Whorton v. Bockting:
This morning the Supreme Court handed down Whorton v. Bockting, unanimously reversing the Ninth Circuit (surprise!) and holding that Crawford v. Washington claims are non-retroactive under Teague v. Lane.
What does this mean, you're wondering? Well, here's a really simplified version. In 2004, the Supreme Court expanded the meaning of the right to confront witnesses at criminal trials; today, the Supreme Court held that if you were convicted of a crime before 2004 you can't rely on the 2004 decision to try to get out of jail.
Justice Alito wrote the opinion of the Court. It's a pretty clean and straightforward decision, just over 13 pages long.
What does this mean, you're wondering? Well, here's a really simplified version. In 2004, the Supreme Court expanded the meaning of the right to confront witnesses at criminal trials; today, the Supreme Court held that if you were convicted of a crime before 2004 you can't rely on the 2004 decision to try to get out of jail.
Justice Alito wrote the opinion of the Court. It's a pretty clean and straightforward decision, just over 13 pages long.
What the opinion left me wondering, though irrelevant as precedent, obviously, is how petitioner lost under Roberts, but would have won under Crawford, if Crawford and Roberts were so similar in relation to the issue that concerned petitioner?
[OK Comments: Of course that's true, Doug, but you'll notice that I said that I was giving a "really simplified" explanation. That is one of the simplifications, obviously: my sense is that the readers who don't know what the first paragraph meant aren't likely to be concerned with this wrinkle.]
But there is no question that Bockting's crime is as punishable today as it was pre-Crawford. Had Crawford been the rule at the time of Bockting's trial, the prosecution probably would have relied on another tactic, and may very well have obtained a conviction anyway. While there may be some convictions that may not have been obtained had Crawford been the rule at the time, these have to be weighed against freeing convicted defendants because the prosecution didn't follow a procedural rule that no one even knew about at the time. That is not arbitrary.
The great thing about the Teague cases is that they always re-confirm that Constitutional rights really aren't all that important. Confrontation Clause? That doesn't really have anything to do with the accuracy of convictions. Basically, the Court has said that no rule of criminal procedure is so important that it would justify letting someone proceed with a habeas claim.
Sparticus, either I don't follow or I completely disagree. Are you saying *even in* the case where the government could not rely on alternative procedures to get a conviction had the new rule been in place (and remember, Scalia (and probably Thomas) does not believe in this whole "new rule" thing anyway, the Constitution is what it is, and it has always been that way), we should not allow a conviction to be reversed, *because* the prosecution didn't know about the rule? It seems that in that case (and maybe that should be the rule - allowing the cases to go forward but with a higher standard of showing the error "harmless"), the fact that the prosecutors did not know about the rule is irrelevant, since they would not have been able to obtain a conviction regardless, no?
Even if I thought that was true, I would much rather live in a country that's libertine high courts gave "too many new made up rights" than one that took any others away.
For me, the trouble with Teague is that it has the Court deciding which Constitutional rights are important and which aren't. And it does so without being forced into it by some conflict between rights.
Although I got the impression from skimming Alito's opinion that Noonan's 9th Circuit opinion held not only that it fit the watershed exception but also that Crawford alternately was dictated by precedent.
Also, Martin,
I personally would like to see Teague overruled so that the Supreme Court will stop making up new constitutional rights.
Wait, so you'd like to see Teague overruled so the supreme court could STOP making up constitutional rights? I don't understand your point. Is it that the availability of the Teague bar makes it, prospectively, less costly for the Court to impose new rules. And the new rules they've imposed are bad. Like Miranda and Gideon? I don't think I understand what you're trying to say. Before Teague, there was no bar to retroactive application of new rules, so Teague - on its face - made it harder, not easier, for a prisoner to capture the benefit of a new rule.
Not to get too picky, Orin, but a defendant's conviction would have to be "final" --- meaning that all available direct appeals were completed --- by the time of the 2004 Crawford decision for the Bockting to be significant.
I'm pretty sure this petitioner's conviction was final in 1993.
For me, the trouble with Teague is that it has the Court deciding which Constitutional rights are important and which aren't. And it does so without being forced into it by some conflict between rights.
If you have a problem with this, you can certainly seek game on bigger fronts: 28 U.S.C. Section 2254(d), for starters.
I think he was trying to be ironic. Scalia's view, remember, is that a Court *never* announces a new rule, technically. They simply expound upon what the Constitution says. If the courts previously interpreted the Constitution differently, its not that there's a new rule, but simply that the Court is fixing an erroneous interpretation, and that the announced "rule" in fact always existed, hidden and waiting to be discovered by a sufficiently intelligent Court.
Sarcasm does make the most sense there, yes. Teague was an acknolwedgment of the paradigm shift to legal positivism. Up until the mid-1960's, courts had always thought they were "discovering" law, so of course everythign was retroactive. Then the warren court went crazy (non-pejorative) with the bill of rights, and that coincided with the rise of positivism, at least its foothold on the federal judiciary. teague allowed the court, on the one hand, to admit that it was making law - not discovering it - and on the other to limit what it perceived to be the fallout of the Warren court's shakeup of criminal procedure.
The Court has a lot more cases to decide other than those three - the three Texas capital cases, for starters.
Are those all cases from the 10/30/06 session? As I read the Court calendar, all cases from that session (save the ones listed) have been decided. Am I missing something?
I am not a big fan of Teague, because if a new rule is put in place to be "fair" under future decisions, Teague seems to me to say, "fairness" in past cases was irrelevant. (where "fair" is whatever purpose the new rule serves.) I don't particularly care if those cases were correctly decided under the existing rules at the time, the newer rule whatever it may be, is saying that those past rules were wrong. [Blech that sounds too generalized].
Unless I'm misunderstanding something, yes, those cases are from the october '06 session. they were all argued on the same day, i think jan 17. the cases are cole, brewer, and smith. actually, cole has a different name now (the petitioner changed his name), but it will be the same day as brewer. they were two penry cases out of the fifth circuit (some versus full effect for mitigating evidence) and a jury nullification instruction case out of the texas court of criminal appeals.
i would bet the farm that AK writes at least one of those.
From what I understand (and fmr SCOTUS clekrs feel free to correct me) assignments are handed out by month. Inother words, if there are say 12 cases heard in a month of October, the assignments are generally handed out so as to equalize the number and complexity of opinions within that month.
From the sitting that began on 10/20 only 3 cases are left.
I personally lost two bets on this case. Since Justice Scalia authored both Crawford and Schriro, I bet he would write the opinion in Bockting as well. And since Schriro was a 5-4 decision, I also predicted Bockting would not be unanimous.
Had that happened, I think it is safe to say that some very, very dangerous people, whose convictions were completely proper prior to Crawford, would have ended up walking free because it would have been impossible to re-try them.
Why does not the Supreme Court just treat the cert petition as a merit brief and reverse?
It would save time and effort.
Justin,
You play by the rules you have at the time, and there's no way of knowing what's suddenly going to become important at some later point in time. If you have two ways of proving a case, and in the first you can easily bring in the testimony of a few witnesses you know will be admissible under existing caselaw and won't require much time or effort to establish, you're going to do that. You then wouldn't necessarily go for Option Two, which might require a greater expense (flying in a witness, paying for an expert or testing), greater effort (tracking someone down, convincing a reluctant witness to testify), or a legal argument that hasn't been as clearly settled in your jurisdiction, etc. But obviously if you know that Option One isn't an available option because of new caselaw, you're going to take the time to develop Option Two.
Those are the kinds of choices that have to be made every day when you're actually trying criminal cases, and they're not always something that can be dissected afterwards. If the prosecution didn't know a rule existed, you can't say that they couldn't have met it, just that they didn't. That's why the Teague rule makes a lot of sense for the practicalities of trial law, in my opinion.
Not really, because 28 U.S.C. 2244(d) imposes a one-year limit on filing federal habeas petitions.
(It's true that 2244(d)(1)(C) makes the one-year period run from "the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review." That's more or less useless, though, because the one-year period starts running when the Court recognizes the right, but the exception doesn't apply unless the right has been "made retroactively applicable," which never happens within a year of the right's recognition.)
I would, however, quibble with the way they handle the second exception for watershed rules-- I think that the key is whether it is something without which it wouldn't be fair to convict you. There still wouldn't be very many watershed rules, but it does seem very unseemly, to say the least, to have the Supreme Court saying so many things are necessary for a fair trial but that it's OK to keep tons of people in prison who never received them.
The other thing, however, is that the Ninth Circuit is indefensible on this. The Court was clear that its version of the watershed rule test should almost never tip in favor of the habeas petitioner, and the Ninth Circuit is just disobeying a clear directive from the Court.
The floodgates would open because the one-year statute of limitations would begin to run anew. 28 U.S.C. 2244(d)(1)(C) would directly apply.
Let's say, hypothetically, that the Supreme Court reached the opposite conclusion today in Bockting. Prisoners would have until February 28. 2008 to file their habeas petitions.
While some would miss undoubtedly this deadline, I am sure many would make it--and some very, very dangerous people would ultimately be released because it would be impossible to re-try them. even though they had a Constituinally sound conviction until February 28, 2007..
the statute of limitations doesn't kick in until the new right is made applicable on collateral review. that is what this case would have decided. every federal prisoner would have had a year to file if their trials had crawford error.
i guess i am unclear as to how you are reading the trigger provision in 2244(d)(1)(C). you seem to be saying that the trigger provision contains a proviso that doessn't kick in because the retroactive application was not contemporaneous with the recognition. that's an erroneous reading of the statute. the trigger date runs from the date the right is recognized and becomes retroactive - it doesn't require that the two events happen at the same time. I'm not sure where you're getting that implied proposition, but maybe there's an obscure circuit limitations case I'm unaware of.
In fact, now that I think about it more, your interpretation wouldn't even make sense. The Court would never consider the retroactivity question more than a year out of the merits decision because, under your interpretation, the retroactivity question would be completely moot a year and a day after the merits was decided.
Tolling would restart, under 2244(d)(C)(1), on the day that the rule was made retroactive, like the statute says.
You're misreading the statute: the one-year period runs "from the date on which the constitutional right asserted was initially recognized by the Supreme Court," not from the date on which it was made retroactive.
I know that doesn't make any practical sense, but the Supreme Court adopted this literal interpretation in Dodd v. United States. (Technically in Dodd it was talking about 28 U.S.C. 2255(d) para. 6(3), but that's just the exact equivalent of 2244(d)(1)(C) for federal prisoners instead of state, and the two sections are routinely interpreted identically. E.g. Johnson v. Robert, 431 F.3d 992 (7th Cir. 2005) (Dodd applies to sec. 2244).
Kovarsky: the Court can still end up considering the retroactivity question more than a year after the merits decision, because state collateral review proceedings toll the one-year limitations period, and those things can last a long time.
I think you're right. Let this be a message to everyone that I admit when I'm wrong. I'm also hopped up on vicodin because i tore 5 ligaments in my ankle, so I'm finding that being disagreeble disagrees with me right now.
It's better with Vicodin, no doubt.
But at some level, aren't they really the same? Don't they both protect adversarial rights, the right to have a defense lawyer engage in defense lawyer tactics? Which sometimes protect innocent people, but which also sometimes protect guilty people? When it comes to the "reliability of the outcome," is there really so much difference?
The Court should read more Langbein.
In the byzantine universe of habeas corpus law, Bockting may be "clean and straightforward." To the man, though, who is doing penitentiary time for a child sex offense on the strength of hearsay evidence, which everyone now agrees would be unconstitutional to use at trial, the decision hardly seems very clean or very straightforward.
If Crawford applied retroactively, would this appellant still have been convicted? An earlier commenter thought the prosecution would have just found another way. That's interesting speculation, but on the summary provided in the opinion, I think the opposite inference every bit as likely.
The Supreme Court's job is to make policy choices in the Constitutional arena and the relative justice, or injustice, to a single petitioner is not very often the point of a case. For all that, though, the result in Bockting is that a man was convicted and imprisoned with the most pernicious form of hearsay evidence used against him. It's worth mentioning that the underpinnings of Crawford and the Confrontation Clause include the idea that a person threatened with the loss of liberty ought to have some way of testing the strength of the government's evidence against him. In Bockting, the defendant had no meaningful opportunity to do that.
What Bockting leaves undisturbed are (i) a conviction that the government should be ashamed of for having won it with what it now knows is illegal evidence, (ii) a citizen obviously wronged without any meaningful remedy, and (iii) a system for adjudicating cases that values, on some level, efficient procedures more than it does assurances of justice. The result in Bockting may ultimately be right, but we oughtn't forget its costs.
I am not on Vicodin but I bow to you as well. You are right, Dodd would seem to apply apply since 28 U.S.C. 2255 and 2244(d)(1)(C) use identical language.
However, you may be wrong in the part directed specificially at Kovarsky. In Pace v. Digulielmo the Supreme Court held that an "untimely" state post-conviction petition does not toll the statute of limitations if the state petition is itself untimely. Consequently, state prisoners may just be plain out of luck.
You talk about the "costs" because the evidence used to convict Bockting would now be inadmissible. The counter to that is to ask what cost society should have to pay for a dangerous person to be walking the streets even though the evidence used to admit him was Constitutionally admissible at the time he was convicted.
Try explaining to the victim of a crime that the "costs" of retroactivity are such that even though the State did everything right, the perpetrator gets away with it.
It would indeed be a "cost" to release Bockting if in fact he is guilty. But how can anyone know he's guilty when the evidence used against him amounts to cheating? In Bockting's case, if he were falsely accused (and we have no way of knowing whether he was or was not because the fact finding at his trial was corrupted by illegal, unreliable, and untested evidence) the only "victim" is Bockting himself.
Your point about the costs of letting the guilty go free is well taken. But on the record in Bockting the costs I've identified are certain, whereas the costs of letting the guilty go free are only speculative. The law rightly distinguishes between those two degrees of harm.
As for telling a victim "the State did everything right", I would not tell the victim that. I would tell the victim, if there is a victim, that the State did at least one thing wrong: it used evidence that was unfair to the defendant.
Cullen
How was the evidence unfair to the defendant? Under Ohio v. Roberts the statements were admissible. The Nevada Supreme Court affirmed on that point and the United States Supreme Court granted certiorari to have the Nevada Supreme Court examine the evidence in light of Idaho v. Wright. The Nevada Supreme Court analyzed the evidence again in light of Wright and again affirmed.
If the Supreme Court had used Bockting v. Nevada to do what it instead did in Crawford v. Washington, you might have a point. But it didn't.
Lawyers choose every day to proffer evidence knowing, with one degree of certainty or another, that a reviewing court may, or may not, determine the evidence was inadmissible. In Bockting, the government chose to proffer evidence that it should have known was risky and, in any event, should have known was unfair. Just because a lawyer can get evidence in, doesn't mean she should. The government lawyers in Bockting intentionally put on evidence that they knew the defendant could not meaningfully test. They did so because they wanted to win their case. Fair enough. We now know they should not have been allowed to do so.
Why should the Government enjoy the benefit of winning this little bet just because the Supreme Court was too slow to overrule Roberts? Are we to believe the prosecutors figured Roberts would survive through Bockting's direct appeal even if it had a stale date that might run during Bockting's collateral attack? I've never met a prosecutor who considered that course and I would hope a prosecutor would not intentionally use evidence she thought was unconstitutional but which might not get called as much until it was too late for a defendant to do anything about it.
I should add, in fairness, that my impression that all now agree that the hearsay in Bockting was inadmissible probably overstates the case. A divided Ninth Circuit panel held, 408 F.3d 1127, that "[e]ven if Autumn's statement to the mother was, for argument's sake, considered admissible, the detective's description of Autumn's interview was so significant as corroborating evidence that its admission had a substantial and injurious effect or influence in determining the jury's verdict. Thus, the admission of Autumn's statement requires reversal." Obviously, in light of its Teague analysis the Supremes didn't consider the merits of the Bockting's confrontation clause challenge. That said, the evidence used in Bockting is, to my eye, pretty eggregious.
Cullen
You're basing your argument off one pretty big assumption, though -- that the prosecutors knew Roberts was risky. As a prosecutor myself, I can tell you I didn't have any idea that there would be a problem in using statements admissible under Roberts until after Crawford came out. This was pretty well-established law that had been upheld time and again. Prosecutors are no more clairvoyent than anyone else. Why should they have magically KNOWN that the law would be overturned a decade later and acted accordingly?
I should add that the fears of massive collateral litigation are likely overblown. In the Crawford context, the window for making a claim is pretty narrow, the level of sophistication to recognize a claim is pretty high, and for the overwhelming majority of inmates, the access to competent counsel on habeas review is pretty low.
Cullen