The U.S. Supreme Court decided Whorton v. Bockting yesterday, announcing that the rule in Crawford v. Washington will not be retroactively applied to cases that became final on direct appeal before the Crawford decision.

Some quick history here: Crawford overruled Ohio v. Roberts, and held that the Confrontation Clause meant exactly what it said… criminal defendants have the right to confront their accuser, in open court, and cross examine them about their allegations. The Roberts decision allowed hearsay testimony of unavailable witnesses if the statement bore “sufficient indicia of reliability”. But the Crawford decision changed that to “only where the defendant has had a prior opportunity to cross-examine” the witness.

In truth, Whorton v. Bockting is more a procedural rather than a substantive decision which discusses at length the rule laid out in Teague v. Lane. Teague is the Supreme Court decision laying the framework for retroactivity analysis for “new rules”. New rules are only to be applied to old cases if they (1) are substantive or (2) are watershed rules of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding.

The Whorton decision then goes on to explain that Mr. Bockting’s right to cross examine the witness against him fits neither of those categories.

Legal academics and Supreme Court watchers can expound all they like about why this is correct, but let me try to illustrate why it is not. As a practicing criminal defense attorney in Austin, I can imagine now having the following conversation with a client.

Q: I was convicted without being allowed to cross examine the witness against me, and the Supreme Court has ruled that violates the Bill of Rights, correct?

A: That’s true. Defendants have a right now under Crawford to either disallow “testimonial evidence” by way of hearsay, or to confront their accuser.

Q: I’ve been sitting in (jail/prison) for some time now based on that conviction…I can get a new trial, right?

A: Well, no. Your appeal was final before they decided Crawford, so you’re out of luck.

Q: You mean because I have been imprisoned for so long that my initial appeal process actually expired, I can no longer get that fair trial, where my lawyer can at least ask questions of my accuser in front of the jury?

A: Well, that’s what the Supreme Court decided. Yes, from now on, people have the right to confront their accusers because of Crawford, but not you. You have to serve out the rest of your sentence.

Ridiculous. Outrageous even. I’ll have some more posts in the next few days about this case, regarding the practical (i.e. real) reasons the Supreme Court ruled the way it did.

  • Donna

    This is an unresolved issue. My son has been told in Oregon, by his public defender, that not only may they not question the girl he was accused of sending a soliciting email to (and yup – that’s the ONLY crime he supposedly has done that involved any other human being), but the father, who intercepted the email, and turned it into the authorities – cannot be deposed either. Oh, the computer where the email supposedly arrived, cannot also be called into examination for validation either. So, anyone, sitting in any other state can fake up an email, turn it in – and that’s the end of that. It’s enough for the prosecution in Oregon to take a case to trial. (But, oddly, not enough for anyone, the DA or the police, to make an arrest.. hmmm). So, a deranged, upset girl who wanted to make her boyfriend jealous and didn’t care if her letter hurt someone, or perhaps a helpless father who couldn’t stop his daughter, so he picked a fish from the barrel and forged a letter? Well – that’s not discoverable now. Of course – set aside the hacked IP addresses attached to the email proving the originating message did not come from my son’s computer – and you now have [surprise – nope, not evidence of innocence], stale information that cannot be used to prove innocence by the defense (and an attorney too lazy to get on top of it), but information the prosecution will tweak and twist and clear out of the jury’s minds in order to prosecute an innocent person, anyway.

  • My 80 yr.old mother was rentcely in the hospital, for pneumonia. She doesn’twant an life saving measures to be taken, but I was a little surprised when theDr. called me to ask if he should give her antibiotics. You really have to spell itout.Another surprise was when my mother’s Assisted living facility left it upto thehospital as to where she was going to live. For a few days, she didn’t have a home.I didn’t realize that it was the hospital’s responsibility to assess where she should go.