Sunday, February 27, 2005

Case o' The Week: Bockting, Crawford Retroactive for Habeas

Nevada Federal Defender Franny Forsman garners a great defense win in Bockting v. Bayer, __ F.3d __, 2005 WL 406284 (9th Cir. Feb. 22, 2005), available here. In Bockting, the Ninth Circuit holds that Crawford is retroactive for federal habeas petitions.

Players: A tremendous victory by Nevada Federal Defender Franny Forsman.

Facts: Petitioner Bockting was convicted in Nevada state court for sexual abuse of his six-year old stepdaughter, and received life in prison. 2005 WL 406284, * 1-*2. The girl was declared an unavailable witness at trial, and her hearsay statements were admitted against the defendant. Id. at *2. Bockting went through a long appellate road, with appeals to the Nevada State Supreme Court, with the U.S. Supreme Court vacating and remanding the decision, reaffirmance in the state courts, appeals, and a second petition for habeas relief which ultimately ended up in the Ninth. Id.

Issue: "The question before us is whether the Confrontation Clause principles stated in Crawford amount to a new rule [in the context of habeas review]." Id. at *3.

Held: "[A]pplication of the Supreme Court’s guidance in Teague leads to the conclusion that Crawford announces a ‘new rule.’ Because the Crawford rule is both a ‘watershed rule’ and one ‘without which the likelihood of an accurate conviction is seriously diminished" . . . the rule is retroactive." Id. at *2 (citations omitted) (emphasis in original).

Of Note: The Court first concludes that "an analysis of the historical application of the Confrontation Clause cases leads to the conclusion that Crawford announces a new rule that must be put through the Summerlin strainer." Id. at *5. After sifting through this strainer, the Court concludes, "Viewing Crawford in light of Summerlin leads to the conclusion that the Crawford cross-examination requirement merits retroactive application." Id. at *5. The decision is a product of a concurrence, with Judge Noonan articulating an alternative rationale and concurring in the majority reasoning as well. Id. at *11. Judge Wallace concurs and dissents. Id. at *12.

How to Use: This brief memo is not the place for an in-depth habeas discussion. Nonetheless, practitioners should look back over prior convictions after trials, and focus whether hearsay evidence of any type was admitted – if those cases meet the myriad AEDPA hurdles discussed in depth in Bockting, a habeas petition may be in order. Particularly strong candidates for a Bockting petition are sex abuse cases, where hearsay child witness statements were admitted. Those statements don’t fall within an arguably non-testimonial hearsay category, and are almost always central to the conviction.

For Further Reading: As the Court itself notes, Bockting furthers a circuit split on the retroactivity of Crawford. Id. at *8. Nevada state prosecutors are planning further (unspecified) appellate action. See article here. Supreme Court action seems likely – if not on Bockting, then to resolve the issue using another case within the next term or two.

Steven Kalar, Senior Litigator N.D. Cal. FPD.


Anonymous Anonymous said...

Were you convicted of crime because of hearsay? Crawford and retroactivity. . .
In March 2005, the Ninth Circuit held that the Crawford rule (which redefines hearsay rules in all courts nationwide) is retroactive to cases not still pending on direct appeal. In the Bockting case the Court held that the defendant (a convicted child molester), was entitled to retroactive relief on a 2254.

See full case:$file/0215866.pdf?openelement

The Court reasoned that it did not matter whether Crawford announced a new rule within the meaning of Teague because Bockting was entitled to relief either way. The court reasoned that Crawford announced a new PROCEDURAL rule, and therefore "Crawford merits retroactive application only if it implicates the fundamental fairness of the accuracy of the proceeding' [citations] and reworks our understanding of bedrock criminal procedure."

The Ninth Circuit then goes through a very eloquent discussion of both of these elements and finds that Crawford meets them both. Quoting from Scalia in Crawford, the Ninth Circuit notes that Crawford specifically dissaproves of the old Ohio v. Roberts 'trustworthiness' regime for hearsay rule exceptions. The Ninth also reasons that the because cross examination is a engine designed for improving accuracy of factfinding, and because Crawford re-works the rules of cross-examination, then the first part of the Teague test with respect to new procedural rules is met.

Moving on, the Ninth then distinguishes its rule of retroactivity from that announced by the Tenth Circuit.

Chip Venie, Esq. (619) 235 8300

Sunday, April 03, 2005 8:58:00 PM  

Post a Comment

<< Home