Marvin Howard Bockting v. Robert Bayer

NOONAN, Circuit Judge,

concurring:

The trial court, the state supreme court, and the federal district court believed that the statute was constitutional, the procedure followed to have been proper, and Bockting’s conviction valid. It is now apparent that each of these courts was mistaken and that the statute ánd the procedure under it are unconstitutional. Crawford v. Washington, 541 U.S. 36 , 124 S.Ct. 1354 , 158 L.Ed.2d 177 (2004). Bockting is entitled to a writ of habeas corpus. The misunderstanding of the law governing the case is comprehensible in the light of the history set out in Crawford ; nontestimonial hearsay is not subject to an absolute bar. “Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.” Id. at 1374.

Autumn was not found to be as unavailable as a witness. She was in fact present at the trial. At most, the Nevada courts determined that Autumn was not willing to be a witness against Bockting. The reasons for her unwillingness were not explored. The possibility of measures short of appearance on the stand in open court were not explored. The fact that she had testified at Bockting’s preliminary hearing and had denied the accusations against him was ignored. On the mere ipse dixit of a prosecutor already disappointed by Autumn’s testimony at the preliminary hearing, she was disqualified as a witness and the hearsay introduced. The Confrontation Clause of the Sixth Amendment to the Constitution of the United States, applicable by virtue of the Fourteenth Amendment, was violated.

No opportunity for cross-examination by Bockting ever existed. He was, of course, not present when Autumn spoke to her mother or when she spoke to Detective Zinovitch. Totally untested by the method constitutionally required, the two testimonial tales, retold by Laura and the detective, confronted Bockting at his trial. The Confrontation Clause demanded that he be confronted with the witness against him. U.S. Const, amend. VI.

It is a work of supererogation to praise the wisdom of the Founders and to celebrate the enforcement of a “bedrock procedural guarantee.” Crawford, 124 S.Ct. at 1359 . Nonetheless, the circumstances of this case demonstrate how wise it is to ekclude testimony untested by cross-examination. Autumn’s first declaration, ’ re *1023 ported only by her mother, was made at night after Autumn awoke from sleep crying and was questioned by her mother. It may have been an excited or spontaneous utterance but one made under circumstances rendering it less, not more credible. In her mother’s words, “She looked like she had just woke up from a bad dream and she was quite upset.” It is a commonplace phenomenon for people of all ages to have nightmares and to awake in distress. What they then say was bothering them carries no guarantee of trustworthiness; they are coming out of sleep, still responding to their sleeping state impressions. Autumn’s second declaration was made to a police officer in the presence of her mother; she was under psychological compulsion not to let her mother down. As to her play with the dolls and her sexual experience, her mother testified that Autumn had observed her and Bockt-ing having sexual intercourse in the one bedroom trailer in which the family lived and where Autumn slept in a closet area off the bedroom. The language Autumn used in reference to the sexual organs was language her mother testified that she used in discussion with her. Autumn had no motive to accuse her stepfather of criminal assault and, in fact, demonstrated affection for him; she did have a motive to account for her nightmare and to tell the same story the second time when she met the police.

Autumn’s statements were further put in doubt by her repudiation of any accusation against Bockting at his preliminary hearing. Further, the report of her statement of her mother must be contextualized by these facts: her mother was an exotic dancer, who sometimes performed in front of Autumn; her mother was in conflict with Bockting and on the brink of leaving him; her mother did not report Autumn’s nighttime declaration until two days after she said she heard it.

It is argued that to apply Crawford is to apply it retroactively. To the contrary, the Supreme Court, after reviewing its own decisions, declared:

Our cases have thus remained faithful to the Framers’ understanding: Testimonial statements of witnesses absent from trial have been admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.

Crawford, 124 S.Ct. at 1369 . Crawford , therefore, does not announce a new rule. Retroactivity is not an issue.

True, the chief justice’s dissent declared that Crawford was “a new interpretation” that overruled Ohio v. Roberts, 448 U.S. 56 , 100 S.Ct. 2531 , 65 L.Ed.2d 597 (1980). Id. at 1374. But as the Court pointed out, Roberts itself only admitted testimony that had been subjected to cross-examination. Id. at 1368. Undoubtedly, a number of courts misinterpreted the Confrontation Clause in the same way as the Nevada courts did. But correction of a misinterpretation does not create a new rule. It is dangerous to take literally a dissent. The authentic interpretation of what the Court is doing comes from the Court itself. If there were any doubt in this case (which I deny there is), it is completely dispelled by the Court, again speaking through the author of Crawford in the same term in which Crawford was decided. Addressing new procedural rules without which the likelihood of an accurate conviction is seriously diminished, the Court declared: “This class of rules is extremely narrow and it is unlikely that any ... has yet to emerge.” Schriro v. Summerlin , — U.S. -, -, 124 S.Ct. 2519, 2522 , 159 L.Ed.2d 442 (2004) (quoting Tyler v. Cain, 533 U.S. 656 , 667 n. 7, 121 S.Ct. 2478 , 150 L.Ed.2d 632 (2001)) (alterations and quotation marks omitted). This declaration is *1024 an authoritative determination, delivered less than four months after Crawford , that Crawford’s bedrock procedural rule was not a new rule. A change in rationale is not treated by the Supreme Court as a change in rules. Crawford, 124 S.Ct. at 1369 . All along, the bedrock was there.

As an alternative to the foregoing analysis and in order to provide a precedent for this court, I also concur in Judge McKeown’s analysis and opinion.

Because the action of the Nevada Supreme Court resulted in a decision that was contrary to established federal law as determined by the Supreme Court of the United States, 28 U.S.C. § 2254 (d)(l), the writ of habeas corpus should issue to free Bockting from his unconstitutional confinement.