Metropolitan News-Enterprise


Wednesday, February 23, 2005


Page 1


Ninth Circuit Says Rule Limiting Use of Hearsay Is Retroactive


By KENNETH OFGANG, Staff Writer/Appellate Courts


A U.S. Supreme Court ruling that severely limits the use of hearsay testimony in criminal prosecutions must be applied retroactively, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

A divided panel ordered a new trial for Marvin Bockting, sentenced to life imprisonment for child sexual abuse. The court said Bockting was denied a fair trial because a detective was allowed to testify about an interview in which the defendant was implicated by the alleged victim, his 6-year-old daughter.

At the preliminary hearing, Autumn Bockting became upset then when she was asked whether her father touched her, and said she did not remember what happened. The girl did not testify at trial, and the Clark County, Nev. district judge declared her unavailable based on what transpired at the preliminary hearing and allowed the detective to testify about the interview.

The girl told the investigator that the defendant placed his “pee-pee” in hers and demonstrated the acts with anatomically correct dolls. A medical doctor concluded she was sexually abused.

The Nevada Supreme Court affirmed Bockting’s conviction in 1993, and Bockting has been pursuing federal habeas corpus relief since his state court post-conviction claims were rejected in 1997. He appealed to the Ninth Circuit after U.S. District Judge Edward Reed denied his amended petition in 2002.

Last year, after the appeal was argued, the U.S. Supreme Court decided Crawford v. Washington, 541 U.S. 36. The high court, interpreting the Confrontation Clause, held there that “testimonial” hearsay cannot be introduced by the prosecution unless the declarant testifies at trial, or the declarant is unavailable at trial and the defendant had the opportunity to cross-examine.

Bockting’s attorney, the federal public defender for the District of Nevada, argued that the conviction had to be set aside under Crawford. The Nevada attorney general responded that Crawford created a “new rule” that cannot be applied retroactively.

Lead Opinion

But Judge M. Margaret McKeown, writing yesterday for the Ninth Circuit, said Crawford falls within the narrow category of cases that are entitled to retroactive application because they insure “the fundamental fairness and accuracy of the criminal proceeding.”

Senior Judge John T. Noonan concurred in the order for a new trial, but argued in a separate opinion that Crawford did not create a new rule at all. Senior Judge J. Clifford Wallace dissented, agreeing that Crawford created a new rule, rejecting retroactive application, and concluding that the Nevada Supreme Court reasonably applied pre-Crawford law in upholding the conviction.

The ruling is the first to hold Crawford retroactive. The Second Circuit held—without deciding the “new rule” issue—that Crawford is not retroactive, while the Tenth Circuit held that the case creates a new rule and is not retroactive.

McKeown said the Crawford rule is “one without which the

likelihood of an accurate conviction is seriously diminished” and thus retroactive under the Supreme Court’s criteria.

Error Prejudicial

The judge went on to acknowledge that “prosecutions for child abuse often rely heavily” on hearsay testimony of the victims, but added that “the detective’s description of  Autumn’s interview was so significant that the error could have materially affected the verdict.”

Wallace argued in his dissent that the Crawford rule is not essential to ensure reliability of testimony because cross-examination is not the only means by which direct testimony can be tested.

“[E]ven if one assumes that the Framers were correct as an empirical matter that cross[-]examination is the best way to ensure the reliability of testimony, that does not mean that any other method impermissibly threatens punishing the innocent,” the dissenting jurist wrote.

Nevada state prosecutors said they will seek to overturn the ruling. “We’re certainly planning to challenge it one way or the other,” Nevada Deputy Attorney General Rene Hulse told The Associated Press.

Federal Public Defender Franny Forsman of Las Vegas said the decision will affect other cases in which hearsay testimony from police officers is the focal point of a conviction. “You can’t rest your case on a cop’s recitation on what the child responded in an interview,” Forsman told the AP.


Copyright 2005, Metropolitan News Company