Commentary: Crawford grows in stature?
on Nov 1, 2006 at 12:33 pm
When a case appears to have been taken by the Supreme Court mainly to reverse a lower court decision, the task facing the lawyer defending that judgment is formidable, indeed. A federal public defender from Las Vegas turned a truly solid performance on Wednesday into what appeared to be a real chance to salvage the Ninth Circuit Court’s controversial ruling in Whorton v. Bockting. At the end, the Court’s senior Justice, John Paul Stevens, found a clever way to bestow high praise on that defense attorney, Frances A. Forsman.
The Bockting case (docket 05-595) tests whether the Court will make retroactive its constitutionial ruling in 2004 in Crawford v. Washington, barring as criminal evidence an out-of-court statement by a witness who did not appear at trial, if that statement had not been subjected to cross-examination. The Ninth Circuit found the decision is to be applied retroactively. That holding appeared vulnerable when the Justices granted review — mainly because the Court has been unwilling to make any of its criminal procedure rulings retroactive in the 11 years since it laid down the tests that have to be met to apply a new rule to earlier cases that had become final.
There were signs of that reluctance in the one-hour hearing on Wednesday — such as a revealing hint that new Justice Samuel A. Alito, Jr., may be attracted to an aggressive suggestion by amici in the case that Congress has taken away the Court’s authority to make criminal rulings retroactive to state criminal cases that are challenged in federal habeas. But those signs seemed less conspicuous than the growth in constitutional stature that Forsman — on her own, but also with significant help, especially from Justice Anthony M. Kennedy — conferred on the Crawford decision itself. In short, the hearing left the impression that it might be possible to count to five Justices for the proposition that Crawford was a “bedrock” constitutional decision, and thus would be made retroactive.
At the very least, a majority of the Court did not appear interested in the suggestion that it abandon its 1989 decision in Teague v. Lane which, among other things, had declared that retroactivity was the exception but that a rule could be applied to earlier cases if it reflected a “bedrock understanding” of what a fair criminal trial must be..
Early in the argument, Nevada Attorney General George J. Chanos suggested that Crawford definitely did not qualify as “bedrock.” Justice Kennedy promptly retorted: “Crawford did use the term ‘bedrock.’ ” And, as his argument proceeded, Chanos said that Crawford did not make cross-examination “a new right.” Kennedy, however, responded that it had put “a new emphasis on that right.” And Justice Antonin Scalia — the author of Crawford — added: “The right of cross-examination was reinstituted by Crawford.” It provided, said Scalia, a right that “didn’t exist before,” a right that could not be extinguished by a “facile” interpretation of what Crawford had held. That right, Scalia went on, is something that “you know it when you see it…like obscenity.”
Kennedy continued his defense of Crawford when an assistant to the solicitor general, Irving L. Gornstein, assailed that ruling as well short of the rank needed to qualify for retroactivity. “You’re asking us to say it was not that important,” Kennedy said. “If that is so, we should not have overruled Roberts [v. Ohio].” (That was the Court’s prior decision allowing out-of-court statements to be admitted if they were found to be reliable, even if not subjected to cross-examination.) Gornstein was not deterred; he proceeded to belittle the significance of Crawford, saying it had amounted to only “an incremental change in a pre-existing right of cross-examination.” (Gornstein, speaking for the federal government, did not accept an implied invitation by Chief Justice John G. Roberts, Jr., to discuss the Teague v. Lane issue in the case — that is, whether Teague still controls retroactivity. He said that the government does not “opine” on issues that do not apply in federal cases.)
Despite the efforts of Chanos and Gornstein, Crawford thus did not appear to have been demoted in rank in the argument up to the point when Forsman stood to make her sturdy defense of its significance. “Crawford,” she said, “was not just incremental” It replaced a legal regime (Roberts v. Ohio) that the Court had found was “fundamentally flawed.” To the argument that the Supreme Court had said that only a procedural rule of the rank of the right to counsel (Gideon v. Wainwright) should be made retroactive to earlier cases, Forsman said: “Comparing the right to counsel to the right to cross-examination is easy.” It would not have mattered to her client, she said, if he had the “finest lawyer,” or the highest-paid lawyers, because he did not have a right to cross-examination of his accuser — the right that Crawford rehabilitated.
When Justice Scalia suggested that the Court had decided Crawford as it did because it was only following what the Founders had said was necessary, Forsman said that the ruling “went far beyond what the Framers said. The opinion goes on at length into why Roberts was so flawed.” Although Scalia suggested that that was only done to justify overruling Roberts, the defense lawyer defended cross-examination (and thus Crawford) on the ground that it “goes directly to reliability” of a criminal prosecution.
To the suggestion by her opponents that Crawford did not assure greater accuracy in a criminal trial, because it may lead to exclusion of evidence that the Roberts v. Ohio regime would have admitted as reliable, Forsman said that “the easiest way to answer that is to look at Gideon. The insertion of a lawyer may cause the exclusion of evidence — that is often what counsel does. In their view, Gideon would flunk that definition.”
When Justice Ruth Bader Ginsburg reminded her that the Court had not applied retroactively any criminal procedure decision since Teague, so “this would be the first time,” Forsman replied easily: “It would be — and it’s appropriate it would be the first time.”
Her most challenging moment came in a question by Justice Kennedy (who may well hold the balance of power in the case). He told Forsman that she was asking the Court to adopt an across-the-board ruling, “and what you’re telling us is that the fact-finding [under Crawford] is far less accurate. We have to look at it in the whole universe of cases.” She responded with the same defense of Crawford, suggesting that cross-examination “goes to the integrity of the fact-finding process” and thus supplied an answer to the core question of whether one can have confidence in the result of a criminal trial.
She would later answer Kennedy’s concern about the impact on other cases of a ruling in her favor, reminding the Court of data in an appendix to her brief analysis 49 cases that had arisen since Crawford and suggesting that Crawford might affect the outcome of only five of those.
Near the end of the argument, Chief Justice Roberts tested Forsman’s views on the impact of the 1996 federal law curbing federal habeas (AEDPA) that amici in the case have read as withdrawing the Court’s retroactivity authority in habeas proceedings. Her technical response, based on a reading of a variety of sections of AEDPA, suggested that Congress had not intended to freeze state court decisions from the impact of later Supreme Court constitutional rulings.
In Forsman’s final exchange with the Court, Justice Alito pressed her to find language in AEDPA that embraced the Teague v. Lane retroactivity formula. She suggested that Congress’ intent was not to deprive retroactivity of all meaning, and she sought to reassure him, too, that only a few core rules of constitutional law would be made retroactive. Making Crawford retroactive, she said, “is not going to open the floodgates” to challenges to convictions. It was here that she described the data in her brief about the “defined population” of cases likely to be affected.
Before she sat down, Justice Stevens asked if her could ask a personal question. She said yes, and he asked: “We’re you a moot court finalist?” She said no. Stevens then responded that he had “attended a moot court at Notre Dame” that would have been her class. “It was an awfully good moot court,” the Justice commented — leaving no doubt of his appreciation also for what the Court had just heard.
