Is a trial unfair if accused can't confront accuser?

The Supreme Court looks at the conviction in a 1988 child-abuse trial. One possible outcome is a flood of appeals.

By , Staff writer of The Christian Science Monitor

In 1988, Marvin Bockting was accused of sexually abusing his 6-year-old stepdaughter. The little girl told her mother and a police detective about the alleged abuse, but she became too upset to testify at Mr. Bockting's trial in Nevada.

Instead, the girl's mother and the detective testified about what she had told them of the alleged sexual assault. Bockting was convicted and sentenced to life in prison.

Now, 18 years later, Bockting is seeking to overturn his conviction based on a 2004 US Supreme Court decision in a case called Crawford v. Washington. In that case, the Supreme Court strongly reaffirmed the constitutional right to confront one's accusers in court. At the same time, the court struck down a rule that had allowed the introduction at trial of testimonial statements made by a potential witness prior to the trial.

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Bockting says his trial was unfair because his jury was never allowed to gauge the veracity of his stepdaughter's accusations through the crucible of cross-examination in open court.

Wednesday, the Supreme Court takes up Bockting's case to decide whether the high court's 2004 ruling should be applied retroactively to his 1988 child-abuse trial.

If it does apply retroactively, the case would also open the courthouse doors potentially for thousands of other individuals convicted under similar circumstances, where a key piece of testimonial evidence was allowed into the trial without the constitutional safeguard of cross-examination.

Since the Crawford decision was announced, it has been cited in roughly 20 cases each week seeking reversal of a conviction, according to a friend-of-the-court brief filed by 38 state attorneys general.

"The sheer volume of judicial citations to Crawford attests to the magnitude of the potential fallout if its holding applies retroactively," the brief says. "As of July 7, 2006, nearly 1,900 reported court decisions had cited Crawford."

A decision applying the ruling retroactively could trigger not only direct appeals in criminal cases, but also subsequent appeals under the federal habeas corpus statute. "The resulting litigation would be staggering, straining the capacity of the state and federal courts," the attorneys general warn.

Bockting's lawyer, Franny Forsman, the federal public defender in Las Vegas, says such warnings are overblown. Of 49 judicial opinions dealing with the Crawford issue handed down in state and federal courts within the Ninth US Circuit Court of Appeals' jurisdiction, only five resulted in defendants being granted some form of relief, Ms. Forsman writes in her brief.

In Bockting's case, a divided Ninth Circuit panel ruled that the Crawford decision does apply retroactively. Prosecutors in Nevada appealed that decision to the Supreme Court.

Nevada Attorney General George Chanos and US Solicitor General Paul Clement are urging the high court to reject the Ninth Circuit's reasoning. They say the Crawford decision established a new procedural rule rather than the kind of monumental watershed rule whose application is indispensable to a fair trial. To trigger retroactive application, a new rule must rise to a level of such constitutional import that not applying it would be fundamentally unfair to defendants convicted under the prior legal regime.

Six federal circuit courts and numerous state appellate courts have ruled that Crawford does not apply retroactively, says Mr. Chanos. "The Ninth Circuit stands alone in its conclusion that Crawford is retroactive," he writes in his brief.

At its core, the Bockting case presents the high court with a conundrum, according to some analysts: how to acknowledge the constitutional significance of the Crawford decision without opening a Pandora's box of criminal appeals.

"I don't see how the court could say this is not a watershed rule. It is such a fundamentally different way of thinking about the problem than anything we had before," says Richard Friedman, a professor at the University of Michigan Law School and a leading confrontation-clause scholar.

But he says it would damage the development of this area of law if the high court declared its Crawford decision retroactive.

Professor Friedman stresses that he is not an expert in legal retroactivity. But he says if the court rules in favor of retroactivity, many judges would probably embrace a more restrictive view of the right to confront one's accusers at trial.

"I would be sorry to see Crawford held retroactive because I think it would just be a dead weight around the clause," he says. "The tendency [of judges] would be to construe the confrontation right narrowly because of the horror about what the consequences would be if all these cases that had been long decided had to be opened up."

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