Monday, September 05, 2005

Case o' The Week: Ninth Cries Fowl(er) to Limited Confrontation Clause Rights

Relative Ninth Circuit newcomer Judge Carlos Bea (left) writes a memorable decision on the broad protections of the Confrontation Clause -- and grants a reversal in a difficult AEDPA context. See Fowler v. Sacramento County Sheriff’s Department, __ F.3d __, 2005 WL 2088410 (9th Cir. Aug. 29, 2005), available here. (Retiring) FPD Quin Denvir and AFPD Allison Claire earn the kudos this week for an important addition to the defense arsenal.

Players: Great win by our Eastern District FPD colleagues, Quin Denvir and Allison Claire.

Facts: Jeff Fowler was convicted for “annoying or molesting” the 14-year old daughter of his girlfriend. Id. at *1. At trial Fowler and the girl, Lara, agreed that he had discussed pornographic movies and masturbation, and that he had applied lotion to her arms, legs, shoulders and back. Id. at *1-*2. Lara also accused Fowler, however, of slipping his hand into her underwear and underneath her bra. Id. The State moved to preclude interrogation of Lara regarding two prior allegations of sexual assault against other men. Id. at *2. The trial court prevented the cross; after conviction Fowler ultimately filed a federal habeas petition.

Issue(s): Because this is an AEDPA case, did the State trial court’s limitation of cross involve “an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States?” Id. at *4.

Held: “We conclude that the proffered cross-examination sufficiently bore upon Lara's reliability or credibility such that the jury might reasonably have questioned it and, thus, that the cross-examination implicated Fowler's Sixth Amendment right to confrontation. We further conclude that the trial court's implicit determination--that precluding the proffered cross-examination, rather than limiting it, was not unreasonable, arbitrary or disproportionate given the trial court's concerns about waste of time, confusion of the issues, and prejudice--was itself objectively unreasonable. Finally, because Lara's testimony was crucial to the State's case, which, in any event, was not strong, we conclude that this error had substantial and injurious effect or influence in determining the jury's verdict. We therefore reverse the district court's order denying Fowler's petition for a writ of habeas corpus, and remand for issuance of a conditional writ.” Id. at *1.

Of Note: It bears emphasis that this panel – Tallman, Bybee, and Bea – are not exactly known for their defense sympathies. Nonetheless, Judge Bea’s opinion gives us an excellent resource on importance of cross-examination as part of the Confrontation Clause right. As Bea explains, “cross-examination may implicate the Sixth Amendment without implying conscious or malicious fabrication on the part of the witness so long as it otherwise bears on the witness's reliability or credibility.” Id. at *5. Moreover, “cross-examination may implicate the Sixth Amendment even if it is not certain to affect the jury's assessment of the witness's reliability or credibility.” Id. at *6.

How to Use: Fowler should become one of those handful of cases that the defense routinely cites as authority for its broad right to cross-examine. The opinion methodically considers – and rejects – those familiar hurdles erected by trial courts on defense examination of government witnesses: consumption of time, jury confusion, and prejudice to the witness. Id. at *9-*10.

Check out the “greatest quotes” collection on the Confrontation Clause right at *13 – a wonderful start to a defense brief. Emphasize that in Fowler the Ninth reversed a sex conviction despite the very demanding AEDPA requirements. If error was established in that extraordinarily demanding context, surely it is error to limit your examination in your more-routine trial.

For Further Reading: Judge Bea is a fairly recent Bush appointment. See confirmation hearings here. Born in Spain, Bea emigrated to Cuba in 1939 after the Nazi invasion of Poland. See Ninth Circuit article here. He made his way to California, where he eventually became a San Francisco Superior Court Judge. Id.

Steven Kalar, Senior Litigator N.D. Cal FPD. Website available at


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