Opposition Brief — Danforth v. Minnesota

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NO. 06-8273

SUPREME COURT OF THE UNITED STATES

STEPHEN DANFORTH,

Petitioner,

VS.

STATE OF MINNESOTA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF MINNESOTA

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

BENJAMIN J. BUTLER LORI SWANSON

Office of the State Public Defender Minnesota Attorney General

2221 University Avenue SE Bremer Tower, Suite 1800

Suite 425 445 Minnesota Street

Minneapolis, MN 55414 St. Paul, MN 55101-2134

Telephone: 612-627-6980

MICHAEL O. FREEMAN

Hennepin County Attorney

By: MICHAEL K. WALZ

Assistant Hennepin County Attorney

Attorney of Record

C-2000 Government Center

Minneapolis, MN 55487

Atty. License No: 114340

Phone: (612) 348-3115 RECEIVED

FAX: (612) 348-6028

FEB 2 z 2007

CLERK

ATTORNEYS FOR PETITIONER ATTORNEYS FOR REB RT

TABLE OF CONTENTS

Page

I i a 3

FACTUAL HISTORY........................ sieibilabeiaiepiiabaladaaiintaiamaits , 6

ARGUMENT iittala ea iene 8

I. PETITIONER IS NOT ENTITLED TO RETROACTIVE

APPLICATION OF THE CRAWFORD RULE; ACCORDINGLY,

HIS PETITION FOR WRIT OF CERTIORARI SHOULD BE

DENIED

A. CRAWFORD ANNOUNCED A NEW RULE

B. CRAWFORD’S RULE IS PROCEDURAL 13

C. CRAWFORD’S NEW RULE IS NOT A “WATERSHED

RULE” AND DOES NOT REQUIRE RETROACTIVE

APPLICATION ‘ 13

D. BECAUSE CONFRONTATION CLAUSE VIOLATIONS

ARE SUBJECT TO HARMLESS ERROR ANALYSIS,

CRAWFORD IS NOT A WATERSHED RULE ENTITLED

TO RETROACTIVE APPLICATION ..........ccccccsssesseeessssseneeesees 20

CELUI IOIIN accsasosesassssssassssosensenssnnnntnsssonssiesnsconsnnsennsensesnsessessnsssscsssnnsosnstsonssssens 22

TABLE OF AUTHORITIES

Page

Minnesota Cases

Danforth v. State, 700 N.W.2d 530 (Minn. App. 2005) ..............:cccccceccceeeseeeeeeeeeeeees 5

Danforth v. State, 718 N.W.2d 451 (Minn. 2006)....0...........:cccccesceeeseeeeeeeeeeeeeeeeeeees 5

Danforth v. State, No. C6-00-699, 2000 WL 1780244

(Minn. App. Dec. 5, 2000, rev. denied (Minn. Feb. 13, 2001)...........:cccccccccseeeees 4

State v. Danforth, 573 N.W.2d 369 (Minn. App. 1997),

rev. denied (Minn. Feb. 19, 1998) .............-c.eccc.secssseressoccsreresrcsssecesessscsessenseees 4,7

State v. Danforth, No. C5-98-2054, 1999 WL 262143

(Minn. App. May 4, 1999), rev. denied (Minn. July 28, 1999) 000.0... cceceeseeneees 4

State v. Houston, 702 N.W.2d 268 (Minn. 2005)..............:ccccceeeeesceceeeeeeeteeeeeeeeeeseees 5

Federal Cases

Apprendi v. New Jersey, 530 U.S. 466 (2000)... cecccececeeseeeeseeeeneeeeeeeeeseeeeeees 22

Beard v. Banks, 542 U.S. 406 (2004) o00........cccecececesseeeseeeseeeeseeeeseneeneeneeeeeees 9,10, 11

Bintz v. Bertrand, 403 F.3d 859 (7th Cir. 2005) ...0.........ecceccecceeeeeeeeeeeeeeeees 9, 10, 18

Blakely v. Washington, 542 U.S. 296 (2004) 00.......cccceesssseesseeseesseeneeeceeeenceeeeeneentens 4

Bockting v. Bayer, 399 F.3d 1010 (9th Cir. 2005) ..0.......eccecccccceecceseeteeeeeeeeneneeeees 18

Brown v. Uphoff, 381 F.3d 1219 (10th Cir. September 8, 2004) .................2. passim

a a Se re rn, I... cs cscnoeneoneseostncnsononassennenseonsanineses 20

Crawford v. Washington, 541 U.S. 36 (2004) 2000.0... .ccccecccccccceeeeeeeeneeeereeees passim

Crespin v. New Mexico, 144 F.3d 641 (1988) ...........cccccccecseeeseeseeeeeeeeteeeeeeeeeeeees 21

Gideon v. Wainwright, 372 U.S. 335 (1963) .0..........ccccccccceceseeeeeeeeeeeeeeneees 15, 16, 21

Lave v. Dretke, 444 F.3d 333 (Sth Cir. 2006) .............cccccccceccccesscesseeeeeseeeeeeeeeeees 9,17

Mackey v. United States, 401 U.S. 667 (1971) .........0cccccccccecceteeeeeeeeeseseeeeeeeeeeeeeees 15

Malinski v. New York, 324 U.S. 401 (1945) .0.......cccccccceecessceeecessceeseeeeeeeeseeesceeseeees 8

Mungo v. Duncan, 393 F.3d 327 (2d Cir. 2004) oo... cc cccccecececeeeeeecceeeeeeeeees 16,17

Murillo v. Frank, 402 F.3d 786 (7th Cir. 2005)... ....cccccecceesceeeeeeeeeeeees 10,17, 18

O'Dell v. Nehesiamd, S21 U.S. 191 (1997).............00000..cccecccorccccescsessscensssseesses 12, 13

Ohio v. Roberts, 448 U.S.56 (1980)..............0.ccccccccscccscsescssssssssesesesesscseseess 11, 12,19

I We Re i Me st cccctceccncccsnccessevesessscnssocnsccsontcsnesesesooneseens 20

Schnro v. Summerlin, 542 U.S. 348 (2004) .0.2.0....0 ccc cccecceeeeceesceceeeeeeeeees 13, 14, 15

Oe es ie I Bic ccccccsnescccoccssscscecescsncsssesasecnsatenescneneconoess passim

nn _. senenininiuboonnnonsiananeminnanteiie 15

Whorton v. Bockting, U.S. , 1268S. Ct. 2017 (2006) 00. 24

PROCEDURAL HISTORY

The issue central to this case 1s whether Petitioner Danforth is entitled to

retroactive application of Crawford v. Washington, 541 U.S. 36 (2004). Simply

put, if Appellant had a matter pending on direct review at the time the Crawford

decision was issued, he is automatically entitled to relief. If, however, he

exhausted his direct review remedies prior to Crawford's announcement, he then

is entitled to relief only (a) via the application of Teague v. Lane, 498 U.S. 288

(1989) and (b) the retroactive application of the Crawford rule. With this

background, the relevant procedural history is as follows:

March 6, 1996 Appellant was found guilty of Criminal

Sexual Conduct in the First Degree.

May 13, 1996 Appellant was sentenced.

August 8, 1996 The State filed a Notice of Appeal of the

sentence.

August 9, 1996 Appellant filed a Notice of Appeal

contesting the conviction and a motion to

consolidate his appeal with the sentencing

appeal of the State.

December 16, 1997 Appeilant’s conviction was affirmed by the

Minnesota Court of Appeals. The sentence,

however, was reversed and the matter

remanded for resentencing. On remand, the

district court imposed a double upward

durational departure of 316 months.

May 4, 1999 The sentence was affirmed by the Minnesota

Court of Appeals.

July 28, 1999 The Minnesota Supreme Court demed

Appellant's Peution for Review.

October 26, 1999 Appeliant’s time to seek United States

Supreme Court review expired. See 28

U.S.C. § 2101(d).

March 8, 2004 The Crawford decision is announced.

July 27, 2006: The Minnesota Supreme Court rejects

retroactive application of Crawford, giving

rise to the instant Petition for Wnt of

Certiorari.

The Minnesota Supreme Court summarized the procedural history as

follows:

Stephen Danforth was convicted of first-degree

criminal sexual conduct, Minn. Stat. § 609.342, subd.

1(a) (2004), on March 6, 1996. This conviction arose

out of the sexual abuse of J.S., a 6-year-old boy. J.S.

was found incompetent to testify at trial, but a

videotaped interview of J.S. conducted at a non-profit

center was admitted into evidence. On appeal, the

court of appeals affirmed Danforth’s conviction but

remanded for resentencing. State v. Danforth, 573

N.W.2d 369, 371 (Minn. App. 1997) (Danforth 1), rev.

denied (Minn. Feb. 19, 1998). On remand, Danforth

was sentenced to imprisonment for 316 months. The

court of appeals affirmed this sentence on appeal.

State v. Danforth, No. C5-98-2054, 1999 WL 262143,

at *1 (Minn. App. May 4, 1999) (Danforth II), rev.

denied (Minn. July 28, 1999). Alleging various trial

errors, Danforth filed a petition for postconviction

relief. The postconviction court denied the petition

and the court of appeals affirmed. Danforth v. State,

No. C6-00-699, 2000 WL 1780244, at *1 (Minn. App.

Dec. 5, 2000) (Danforth /1]), rev. denied (Minn. Feb.

13, 2001).

After the Supreme Court’s decisions in Crawford v

Washington, 541 U.S. 36 (2004),and Blakely wv

Washington, 542 U.S. 296 (2004), Danforth filed a

second petition for postconviction relicf alleging he

was entitled to relief based on the rules established by

those cases. The postconviction court demed Danforth

relief, finding that neither Crawford nor Blakely

applied retroactively to Danforth’s case, the court of

appeals affirmed. Danforth v. State, 700 N.W.2d 530,

532 (Minn. App. 2005) (Danforth 1V). We granted

review of the Crawford issue only and requested that

the Office of the State Public Defender represent

Danforth on this appeal.

Danforth argues that this court is free to apply a

broader retroactivity standard than that of Teague v.

Lane, 489 U.S. 288 (1989), and that he is entitled to

the benefit of Crawford under state retroactivity

principles. He also argues that, even using the

framework of Teague, Crawford should be

retroactively applied to his case. We reaffirm our

holding in State v. Houston, 702 N.W.2d 268, 270

(Minn. 2005), that we are required to apply Teague’s

principles when analyzing the retroactivity of a rule of

federal constitutional criminal procedure. Because we

conclude that, under Teague, Crawford does not apply

retroactively to Danforth’s case, we affirm

Danforth v. State, 718 N.W.2d 451 (Minn. 2006).

The Minnesota Court of Appeals summarized the facts of this case as

follows:

FACTUAL HISTORY

Danforth is a multiply-convicted pedophile with an

extensive history of sexually abusing young boys

during the 1970’s and 1980’s. Danforth and (victim)

J.S.’ parents, particularly J.S.’ father, were close

friends for many years; Danforth was like a “favorite

uncle” to J.S. and his siblings, having spent a great

deal of time with the family.

On August 11, 1995, a neighbor discovered six-year-

old J.S. with his pants down atop a younger girl, acting

in a sexual manner. When confronted by his mother

and asked where he had learned such things, J.S. said

that “Steve” had put his mouth on J.S.” “pee-pee” and

his finger in J.S.” “poopie butt.” That evening, J.S.’

mother called the police to report the alleged sexual

abuse.

When interviewed by the police, J.S. said that “Steve”

had put his “pee” in his buttocks and that “Steve” had

made him “kiss his pee.” On August 23, 1995, J.S.

was interviewed at CornerHouse, a non-profit sexual

abuse center. JS. gave substantially similar

information during this videotaped interview and

clearly indicated that he had been sexually abused by

Danforth.

The tral was lengthy, lasting from February 7 through

March 6, 1996. Danforth, a disbarred attorney,

represented himself for much of the trial, although he

had access to stand-by counsel.

On the day that testimony was scheduled to begin, a

competency hearing was held to determine whether

J.S. and his five-year-old sister, A.S., were competent

to testify. Danforth strongly urged the district court to

find J.S. incompetent and to rule the CornerHouse

videotape madmissible. The state agreed that JS.

appeared incompetent to testify, but argued that the

videotape was nevertheless admissible. Because JS.

6

3

State v. Danforth, 573 N.W.2d 369 (Minn. App. 1997), rev. dented (Minn. Feb.

19, 1998).

had limited ability to focus on questions and give

relevant answers, the district court declared him

incompetent. The district court found A.S. competent

to testify, however, because she exhibited a far

superior ability to concentrate than J.S.

The distnct court admitted the videotape because it

found the taped conversations bore sufficient indicia of

reliability. Among other factors, the district court

noted that J.S.’ remarks appeared spontaneous and

largely unsolicited by leading questions, and that J.S.

lacked any apparent motivation to fabricate the

accusation.

At trial, the jury viewed the CornerHouse videotape,

and A.S. testified that she had seen “Steve” put his

mouth on J.S.’ “pee-pee” and “private” one day in the

men’s room by the pool at their aunt’s apartment. A.S.

did not identify Danforth in the courtroom, however.

The state called former victims to testify about the

sexual abuse underlying some of Danforth’s previous

convictions.

Danforth testified on his own behalf. He claimed that

J.S.’ parents trumped up the charges because J.S.’

father was repulsed by Danforth’s admitted

homosexuality and J.S.” mother was angry with

Danforth for various disparaging comments and

criticism of her parenting skills. Danforth also claimed

that he was reformed and understood the evil of his

past ways.

The jury convicted Danforth of first-degree criminal

sexual conduct. The district court denied Danforth’s

detailed motion for a new trial and sentenced him to an

executed term of imprisonment of 216 months, and

upward durational departure of 58 months, but less

than double the presumptive sentence, which the state

asserted was the minimum sentence required under

Minn. Stat. § 609.1352 (the patterned sex offender

Statute).

ARGUMENT

“The history of American freedom is, in no small measure, the history of procedure”

Justice Felix Frankfurter

Malinski v. New York

324 U.S. 401, 65 S. Ct. 781, 89 L.Ed. 1029 (1945)

The observation of Justice Frankfurter could have been written with the

instant matter in mind. Decidedly, Danforth v. Minnesota presents a single issue

of procedural law significant not only to the many convicted persons whose

convictions, at least in part, rest upon the admission of “reliable hearsay,” but as

well to the judges and prosecutors of the fifty states, charged as they are with the

duty of ensuring that due process remains, as it must, a protective umbrella over

each and every criminal prosecution. The answer to the question of whether the

rule enunciated in Crawford v. Washington, 541 U.S. 36 (2004) is to be afforded

retroactive application promises an immediate and, depending upon that answer,

immense impact upon criminal procedural law in the United States.

I. PETITIONER IS NOT ENTITLED TO

RETROACTIVE APPLICATION OF THE

CRAWFORD RULE; ACCORDINGLY, HIS

PETITION FOR WRIT OF CERTIORARI

SHOULD BE DENIED.

While the various Circuit Courts of Appeal do not speak with unanimous

voice as to the retroactive application of the Crawford rule, those that have

commented upon the subject do agree that Crawford announces a new rule of

constitutional criminal procedure. Because the announcement of a “new rule” is

essential to the application of Teague v. Lane, 489 U.S. 288 (1989), any analysis

of the eniinn of retroactivity must begin with a determination of whether

Teague, infact, applies.

A. Crawford Announced A New Rule.

Under Beard v. Banks, 542 U.S. 406, 413 (2004), a rule is new when it is

not dictated by the law in effect at the time of the defendant’s conviction. A poll

of the Circuit Courts of Appeal reveals that they speak with unanimity in the belief

that Crawford did, in fact, announce a new rule and that Jeague v. Lane is

applicable to the analysis of the question of Crawford's retroactive application.

As the Fifth Circuit observed in Lave v. Dretke, 444 F.3d 333 (Sth Cir.

2006), “[b]ecause Crawford changed the test for the admissibility of certain out-

of-court statements, it imposes new obligations on state and federal courts and

qualifies as a new rule of criminal procedure.”

That view was reiterated by the Seventh Circuit Court of Appeals in Bintz

v. Bertrand, 403 F.3d 859 (7th Ci. 2005), a case of some significance to

Minnesota as tt arose im Minnesota's sister state, Wisconsin. Binitz concludes that

9

wand

the U.S. Supreme Court announced a new rule for Confrontation Clause objections

but that the rule has no retroactive application. In so doing, the Seventh Circuit

stated:

It seems clear that Crawford was a clean break from

the line of precedent established by Roberts. Crawford

considered and rejected the continuing application of

Roberts. Nevertheless, a state court would not have

acted unreasonably by failing to anticipate this ruling

and applying Roberts. Crawford was thus a new rule

for purposes of Teague (citations omitted).

Bintz v. Bertrand, 403 F.3d at 866.

Even the Ninth Circuit, being the sole proponent of Crawford's retroactive

application among the Circuit Courts of Appeal, begins its analysis with the

declaration that Crawford imposed a new rule, albeit not by the standard

enunciated in Teague. Moreover, the rule announced in Beard v. Banks has not

been met. As the Seventh Circuit Court of Appeals observed in Murillo v. Frank,

402 F.3d 786 (7th Cir. 2005), “Crawford was not ‘dictated by Roberts *** it broke

from it.

historically better grounded approach does not makc it less a break.”

rule is found in Brown v. Uphoff, 381 F.3d 1219 (10th Cir. September 8, 2004).

A decision of the Supreme Court announces a new rule

if “the result was not dictated by precedent existing at

the time defendant’s conviction became final”

(citations omitted). As we explained above, prior to

the decision in Crawford, Roberts provided the

appropriate framework for determining whether the

admission of hearsay statements violated the

Confrontation Clause. The Supreme Court itself noted

that the logic of Roberts was wmeconsistent with the

That the break takes the form of a return to an older, less flexible but

Perhaps one of the better summaries of why Crawford establishes a new

10

4

Court’s conclusion in Crawford that the Confrontation

Clause requires an opportunity to cross-examine

before testimonial hearsay may be admitted against the

defendant (citations omitted). Thus, Roberts and its

progeny did not dictate the result in Crawford and we

conclude that it announces a new rule of constitutional

law.

Brown v. Uphoff, 381 F.3d at 1226

Interestingly, it is also clear that Chief Justice Rehnquist and Justice

O’Connor believed that Crawford announced a new tule. In the

concurrence/dissent of the Chief Justice, to which Justice O’Connor joined, it is

stated:

...in making this appraisal, doubt that the new rule is

indeed the “right” one should surely be weighed in the

balance.

* * *

But the thousands of federal prosecutors and the tens

of thousands of state prosecutors need answers as to

what beyond the specific kinds of “testimony” the

Court lists ... is covered by the new rule.

Crawford, 124 S. Ct. at 1378

indeed, then, there can be little dispute that Crawford,

by overruling the Ohio v. Roberts, 448 U.S.56, 65

L.Ed.2d 597, 100 S. Ct. 2531 (1980) manner of

determining whether the admission of hearsay

evidence violates the Sixth Amendment, created a new

rule.

Often, there ts more than one path through a forest, and the Minnesota

Supreme Court, joined by the Seventh Circuit, elected the path Icss traveled to

explain that Crawford announces a new rule.

The Minnesota Supreme Court observed:

Danforth’s argument is flawed because it misconstrues

the test governing whether a rule is new for Teague

purposes. We do not ask whether Crawford's rule is

faithful to the original meaning of the Confrontation

Clause or whether the results of relevant Supreme

Court precedent are consistent with the rule in

Crawford. Instead, we ask “whether ‘reasonable

jurists hearing petitioner’s claim at the time his

conviction became final would have felt compelled

(emphasis in orginal) by existing precedent to rule in

his favor’” (citations omitted). Put another way,

Danforth’s argument requires “reasonable jurists” to

have foreseen Crawford's significant modification—if

not outright overruling—of Roberts. When conducting

an analysis under Teague, the Supreme Court has

never required such prescience of lower courts.

Furthermore, such a requirement would not “validate

reasonable, good-faith interpretations: of existing

precedents made by state courts even though they are

shown to be contrary to later decisions” (citations

omitted). Consequently, Crawford established a new

tule of federal constitutional criminal procedure for the

purposes of Teague.

Danforth v. State, 781 N.W.2d at 459.

The Seventh Circuit, following the same path, stated:

It seems clear that Crawford was a clean break from

the line of precedent established by Roberts. Crawford

considered and rejected the continuing application of

Roberts. Nevertheless, a state court would not have

acted unreasonably by failing to anticipate this ruling

and applying Roberts. See O'Dell v. Netherland, 52}

U.S. ISI, 156, 138 L.Ed.2d 351, 117 S. Ct. 1969

(1997). (“At bottom, the Teague doctrine ‘validates

reasonable good-faith interpretations of existing

precedents made by state courts even though they are

shown to be contrary to later decisions.’” (citations

omitted in orginal). Crawford was thus a new rule for

purposes of Jeague.

B. Crawford’s Rule Is Procedural.

It is next necessary to examine whether Crawford's new rule is procedural,

as opposed to substantive, law. This is because Teague v. Lane does not apply to

substantive changes in the law, but, rather, to “watershed rules of criminal

procedure implicating the fundamental fairness and accuracy of the criminal

proceeding.” Beard v. Banks, 542 U.S. at 417 (quoting O'Dell v. Netherland, 521

U.S. 151, 157 (1997)).

A rule imposes a substantive change when it “...alters the range of conduct

or the class of persons that the law punishes,” while a procedural rule is one which

addresses “the manner of determining the defendant’s culpability.” Schriro v.

Summerlin, 542 U.S. 348 at 353 (2004).

Decidedly, a rule requiring, as Crawford does with very limited exception,

confrontation and cross-examination in lieu of reliable hearsay, addresses the way

in which a defendant's culpability is to be proven in opposition to addressing the

creation of a new crime or a new class of offenders. In fact, Crawford declares

that the necessity of cross-examination is “a procedural rather than a substantive

guarantee.” Crawford, 541 U.S. at 61. Accordingly, Crawford announced a new

rule of criminal procedural law. As such, Teague is applicable to the analysis of

the retroactivity issue.

C. Crawford's New Rule Is Not A “Watershed Rule” And Does Not

Require Retroactive Application.

1. The Rule of Teague v. Lane.

In Teague v. Lane, 489 US. 288, 301 (1989) this Court held:

In general...a case announces a new rule when it

breaks new ground or imposes a new obligation on the

States or the Federal government .... To put it

differently, a case announces a new rule if the result

was not dictated by precedent existing at the time the

defendant’s conviction became final.

Teague allows for retroactive application of a new law in only two

instances: (1) where a new substantive law places certain kinds of primary, private

individual conduct beyond the power of the cnmminal-making authority to

proscribe, and (2) where a new procedural rule defines procedure implicit in the

concept of ordered liberty. A new rule qualifies under the second exception if it is

a “watershed” rule that implicates fundamental fairness and accuracy of the

criminal proceeding. 7eague v. Lane, 489 U.S. at 307.

As Senior Judge Wallace explains in his Bockting concurrence/dissent,

Crawford's new rule applies retroactively only if it falls within certain categories

of rules. In Schriro v. Summerlin, 542 U.S. 348 (2004), this Court provided the

following guidance:

New substantive rules generally apply retroactively.

This includes decisions that narrow the scope of a

criminal statute by interpreting its terms, [citations

omitted] as well as constitutional determinations that

place particular conduct or persons covered by the

statute beyond the state’s power to punish, [citations

omitted]. Such rules apply retroactively because they

“necessarily carry a significant risk that a defendant

stands convicted of ‘an act that the law does not make

criminal’” or faces a punishment that the law cannot

impose on him. [citations omitted].

New rules of procedure, on the other hand, generally

do not apply retroactively. 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.

Because of this more speculative connection to

innocence, we give retroactive effect only to a small

set of “‘watershed rules of cmminal procedure’

implicating the fundamental faimess and accuracy of

the criminal proceeding.” [citations omitted].

Schriro v. Summerlin, 542 U.S. at 351-52.

Judge Wallace concludes, “Measured against Summerlin’s standards,

Crawford is best classified as a procedural rule.” Wallace concurrence/dissent,

Bockting v. Bayer at 2021.

2. Crawford is Not A “Watershed” Rule.

The prototypical example of a watershed rule is Gideon v. Wainwright, 372

U.S. 335 (1963) which established an affirmative mght to counsel in felony cases.

It is against this standard that the Circuit Courts of Appeal have measured

Crawford, and, with the single exception of the Ninth Circuit, have found it

lacking. This is because a rule is classified as a “watershed” rule only if it meets

two tests: The first is that “[{i]nfringement of the rule must seriously diminish the

likelihood of obtaining an accurate conviction.” The second is that the rule must

“alter our understanding of the bedrock procedural elements essential to the

fairness of a proceeding.” 7yler v. Cain, 533 U.S. 656 (2001), (citing Sawyer v.

Smith, 497 U.S. 227, 242 (1990), and Mackey v. United States, 401 U.S. 667, 693

(1971))

a. Crawford Did Not Improve The Overall Accuracy

Of The Criminal Process.

The Crawford court noted that while the goal of the Confrontation Clause

was to improve reliability, it was a procedural guarantee.

To be sure, the Clause’s ultimate goal is to ensure

reliability of evidence, but it is a procedural rather than

a substantive guarantee. It commands, not that

evidence be reliable, but that reliability be assessed in

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

examination. The Clause thus 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.

Crawford v. Washington, 54) U.S. at 61-62.

In Mungo v. Duncan, 393 F.3d 327 (2d Cir. 2004), the Second Circuit

Court of Appeals identified Teague ’s second exception as being “new watershed

rules of criminal procedure that are necessary to the fundamental fairness of the

criminal proceeding and improve the accuracy of the criminal process.” Applying

that requirement to Mungo, the Second Circuit concluded:

We do not believe that Crawford necessarily improves

the overall accuracy of the criminal process. As we

see the operation of the Crawford rule, it is likely to

improve accuracy in some circumstances and diminish

it in others. To the extent that Crawford requires the

exclusion of unreliable hearsay that would have been

admitted under the pnor law, it is likely to improve

accuracy. *** At the same time, however, Crawford

also precludes admission of highly reliable testimonial

out-of-court statements that would have — been

admissible under the old rules. In such instances,

juries will be deprived of highly reliable evidence of

guilt, and cases that otherwise would have resulted in

well-deserved convictions will now result in acquittals

or hung juries. *** Where the testimony was

admissible under the old rules precisely because it was

16

ia

.

reliable, these applications of Crawford will diminish,

rather than increase, the accuracy of the process. ***

Because Teague's test of a watershed rule requires

improvement in the accuracy of the trial process

overall, we conclude that Crawford is not a watershed

rule. We thus conclude that Crawford should not be

applied retroactively on collateral review.

Mungo v. Duncan, 393 F.3d at 336.

The Fifth Circuit, in Lave v. Dretke, 444 F.3d 333 (Sth Cir. 2006),

concisely concludes, “[t]he point of Crawford ts not that only live testimony is

reliable, but that the Sixth Amendment gives the accused a night to insist on live

testimony, whether that demand promotes or frustrates accuracy.” Quoting Mungo,

the Court continued, “{bjecause Teague'’s test of a watershed rule requires

improvement in the accuracy of the trial process overall, we conclude that

Crawford is not a watershed rule ... [and] should not be applied retroactively.”

Mungo v. Duncan, 393 F.3d at 336.

In Murillo v. Frank, 402 F.3d 786 (7th cir. 2005), another case arising from

Minnesota’s sister state, Wisconsin, the Seventh Circuit stated:

Indeed, it would be a close question whether Crawford

helps or hinders accurate decisionmaking. Live

testimony is preferable to affidavits and transcribed

confessions, because cross-examination can probe its

weaknesses, but recorded testimony may be better than

silence, when death or incapacity or threats or loyalty

to one’s confederates keep witnesses off the stand.

The point of Crawford is not that only live testimony

is reliable, but that the Sixth Amendment gives the

accused a right to insist on live testimony, whether that

demand promotes or frustrates accuracy. Like the self-

incrimination clause and other provisions in the Bill of

Rights, the confrontation clause can be invoked to

prevent the conviction of persons who are guilty in

fact. What Crawford holds is that defendants enjoy

this mght even when the hearsay is trustworthy

(emphasis in original). This is not an indispensable

innocence-protecting decision that must be applied

retroactively to criminal prosecutions that have already

been finally resolved on direct review.

Murillo v. Frank, 402 F.3d at 790-91.

The Seventh Circuit joined the debate in Bintz v. Bertrand, where that

Court concluded:

Further, it is unclear that Crawford's modification to

the hearsay rules will markedly improve the accuracy

of convictions. Crawford is not a guarantee of

accuracy but an extension of the full constitutional

protections of the Sixth Amendment. While the two

concepts overlap, they are not synonymous.

Crawford, therefore, is not a watershed change for

purposes of the second Teague exception and does not

apply retroactively.

Bintz v. Bertrand, 403 F.3d at 867.

In Bockting v. Bayer, 399 F.3d 1010 (9th Cir. 2005), the Ninth Circuit

expressed the minority view that Crawford should be retroactively applied. The

State of Minnesota, however, respectfully suggests that Judge Wallace, the Senior

Judge of that Circuit, armved at the correct result in his thoughtful

concurrence/dissent:

Nor am I| prepared to assert that all testimonial hearsay

evidence admitted without the opportunity for cross-

examination necessarily renders a criminal trial

“impermissibly inaccurate” (citation omitted), or

otherwise “unfair.”

Bockting v. Baver, 399 F.3d at 1027.

18

The foregoing reasoning is sound. Moreover, this Court, in articulating its

foundation for the Crawford decision, did not suggest that evidence introduced

under Roberts was of diminished accuracy, but, rather, that:

...the Framers would not have allowed admission of

testimonial statements of a witness who did not appear

at the trial unless he was unavailable to testify, and the

defendant had a prior opportunity for cross-

examination. The text of the Sixth Amendment does

not suggest any open-ended exceptions from the

confrontation requirement to be developed by the

courts.

Crawford v. Washington, 541 U.S. 36 at 53-54.

Similarly, although this Court criticized Roberts’ unpredictability (S41 U.S.

at 63), that criticism was unaccompanied by the conclusion that the application of

Roberts necessarily resulted in diminished accuracy.

Thus, the syllogism giving rise to the conclusion that Crawford is not

retroactive becomes apparent: (a) If the law requires that for a watershed rule to

exist, infringement of the rule must seriously diminish the likelihood of obtaining

an accurate conviction, and (b) if application of the rule of Roberts did not

diminish that likelihood and Crawford did not enhance it, then (c) Crawford

simply cannot be a watershed rule.

A second syllogism then, becomes immediately applicable: (a) If Petitioner

Danforth’s request for retroactive application of the Crawford rule requires a

finding that Crawford is a watershed rule, and (b) Crawford is not a watershed

rule, then (c) Petitioner Danforth’s prayer for retroactive application of Crawford

must fail

19

D. Because Confrontation Clause Violations Are Subject To

Harmless Error Analysis, Crawford Ils Not A Watershed Rule

Entitled To Retroactive Application.

In Brown v. Uphoff, 381 F.3d 1219 (10th Cir. 2004), it is observed that

although this Court “referred to the protections of the Confrontation Clause as a

‘bedrock procedural guarantee,”” Crawford, 124 S. Ct. at 1359, such reference

“does not necessarily suggest that the rule set forth in Crawford is ‘on the

magnitude of the rule announced in Gideon v. Wainwright as it must be to fit

within the Jeague exception.’” Brown, 381 F.3d at 1226. The Tenth Circuit

continued, stating that because “Confrontation Clause violations are subject to

harmless error analysis and thus may be excused depending on the state of the

evidence at trial,” (citation omitted) “{i}t would ... be difficult to conclude that the

rule in Crawford alters rights fundamental to due process.” Brown, 381 F.3d at

1226-27. Relying in part upon that analysis, the 10th Circuit concluded that

Crawford was not a watershed decision and, therefore, was not retroactively

applicable.

Because Confrontation Clause violations are subject to harmless error

review (see Coy v. lowa, 487 U.S. 1012, 1021-22 (1988)), Crawford does not

enjoy the primacy and centrality of the Gideon rule. Indeed, the fact that

Crawford errors are subject to harmless error review is a primary and central

reason why Crawford should not be retroactively apphed.

lt is absolutely inconceivable that any appellate tribunal, even when

presented with overwhelming, non-hearsay evidence of guilt, would sustain a

conviction obtamed in violation of a crimimal defendant's right to counsel as

20

guaranteed by Gideon v. Wainwright. However, it is nonetheless true that if

confronted with the same quantum of non-hearsay evidence, the same tribunal,

exercising the harmless error rule, could legitimately sustain a conviction over the

objection that hearsay evidence had erroneously been allowed.

In Brown v. Uphoff, the Tenth Circuit similarly took note of the effect of

the harmless error rule:

Unlike Gideon, Crawford does not “alter [| our

understanding of what constitutes basic due process,”

Mora, 293 F.3d at 1219, but merely sets out new

standards for the admission of certain kinds of hearsay.

Confrontation Clause violations are subject to

harmless error analysis and thus may be excused

depending on the state of the evidence at trial. Crespin

v. New Mexico, 144 F.3d 641, 649 (1988). It would,

therefore, be difficult to conclude that the rule in

Crawford alters rights fundamental to due process. See

Mora, 293 F.3d at 1219 (holding that Apprendi v. New

Jersey did not alter fundamental due process rights, in

part because Apprendi errors could be excused given

overwhelming evidence). Accordingly, we conclude

that Crawford is not a watershed decision and is,

therefore, not retroactively applicable to Brown's

initial habeas petition.

Brown v. Uphoff, 381 F.3d at 1226-27.

CONCLUSION

Chief Justice Rehnquist, joined by Justice O'Connor in a

concurrence/dissent to Crawford, adhere to the view that Crawford has only

prospective application.

Though there are no vested interests involved,

unresolved questions for the future of everyday

criminal trials throughout the country surely counsel

the same sort of caution. The Court grandly declares

that “[w]e leave for another day any effort to spell out

a comprehensive definition of “testimonial.” But the

thousands of federal prosecutors and the tens of

thousands of state prosecutors need answers as to what

beyond the specific kinds of “testimony” the Court

lists ... is covered by the new rule. They need them

now, not months or years from now.

Id. at 1378.

While it is clear that the Chief Justice and Justice O’Connor were greatly

concerned as to the prospective impact of the Crawford decision as it pertained to

the definition of “testimony” it is interesting to note that nowhere in their

concurrence/dissent is there to be found any mention of the impact that retroactive

application of the Crawford rule would visit upon courts and prosecutors

throughout the fifty states. It is tempting to suggest that the negative implication

of that omission is that neither Justice, even in their most innovative imaginings,

conceived of a day when Crawford would be a retroactive recourse available to

anyone whose conviction rested, at least in part, upon testimonial hearsay.

Fortunately, we need not rest upon such speculation. The examination of

retroactive application of the Crawford rule undertaken by the several Circunt

Courts of Appeal provides suitable discussion. Al] that remains is for this Court,

as it must, to agree.

Accordingly, the State of Minnesota requests that this Court deny Mr.

Danforth’s Petition for Writ of Certiorari. In the alternative, the Siate of

Minnesota joins Petitioner in the suggestion that the writ be granted but the matter

be stayed, pending resolution of Whorton v. Bockting, US. _, 126 S. Ct.

2017 (2006) (U.S. Supreme Court File # 05-595), which presents exactly the same

issue.

DATED: February 9, 2007 Respectfully submitted,

LORI SWANSON

Minnesota Attorney General

Bremer Tower, Suite 1800

445 Minnesota Street

St. Paul, MN 55101-2134

Auemey License No. 114340

C-2000 Government Center

Minneapolis, MN 55487

Telephone: (612) 348-3115

FAX: (612) 348-6028

ATTORNEYS FOR RESPONDENT