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

The decision not to apply the watershed ruling to past cases has the potential to shut out thousands.

posted February 28, 2007

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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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