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February 28, 2007

Crawford not retroactive

SCOTUSblog is reporting here that the "Supreme Court ruled on Wednesday that its major ruling on the Confrontation Clause in Crawford v. Washington is not to be applied retroactively, to cases that were final before that ruling came down."  I will comment on the opinion, and on what it might mean for Blakely retroactivity, later today.  Commentors should feel free to get started ASAP.

UPDATE: Justice Sam Alito authored the Court's unanimous opinion in Whorton v. Bockting, and the Court's work can now be accessed at this link.   Notably, there are no separate opinions, and so chack one up for the consensus-interested Chief Justices.

I am sure folks eager to seek Crawford wreck havoc with old convictions are disappointed with this outcome.  But, with my sentencing blinders on, I am pleased to see the Court not use up too much of its limited political/legal/reputational capital by sending lots and lots of not-too-ugly old trials into a potential tailspin based on a confusing new rule about the application of the Confontation Clause.  (Of course, I say this hoping the Court is prepared to use its political/legal/reputational capital by sending a few ugly old sentences into a potential tailspin.)

February 28, 2007 at 10:05 AM | Permalink


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» Crawford Not Retroactive from Criminal Appeal
As reported on SCOTUSblog and Sentencing Law Policy, the Supreme Court unanimously held today that Crawford, the 2004 decision reforming the test for admission of testimonial statements of unavailable witnesses, does not apply retroactively to cases al... [Read More]

Tracked on Feb 28, 2007 12:19:50 PM

» Round-Up from SCOTUSblog
The AP's Mark Sherman reports here on the Court's unanimous decision today in Worton v. Bockting, holding that a cross-examination rule is not retroactive; Jeannie Shawl of the Jurist has this post; the Volokh Conspiracy's Orin Kerr has this post;... [Read More]

Tracked on Feb 28, 2007 4:39:04 PM


Forgive my pessimism, but I'm pretty sure I know what a unanimous decision here means for Blakely retroactivity. It means it doesn't exist. But I look forward to being told that I'm wrong.

Posted by: pessimistic 3L | Feb 28, 2007 10:36:47 AM

I am absolutely shocked -- not only that the opinion was unanimous, but that Scalia wrote the opinion. The oral argument transcript did not exactly lend to the idea that this would be the outcome.

But I'm also pleased. The havoc of Blakely retroactivity has been averted.

Posted by: NCProsecutor | Feb 28, 2007 11:21:28 AM

Another unanimous reversal of the Ninth Circuit on a habeas case . . . . why am I not surprised?

Posted by: federalist | Feb 28, 2007 12:04:55 PM

Alito, not Scalia, wrote the opinion. Congratulations Kent Scheidegger for the (sort of) prediction.
Anyone have an idea how the court managed to even avoid saying that they were not going to decide AEDPA's affect on Teague?

Posted by: Jacob Berlove | Feb 28, 2007 12:07:15 PM

Looks like they didn't have to decide. Teague resolved the issue, so, AEDPA was unnecessary to the holding.

Perhaps that was the quid pro quo to get the opinion unanimous.

It's too bad for the loser's lawyer here--she did a bang-up job at oral argument--she just had a losing hand.

Posted by: federalist | Feb 28, 2007 12:21:11 PM

While Crawford might not have been dictated by prior precedent, there's a very strong argument that Blakely was dictated by Apprendi. If the Court finds that Blakely did not announce a new rule, the Apprendi/Blakely rule would be applicable to all cases not yet final on direct review when Apprendi was decided in June of 2000.

Posted by: Jonathan Soglin | Feb 28, 2007 12:23:40 PM

NCProsecutor: First, Justice Alito (not Scalia) wrote the opinion.

Second, while the opinion certainly doesn't help Blakely retroactivity, I am not so sure that this opinion has "averted" it. I have only had the time to read the Syllabus, but just that read leads me to conclude Blakely retroactivity is not foreclosed.

The Court says Crawford "is much more limited in scope, and its relationship to the accuracy of the fact-finding process is far less direct and profound" than Gideon. In my opinion, the same cannot be said about Blakely's "beyond a reasonable doubt" requirement.

The Court also says that the relevant question is whether evidence/fact-finding allowed under the old rule "is so much more unreliable that" without the new rule, "the likelihood of an accurate conviction [or sentence] is seriously diminished"? Without contradicting oneself, I think you could easily answer "yes" to this question under Blakly, but "no" under Crawford.

Finally, as the Court points out, it is well-established that the "bedrock" condition for retroactivity relates to the fundamental fairness of a proceeding. Once again, without contradicting oneself, you could say that a violation of Crawford is less unfair than a violation of Blakely. Specifically, allowing an out of court testimonial statement to be heard by the jury is less consequential and less unfair than, for example, increasing a person's incarceration time based on acquitted conduct.

After I get time to read the opinion, I may have more thoughts. But I stress that the key component to Blakely retroactivity is the proof beyond a reasonable doubt requirement. This requirement, in my opinion, can readily be distinguished from a rule requiring cross-examination.

Posted by: DEJ | Feb 28, 2007 12:24:48 PM

DEJ, doesn't Schriro v. Summerlin hurt the Blakely cause?

Posted by: federalist | Feb 28, 2007 12:28:04 PM

I'm shocked though, that all of the members of the Court can look away so perfunctorily at this. In cases where testimonial hearsay is admitted, its oftentimes CRITICAL to the case. Look here -- it's the testimony of a victim of alleged child abuse who was too distressed to testify directly, so the evidence comes in through the kid's MOTHER??? You expect that testimony not to be colored whatsoever?
Alito's argument about ("well, maybe nontestimonial hearsay 'exception' has allowed more unreliable statements in") is just preposterous, because nontestimonial hearsay is simply not critical to the "testimony" of the crime. And this "well, we're going back to the framers' intent, not to fix fairness problems" is also bunk.

I'm just shocked there wasn't one dissent here. Were all the justices in line at oral argument?

Posted by: (Former) District Clerk Battling Booker | Feb 28, 2007 12:37:21 PM

Oops. Read too fast in between meetings. My bad.

But still shocked at the unanimous opinion.

Posted by: NCProsecutor | Feb 28, 2007 1:06:25 PM

This originalist "reasoning," as the Clerk says, is just bunk. Apparently the Court need not question _why_ the Framers insisted on the "crucible of XE." Here's a hint: people LIE and XE is necessary to ferret out the truth.

Where the originalists here (and apparently the entire Court) choose to draw their logical and historical lines is completely results-based. If anything, Crawford increases accuracy more than Ring.

This is a political Court that cares more about carrying water than doing justice, the law, or even logic. How conservative.

Posted by: rothmatisseko | Feb 28, 2007 2:07:31 PM

I'm troubled by the following excerpt:
"Under Roberts, an out-of-court nontestimonial statement not subject to prior cross-examination could notbe admitted without a judicial determination regardingreliability. Under Crawford, on the other hand, the Con-frontation Clause has no application to such statements and therefore permits their admission even if they lack indicia of reliability."

Many courts (California, Ohio, Wisconsin, Oregon, the 1st circuit) that have addressed this have said that Roberts still controls for nontestimonial hearsay, but the above seems to encourage states to abandon Roberts in its entirety. Any thoughts?

Posted by: LonesomeClerk | Feb 28, 2007 3:00:58 PM

Also -- it's somewhat misleading to say that testimonial evidence is always critical to a case and that nontestimonial is not -- that ignores the test put forth in Crawford for whether something is testimonial -- for example, the Ohio Supreme Court has found that statements to a dove nurse during rape kit examination are nontestimonial (even identifying the suspect) -- whether or not the statements are "critical" to the case at hand is wholly irrelevant to the testimonial/nontestimonial inquiry.

Posted by: LonesomeClerk | Feb 28, 2007 3:04:14 PM

federalist: Schriro v. Summerlin does NOT foreclose Blakely retroactivity for two reasons.

First, the Arizona statute in Ring required that the judge find an agg. fact beyond a reasonable doubt. The Court explicitly points this out in the first footnote of Schriro. (I'm going on memory here, but I believe the note says that the retroactivity of proof beyond a reasonable doubt "is not at isssue in this case.")

Second, the reasoning of Schriro actually SUPPORTS an argument for Blakely retroactivity. Here is an excerpt from a Law Review Note on that point:

[W]hile the Court's precedent and actions have indicated that the beyond a reasonable doubt standard should be given retroactive effect, the rationale of the majority's holding in Schriro demands it as well. Recall that Justice Scalia's opinion for the Court argued that jury factfinding is not a watershed rule because there are good arguments to conclude that juries are less accurate than other factfinders. He begins by comparing the lay juror's lack of legal knowledge to a judge's greater experience, and concludes by pointing out the “mixed reception that the right to jury trial has been given in other countries.” These two observations cannot be made about the beyond a reasonable doubt standard of proof. First, the standard cannot be said to be inferior to any other practically available standard of proof. Second, Justice Scalia himself has described the beyond a reasonable doubt standard as being “adhered to by virtually all common-law jurisdictions.” Therefore, the majority's rationale in Schriro, used to deny Ring retroactivity, compels the Court to grant Blakely retroactivity.

66 Ohio St. L.J. 919-20.

Posted by: DEJ | Feb 28, 2007 3:12:47 PM

Thx. I agree that the BRD standard in Ariz. law is an important fact.

I think, though, that the Note's logic is simply trying to make an affirmative statement from silence. I think also that the fact that Blakely would permit a regime where facts did not have to be found by a jury at all militates strongly in favor of non-retroactivity.

Posted by: federalist | Feb 28, 2007 3:33:26 PM

LonesomeClerk: The sentence about the Confrontation Clause having no application to non-testimonial statements surprised me, too. Crawford itself expressly reserved the question. That decision noted the argument that the Court should "apply the Confrontation Clause only to testimonial statements, leaving the remainder to regulation by hearsay law", but concluded that "we need not definitively resolve whether [the contrary rule] survives our decision today."

Posted by: Agrippa | Feb 28, 2007 3:46:28 PM

federalist: I don't believe the Schriro footnote makes an "affirmative statement", but rather highlights the point that BARD was not at issue in Ring. And while not making a statement, the Justices at least found that important enough to mention.

You also seem to be arguing that because Blakely continues to allow for an advisory regime like Booker, then it is not retroactive. But I think this confuses the distinction between the rule versus the remedy. Indeed, I recall reading in the Rita/Claiborne amicus briefs that a majority of states have opted for jury-based aggravated fact finding after Blakely.

I grant you that Blakely is not applicable to sentencing schemes that do not require fact-findings, but Gideon is not applicable to those not sentenced to imprisonment. Scott v. IL. And it does not logically follow that Blakely (or Gideon) is any less necessary to prevent inaccurate fact-finding under schemes that are implicated by the rule. Concerning the “two requirements” of retroactivity, See Whorton slip pg. 10: 1) even though Blakely does not impact some sentencing systems, the rule is essential in preventing inaccurate fact-findings when such findings are necessary to the sentence; (Booker merely altered the federal statute so that findings are not necessary) and 2) under sentencing schemes that do require fact-finding, the Blakely rule fundamentally alters what is viewed as fair at sentencing. See Blakely, 542 U.S. at 311.

You could argue that because Blakely is not implicated in some types of sentencing schemes, then “the [Blakely] rule is much more limited in scope” than Gideon. Slip. Op. pg. 11. But the fact is, both Gideon and Blakely affect EVERY defendant in the criminal justice system who is facing imprisonment. One possible way around Gideon is to not sentence an individual to imprisonment. See Scott v. IL. One possible way around Blakely is to not require fact-finding at sentencing. See US v. Booker. Regardless of the “remedies,” the impact, scope, and necessity of Blakely remains the same because it impacts the manner in which a legislature can treat EVERY convicted defendant.

Posted by: DEJ | Feb 28, 2007 7:24:23 PM

LonesomeClerk, you ask: "Many courts (California, Ohio, Wisconsin, Oregon, the 1st circuit) that have addressed this have said that Roberts still controls for nontestimonial hearsay, but the above seems to encourage states to abandon Roberts in its entirety. Any thoughts?"

Yes. Today's decision fairly misrepresents Crawford's treatment of Roberts regarding nontestimonial hearsay. Crawford expressly reserved the question of whether the Confrontation Clause applied to such statements:

Members of this Court and academics have suggested that we revise our doctrine to reflect more accurately the original understanding of the Clause. . . . They offer two proposals: First, that we apply the Confrontation Clause only to testimonial statements, leaving the remainder to regulation by hearsay law-thus eliminating the overbreadth referred to above. . . . In White, we considered the first proposal and rejected it. 502 U.S., at 352-353. Although our analysis in this case casts doubt on that holding, we need not definitively resolve whether it survives our decision today, because Sylvia Crawford's statement is testimonial under any definition.

Crawford , 531 U.S. at 60-61.

Posted by: rothmatisseko | Feb 28, 2007 7:53:10 PM


1) The argument that one can get around Gideon by not sentencing the defendant to prison is pretty thin.

2) My point about Blakely goes to the fundamentality of the rule. Certainly, if schemes that are less rigorous with respect to fact-finding than those tossed by Blakely are tolerated, then BRD fact-finding in sentencing is not of bedrock importance. It cannot be. Really, what Blakely does is to give a defendant the right to demand that when a legislature determines a base offense warrants no more than x years, then if x + y years are going to be imposed, then the plus y factors must be proven BRD and submitted to a jury. While this vindicates the jury trial right, which is of bedrock importance, are we really going to conclude that defendants are given bedrock, gotta have 'em rights based on a lack of discretion of a judge, especially where systems where more judicial discretion is tolerated are ok? I find that hard to swallow, and I am wholeheartedly in favor of Apprendi and its progeny.

The other way of looking at it is to simply ask the question: are sentencing schemes where a base level is mandatory unless other facts are found by a judge so deficient vis-s-vis factfinding as to render the system fundamentally unfair and unreliable?

Posted by: federalist | Feb 28, 2007 8:11:11 PM

For all of you who think the court pulled a fast one by saying that non-testimonial hearsay would no longer be subject to Confrontation Clause constraints, you are forgetting the pair of decisions last Term from Indiana and Washington regarding the excited utterance exception. The Court made it clear in those cases that it was shelving the Roberts test for non-testimonial hearsay.

Posted by: Steve | Mar 1, 2007 3:26:14 AM

I am surprised at you Professor Berman. I dont see anything confusing about Crawford, although testimoniality might involve some difficult line drawing. But look at the core testimonial hearsay -- co-defendants giving out-of-court statements while in the custody of police officers. Convictions based on evidence where the declarant has every incentive to incriminate the defendant, the state has a role in creating the evidence, and the defendant has no effective right to cross-examine? Those aren't ugly to you?

There is one more disconecerting surprise in the opinion. Alito reasons that Crawford does not increase the reliability of verdicts overall because it opens the door to admission of non-testimonial hearsay. Shouldn't the test for determining whether a new rule substantially increases the reliability of the verdict be whether it increases the reliability of the verdicts of defendants who benefit from it?

Kafka would have loved Alito's reasoning: Defendant A, serving a life sentence based on an out-of-court written confession given by a compensated co-defendant after unrecorded custodial interrogation, can be properly denied the benefit of cross-examination, notwithstanding the fact that such cross-examination would have substantially reduced the risk of a wrongful conviction, because Defendant B, whom Defendant A has never met, suffers an increased risk of wrongful conviction based his inability to cross-examine an off-hand comment made in the private sector under circumstances that satisfy a hearsay exception.


Posted by: RW | Mar 1, 2007 10:14:25 AM

While Crawford might not have been dictated by prior precedent, there's a very strong argument that Blakely was dictated by Apprendi. If the Court finds that Blakely did not announce a new rule, the Apprendi/Blakely rule would be applicable to all cases not yet final on direct review when Apprendi was decided in June of 2000.

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