Whorton, Glen (Nevada Dir. of Corrections) v. Bockting, Marvin (02/28/2007)

Questions presented: (1) Whether, in direct conflict with opinions of the 2nd, 6th, 7th and 10th circuits, the 9th Circuit erred in holding that the Supreme Court's 2004 decision in Crawford v. Washington regarding the admissibility of testimonial hearsay evidence under the 6th Amendment, applies retroactively to cases on collateral review? (2) Whether the 9th Circuit's ruling that Crawford applies retroactively to cases on collateral review violates the Supreme Court's 1989 ruling in Teague v. Lane? (3) Whether, in direct conflict with opinions of the 4th and 7th circuits, the 9th Circuit erred in holding that 28 U.S.C. sec. 2254(d)(1) and (2) adopted the Teague exceptions for private conduct which is beyond criminal prosecution and watershed rules?

BY DAVID GIALANELLA, MEDILL NEWS SERVICE

It is a proud tradition in the United States that each and every person accused of crime receive a fair trial, but many are hesitant to extend that right to a man convicted of raping his 6-year-old stepdaughter.

Marvin Bockting lived with his wife, Laura, and two children, Autumn and Honesty, in a Las Vegas motel. Far from traditional in any respect, the home was reportedly a place where 6-year-old Autumn had taken showers with, and witnessed intercourse between, the two adults, and where sexual language was used regularly in front of the children.

In 1988, matters at the Bockting residence turned from strange to horrific.

One night when Bockting was away, Autumn tearfully told her mother a frightful story; that Bockting had raped her vaginally and anally, and forced her to perform oral sex on him. Autumn came forward reluctantly, claiming Bockting had threatened to beat her and kick Laura out of the house if she told anyone about the incident.

Bockting, confronted by his wife with the story, left home on her request. A subsequent rape exam of Autumn revealed vaginal and rectal injuries caused by a foreign object forcefully inserted.

While at the hospital, Laura and Autumn met a Las Vegas police detective. Two days later, the detective interviewed the girl, who was too upset to speak with him at the hospital prior to her exam. Autumn told him the same story she had told her mother, and used anatomically correct dolls to demonstrate how her father had attacked her.

Once asked to retell the story in a preliminary court proceeding, however, Autumn began saying she could no longer remember. She also began denying the event ever happened, and she contradicted herself many times.

At trial, the judge declared the six-year-old witness "unavailable," and prosecutors used hearsay evidence – testimony from the detective and Laura about what Autumn had told them – to convict Bockting. The judge had decided the hearsay evidence was admissible because of Autumn's "unavailable" status, and Bockting was sentenced to life in prison without having had a chance to cross-examine his stepdaughter before or during trial.

Finding no relief in the Nevada courts, Bockting petitioned the U.S. District Court for the District of Nevada for habeus corpus but was denied.

The 9th Circuit Court of Appeals reversed, however, based on the Supreme Court's 2004 opinion in Crawford v. Washington.

The Crawford rule, which is aimed at upholding the Confrontation Clause – citizens' 6th Amendment right to "confront" their accusers in court – states that hearsay evidence can be admitted at trial only if: 1) the witness is unavailable and; 2) the defendant has had a opportunity to cross-examine the witness prior to trial.

Applying this rule to Bockting's case would entitle him to a new trial, but because the Crawford opinion was issued after his trial, the main question that faced the 9th Circuit was whether the rule should be made retroactive.

In order for it to be applied retroactively, the rule must pass several obstacles. First, it must be a "new rule." The court found that Crawford deviated enough from the 1989 precedent in Teague v. Lane that previously governed hearsay evidence to call its rule a new rule.

Next, the Teague precedent must be applied to the new rule; if the rule is found to fall into one of two categories of exceptions to non-retroactivity, the rule can be applied retroactively. The court found that the Crawford rule is a "bedrock rule of criminal procedure," and thus that it fell into a category of exception, making it retroactive.

Finally, the 9th Circuit determined the Nevada Supreme Court, in dismissing Bockting's habeus claim, violated the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), which grants relief to petitioners before state courts that have issued "a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law." Because the court found Crawford retroactive (making it as if it were always good law), the Nevada Supreme Court violated AEDPA by not following it.

The 9th Circuit's opinion is contrary to other federal appeals courts that have concluded that the Crawford rule is not retroactive. In recognizing that, the 9th Circuit explained its contrary position:

"The Supreme Court's Confrontation Clause jurisprudence in Crawford cannot be dismissed as a mere tweak on the admissibility of hearsay," the opinion states. "Rather, the Court describes the right of confrontation as a ‘bedrock procedural guarantee'."

On May 15, 2006, the U.S. Supreme Court accepted review in the case and allowed Bockting to have the case heard without costs.

Critics of the 9th Circuit opinion say that if the Supreme Court upholds it, then a slew of legitimate convictions based on hearsay evidence will be overturned.

But there are only a narrow group of cases where such an outcome would grant relief, said Franny Forsman, Federal Public Defender for the District of Nevada, who represents Bockting. She said during a phone interview that there is no reason to take an "alarmist" approach toward the case.

Perhaps the biggest challenge for Bockting is the ugly nature of the case, but Bockting has always claimed to be innocent.

"When you get impassioned about children, that's when mistakes are made," Forsman said.

On Feb. 28, 2007, the Court ruled unanimously that Crawford need not be applied retroactively to cases that were final before that ruling came down.

Justice Samuel Alito reasoned that because the Crawford decision limiting out-of-court statements as criminal evidence was a new rule, and not a "watershed rule," it does not apply to earlier cases.