Comments on: Argument Wed., 11/1/06: Major test on Crawford, habeas http://www.scotusblog.com/wp/argument-wed-11106-major-test-on-crawford-habeas/ The Supreme Court of the United States blog Thu, 26 Jun 2008 21:56:34 -0700 http://wordpress.org/?v=2.8.5 hourly 1 By: Kent Scheidegger http://www.scotusblog.com/wp/argument-wed-11106-major-test-on-crawford-habeas/comment-page-1/#comment-10563 Kent Scheidegger Tue, 31 Oct 2006 21:44:44 +0000 http://www.scotusblog.com/wp/uncategorized/argument-wed-11106-major-test-on-crawford-habeas/#comment-10563 The way the Court has defined the second exception by reference to <i>Gideon</i> is certainly a valid ground for criticism, but the choice is not arbitrary. Justice Harlan proposed the rule now known as <i>Griffith</i>/<i>Teague</i> in 1969, only six years after <i>Gideon</i>. There were still pre-<i>Gideon</i> cases in need of habeas relief, and he needed to explain why he would continue to concur in granting relief in those cases, in light of its seismic change in the legal landscape and powerful connection with the reliability of the guilt verdict. The way the Court has defined the second exception by reference to Gideon is certainly a valid ground for criticism, but the choice is not arbitrary. Justice Harlan proposed the rule now known as Griffith/Teague in 1969, only six years after Gideon. There were still pre-Gideon cases in need of habeas relief, and he needed to explain why he would continue to concur in granting relief in those cases, in light of its seismic change in the legal landscape and powerful connection with the reliability of the guilt verdict.

]]> By: Marc Shepherd http://www.scotusblog.com/wp/argument-wed-11106-major-test-on-crawford-habeas/comment-page-1/#comment-10562 Marc Shepherd Tue, 31 Oct 2006 20:49:52 +0000 http://www.scotusblog.com/wp/uncategorized/argument-wed-11106-major-test-on-crawford-habeas/#comment-10562 I think Kent is right that we're not likely to see any new rules qualifying under the second Teague exception. Of course, there's something bizarre about choosing an arbitrary case from the past (Gideon), and declaring that no further cases of its kind are likely to exist. That little flaw is the central weakness of Teague. But Teague is what it is, and while defense counsel will continue hammering at it, I don't expect much progress. I think Kent is right that we’re not likely to see any new rules qualifying under the second Teague exception.

Of course, there’s something bizarre about choosing an arbitrary case from the past (Gideon), and declaring that no further cases of its kind are likely to exist. That little flaw is the central weakness of Teague.

But Teague is what it is, and while defense counsel will continue hammering at it, I don’t expect much progress.

]]> By: Jonathan Soglin http://www.scotusblog.com/wp/argument-wed-11106-major-test-on-crawford-habeas/comment-page-1/#comment-10561 Jonathan Soglin Tue, 31 Oct 2006 19:54:22 +0000 http://www.scotusblog.com/wp/uncategorized/argument-wed-11106-major-test-on-crawford-habeas/#comment-10561 I'm far from convinced that "Making Crawford retroactive could have a huge impact on criminal cases, opening multitudes of final convictions to new challenges because statements in violation of the Crawford rule had been used at trial." First, Crawford will only be of issue in cases that went to trial - a very small percentage of criminal cases. Second, Crawford only applies in those trials where hearsay was admitted and the declarant was unavailable at trial, the statements were "testimonial," and there was no prior opportunity for cross-examination by the defendant, i.e. an even smaller sub-set of criminal cases. Third, there remain countless other procedural hurdles which will keep inmates from raising retroactive Crawford claims. For instance, and perhaps primarily, the one-year federal habeas limitations period for Crawford claims began running when the Court decided Crawford in March of 2004, i.e. any inmate seeking retroactive application of Crawford would have to have filed his or federal petitions (or a properly filed state habeas petition tolling the federal limitations period) more than a year and a half ago. See Dodd v. US, no. 04-5286 (decided June 20, 2005). I’m far from convinced that “Making Crawford retroactive could have a huge impact on criminal cases, opening multitudes of final convictions to new challenges because statements in violation of the Crawford rule had been used at trial.” First, Crawford will only be of issue in cases that went to trial – a very small percentage of criminal cases. Second, Crawford only applies in those trials where hearsay was admitted and the declarant was unavailable at trial, the statements were “testimonial,” and there was no prior opportunity for cross-examination by the defendant, i.e. an even smaller sub-set of criminal cases. Third, there remain countless other procedural hurdles which will keep inmates from raising retroactive Crawford claims. For instance, and perhaps primarily, the one-year federal habeas limitations period for Crawford claims began running when the Court decided Crawford in March of 2004, i.e. any inmate seeking retroactive application of Crawford would have to have filed his or federal petitions (or a properly filed state habeas petition tolling the federal limitations period) more than a year and a half ago. See Dodd v. US, no. 04-5286 (decided June 20, 2005).

]]> By: Kent Scheidegger http://www.scotusblog.com/wp/argument-wed-11106-major-test-on-crawford-habeas/comment-page-1/#comment-10560 Kent Scheidegger Tue, 31 Oct 2006 17:50:53 +0000 http://www.scotusblog.com/wp/uncategorized/argument-wed-11106-major-test-on-crawford-habeas/#comment-10560 The Court has said multiple times that a new procedural rule must have the "primacy and centrality" of <i>Gideon</i> v. <i>Wainwright</i> to qualify for the "second <i>Teague</i> exception," and it has twice indicated there are probably no rules of <i>Gideon</i> magnitude remaining to be made. It is high time to recognize the obvious, place that exception on the museum shelf, and stop squandering resources looking for an exception that must be sought every time but has never been genuinely found. The Court has said multiple times that a new procedural rule must have the “primacy and centrality” of Gideon v. Wainwright to qualify for the “second Teague exception,” and it has twice indicated there are probably no rules of Gideon magnitude remaining to be made. It is high time to recognize the obvious, place that exception on the museum shelf, and stop squandering resources looking for an exception that must be sought every time but has never been genuinely found.

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