Although the court states, "This is the first time that this issue [whether Crawford announced a new rule according to Teague and its progeny] has been directly presented for ruling in this circuit," the court actually held that Crawford did not announce a new rule just a week earlier, in Murillo v. Frank, No. 04-2202 (2005 WL 736260 (7th Cir., April 1, 2005)
Two judges Posner and Rovner were on both panels, so the court’s statement, and the absence of any citation to Murillo, is perplexing.
Whatever the reason for the slight, the two cases make official that Crawford will not be applied retroactively, and should be read together, whenever considering the issue of retroactive application of a Supreme Court decision.
Both decisions provide support for the proposition that, notwithstanding Teague, no Supreme Court rule will ever be applied retroactively unless it holds that certain conduct is outside of the criminal law-making power to punish.
Both note that Gideon v. Wainwright, 372U.S. 335 (1963), qualifies under the second exception "a watershed rule that implicates the fundamental fairness and accuracy of the criminal proceeding," but that no other case has ever fallen within that exception.
Another feature common to both decisions is the expression of reservations about the holding in Crawford. The U.S. Supreme Court could hardly have been more adamant in Crawford: "Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation." Crawford, 41 U.S. at 69-70.
However, the Seventh Circuit in the case at bar suggested that Crawford does not even improve the accuracy of convictions. Quoting the Second Circuit in Mugno v. Duncan, 393 F.3d 327, 335-336 (2d Cir. 2004), the court iterates, "Crawford also precludes admission of highly reliable testimonial out-of-court statements that would have been admissible under the old rules (emphasis added)."
Likewise, in Murillo, the Seventh Circuit wrote, "it would be a close question whether Crawford helps or hinders accurate decision making What Crawford holds is that defendants enjoy [the right to confrontation] even when the hearsay is trustworthy. This is not an indispensable innocence-protecting decision that must be applied retroactively to criminal prosecutions that have already been finally resolved on direct review (emphasis in original)." These statements simply cannot be reconciled, in any way, with the Supreme Court’s determination that the "only indicium of reliability" is cross-examination.
This is not to suggest that the Supreme Court will ultimately hold that Crawford is retroactive. Nevertheless, it is clear that the Supreme Court places a far greater value on the right to confront one’s accusers than the Seventh Circuit does, and this may be a factor in its decision whether the Crawford implicates fundamental fairness.
Whatever the Supreme Court may ultimately hold, it should be expected that the court will not disparage the new rule of Crawford, as the Seventh Circuit did.
Unlike the Fourth Amendment exclusionary rule and the Fifth Amendment right not to incriminate oneself, both of which bar the admission of evidence, even though it is relevant and reliable, the Sixth Amendment right to confrontation exists to prevent the evidence that is unreliable.
A noteworthy difference in the two Seventh Circuit decisions is the discussions of cases from other circuits. In the case at bar, the court fails to acknowledge a contrary holding from another circuit. The court noted that both the Second Circuit and the Tenth Circuit have held that Crawford is not retroactive.
In Murillo, the court noted that the Sixth Circuit has also done so, in Dorchy v. Jones, 398 F.3d 783 (6th Cir.2005), but that the Ninth Circuit has held that Crawford is retroactive, in Bockting v. Bayer, 2005 U.S.App. LEXIS 3012 (9th Cir. Feb. 22, 2005). Thus, there is a split among the circuits on this issue that needs to be resolved, and prisoners such as Bintz who lose in the Seventh Circuit have a good reason why the Supreme Court should accept review.
Attorneys should be familiar with the Bockting case, particularly Judge McKeown’s opinion, which concluded that Crawford did change the law, and changed it so dramatically that it established a "watershed rule" that applies retroactively (Bockting did not produce any majority opinion; the other judge, who found Crawford retroactive, Judge Noonan, did so, because he concluded it did not change the law, while the dissenting judge, Judge Wallace, agreed that Crawford changed the law, but viewed it as an ordinary development in criminal procedure that applies only prospectively).
If the Supreme Court does hold Crawford retroactive, it is far more likely to be for the reasons in Judge McKeown’s opinion, rather than those in Judge Noonan’s.
– David Ziemer
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David Ziemer can be reached by email.