Just a very quick note on a habeas opinion issued yesterday that deals with the Confrontation Clause and Crawford.  Peak v. Webb, No. 09-5977 (6th Cir. Mar. 14, 2012) (for publication).

Panel of Judges Boggs (delivered opinion of Court), Merritt (joined Judge Boggs, and delivered a separate concurrence), and Clay (dissented).

Murder case out of Kentucky.  State played a recording of a co-defendant's custodial statement without calling that co-defendant as a witness.  Defense objected.  The co-defendant was available to be called.   

The petitioner received no relief from the Court.

Conclusions and Reasoning:

* The Supreme Court has "recently made abundantly clear that the review granted by AEDPA is even more constricted than AEDPA’s plain language already suggests. As long as 'fairminded jurists could disagree on the correctness of the state court’s decision, then relief is precluded under AEDPA."

* If it was possible for a fairminded jurist to conclude that the state court’s rationale comported with the holding in Crawford, the Court had to deny relief.  The Court acknowledged that this is a "very high standard."

* Crawford requires unavailability and a prior chance to cross-examine for the use of testimonial hearsay.  When the co-defendant's statement was played at trial, that co-defendant was available and there had been no prior opportunity for the petitioner/defendant to cross-examine him. If the petitioner/defendant was not confronted with the co-defendant, playing the statement was a violation of Crawford. 

* The crux of the issue was "whether making a witness available to be called is confrontation, or whether confrontation instead requires the witness to take the stand at the very time, according to Supreme Court precedent that was clearly established when [the petitioner's] conviction became final."

* The question is open as to whether confrontation requires the witness to actually take the stand. Crawford seems to equate confrontation with cross-examination, which would have required the state to put the co-defendant on the stand when playing the tape.

* But the Supreme Court "had not, at the time [the petitioner's] conviction became final, clearly held that the ability to cross-examine immediately is required by the Confrontation Clause." So it was "not unreasonable to believe, as did at least three justices on the Kentucky Supreme Court, as well as the trial-court judge, that confrontation only requires that a declarant be made available in the courtroom for a criminal defendant to call during his own case. It can be argued that this ability is equivalent to cross-examination."

* The Court was "not convinced that the opportunity to call a witness, as opposed to the opportunity to immediately cross-examine a witness, satisfies the Confrontation Clause. However, we are convinced that there is a possibility for fairminded disagreement on the issue, and under clear, and increasingly strident, Supreme Court precedent, that is all that is required to affirm."

Judge Merritt concurred:

* He agreed on the "AEDPA problem because in the recent case of Greene v. Fisher, 132 S. Ct. 38 (2011), a unanimous Supreme Court observed that the AEDPA standard 'is difficultto meet, because the purpose of AEDPA is to ensure that federal habeas relief functions as a guard against extreme malfunctions in the state criminal justice system, and not as a means of error correction.'"

* He also agreed that "on the merits of the confrontation question: it is doubtful that a witness who appears in court ready for the defendant’s examination can be said to meet the 'unavailable' element of the test under the Sixth Amendment."

Judge Clay dissented:

* The pettion's "Sixth Amendment Confrontation Clause right was irrefutably violated when his co-conspirator’s testimonial, hearsay confession accusing [the petitioner] as the triggerman and ringleader of a robbery and murder was played to the jury in lieu of the co-conspirator’s live testimony."

* He concluded: "Contrary to the majority’s holding, if the plain language of the Sixth Amendment is not clearly established federal law, then nothing is."

* The Supreme Court has never concluded "that the prosecution may admit a testimonial, hearsay accusation against the defendant if the declarant is seated in a pew in the back of the courtroom, but is allegedly willing to testify. The Supreme Court has similarly never held that a defendant waives his Confrontation Clause right if he fails to call an available accuser to the stand and cure the prosecution’s violation of his Confrontation Clause right. There is but one way for the prosecution to admit into evidence a testimonial, hearsay accusation against a defendant: establish unavailability of the declarant and show that the defendant had a prior opportunity to cross-examine that witness."

* He finds that "As a matter of policy, if we permit the prosecution to introduce accusations merely by having potential witnesses present in the courtroom rather than by producing them as actual witnesses for purposes of confrontation, the prosecution has only to gain and the defendant has only to lose."
* The Fifth Amendment right against self-incrimination may also be implicated if a defendant is forced to call a witness who may incriminate the defendant, if the defendant must do so in order to avail himself of his Confrontation Clause right.

* He finds that "the Kentucky Supreme Court plurality was objectively unreasonable in its application of the Sixth Amendment, and its decision was contrary to clearly established federal law."