victims’ advocate that Wright had been telephoning her from jail. According to the advocate, Wright told R.R. that “if she doesn’t do what he wants someone will come over to her house and do something to her.”
Given these facts, should Wright be held to have forfeited the confrontation right? I believe the answer is no. That is not because the contention of forfeiture is based on intimidation rather than, say, kidnaping or murder, or because the intimidation allegedly arose, at least in part, from the same conduct that formed the basis of the criminal charge against Wright. It is perfectly appropriate to apply forfeiture doctrine in such circumstances; see my long prior post on the subject. But a doctrine with such an extensive reach must not be applied in such a way that any complaining witness can avoid confronting the accused simply by having a government official contend that she was intimidated.

To support a determination of forfeiture, the state bears the burden of showing that the witness is genuinely unavailable, that this unavailability is attributable to the wrongdoing of the accused, and that the state has done what it could to obviate the problem. In referring to the state, I am eliding for now the question of what responsibilities belong to the prosecution and what belong to the court.

In some cases, the state must show that it has done what it could to identify and locate the declarant. In Wright, that was not a problem with respect to R.R., but the efforts of the state to locate the sister appear to have been desultory at best. Beyond that, the state must compel the attendance of the witness at trial or at some other testimonial proceeding where she may confront the accused – genuinely compel her attendance, not merely shove a subpoena under her door. If the state has reason to believe that the witness may be willing to testify in the near future but not in the more distant future, then it should arrange for the proceeding to be held as soon as practical. At the proceeding, the state should attempt to administer the oath, to examine the witness, and to allow for cross-examination. To the extent the witness is recalcitrant, the state should attempt to examine her as to why she is. At least arguably, she ought to be subjected to sanctions for contempt if she improperly refuses to testify, and afforded some form of protection if there is reason to believe that she is in genuine danger for testifying.

This is an immensely complex matter to work out, and it is sure to be highly controversial. But it is also very important. If the question of what is testimonial is resolved as it should be, then my guess is that a great deal of the action in the area of confrontation over the next decade or so will concern this question of what process is necessary before an accused may be deemed to have forfeited the confrontation right. In my view, a robust doctrine of forfeiture is essential to developing a satisfactory law of confrontation; otherwise, the courts will find themselves irresistibly tempted to put beyond the scope of the Confrontation Clause statements that clearly should be characterized as testimonial. But we must avoid creating a doctrine under which a crucial prosecution witness may avoid confronting the accused by the mere expedient of having a government official testify, “She was too scared to come to court.”

Thursday, August 18, 2005

Retroactivity: Split Confirmed

The Ninth Circuit has denied rehearing en banc, 2005 WL 1906932 (Aug. 11, 2005), of the 2-1 panel holding in Bockting v. Bayer, 399 F.3d 1010 (9th Cir. 2005), that Crawford applies retroactively in a habeas case; see my prior post, Retroactivity:Issue Joined? There were nine dissenters to the denial of rehearing. This does not count Senior Judge Wallace, the panel dissenter, who recommended granting the rehearing but was not eligible to vote in the full court. There seems little doubt now that the Supreme Court will resolve the issue, because the Ninth Circuit stands in conflict with four others.

Towards a Resolution on Fresh Accusations?

We may be moving towards a Supreme Court resolution of the question of how the Confrontation Clause applies to fresh accusations – that is, to accusatory statements made shortly after an incident, typically either in a 911 call or to a responding police officer. Jeff Fisher has submitted a petition for certiorari, which you can see by clicking here, in State v. Davis, 154 Wash.2d 291, 111 P.3d 844 (Wash. 2005). And I have filed a petition, which you can see by clicking here, in State v. Hammon, 829 N.E.2d 444 (Ind. 2005). The National Association of Criminal Defense Lawyers has filed an amicus brief in Davis suggesting that the Court grant cert in both cases; I anticipate the NACDL will follow up with a brief in Hammon as well. With these petitions pending, I won’t comment further on these cases here. But I will take note of State v. Wright, 2005 WL 1903860 (Minn. 2005), decided since both petitions were filed, in which the Minnesota Supreme Court reviewed the conflict among the lower courts and said:
The Supreme Court stated in Crawford that it would “leave for another day” any effort to put forth a comprehensive definition of testimonial statements. 541 U.S. at 68. We believe that the task of defining the exact parameters of what constitutes testimonial statements for purposes of the Confrontation Clause of the U.S. Constitution is best suited for the Supreme Court.
Wright involves both 911 statements and statements to responding officers, and, like the majority of the cases in this realm, it finds a way to let them all in. Some of the statements were made during an interview at the complainant’s apartment. The court’s opinion includes this remarkable passage:
It is inconsequential that during the interviews the officers took notes that they later used to refresh their memories at trial. We acknowledge that the officers took possession of some evidence at the apartment while interviewing R.R. and her sister, and Wright was in custody at that time. However, we conclude that the officers’ actions represent a response to a call for assistance and preliminary determination of “what happened” and whether there was immediate danger, rather than an effort to gather evidence for a future trial.
The analogy that comes most readily to mind is provided by this memorable passage from Ring Lardner’s The Young Immigrants:
Are you lost daddy I arsked [sic] tenderly.

Shut up he explained.
The Minnesota Supreme Court said:
A consequence of using the Court’s broadest formulation may be the categorization of virtually every out-of-court statement made by a declarant to a police officer as testimonial. But such a consequence would make an analysis of the interrogative qualities of interactions between declarants and the police wholly unnecessary.
Well, yes. I have discussed the question of interrogation at length on this blog, in the posting titled The Interrogation Bugaboo. I believe a statement made to government officials and accusing another person of a crime should be considered testimonial irrespective of whether it was in response to interrogation. In some more doubtful circumstances, the fact that a statement was made in response to interrogation may support the conclusion that the speaker anticipated prosecutorial use of the statement – but when the statement is accusatory and made to police officers, that conclusion is clear even if the statement was made entirely at the initiative of the speaker. The Minnesota court believed that Crawford did not intend such a result. I believe that the Minnesota court is wrong, and that Crawford's references to interrogation were not intended to limit the category of statements deemed to be testimonial. But plainly the matter will not be resolved without intervention by the United States Supreme Court.