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Crawford v. Washington is not retroactive

The Seventh Circuit held on April 7 that even though the U.S. Supreme Court’s decision in Crawford v. Washington (2004), adopted a new rule for Confrontation Clause objections, the rule does not apply retroactively.

Sandra Lison was murdered in 1987. Green Bay Police Detective Lawrence Pamperin took a statement from David Bintz in which David admitted that he and his brother, Robert Bintz, had visited the Good Times bar, where Lison worked, the day of Lison’s disappearance.

In 1998, while David was in prison for an unrelated crime, his cellmate, Gary Swendby, heard David talk in his sleep about killing someone. In particular, David shouted "make sure she’s dead." Swendby asked David about the statements, and, and David responded that he and Robert had been involved in Lison’s murder.

Swendby told prison officials about the statement and, when Green Bay Police Detective Robert Haglund confronted David with Swendby’s statement, David confirmed that it was true, supplying Haglund with additional facts about Robert beating and strangling Lison, but denying that he personally killed Lison.

Both brothers were charged in Brown County Circuit Court with the murder of Lison, and a joint preliminary hearing was held, though David and Robert were then tried separately. In May 2000, David went to trial, and Swendby testified against him. David was convicted of first-degree murder.

At Robert’s trial in July 2000, David was called to testify, but he invoked his Fifth Amendment right against self-incrimination. The court concluded that David was unavailable because of his assertion of the Fifth Amendment, and allowed David’s statements to Swendby, Haglund, and Pamperin into evidence under the "statement against penal interest" exception to the hearsay rule.

Swendby had been killed in an automobile accident between the trials. The court concluded that Swendby, like David, was an unavailable witness and admitted his testimony from David’s trial and the joint preliminary hearing. Other inmates from Oshkosh also testified that David had made comments to them about the murder.

Finally, Joan Andrews, a former girlfriend of Robert’s, testified that Robert spoke to her about the murder, recounting that he and David felt Lison move in the back of the car while David was driving.

Like his brother, Robert was convicted of murder. Robert appealed, but the Wisconsin Court of Appeals affirmed in a published opinion, State v. Bintz, 2002 WI App 204, 257 Wis.2d 177, 650 N.W.2d 913, applying the then-applicable framework for Confrontation Clause challenges, set forth in Ohio v. Roberts, 448 U.S. 56 (1980).

The Wisconsin Supreme Court denied the petition for review, and Robert petitioned for relief in federal court. After the initial briefs were filed, the U.S. Supreme Court issued its decision in Crawford. Robert filed a supplemental brief, but Judge Lynn Adelman denied the petition, concluding that Crawford did not apply retroactively, and introduction of the statements did not violate the then-applicable precedent regarding the Confrontation Clause.

Robert appealed, but the Seventh Circuit affirmed, in a decision by Judge Daniel A. Manion.

After determining that Robert’s objections to some of the statements were procedurally defaulted, the court turned to those for which the Confrontation Clause objections were preserved, but held that Crawford did not apply to them retroactively.

What the court held

Case: Bintz v. Bertrand, No. 04-2682.

Issues: Is the new rule adopted in Crawford v. Washington (2004), for analyzing Confrontation Clause challenges retroactive?

Holding: No. the new rule does not implicate the fundamental fairness and accuracy of the criminal proceeding, and is therefore, not retroactive.

In Teague v. Lane, 489 U.S. 288, 301 (1989), the Supreme Court held, "In general, . . . a case announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government. . . . To put it differently, a case announces a new rule if the result was not dictated by precedent existing at the time the defendant’s conviction became final."

However, Teague allows for retroactivity for two types of new rules as exceptions to the bar: "(1) new rules that place certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe, and (2) rules that define procedure implicit in the concept of ordered liberty."

A new rule qualifies for the latter exception (and applies retroactively) if it is a watershed rule that implicates the fundamental fairness and accuracy of the criminal proceeding.

Before Crawford, the Supreme Court authorized the introduction of hearsay statements against a criminal defendant if the hearsay declarant is unavailable at trial, and his statement: (1) bears adequate "indicia of reliability" by falling within a firmly rooted hearsay exception; or (2) contains "particularized guarantees of trustworthiness."

Roberts, at 66.

In 2004, however, the Supreme Court overruled Roberts, holding that the Confrontation Clause required that testimonial statements from witnesses absent from trial should be admitted only when the declarant is unavailable and the defendant had a prior opportunity to cross-examine.

The court found that the Roberts test allowed a "jury to hear evidence, untested by the adversary process, based on a mere judicial determination of reliability," and concluded, "The unpardonable vice of the Roberts test, however, is … its demonstrated capacity to admit core testimonial statements that the Confrontation Clause plainly meant to exclude."

The Seventh Circuit found that Crawford established a new rule, concluding, "It seems clear that Crawford was a clean break from the line of precedent established by Roberts. Crawford considered and rejected the continuing application of Roberts. Nevertheless, a state court would not have acted unreasonably by failing to anticipate this ruling and applying Roberts. Crawford was thus a new rule for purposes of Teague (cites omitted)."

The court then held that the new rule does not fit into either of the two exceptions to the Teague rule that would permit retroactive application. The court found that Crawford plainly does not place certain types of conduct outside of the criminal law-making power to punish, and, that it did not announce a "watershed" rule implicating the fundamental fairness and accuracy of the criminal proceeding.

Related Links

7th Circuit Court of Appeals

Related Article

Case Analysis

The prototype example of a watershed rule that the Supreme Court uses is Gideon v. Wainwright, 372 U.S. 335 (1963), which established an affirmative right to counsel in felony cases. Quoting the Supreme Court in Beard v Banks, 124 S.Ct. 2504, 2513-2314, the Seventh Circuit iterated, "And, because any qualifying rule ‘would be so central to an accurate determination of innocence or guilt [that it is] unlikely that many such components of basic due process have yet to emerge,’ it should come as no surprise that we have yet to find a new rule that falls under the second Teague exception."

The court added, "Crawford does not rise to this level. While important, it does not introduce any fundamentally new concepts to address the fairness or accuracy of a trial; instead it calls for a complete implementation of a protection that already exists — the Confrontation Clause. Further, it is unclear that Crawford’s modification to the hearsay rules will markedly improve the accuracy of convictions. Crawford is not a guarantee of accuracy, but an extension of the full constitutional protections of the Sixth Amendment. While the two concepts overlap, they are not synonymous. Crawford, therefore, is not a watershed change for purposes of the second Teague exception and does not apply retroactively (cite omitted)."

The court then analyzed Robert’s Confrontation Clause claims under the old standard of Roberts, and held that the trial court’s admission of the statements did not violate clearly established Supreme Court precedent. Finally, the court concluded that, even if admission of the statements would not pass muster under Roberts, their admission was harmless error.

Accordingly, the court affirmed the district court’s denial of Robert’s petition for habeas corpus.

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David Ziemer can be reached by email.

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