Amicus Curiae Brief — Whorton v. Bockting

$92

FILED

1. SEP 2 0 2006

No. 05-595 SUPREME COURT US

IN THE

Supreme Court of the United States

GLEN WHORTON, DIRECTOR,

NEVADA DEPARTMENT OF CORRECTIONS,

Petitioner,

Vv.

MARVIN HOWARD BOCKTING,

Respondent.

On Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

BRIEF OF AMICUS CURIAE

NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS

IN SUPPORT OF RESPONDENT

SARAH O’ ROURKE SCHRUP

NORTHWESTERN UNIVERSITY

SUPREME COURT PRACTICUM

357 East Chicago Avenue

JEFFREY T. GREEN*

MARIANNE T. CAULFIELD

SIDLEY AUSTIN LLP

1501 K Street, N.W.

Chicago, IL 60611

(312) 503-8576

Washington, D.C. 20005

(202) 736-8000

Counsel for Amicus Curiae

September 20, 2006 * Counsel of Record

A ee SS

WILSON-EPES PRINTING CO., INC. = (202) 789-0096 — WASHINGTON, D.C. 20001

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QUESTIONS PRESENTED

I. | Whether, in direct conflict with the published opinions

of the Second, Sixth, Seventh, and Tenth Circuits, the Ninth

Circuit erred in holding that this Court’s decision in Crawford

v. Washington, 541 U.S. 36 (2004) regarding the admissibility

of testimonial hearsay evidence under the Sixth Amendment,

applies retroactively to cases on collateral review.

Il. Whether the Ninth Circuit’s ruling that Crawford

applies retroactively to cases on collateral review violates this

Court’s ruling in Teague v. Lane, 489 U.S. 288 (1989).

III. Whether, in direct conflict with the published

decisions of the Fourth and Seventh Circuits, the Ninth

Circuit erred in holding that 28 U.S.C. § 2254(d)(1) and (2)

adopted the Teague exceptions for private conduct which is

beyond criminal proscription and watershed rules.

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TABLE OF CONTENTS

QUESTIONS PRESENTE D..........c.cccoccesccescseresesecserescscoes

TABLE OF AUTHORITIES .............:ccccessssseseeesseeeeeesenees

STATEMENT OF INTEREST OF AMICUS CURIAE...

SUMMARY OF ARGUMENT ...,........cccccssessssesseneeeesnees

FES cc ccntrvieriiriecininninveteantemnmannmannnevinneiweipe

I.

Il.

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IV.

DEPRIVATION OF DEFENSE COUNSEL’S

ABILITY TO CONFRONT AN ACCUSER

SERIOUSLY DIMINISHES THE ACCURACY

OF SUBSEQUENT CONVICTIONS. ................004-

CRAWFORD’S NEW RULE GIVES EFFECT

TO THE FRAMER’S MECHANISM FOR

EVIDENTIARY RELIABILITY - CROSS-

SARS IE MITT sess mntnccieaninaninhitieesreenietiabntreniabiesinnrs

A. Cross-Examination Is Critical To The Truth-

I NIT a. issitntvdidedpietnsietinciadindaaiininaddnntens

B. Crawford Curbs Prosecutorial Abuse Of Testi-

SE TOI occ cetsnretniscsigiterswnesscticinceiesnoneesass

CONFRONTATION, LIKE COUNSEL AND

COMPULSORY PROCESS, IS A BEDROCK

RULE OF CRIMINAL PROCEDURE....................

AS WITH THE COURT’S HOLDING IN

GIDEON, RETROACTIVE APPLICATION IS

PPE RIE WAAR Bs RERII ee cncocecscsnccccevesensvonescosecosesionse

aa ia iiinsnnietisdteininresiieiaiintipainipeeiniateehisiadeisepniasesisigii

(iii)

iv

TABLE OF AUTHORITIES

CASES Page

Bockting v. Bayer, 399 F.3d 1010, 1024 (9th

Cir.), opinion amended on denial of reh’g, 408

F.3d 1127 (9th Cir. 2005), cert. granted sub

nom. Whorton v. Bockting, 126 S.Ct. 2017

Ce incccinsinsinipsiniiniicinsitasninteitsinesbaiiiiaieieiaeimbtdaddalalidltaits 11

Bousley v. United States, 523 U.S. 614 (1998)....... 17

California v. Green, 399 U.S. 149 (1970)............... 2

Chambers v. Mississippi, 410 U.S. 284 (1973)....... 4,14

Commonwealth v. Baran, No. 18042-51, 2006

WL. 2560317 (Mass. Super. Ct. June 16, 2006).. 10

Crawford v. Washington, 541 U.S. 36 (2004)....... passim

Davis v. Alaska, 415 U.S. 308 (1974) ....0........cceeeees 14

Desist v. United States, 394 U.S. 244 (1969).......... 17

Dutton v. Evans, 400 U.S. 74 (1970) ..................000. 4

George v. State, 813 S.W.2d 792 (Ark. 1991)........ 10

Gideon v. Wainwright, 372 U.S. 335 (1963)......... 15, 16

Idaho v. Wright, 497 U.S. 805 (1990)................0008 10

Kentucky v. Stincer, 482 U.S. 730 (1987)................ 4

Leavitt v. Arave, 383 F.3d 809 (9th Cir. 2004) ....... 5

Lee v. Illinois, 476 U.S. 530 (1986) .............ccceceeeees 4

Linkletter v. Walker, 381 U.S. 618 (1965),

disapproved, Griffith v. Kentucky, 479 U.S. 314

ETI Pioci-viscenshsaniictiignibaivisiesicsnlshbininiaindiosislohaieiiiiimaeadaiiniabeatiais 12

Mattox v. United States, 156 U.S. 237 (1895) ........ 15

O’Dell v. Netherland, 521 U.S. 151 (1997)............ 15

O’Neal v. McAninch, 513 U.S. 432 (1995)............. 17

Ohio v. Roberts, 448 U.S. 56 (1980)...................00. 2,5

Pointer v. Texas, 380 U.S. 400 (1965).................... 4,13

Saffle v. Parks, 494 U.S. 484 (1990).................. 3, 14, 15

Schriro v. Summerlin, 542 U.S. 348 (2004)... 3, 4, 12, 14

Snowden v. Singletary, 135 F.3d 732 (11th Cir.

DUD cesecscienciscncvnnnsiicleninineiiiiianicisciitaapaiiiigaliiainintiiediiiliies 10

State v. Blue, 717 N.W.2d 558 (N.D. 2006)............ 10

State v. Dwyer, 440 N.W.2d 344 (Wis. 1989)......... 10

Vv

TABLE OF AUTHORITIES — continued

Page

State v. Michaels, 625 A.2d 489 (N.J. Super. Ct.

App. Div. 1993), aff'd, 642 A.2d 1372 (N.J.

STITidinin disdinchdtrinaniiutdidintiambeenindentiniapienpinenenemenecesenecers 10

State v. Robinson, 735 P.2d 801 (Ariz. 1987)......... 10

Swan v. Peterson, 6 F.3d 1373 (9th Cir. 1993)....... 10

Taylor v. Illinois, 484 U.S. 400 (1988) ................00. 13

Teague v. Lane, 489 U.S. 288 (1989) .......... 1, 12, 14, 17

United States v. Mandanici, 205 F.3d 519 (2d Cir.

REE SES eee nr eee we nee 15

Yick Wo v. Hopkins, 118 U.S. 356 (1886)............... 16

SCHOLARLY AUTHORITIES

Akhil Reed Amar, Sixth Amendment First

Principles, 84 Geo. L.J. 641 (1996).............0.0006-5 14

Margaret A. Berger, The Deconstitutionalization

of the Confrontation Clause: A Proposal for a

Prosecutorial Restraint Model, 76 Minn. L.

NN ainsi iahtctitanindnietbepeantensens 8

Lyn S. Entzeroth, Reflections on Fifteen years of

the Teague v. Lane Retroactivity Paradigm: A

Study of the Persistence, the Pervasiveness, and

the Perversity of the Court's Doctrine, 35 N.M.

SES TE en 11

4 Christopher B. Mueller & Laird C. Kirkpatrick,

Federal Evidence (2d ed. 2006)..............0ccccceeeeees 3

Roger C. Park, Purpose as a Guide to the °

Interpretation of the Confrontation Clause, 71

BOGE, Te TABU. ZF CAO cccesccscccccccccccscccocesoscooees 8

Robert M. Pitler, Symposium: Crawford and

Beyond: Exploring the Future of the

Confrontation Clause in Light of Its Past, 71

ES | ae 3

1 Thomas Starkie, Law of Evidence (1824) ............ 6

vi

TABLE OF AUTHORITIES — continued

Francis L. Wellman, The Art of Cross-

RE Ce ee a

5 J. Wigmore, Evidence (3d ed. 1940)....................

Alexander J. Wilson, Defining Interrogation

Under the Confrontation Clause After

Crawford v. Washington, 39 Colum. J.L. &

FS een

Tung Yin, A Better Mousetrap: Procedural

Default as a Retroactivity Alternative to Teague

v. Lane and the Antiterrorism and Effective

Death Penalty Act of 1996, 25 Am. J. Crim. L.

ET I Aidcictanidaesicliciacidhibetndiiphaunbiinindsiniaiapines

OTHER AUTHORITIES

Innocence Lost: the Plea (May 27, 1997),

available at http://www.pbs.org/wgbh/pages/

frontline/shows/innocence/etc/ other.html (last

RR a ee ee

Ninth Circuit Model Criminal Jury Instructions

Stephen J. Cecil & Maggie Bruck, Am.

Psychological Ass’n, Jeopardy in the Court-

room — A Scientific Analysis of Children's

Testimony (1995), available at http://www.pbs.

org/wgbh/pages/frontline/shows/innocence/

IE cnnedinccsicnnasinitcntnumceetsininnee

David A. Fahrenthold, Online Registry or Target

List?, Wash. Post, Apr. 20, 2006 ....................000+-

Brian MacQuarrie, Man Defends Attacks on Sex

Offenders, Boston Globe, Dec. 5, 2004 ...............

Elizabeth Mehren, Sex Offender Site Back Up;

Maine's registry went offline after two men

listed were slain and the suspect killed himself,

edhe: PEN, FUME. CE, Ba cecsrncccncssteninevenantiinsnsess

Vii

TABLE OF AUTHORITIES -— continued

Page

Katha Pollitt, Justice for Bernard Baran, The

Nation, Feb. 21, 2000, available at http://www.

thenation.com/doc/2000022 1/pollitt .................... 10

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STATEMENT OF INTEREST OF AMICUS CURIAE'

Amicus Curiae the National Association of Criminal

Defense Lawyers (““NACDL”) is a nonprofit corporation of

more than 10,000 attorneys and 28,000 affiliate members in

all SO States. The American Bar Association (“ABA”)

recognizes NACDL as an affiliate organization and awards it

full representation in the ABA’s House of Delegates.

Founded in 1958, NACDL promotes research in the field of

criminal law, disseminates and advances knowledge relevant

to that field, and encourages integrity, independence, and

expertise in criminal defense practice. NACDL works

tirelessly to ensure the proper administration of justice, an

objective that this case directly impacts in light of its

overarching importance to ensuring that prior criminal

convictions are accurate and based upon reliable, tested

evidence. NACDL’s membership has long relied upon cross-

examination as one of the vital means of ensuring accuracy.

As such, NACDL is uniquely qualified to offer assistance to

this Court in this matter.

SUMMARY OF ARGUMENT

The United States Court of Appeals for the Ninth Circuit

correctly held that the new rule announced in Crawford v.

Washington, 541 U.S. 36 (2004), satisfies the test established

by this Court in Teague v. Lane, 489 U.S. 288 (1989), that a

new procedural rule applies retroactively to cases on

collateral review if such rule is a watershed rule by

implicating “the fundamental fairness of the trial.” Teague,

' Pursuant to Rule 37.6, amicus curiae states that no counsel for a party

authored any part of this brief, and no person or entity, other than the

amicus curiae, its members and its counsel made a monetary contribution

to the preparation or submission of this brief. Counsel of record for both

parties have consented to the filing of this brief, and their letters of

consent have been filed with the Clerk.

2

489 U.S. at 412. This is true for two reasons. First, to the

extent, as the Ninth Circuit held, Crawford established a new

rule by overruling Ohio v. Roberts, 448 U.S. 56 (1980),

Crawford adopted a testimonial approach when determining

the admissibility of out-of-court statements at trial. This

approach acknowledges that the admission of such

testimonial statements, made by a witness who is purported to

be unavailable at trial, denies the accused his only

constitutional means to assess the veracity of such statements.

Second, this new rule is a watershed rule of criminal

procedure because Crawford’s prohibition of the use of

testimonial out-of-court statements affects the fundamental

fairness and accuracy of a criminal proceeding under the

second prong of Teague such that it mandates retroactive

application to cases on collateral review. The right of an

accused to confront his accuser conferred by the

Confrontation Clause of the Sixth Amendment is as vital to

the protection of an accused’s constitutional rights as his

Sixth Amendment right to counsel. Deprived of an

opportunity to cross-examine a witness, the accused is denied

“the ‘greatest legal engine ever invented for the discovery of

truth.*” California v. Green, 399 U.S. 149, 158 (1970)

(quoting 5 J. Wigmore, Evidence § 1367 (3d ed. 1940)).

ARGUMENT

I. DEPRIVATION OF DEFENSE COUNSEL’S

ABILITY TO CONFRONT AN ACCUSER

SERIOUSLY DIMINISHES THE ACCURACY OF

SUBSEQUENT CONVICTIONS.

The language of Crawford itself emphasizes, underlines and

reiterates just how vital the right of confrontation is to the

fundamental fairness of a criminal trial. It is a “bedrock

procedural guarantee [that] applies to both federal and state

prosecutions.” Crawford, 541 U.S. at 42 (citing Pointer v.

Texas, 380 U.S. 400 (1965)). In addition, this Court’s

decision in Crawford, which overruled Roberts, 448 U.S. 56,

3

abandons nearly a quarter century of precedent interpreting

the Sixth Amendment and adopts a new framework in its

Confrontation Clause jurisprudence. Crawford, 541 U.S. at

75. See, e.g., Alexander J. Wilson, Defining Interrogation

Under the Confrontation Clause After Crawford v.

Washington, 39 Colum. J.L. & Soc. Probs. 257, 258 (2005);

Robert M. Pitler, Symposium: Crawford and Beyond:

Exploring the Future of the Confrontation Clause in Light of

Its Past, 71 Brook. L. Rev. 1, 1-2 (2005).

Crawford’s framework preserves the original intention of

the drafters of the Confrontation Clause by ensuring that,

whenever testimonial evidence is at issue, such evidence will

not be admitted at trial unless the accused has had an

opportunity to cross-examine the witness. “[T]he Sixth

Amendment demands what the common law required:

unavailability and a prior opportunity for cross-examination.”

Crawford, 541 U.S. at 68. Crawford makes clear that “the

principle evil at which the Confrontation Clause was directed

was the civil-law mode of criminal procedure, and

particularly its use of ex parte examinations as evidence

against the accused.” Jd. at 50. Crawford’s imposition of an

outright bar on testimonial statements if the witness is

unavailable for trial or otherwise not subject to cross-

examination has been interpreted as a new procedural rule by

every court that has since addressed the issue. See 4

Christopher B. Mueller & Laird C. Kirkpatrick, Federal

Evidence § 398.1 (2d ed. 2006) (listing post-Craw/ford cases).

Under Teague, a new procedural rule is _ applied

retroactively if it establishes a watershed rule, i.e., a rule

“implicating the fundamental fairness and accuracy of the

criminal proceeding.” Saffle v. Parks, 494 U.S. 484, 495

(1990). This includes a rule “‘without which the likelihood

of an accurate conviction is seriously diminished.’” Schriro

v. Summerlin, 542 U.S. 348, 352 (2004) (quoting Teague, 489

U.S. at 313). Crawford satisfies these criteria. The purpose

of the Confrontation Clause is to promote accuracy by

4

ascertaining the truth and reliability of evidence as assessed

“in a particular manner: by testing in the crucible of cross-

examination.” Crawford, 541 U.S. at 61. Crawford does not

merely “reshape the contours” of the Sixth Amendment Right

to Confrontation, as Petitioner asserts. Brief of Petitioner at

29. Rather, Crawford reaffirmed the original intent of the

Framers, who properly understood that cross-examination is a

fundamental procedure designed to test evidence and thereby

enhance its accuracy. Crawford thus reiterated what the

Framers knew — that a judicial determination of testimonial

reliability does not guarantee accuracy. In short, the very

purpose of the Crawford rule is to enhance the accuracy of

the evidence used to convict, and in that regard, one would be

hard pressed to identify any factor more relevant to “‘the

likelihood of an accurate conviction.’” Summerlin, 542 U.S.

at 352 (quoting Teague, 489 U.S. at 313). Accordingly, a

failure to test the veracity of the evidence by cross-

examination diminishes the likelihood of an accurate

conviction.

Il. CRAWFORD’S NEW RULE GIVES EFFECT TO

THE FRAMER’S MECHANISM FOR EVIDENTI-

ARY RELIABILITY — CROSS-EXAMINATION.

The Court has on numerous occasions recognized that

confrontation/cross-examination is a necessary predicate for

truth and reliability of results in criminal trials. Pointer v.

Texas, 380 U.S. 400, 405 (1965); Chambers v. Mississippi,

410 U.S. 284, 295 (1973); Kentucky v. Stincer, 482 U.S. 730,

737 (1987); Dutton v. Evans, 400 U.S. 74, 89 (1970); Lee v.

Illinois, 476 U.S. 530, 539-40 (1986). Crawford established

that out-of-court statements by witnesses that are testimonial

are barred under the Confrontation Clause, unless witnesses

are unavailable and defendants had prior opportunity to cross-

examine witnesses. This broke completely with the test in

Roberts, which determined admissibility based on whether

5

such statements are deemed reliable by a court.?_ Crawford, in

abrogating Roberts’s indicia-of-reliability test for determining

when incriminating statements are admissible under an

exception to the hearsay rule, completely altered the basis for

admitting hearsay and redresses the inherent and permanent

unpredictability of Roberts’s reliability criteria. See

Crawford, 541 U.S. at 66. In Crawford, the Court observed

that there is no doubt that the Confrontation Clause “reflects a

judgment, not only about the desirability of reliable evidence

(a point on which there could be little dissent), but about how

. reliability can best be determined.” Id. at 61 (emphasis

added). It highlighted the danger that the application of the

Roberts reliability standard poses, id., expressing concern

about the fact that “[rjeliability is an amorphous, if not

entirely subjective, concept.” Jd. at 63. As the Court

explained, “[a]dmitting statements deemed reliable by a judge

is fundamentally at odds with the right of confrontation.” Jd.

at 61. Permitting a jury to hear evidence that a judge deems

reliable without testing it in the adversary process is

tantamount to “dispensing with jury trial because a defern@fant

is obviously guilty.” Jd at 62. The Framers knew that

“judges, - like other government officers, could not always be

trusted to safeguard the rights of the people; . . . [t]hey were

loath to leave too much discretion in judicial hands.” /d. at

67. By countermanding Roberts and other cases like it, the

Court acknowledged the Framers’ skepticism regarding

judicial determinations of reliability and agreed that the

Framers’ test — confrontation — is the proper mechanism for

determining reliability. The rejection of the Roberts

reliability approach was complete, and it is because of that

absolute rejection in Crawford that Petitioner’s argument that

? Under Roberts, there were two ways in which the indicia-of-reliability

requirement could be met: (1) where the hearsay statement “falls within a

firmly rooted hearsay exception,” or (2) where it is supported by a

“showing of particularized guarantees of trustworthiness.” Roberts, 448

U.S. at 66.

6

the Crawford rule merely “reshaped the contours” of the right

to confrontation must fail. Brief of Petitioner at 29.

A. Cross-Examination Is Critical To The Truth-

Seeking Process.

We respectfully disagree with Petitioner’s position that

cross-examination “may prove to be no more than

‘superfluous’” or offer “an ‘incidental benefit’ at best.” Brief

of Petitioner at 13 (quoting concurring opinion in Crawford,

541 U.S. at 75). This flies in the face of the Framers’ view

that confrontation is the far better, and fairer, mechanism for

determining reliability, and it is wrong. Legal scholars,

practitioners and judges have long recognized the importance

of cross-examination to discovering the truth.’ “The power

and opportunity to cross-examine . . . is one of the principal

tests which the law has devised for the ascertainment of truth,

and is certainly a most efficacious test.” 1 Thomas Starkie,

Law of Evidence 129 (1824). Of course, if all witnesses had

the integrity and smarts to come forward and meticulously

follow the letter as well as the spirit of the oath, to tell the

truth, the whole truth and nothing but the truth, and, if

attorneys on both sides had the necessary experience,

combined with the integrity and intelligence and swore to

develop the whole truth and nothing but the truth, there would

of course be no need for cross-examination. But, as yet, “no

substitute has ever been found for cross-examination as a

means of separating truth from falsehood, and of reducing

> In the past eight years, there have been no less than thirty-five articles

in The Champion, published by the NACDL, addressing the importance of

cross-examination for both the defense and the prosecution. Cross-

examination is so important to testing the reliability of witnesses that

NACDL dedicates countless hours to providing criminal defense attorneys

with preparation in cross-examinations. This year alone NACDL will offer

more than twelve different seminars and workshops on cross-examination

techniques to criminal defense attorneys. Other associations such as the

American Bar Association also provide many workshops and seminars on

cross-examination to attorneys.

7

exaggerated statements to their true dimensions.” Francis L.

Wellman, The Art of Cross-Examination 7 (1923).

Cross-examination helps the truth-seeking process in at

least three vital ways. First, cross-examination allows the

opposing counsel to introduce additional necessary facts

which the witness may have omitted during direct

examination. Typically, those suppressed or underdeveloped

facts, as described by Professor Wigmore* in his seminal

treatise on evidence, are (1) “the remaining and qualifying

circumstances of the subject of testimony” and (2) “the facts

which diminish the personal trustworthiness or credit of the

witness.” 5 J. Wigmore, Evidence § 1368, at 37 (3d ed. 1940)

(emphasis omitted). If nothing more were done to reveal all

the facts known to the witness, the witness’s testimony

“might present half-truths only.” /d. “Someone must probe for

the possible (and usual) remainder. The best person to do this

is the one most vitally interested, namely, the opponent.” /d.

While some facts can be introduced by other witnesses, often

these important additional facts can “be obtained only from

the witness himself — particularly those which concern his

personal conduct and his sources of knowledge for the case in

hand.” Jd.

The second vital way cross-examination helps the truth

seeking process is by allowing these important facts to be

introduced immediately after direct examination, in order to

refute what the jury may have just heard. In this way, “the

modification or the discredit produced by the facts extracted

is more readily perceived by the [fact-finder].” /d at 38.

Finally, cross-examination allows the essential refutation to

come directly from the witness him- or herself; a damaging

effect that can hardly be matched by hearing contradictory

testimony provided by other witnesses. /d.

* Professor Wigmore devotes over 200 pages in his treatise to cross-

examination and confrontation, underscoring the importance of cross-

examination to the truth-seeking process.

8

B. Crawford Curbs Prosecutorial Abuse Of Testi-

monial Statements.

Crawford also preserves the Framers’ understanding that

confrontation curbs the abuse of state power. Crawford, 541

U.S. at 56 n.7. The “[i]Jnvolvement of government officers in

the production of testimony with an eye toward trial presents

unique potential for prosecutorial abuse — a fact borne out

time and again throughout a history with which the Framers

were keenly familiar.” Jd. The prosecution’s power provides

an enormous advantage to the prosecution in a criminal trial,

which the Bill of Rights is designed to limit. See Margaret A.

Berger, The Deconstitutionalization of the Confrontation

Clause: A Proposal for a Prosecutorial Restraint Model, 76

Minn. L. Rev. 557, 561 & n.18 (1992) (citing Wardius v.

Oregon, 412 U.S. 470, 480 (1973) (Douglas, J., concurring)).

The Framers designed the Confrontation Clause to curb such

abuse in at least three ways: by preventing: (1) secrecy about

the identity of the witness providing testimony or the

circumstances surrounding the testimony; (2) presentation of

a false account of the witness’ story or the conditions under

which it was produced; and (3) pressuring the witness with

intimidation or taking advantage of his vulnerabilities. Roger

C. Park, Purpose as a Guide to the Interpretation of the

Confrontation Clause, 71 Brook. L. Rev. 297, 298 (2005).

Nowhere are the twin concerns of reliability and state

conduct more visible than in cases involving child abuse.

When the prosecution obtains evidence through private

interviews, the potential for abuse is increased because the

prosecution has the power and incentive to mold the child’s

responses to conform to the theory of the case. In this case, in

a recorded interview, the child made statements to a police

detective and also demonstrated the incidents with

anatomically correct dolls. At the preliminary hearing, the

prosecutor questioned the child. During the course of this

questioning, the child could not remember what she had told

the police detective. In spite of this uncertainty (and

9

suggestion that the original questions may have been leading,

given the child’s inability to recall events of this magnitude),

the judge declared that the child was an unavailable witness,

determined the child’s statements were reliable and admitted

them into evidence. Without having seen the child or heard

her answers to these absolutely core questions, the jury found

Mr. Bockting guilty and he now serves a life sentence. His

counsel never had the opportunity to examine the child to test

for suggestibility, i.e., whether the child may have been led

into false testimony. Instead, he was convicted on the basis

of a judge’s determination that the child’s earlier statements

were more reliable than the later ones, a critical determination

that only the jury could perform.

The inability to conduct any sort of examination of

principal witnesses in child abuse prosecutions has had a

telling effect on the reliability and accuracy of convictions in

such cases. Accusations of sexual abuse of children

understandably raise the most powerful emotions, and often

also incite terrible acts of supposed vengeance. David A.

Fahrenthold, Online Registry or Target List?, Wash. Post,

Apr. 20, 2006, at A0O3; Brian MacQuarrie, Man Defends

Attacks on Sex Offenders, Boston Globe, Dec. 5, 2004, at Al;

Elizabeth Mehren, Sex Offender Site Back Up; Maine’s

registry went offline after two men listed were slain and the

suspect killed himself, L.A. Times, Apr. 19, 2006, at A7. Asa

result, there are numerous, well-documented miscarriages of

justice where, as here, the defense never had the opportunity

to examine and to test the principal testimonial evidence

underlying a conviction. See Innocence Lost: the Plea (May

27, 1997) (PBS television broadcast), available at http://

www.pbs.org/wgbh/pages/frontline/shows/innocence/etc/

other.html (last visited Sept. 20, 2006). Instead, as these

cases amply demonstrate, the defense must contend with a

biased or interested prosecution witness whose function is to

offer the hearsay statements of the victim and to defend the

truth and reliability of those statements, often on the basis of

10

their own credibility rather than that of the child. Jd; see also

State v. Michaels, 625 A.2d 489, 510 (N.J. Super. Ct. App.

Div. 1993), aff'd, 642 A.2d 1372 (N.J. 1994); Snowden v.

Singletary, 135 F.3d 732, 737-38 (11th Cir. 1998).

The subsidiary issues at work in such cases are also present

here. For example, experts have long questioned and

discredited the tactic of asking leading and repetitious

questions in connection with the use of anatomical dolls.

Stephen J. Cecil & Maggie Bruck, Am. Psychological Ass’n,

Jeopardy in the Courtroom — A Scientific Analysis of

Children's Testimony (1995), available at http://www.pbs.

org/wgbh/pages/frontline/shows/innocence/readings/dolls.

html. To that end, this Court has held that leading

questioning may provide grounds for overturning a

conviction. Jdaho v. Wright, 497 U.S. 805, 826-27 (1990)

(“‘[i]f there is evidence of prior interrogation, prompting, or

manipulation by adults, spontaneity may be an inaccurate

indicator of trustworthiness’” (alteration in original) (quoting

State v. Robinson, 735 P.2d 801, 811 (Ariz. 1987)).

Sensational, but ultimately inaccurate medical evidence has

also been a common feature of such prosecutions. Swan v.

Peterson, 6 F.3d 1373, 1384 (9th Cir. 1993). See alse Katha

Pollitt, Justice for Bernard Baran, The Nation, Feb. 21, 2000,

available at http://www.thenation.com/doc/20000221/pollitt;

Commonwealth v. Baran, No. 18042-51, 2006 WL 2560317

(Mass. Super. Ct. June 16, 2006). And finally, such cases are

marked by judges reaching highly subjective declarations of

the incompetence and unavailability of the alleged victim

because the victim cannot remember the alleged events, see,

e.g., State v. Blue, 717 N.W.2d 558 (N.D. 2006), provided

inconsistent descriptions of the alleged events, see, e.g.,

George v. State, 813 S.W.2d 792 (Ark. 1991), or proves

unable to distinguish between the truth and a lie, see, e.g.,

State v. Dwyer, 440 N.W.2d 344, 345-46 (Wis. 1989), and

then admitting an alleged victims’ hearsay declarations

11

without providing defendants an opportunity to cross-

examine.

While there obviously needs to be sensitivity in such cases,

such sensitivity does not warrant wholesale suspension of

Confrontation Clause rights. The long history of miscarriages

of justice in this area demonstrate just how fundamental the

Confrontation Clause right is in producing a reliable and

accurate result at trial.

Ill. CONFRONTATION, LIKE COUNSEL AND COM-

PULSORY PROCESS, IS A BEDROCK RULE OF

CRIMINAL PROCEDURE.

Before determining whether Crawford can be applied

retroactively under Teague, the initial threshold question is to

determine whether it is a new rule. While the Ninth Circuit

divided on this question, the majority found that Crawford is

a landmark decision that establishes new criteria for

determining the admission of witness testimony — the

testimonial approach.° In this respect, the majority found,

Crawford's break with precedent qualifies it as a new rule

under the new rule doctrine of Teague and its progeny. See

Tung Yin, A Better Mousetrap: Procedural Default as a

Retroactivity Alternative to Teague v. Lane and the

Antiterrorism and Effective Death Penalty Act of 1996, 25

Am. J. Crim. L. 203 (1998); Lyn S. Entzeroth, Reflections on

Fifteen years of the Teague v. Lane Retroactivity Paradigm:

A Study of the Persistence, the Pervasiveness, and the

Perversity of the Court’s Doctrine, 35 N.M L. Rev. 161

(2005). |

The next step under Teague is to determine whether this

rule can be applied retroactively to cases on collateral review.

> Amicus takes no position as to whether Crawford is an old or new

rule. Bockting v. Bayer, 399 F.3d 1010, 1024 (9th Cir.) (Noonan, J.

concurring), opinion amended on denial of reh'g, 408 F.3d 1127 (9th Cir.

2005), cert. granted sub nom. Whorton v. Bockting, 126 S.Ct. 2017

(2006).

12

Since 1965, the Court has been curbing the impact of

retroactive applications of law. See Teague, 489 U.S. at 302

(discussing retroactivity jurisprudence from Linkletter v.

Walker, 381 U.S. 618 (1965), disapproved, Griffith v.

Kentucky, 479 U.S. 314 (1987) to the present). While there is

a general presumption against retroactive application of

procedural rules, it is not irrebutable; granting retroactive

relief to state prisoners based on newly articulated rules is

neither an arbitrary nor modern creation that may be swept

aside or haphazardly curtailed. See Teague, 489 U.S. at 316.

New procedural rules generally do not apply retroactively

because they do not produce a class of persons convicted of

conduct the law does not make criminal, “but merely raise the

possibility that someone convicted with use of the invalidated

procedure might have been acquitted otherwise.” Summerlin,

542 U.S. at 352. Nonetheless, new procedural rules that are

fundamental and “‘without which the likelihood of an

accurate conviction is seriously diminished” are applied

retroactively on a collateral review. /d. (emphasis omitted)

(quoting Teague, 489 U.S. at 313). Under the second

exception of Teague, a procedural rule can be applied

retroactively only if it is a watershed rule, a rule which goes

to the “fundamental fairness” and accuracy of the criminal

proceeding, or a rule that is one “without which the likelihood

of an accurate conviction is seriously diminished.” Teague,

489 U.S. at 312-13.

Crawford falls under the second exception because it

establishes a new watershed procedural rule in preserving the

Sixth Amendment rights of the accused. In Crawford, the

Court undertook a thorough examination of the history of the

Confrontation Clause to understand its original meaning and

concluded that the Founding Fathers meant to prohibit

testimonial statements such as “‘ex parte in-court testimony

or its functional equivalent’” that the “‘defendant was unable

to cross-examine, or similar pretrial statements that declarants

would reasonably expect to be used prosecutorially.””

13

Crawford, 541 U.S. at 51 (quoting White v. Illinois, 502 U.S.

346, 265 (1992)). Specifically, the Court emphasized “that

the Framers would not have allowed admission of testimonial

statements of a witness who did not appear at trial unless he

was unavailable to testify, and the defendant had had a prior

opportunity for cross-examination.” Jd. at 53-54. Further,

this Court reasoned that “[{w]here testimonial evidence is at

issue . . . the Sixth Amendment demands .. . unavailability

and a prior opportunity for cross-examination.” /d. at 68.

The Court has recognized the importance of cross-

examination to the reliability of a result in a criminal trial

numerous times. Cross-examination enables the accused to

explore inconsistencies between a witness’ testimony and

other evidence, probe any biases that may have led the

witness to distort the truth, and open lines of inquiry that the

State, for whatever reason, may have neglected. Taylor v.

Illinois, 484 U.S. 400, 411-12 (1988) (stating “cross-

examination{] minimizes the risk that a judgment will be

predicated on incomplete, misleading, or even deliberately

fabricated testimony”). There has been a long history of this

procedural protection. As the Court notes in Crawford (citing

King v. Paine, 5 Mod. 163, 87 Eng. Rep. 584 (1696)), the

Court of the King’s Bench held that “the admissibility of an

unavailable witnessess’s pretrial examination depended on

‘whether the defendant had had an opportunity to cross-

examine him.” Crawford, 541 U.S. at 45. Further, in

Pointer, 380 U.S. at 405, this Court noted: “There are few

subjects, perhaps, upon which this Court and other courts

have been more nearly unanimous than in their expressions of

belief that the right of confrontation and cross-examination is

an essential and fundamental requirement for the kind of fair

trial which is this country’s constitutional goal.” “The right

of cross-examination is more than a desirable rule of trial

procedure. It is implicit in the constitutional right of

confrontation, and helps assure the ‘accuracy of the truth-

14

determining process.”” Chambers, 410 U.S. at 295. As one

noted scholar states,

The deep principles underlying the Sixth Amendment’s

three clusters and many clauses . . . are the protection of

innocence and the pursuit of truth. . . .

. . . Counsel, confrontation, and compulsory process

are designed as great engines by which an innocent man

can make the truth of his innocence visible to the jury

and the public.

Akhil -Reed Amar, Sixth Amendment First Principles, 84 Geo.

L.J. 641, 642-43 (1996).

IV. AS WITH THE COURT’S HOLDING IN GIDEON,

RETROACTIVE APPLICATION IS APPROPRI-

ATE HERE.

New procedural rules should be applied retroactively when

they are watershed or bedrock procedural rules, i.e., rules

without which the likelihood of an accurate conviction would

be seriously diminished. See Summerlin, 542 U.S. at 352 and

Teague, 489 U.S. at 313. Crawford announces such a rule.

Cross-examination is essential to the fundamental right of

confrontation and has been recognized by this Court as “the

principal means by which the believability of a witness and

the truth of his testimony are tested.” See Davis v. Alaska,

415 U.S. 308, 316 (1974). The Crawford rule goes to the

heart of the fundamental fairness and accuracy of a criminal

proceeding. Not only is it fundamentally unfair to permit

testimony to be admitted when the witness is unavailable and

a defendant is not given the opportunity to cross-examine the

witness, it is fundamentally unfair to conduct a trial in which

only one side has unfettered access to the principal witnesses

and key testimony. See Saffle, 494 U.S. at 495. Here, the

child’s statements that were admitted without cross-

examination were the critical and primary statements used by

15

the prosecution to present its case against defendant and the

primary statements that led to Mr. Bockting’s conviction.

The admission of these wholly untested statements

diminished the likelihood of an accurate conviction, even

putting to one side the child’s inconsistency as to whether the

abuse occurred. The principal witness in this matter was in

the hands of government agents and prosecutors at all times

and, plainly, was subjected to leading, misleading and

repetitive questioning. The Framers themselves expressed

skepticism about the abilities of a jury to discern the truth

under such conditions. For this reason, they enshrined cross-

examination as the means of bringing out the truth in a trial,

exposing falsehoods, and ensuring that evidence admitted

against an accused is reliable. See Mattox v. United States,

156 U.S. 237, 242-43 (1895). In this respect, Crawford

establishes a watershed rule of criminal procedure that is at

least equal to the right to counsel as set forth in Gideon v.

Wainwright, 372 U.S. 335 (1963), for the two go hand-in-

hand. Little is to be gained from the provision of counsel if

counsel is deprived of its most essential tool.

Further, the Teague test, while restrictive, cannot rationally

apply to but one instance among bedrock principles of

criminal procedure. Gideon cannot be the only watershed

rule. Gideon addressed only one right conferred by the Sixth

Amendment, the right to counsel. It makes little sense to

establish a test such as Teague unless the Court expected that

other rules, prospectively made, would satisfy the second

exception of Teague and qualify for retroactive effect

Nevertheless, courts continue to view the right to counsel as

the only right conferred by the Sixth Amendment as a

watershed rule that can pass through Teague’s funnel. See,

e.g., O'Dell v. Netherland, 521 U.S. 151, 167 (1997); Saffle,

494 US. at 495; Leavitt v. Arave, 383 F.3d 809, 826 (9th Cir.

2004) (per curiam); United States v. Mandanici, 205 F.3d

519, 528-29 (2d Cir. 2000).

16

From the perspective of a criminal defendant, cross-

examination means not only the ability to get at the truth, but

the ability to present one’s own version of the /acts.

Questions and arguments from counsel are not testimony and

jurors may not consider them as evidence. See Ninth Circuit

Model Criminal Jury Instructions § 3.7 (2003). Accordingly,

a prosecution’s admissions on cross-examination are a

principal means — and often, the only means — to establish a

defense that the jury may consider. Many, many

prosecutions, as here, involve accusations made by one or

more witnesses where the only possible defense witness is the

defendant himself. For independent and sensible reasons, a

defendant may elect not to testify and where that is the case,

cross-examination is the sole procedural vehicle for the

defense to present its case. Deprivation of that vehicle,

whether it is the sole vehicle or not, is tantamount to

disallowing a defense altogether. As such, it cannot help but

seriously diminish the likelihood of an accurate conviction.

Thus, the rule in Crawford should be deemed a watershed

rule by this Court for purposes of Teague and applied

retroactively for cases on collateral review just as was done

with the rule in Gideon.

The Teague exceptions are sufficiently narrow to

discourage overuse. It is fundamentally fair to permit habeas

petitioners to benefit from new rules that enforce bedrock

constitutional protections. Retroactive application is a power

this Court retains for exceptional cases to ensure that there is

a floor of fundamental fairness in our criminal justice system.

See, e.g., Gideon v. Wainwright, 372 U.S. 335 (all criminal

defendants facing the possibility of imprisonment have the

right to counsel); Yick Wo v. Hopkins, 118 U.S. 356 (1886)

(criminal statutes may not be arbitrarily applied to persecute

one group).

Furthermore, the retroactive application of the Crawford

rule serves the fundamental purpose of the Great Writ of

Habeas Corpus to protect the innocent criminal defendant

17

from erroneous conviction and punishment. See Bousley v.

United States, 523 U.S. 614, 620 (1998). Indeed, federal

habeas corpus petitions are meant to ensure that “no man has

been incarcerated under a procedure which creates an

impermissibly large risk that the innocent will be convicted.”

Desist v. United States, 394 U.S. 244, 262 (1969) (Harlan, J.,

dissenting), quoted in Teague, 489 U.S. at 312; see O’Neal v.

McAninch, 513 U.S. 432, 442 (1995) (“the basic purposes

underlying the writ of habeas corpus” include correcting “an

error of constitutional dimension — the sort that risks an

unreliable trial outcome and the consequent conviction of an

innocent person”). Crawford itself was based on the principle

that cross-examination is essential to obtaining an accurate

conviction. The retroactive application of Crawford,

therefore, is not only consistent with the fundamental purpose

of the Great Writ, but it also reinforces the basic protection

that the Writ was designed to provide.

CONCLUSION

For the foregoing reasons, as well as those stated in

Respondent’s Brief, the judgment of the Ninth Circuit should

be affirmed.

Respectfully submitted,

SARAH O’ ROURKE SCHRUP JEFFREY T. GREEN*

NORTHWESTERN UNIVERSITY MARIANNE T. CAULFIELD

SUPREME COURT PRACTICUM SIDLEY AUSTIN LLP

357 East Chicago Avenue 1501 K Street, N.W.

Chicago, IL 60611 Washington, D.C. 20005

(312) 503-8576 (202) 736-8000

Counsel for Amicus Curiae

September 20, 2006 * Counsel of Record