Whorton v. Bockting

Petitioner Whorton's argument

Petitioner argues that the Ninth Circuit, acting contrary to every other court that has decided this issue, erred in holding that Crawford should apply retroactively. Brief for Petitioner at 10. Petitioner argues that the rule in Crawford should not apply retroactively because it does not meet the standards of the Teague exception. Id. Under Teague, Petitioner argues, for a rule to apply retroactively because it is a bedrock rule of criminal procedure, it must be one “without which the likelihood of an accurate conviction is seriously diminished, and it is not a sweeping new rule reflecting a procedure that is implicit in the concept of ordered liberty.” Id.

Petitioner goes on to argue that since the Court decided Teague, it has not found a single criminal procedure rule that should apply retroactively. Id. at 15. In Teague, the Court declined to apply retroactively the rule of Batson v. Kentucky, 476 U.S. 79 (1986) which protects criminals against the discriminatory use of peremptory challenges. Teague, 489 U.S. at 303. Petitioner refers to twelve other cases where the court declined to apply a new criminal procedure rule retroactively and argues that even if a new rule relates to an important or fundamental right, such as a defendant’s right to cross-examine a witness against him, that does not mean that the new rule itself is fundamental. Brief for Petitioner at 32–33.

Petitioner then compares this case to three of the twelve cases the court decided since Teague. Id. First, Petitioner analogizes this case to Sawyer v. Smith, in which the Court declined to retroactively apply the rule from Caldwell v. Mississippi, 472 U.S. 320 (1985), which said that it is constitutionally impermissible to base a death sentence on the determination of a sentencer who believed that the responsibility for determining the sentence lay with someone else. Sawyer, 497 U.S. at 244. This new rule enhanced accuracy and fairness in sentencing. However, the court held that the rule did not apply retroactively because it was not an “absolute prerequisite to fundamental fairness.” Id .

Next, Petitioner compares this case to O'Dell v. Netherland, 521 U.S. 151 (1997), which declined to apply the rule of Simmons v. South Carolina, 512 U.S. 154 (1994). Brief for Petitioner at 34. In Simmons, the Court held that the Due Process Clause requires the court to instruct the jury that the defendant is ineligible for parole when the State argues for future dangerousness and state law forbids parole. Simmons, 512 U.S. at 168–169. The Court in O'Dell held that the Simmons rule did not apply retroactively because, unlike the rule in Gideon, this rule is not broad and sweeping in application to all felony cases. O'Dell, 521 U.S. at 167. O'Dell showed that in order for a rule to apply retroactively, the rule must be broad and sweeping, and if the Simmons rule fails, so too must Crawford because of its narrow application to a class of defendants who had no opportunity to cross-examine the witnesses who testified against them.

In Schriro v. Summerlin, the Court held that the rule of Ring v. Arizona does not apply retroactively. The Court held in Ring that juries and not judges must make capital sentencing decisions. The Court in Summerlin held that the Ring rule did not apply retroactively because it did not meet either prong of the second Teague exception. The Court believed that the Drafters of the Sixth Amendment did not think that juries were more accurate than judges and therefore not applying the Ring rule would not diminish accuracy in capital sentencing. Petitioner argues that this was a new rule premised on important and fundamental rights that affect both accuracy and fairness, yet it is not retroactive; this shows that there is a very high standard for Bockting. Brief for Petitioner at 36.

Finally, Petitioner distinguishes this case from Gideon, which represents the only rule that the Supreme court has suggested would bear retroactive application. Beard, 542 U.S. at 417. Petitioner argues that while Crawford establishes a right to counsel, Crawford merely changes the contours of the right to confrontation. Brief for Petitioner at 10. Further, Petitioner argues that, unlike the right to counsel, the Confrontation Clause is subject to harmless error review, meaning that if the rule is violated, the court can examine the error to see whether or not it resulted in harm and if not, uphold the conviction. Brief for Petitioner at 29. Being subject to harmless error review necessarily means that the rule in Crawford cannot be a watershed rule. Id. Lastly, Petitioner distinguishes Crawford from Gideon by arguing that while Gideon was sweeping, implicating all criminal trials, Crawford related to a very narrow instances where there is non-testimonial hearsay evidence. Id. at 30.

Petitioner also argues that the Ninth Circuit should not have even heard this case. Id. at 42. The law that allows federal courts to grant writs of habeas corpus, codified at 28 U.S.C. § 2254, allows federal courts to grant habeas relief only if the decision from the state court is contrary to clearly established Federal law, or if the decision was based on unreasonable determinations of facts in light of evidence presented. 28 U.S.C. § 2254. Petitioner argues that Federal courts cannot conduct Teague retroactivity analysis on cases decided in state court because the decisions from the state court would not be contrary to clearly established Federal law and that a new law cannot be clearly established. Brief for Petitioner at 44. In other words, how could the Nevada Supreme Court’s decision in 1993 be contrary to clearly established Federal law, when it was entirely consistent with the standard of Roberts, which was good law at the time? Id. Petitioner argues that there is no evidence that Congress intended for the meaning of the term “clearly established Federal law” to support the holding that the statute adopts Teague’s exceptions. Id. at 45.

Respondent Bockting's Argument

Respondent will first need to address the question of whether or not the Crawford standard should be applied retroactively. The Supreme Court recently stated that Gideon v. Wainright is to “provid[e] guidance” as to which rulings might be applied retroactively. Beard v. Banks, 542 U.S. 406, 417 (2004). Therefore, to support its contention that Crawford should be applied retroactively, respondent’s arguments focus on the similarities between the rule held retroactive in Gideon, and the rule in question here.

Gideon solidified the right of state felony defendants to be assisted by counsel. Brief for Respondent at 18. Petitioner argues that Gideon was retroactive because there was no such assistance of counsel in state cases before Gideon was decided. Id . at 17. However, Respondent argues that Palko v. Connecticut which held that “the sixth amendment right to counsel . . . [was] valid as against the states,” shows that there was, in fact, such assistance of counsel before the Gideon decision. Brief for Respondent at 19. Between the Palko and Gideon decisions however, the Supreme Court refused to apply the right to assistance of counsel to state criminal cases. Betts v. Brady, 316 U.S. 455 (1942). The Court suggested that Palko was limited to capital cases and reasoned that because most states had provisions for appointing counsel, such an expansion was not necessary. Brief for Respondent at 18. The Supreme Court decided Gideon in order to “restore constitutional principles” (found in Palko) which had been abandoned in Betts. Id. In doing so, it replaced “case-by-case decisions on the need for counsel with a safeguard found explicitly in the Bill of Rights” Id.

Crawford solidified the right of defendants to cross-examine witnesses. See Crawford v. Washington, 541 U.S. 36 (2004). This right, of a defendant to “be confronted with witnesses against him,” is found in the Sixth Amendment to the U.S. Constitution. However, in 1980 the Supreme Court refused to require confrontation where hearsay evidence bore “particularized guarantees of trustworthiness.” Ohio v. Roberts, 448 U.S. 56 (1980). The Supreme Court decided Crawford in order to correct Roberts’ “depart[ure] from . . . historical principles” Bockting v. Bayer, at 1015. In doing so, it replaced “open-ended balancing tests” with “categorical constitutional guarantees.” Crawford, at 67-68. Respondent argues that because Crawford is analogous to Gideon, in that it corrects a deviation from traditional constitutional understanding, it too should be retroactive.

Respondent will next need to address the question of whether applying Crawford retroactively is proper under Teague. The Supreme Court’s decision in Teague sets out two categories of new constitutional law which may be retroactively applied. While the first category does not apply to this case, the second category permits “watershed rules” to be applied retroactively. Teague v. Lane, 489 U.S. 288, 312 (1989). Teague sets out that in order to qualify, a law must both “significantly improve the pre-existing fact-finding procedures” and “implicate the fundamental fairness of the trial.” Id.

The Crawford rule fits these requirements because it corrected the “inherently, and therefore permanently, unpredictable” Roberts test by restoring “the only indicium of reliability sufficient to satisfy constitutional demands . . . [which] the Constitution actually prescribes: confrontation.” Crawford, at 68-69. Respondent argues that because the Crawford rule ensures the reliability of evidence used in criminal trials it both “improves fact-finding procedures” and “implicate[s] the fundamental fairness of the trial.” Brief for Respondent at 15-17.

While Petitioner argues that to be a “watershed rule” the rule must not be subject to harmless error analysis, Respondent contends that there is no such requirement. Id. at 22. While harmless error analysis kicks in when an error’s effect on a trial can actually be ascertained, retroactivity analysis, in a completely unrelated manner, kicks in when the error fixed by a new rule “affects the reliability of the proceedings.” Id.

Lastly, Respondent will need to show that 28 U.S.C. § 2254(d)(1) adopted the Teague exceptions to non-retroactivity and therefore allows for review of a conviction based on the application of law contrary not only to “clearly established federal law” at the time of conviction but also to subsequently applied rules. Respondent argues that the lack of language precluding relief based on new rules, and the specific inclusion of retroactivity principles in other subsections, suggests that the “clearly established federal law” referred to in the statute is subject to new rules applying retroactively. Brief for Respondent at 37. Specifically, §2254 (e) states that certain hearings shall not be had unless “the claim relies on a new rule of constitutional law, made retroactive.” 28 U.S.C. § 2254(d)(1). Respondent argues, and the Ninth Circuit stated, that this suggests Congress’s intent to include Teague retroactivity rules in its definition of “clearly established Federal law.” Brief for Respondent at 37, Bockting v. Bayer, at 1021. Lastly, respondent argues that it is unlikely that the section was meant to “repeal[] the entire body of retroactivity jurisprudence that th[e] Court has evolved.” Brief for Respondent at 36.