Argument Wed., 11/1/06: Major test on Crawford, habeas

By Lyle Denniston
on Oct 31, 2006 at 1:05 pm

The Supreme Court faces a difficult task when it considers whether one of its new decisions on criminal law should apply to cases that arose before such a ruling was handed down – that is, whether to make the decision retroactive. But that task is made doubly difficult in Whorton v. Bockting (05-595), being argued at 11 a.m. on Wednesday, because the Court is also facing the issue of whether Congress has taken away altogether its authority to make that choice – in other words, whether Congress has accomplished another feat of court-stripping, curbing further the federal habeas rights of state prisoners.

The Bockting case, when granted last May 15, looked to be a straightforward test of whether the Court’s March 8, 2004, decision in Crawford v. Washington (02-9410) would be made retroactive to habeas cases pending in the courts on that date – cases in which a criminal conviction had become final but the convicted individual was still in court with a post-finality challenge. Crawford laid down the constitutional rule that, if a witness had given “testimony” in some prior official setting without being cross-examined, but that witness could not be on hand for the trial, the prior statement could not be used at trial without violating the Sixth Amendment’s Confrontation Clause. (The Court seems to be working out, case by case, what it meant by prior “testimony.”)

The case involves the use of a six-year-old Nevada girl’s pre-trial statements about being molested by her father, Marvin Howard Bockting; he was convicted of sexual assault and was given a life prison sentence.

Making Crawford retroactive, state officials claim, 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. This retroactivity issue, on its own, is the one the U.S. Solicitor General chose to address in an amicus brief filed on July 20 – opposing retroactivity.

But the hearing Wednesday will also be watched closely for the Justices’ possible reaction to the question of the Court’s authority to decide the retroactivity issue, now that that question has emerged more prominently.

The case will be argued for Nevada’s prison director Glen Whorton by the state’s attorney general, George J. Chanos. Sharing the state’s time will be Irving L. Gornstein, an assistant to the Solicitor General, speaking for the federal government. Arguing for Nevada inmate Marvin Bockting will be a Las Vegas federal public defender, Frances A. Forsman.

The retroactivity question the Court will be addressing actually involves three specific issues: did Crawford announce a new rule or was it a natural follow-up to earlier decisions on the Confrontation Cluase (that would make it retroactive); if it is a new rule, is it substantive (making it retroactive) or procedural (less likely to be made retroactive), and, if it is a new procedural rule, was it so vital to the fairness of a criminal trial (that is, a “watershed” or “bedrock” rule) that it should be made retroactive. The Ninth Circuit Court in a split decision ruled it was a new procedural rule and that it was of such consequence that it had to be retroactive.

The first two questions presented in Nevada’s appeal go to the retroactivity issue: was the Ninth Circuit wrong in finding retroactivity (in conflict with six other appeals courts and a number of state appeals courts that have ruled on the issue) and did the Ninth Circuit fail to follow the retroactivity formula laid down by the Court in Teague v. Lane in 1989 – a formula that sharply restricts — but does not rule out — retroactivity. (In fact, no procedural rule has been made retroactive since Teague.).

The third question the Court had agreed to hear – though seemingly only a side issue at the outset – involves the potential impact on the case of the 1996 federal law (known as “AEDPA”) that Congress passed to curb the habeas rights of state prisoners by limiting the remedies they could get in federal court. The Ninth Circuit had spent little effort on that question, treating its analysis of AEDPA as only a backup reason for finding retroactivity. (AEDPA is the Antiterrorism and Effective Death Penalty Act.)

With the final merits briefs now in — including an ambitious amicus brief on behalf of 38 states – that issue looms much larger. In technical terms, the issue is whether AEDPA adopts the exceptions to the Teague formula that allow for retroactive application of a new procedural ruling by the Supreme Court.

But, as spelled out in the argument by Nevada and especially by the 38 other states on its side, the question is whether Congress, in passing AEDPA, took away from the Supreme Court the authority to apply new procedural rulings to federal habeas cases. This was done, they contend, by the denial of all federal habeas relief from a state court decision unless that decision was wrong under the law at the time of that ruling – making any later new rule by the Court irrelevant. (In the Bockting case, the Crawford rule emerged 11 years after the Nevada Supreme Court had issued its ruling on the use of the daughter’s statements, so, the states assert, that state court could not have been wrong and cannot now be second-guessed in federal habeas court.)

A somewhat less sweeping argument about AEDPA is made in an amicus brief by the Criminal Justice Legal Foundation, a conservative legal advocacy group. It argued that new constitutional rules may be made retroactive and thus available to applied in habeas only if a state inmate has a chance to go back to state court to ask it to apply a new rule. Only if a state court then got it wrong could the inmate pursue habeas in federal court. (The Foundation brief suggests that AEDPA did not abolish all retroactivity, but that is not central to the dispute over what remains of Supreme Court authority to make new rulings retroactive in habeas.)

Both of those approaches by amicisupporting Nevada are rigorously opposed by a group of former federal judges, along with the Public Defender Service in Washington, D.C., in an amicus brief. They argue that either of the two AEDPA interpretations would “uproot more than a century of settled habeas corpus law”.—going back to the Judiciary Act of 1867.

The Supreme Court could avoid confronting that core issue if it were to find that Crawford simply is not retroactive, under any test. Wednesday’s argument could give some hint of whether that is the option the Court would embrace.