White v. Louisiana, No. 18-8862, may provide the Supreme Court with an opportunity to begin clarifying and repairing the doctrine governing prior statements of a witness who takes the stand at trial but who has insufficient memory to allow a genuine opportunity for cross. The docket sheet for the case, including links to case documents, is here.
In White, a murder case, the only evidence implicating White was the (subsequently recanted) videotaped statement of one Coleman, made to police officers. Coleman took the stand at trial, but because of an accident that had occurred since the time he made the statement, he could remember neither the statement nor the underlying events. The trial court nevertheless held that this was sufficient. White was convicted and sentenced to life imprisonment at hard labor, without benefit of parole, probation or suspension of sentence. The Louisiana Court of Appeals affirmed, and the Louisiana Supreme Court declined to take the case.
The cert petition is in form pro se, but my understanding is that it was written by a fellow prisoner who is an extremely capable lawyer; it is very effective. The State waived the right to respond to the petition, but the Court has asked for a response, and it is due on August 13. Meanwhile, the National Association of Criminal Defense Lawyers and I have each submitted amicus briefs in support of the petition, and Jeff Fisher has appeared for White as counsel of record.
My own feeling is that it cannot be the law that if a shell of a person is able to take the witness stand and take the oath, that constitutes an adequate opportunity for cross-examination, even if the witness has essentially no memory of the event or even of the statement. This should have been an easy case, because Coleman suffered a catastrophic memory loss after the statement and before trial, and the fact that the Louisiana courts thought there was nevertheless no constitutional violation shows the need for Supreme Court intervention. Ultimately, I hope the Court recognizes that prior statements of a witness pose a problem if the witness has suffered such a memory loss since the time of the statement as to impair cross-examination significantly. But the extreme nature of the facts in this case means that the Court need not make any grand pronouncements; it can take a small step in this case to begin to develop the law in this area along satisfactory lines.
