Supreme Court: 2004 access-to-accuser ruling not applied retroactively

By , Staff writer of The Christian Science Monitor

The US Supreme Court walked a very careful line on Wednesday when it ruled that it would not apply a major 2004 decision retroactively.

On one hand, a retroactive ruling would almost certainly have triggered a flood of disruptive appeals in courthouses across the country. On the other hand, the justices could not deny that their decision – involving the right to one's accusers – marked an important change in the law.

The high-wire act was performed by Justice Samuel Alito who wrote for a unanimous court that while the 2004 decision was important, it was not so important that it must be applied retroactively.

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In concrete terms, the decision means that a Nevada man serving a life sentence in prison may not reopen his case to question his stepdaughter about sexual-abuse accusations she made 18 years ago when she was 6 years old.

In effect, the Supreme Court declined to open the courthouse doors for Marvin Bockting to challenge his conviction. The ruling also shuts out potentially thousands of others convicted in trials in which they were denied the opportunity to confront their accusers in open court.

At issue in Mr. Bockting's case was whether the high court would apply retroactively its 2004 holding that defendants must be given a chance to cross-examine or otherwise confront witnesses against them in their trials.

The 2004 case called Crawford v. Washington struck down a rule that allowed such evidence if a judge deemed the statement reliable enough.

The majority justices in the Crawford case said such practices by judges violated the constitutional principle behind the confrontation clause. In the context of an adversarial trial, one of the most efficient ways for a judge or jury to ascertain the truth is to give the accused the right to confront in open court those making the accusations.

It is the accused who often knows of ulterior motives of certain witnesses. And the accused is often in a better position than investigators, judges, or juries to identify when a witness is lying or exaggerating.

But having decided the Crawford case, the high court faced another important issue: Should that major decision be applied retroactively?

In most circumstances, new rules announced by the Supreme Court apply to cases with appeals still pending and to all future cases, but not to those who have exhausted their appeals. In contrast, when the court announces a major shift in the law – a so-called watershed rule – the justices have recognized that it would be unfair to allow earlier convictions to stand in cases where the verdict might now be in doubt.

In a 14-page decision, Justice Alito said that while the rule announced in the Crawford decision was new and important, it is not sweeping enough to qualify as a watershed rule demanding retroactive enforcement.

Alito cited another major decision to make his point. The last time the high court applied such a rule retroactively was in 1963 in the landmark decision Gideon v. Wainwright. In that case the court declared that an indigent defendant facing a felony charge must be provided the assistance of a lawyer.

"When a defendant who wishes to be represented by counsel is denied representation, Gideon held, the risk of an unreliable verdict is intolerably high. The new rule announced in Gideon eliminated this risk," Alito writes. "The Crawford rule is much more limited in scope, and the relationship of that rule to the accuracy of the fact-finding process is far less direct and profound."

The case against Bockting stems from accusations in 1988 that he sexually abused his 6-year-old stepdaughter.

The little girl told her mother and a police detective of the alleged abuse. But when it came time to testify in court she became too upset. Instead, the judge allowed the girl's mother and the detective to testify about what the girl had told them about the alleged sexual abuse.

Bockting was convicted and sentenced to life in prison. He has been fighting his conviction ever since. He says his trial was unfair because his jury was never permitted to gauge the veracity of his stepdaughter's accusations through cross-examination in open court.

Today, the stepdaughter is a woman in her 20s, and it is unclear how she might have testified in a retrial of the case, according to Bockting's lawyer.

In Wednesday's decision, the court said that its new Crawford rule did not implicate the fundamental fairness and accuracy of Bockting's trial. Other trial safeguards were present, the court said.

"In this case, it is apparent that the rule announced in Crawford, while certainly important, is not in the same category with Gideon," Alito writes. "Gideon effected a profound and sweeping change. The Crawford rule simply lacks the primacy and centrality of the Gideon rule."

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