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Supreme Court Decision Update - Whorton v. Bockting

lanaTurner-witness.jpgToday’s only Supreme decision, Whorton v. Bockting (PDF of the opinion) is a narrow case which clarifies whether an earlier Supreme decision about the Confrontation Clause, which in turn overturned an older Supreme case, applies retroactively. And since the Ninth Circuit said it does, it should come as no surprise that the Supremes said, “nuh-uh” (and since all of the Supremes love a good Ninth Circuit reversal, it should also come as no surprise that this decision was unanimous).

QuizLaw Analysis: The Supremes take another opportunity to bitch slap the Ninth Circuit with yet another reversal. This time, the Supremes say that the Crawford ruling does not apply retroactively. In Crawford, the Court held that the Confrontation Clause only allows the use of hearsay testimony when the speaker is both unavailable to appear at trial and where the criminal defendant had some opportunity to cross-examine the speaker. But that ruling can’t help the criminal defendant in this case, because his trial and direct appeal happened before this rule. And nobody’s crying about it, really, since the scumbum was convicted of sexually assaulting his 6-year-old stepdaughter.

Ok, so what’s all this Crawford and Roberts business? Well that’s a good place to start. In 1980, the Supremes decided Ohio v. Roberts. In that case, they were looking at when you can introduce hearsay testimony (testimonial statements made by a witness outside of the courtroom). The Supremes essentially said that such out-of-court testimony was permissible as long as the person was unavailable and there was some “indicia of reliability” - that is, some indication or basis of inferring that the statement was reliable.

Then in 2004, the Supremes overturned the Roberts decision in Crawford v. Washington. There, they looked at the Constitution’s Confrontation Clause, which comes from the Sixth Amendment and says:

In all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him.

The Crawford Court said that the Roberts Court got it wrong, and that the requirements of the Confrontation Clause are not met simply if the witness is unavailable and there’s an “indicia of reliability.” Since the Confrontation Clause specifically says the accused has a right to confront the witness, reliability of a statement can only be assessed when there is some opportunity for cross-examination. Thus, there are two requirements to allow such out-of-court testimonial statements: (i) as the Roberts Court also held, the witness must be unavailable to testify at trial; and (ii) in contradiction of the Roberts holding, the criminal defendant must have had some opportunity to cross-examine the witness. Only where these two conditions are met can the testimony be used in a criminal proceeding.

So what happened in this case? Well Marvin Bockting was a peach of a guy, on trial for the sexual assault of his six-year-old stepdaughter. During the trial, the trial court held a separate hearing and decided that the girl did not need to testify because she was so distressed already, and instead allowed Bockting’s wife and a detective to provide testimony about what the girl had said about the sexual assault (this is admissible hearsay under Nevada law). Bockting was convicted and appealed. His direct appeal went up to the Nevada Supreme Court and, as this was before 2004, the Nevada Supremes relied on the Roberts rule in allowing the testimony because the girl was unavailable, as declared by the trial court, and because there was an “indicia of reliability:” (i) because of the girl’s “natural spontaneity” in confessing Bockting’s acts to her mother; (ii) because she gave the same story to the detective a few days later; (iii) because she used anatomically correct dolls to show what had happened; and (iv) because she was talking about sexual things which a normal 6-year-old girl probably doesn’t know about.

So Bockting then filed a federal habeas petition, which was denied by the District Court. He appealed to the Ninth Circuit, and before the Ninth gave a ruling, the Crawford decision came down. Bockting then argued that under the Crawford rule, the girl’s statements should have been inadmissible. Bockting made two arguments. First, he argued that the Crawford rule is actually an “old rule” which was in existence at the time of his conviction. Second, he argued that even if it was a new rule, it was a “watershed rule” which should be applied retroactively to cases on collateral review. The Ninth Circuit said it was a new rule, not an old rule, but agreed that it was a “watershed rule,” and it therefore overturned the District Court’s denial of the habeas petition.

Old rule, new rule, watershed ruling and collateral what-now? In 1989, the Supremes had a plurality decision in Teague v. Lane. In that case and its progeny, the Court has explained when a Supreme decision get to apply retroactively to criminal cases which have finished their direct review and are on collateral review (e.g., here, Bockting’s direct review became final when the Nevada Supreme Court bounced him, and his federal habeas petition was a collateral review, related to, but separate from the direct line of his criminal case).

Under the Teague framework, an old rule applies both on direct and collateral review, but a new rule is generally applicable only to cases that are still on direct review. [citation] A new rule applies retroactively in a collateral proceeding only if (1) the rule is substantive or (2) the rule is a “‘watershed rul[e] of criminal procedure’ implicating the fundamental fairness and accuracy of the criminal proceeding.”

So the question here is two-fold. First, is the Crawford rule a new rule? And if not, does it meet one of the two requirements which allow an old rule to apply retroactively to collateral appeals?

And is Crawford an old rule? In a unanimous opinion penned by Justice Alito, the Supremes say no. Alito explains that:

A new rule is defined as “a rule that…was not ‘dictated by precedent existing at the time the defendant’s conviction became final” (emphasis is from the original quote, not from me or Alito).

Under this definition, Alito says it’s obvious that the Crawford rule is a new one, because it wasn’t dictated by any prior precedent. After all, it actually overturned prior precedent by overruling Roberts.

So does the Crawford rule meet those other requirements to apply retroactively anyway? No sir, it does not. First, Alito says it’s obvious that the rule is procedural rather than substantive, because it’s specifically about the procedural matter of hearsay admissibility. Thus, Bockting’s only saving grace is if the rule is a “watershed” rule. Alito notes that it’s very rare to find a watershed rule, particularly since, “in the years since Teague, we have rejected every claim that a new rule satisfied the requirements for watershed status.”

And what are the requirements for watershed status? Well, there are two:

First, the rule must be necessary to prevent “an ’ “impermissibly large risk” ’ ” of an inaccurate conviction. [citation] Second, the rule must “alter our understanding of the bedrock procedural elements essential to the fairness of a proceeding.”

So why isn’t the Crawford rule necessary to prevent an impermissible large risk of an inaccurate conviction? Alito says that the rule is certainly intended to help ensure that a trial is accurate, by trying to keep inaccurate out-of-court statements out of the trial. The Court then turns to the helpful 1963 case of Gideon v. Wainwright. In Gideon, the Supremes ruled that all indigent defendants charged with a felony are entitled to appointed counsel, and that denying such a defendant legal counsel would created an “intolerably high” risk of an unreliable conviction. This is the only rule which the Supremes have ever said meets this “impermissible risk” requirement, and Alito says:

The Crawford rule is in no way comparable to the Gideon rule. The Crawford rule is much more limited in scope, and the relationship of that rule to the accuracy of the factfinding process is far less direct and profound.

Well then it doesn’t even matter of the Crawford rule altered our understanding of the bedrock procedural elements essential to the fairness of a proceeding, does it? No, but Alito tells us that it fails to meet this factor as well. A new rule meets this requirement if the rule “itself constitute[s] a previously unrecognized bedrock procedural element that is essential to the fairness of a proceeding.” Such a rule is exemplified, once again, by Gideon. But the Crawford rule, while important, just isn’t the same - it didn’t alter our understanding of any bedrock procedural element, and so it just doesn’t qualify as a watershed rule. End of story.