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.