The Supreme Court on February 28, 2007 in Whorton v. Bockting (No. 05-595)
399 F. 3d 1010 and 408 F. 3d 1127, ruled that cases already on final review are not subject to a retroactive Crawford review.
The respondent Marvin Bockting was convicted of numerous counts of sexual assault on a minor involving his six year old stepdaughter. Before trial and after a hearing, the court determined that the child was unable to testify at trial due to distress. The out of court statements of the six year old were admitted subject to a Nevada statute that permitted hearsay statements of sexual assault victims under 10. The child’s statements of abuse to her mother and an investigating officer were admitted at trial. The respondent was found guilty of three counts of sexual assault on a minor child. The respondent was sentenced to two consecutive life sentences and another concurrent life sentence.
The respondent appealed to the Nevada Supreme Court on the grounds that the out of court statements admitted at trial of his six year old stepdaughter violated his Confrontation Clause rights. The Nevada Supreme Court denied respondent’s appeal in 1993 and based their decision on Ohio v. Roberts, 448 U.S. 56 (1980), a landmark case which held that the Confrontation Clause was not violated by admission at trial of out of court statements by an unavailable witness if such statements bore certain indicia of reliability.
Respondent then filed a petition for a writ of habeas corpus with the U.S. District Court for the District of Nevada which was denied. The respondent appealed the denial of the writ. While this appeal was pending in the Ninth Circuit, the Supreme Court overruled Ohio v. Roberts in Crawford v. Washington, 541 U.S. 36 (2004), indicating that testimonial statements are only admissible if the declarant testifies or if the declarant is unavailable and the defendant has had a previous opportunity to cross-examine the declarant. In his petition, respondent argues that the Crawford rule should have applied to his case either as an old rule or a “watershed rule of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding Saffle v. Parks, 494 US 484 (quoting Teague v. Lane, 489 US 288)”. The Ninth Circuit reversed holding that Crawford was both a new rule and a watershed rule that applies retroactively.
The United States Supreme Court ruled that the Crawford rule is a new rule but does not qualify as a watershed rule because “it does not satisfy the first requirement relating to an impermissibly large risk of an inaccurate conviction” and “simply lacks the primacy and centrality delineated in Gideon v. Wainwright, 372 U. S. 335 (1963),” which is the only case the Court has fit under this exception. Thus, the Court found that the rule in Crawford does not qualify as a “rule that altered our understanding of the bedrock procedural elements essential to the fairness of the proceeding” Sawyer v. Smith, 497 U. S. 227, 242(1990).
The Supreme Court, therefore, decided that Crawford establishes a new rule of criminal procedure but not a watershed rule requiring retroactive application to this case that was final on direct review prior to the 2004 Crawford ruling. Judgment of the Court of Appeals reversed and remanded.
