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Giles Retroactivity

In Giles v. California, 128 S.Ct. 2678 (2008), the Supreme Court gave the "forfeiture by wrongdoing" exception to the Confrontation Clause a narrow interpretation. The fact that a declarant is unavailable for cross-examination because the defendant murdered her does not, by itself, forfeit the defendant's right to confront her as a witness. It is only if he murdered her for the purpose of preventing her testimony that the exception applies.

What about cases decided on appeal before Giles? Shouldn't both the limitation on applying new rules of Teague v. Lane, 489 U.S. 288 (1989) and the AEDPA rule of 28 U.S.C. §2254(d) prevent the overturning of contrary judgments affirmed before Giles?

Yes, says the Ninth Circuit in Ponce v. Felker, No. 08-73186. "At the time of Petitioner's appeal, it was neither contrary to, nor an unreasonable application of, clearly established federal law [for] the California appellate courts to rule that the forfeiture did not require proof of an intent to make the witness unavailable. Accordingly, we affirm." The panel was Judges B. Fletcher, Pregerson, and Graber, two of whom are about as pro-defendant as judges get. So it is encouraging to see them apply AEPDA correctly.

In this particular case, the judgment could also have been affirmed on a straight Crawford analysis by finding that the statements in question were not "testimonial." The state and federal trial courts both held that, but the Ninth passed on the issue.


Sometimes there's a bridge too far even for the ultra-libs.

What do you make of this language from the CA9 opinion: "But, because we determined that Giles announced a new rule, we must consider whether Reynolds and Crawford clearly established that the forfeiture exception requires proof of a defendant’s intent to prevent testimony." Even though the CA9 deals with both Teague and 2254(d) -- a good thing, like you say -- is it still somehow suggesting (a) that the Giles intent rule, even though "new" at the time of finality under Teague, somehow might still have been "clearly established" at the time of the state adjudication under 2254d, and (b) that the intent-based claim, even though Teague-barred, somehow might be revived under the 2254d "exception?" Seems to me that neither of those propositions can possibly be right --but I wonder why the CA9 said that it still "must" consider 2254d even after it had recognized that the claim was barred by Teague. If the panel simply wanted to confirm that both bars applied, it seems strange that it would say "must."

Yes, that passage is odd. We know from Horn v. Banks "that the AEDPA and Teague inquiries are distinct.... Thus, in addition to performing any analysis required by AEDPA, a federal court considering a habeas petition must conduct a threshold Teague analysis when the issue is properly raised by the state."

The petitioner must clear both the Teague and AEDPA hurdles where both apply. As in Strickland cases, once a court decides the petitioner cannot clear one hurdle, it need not decide the other.

This subject is of great interest to me, as I am handling one of those pre-Giles forfeiture cases in a state court. I believe I have convinced my state court on collateral review that the defendant's Giles claim is Teague-barred, but this CA9 case will certainly help as well. Thanks for keeping on top of so many criminal law issues -- it's why I check this blog almost daily.

Notablogger, does your state follow Teague for state collateral review? (Danforth confirmed states don't have to.) Which state?

Depending on the court, this might be a persuasive oral argument: "Your honor, that argument is so obviously bogus that even Betty Fletcher and Harry Pregerson didn't buy it."

In other courts, that might go over like the proverbial lead balloon.

Kent, yes my state (Washington) follows Teague, but I was also thinking the same thing as you were (i.e., even the Ninth Circus thinks this is a loser, Your Honors).

I don't understand why defendants aren't held to have waived the argument in cases like this. It's not like the "forfeiture by conduct" issue wasn't around before Crawford. So why shouldn't a contemporaneous objection be required?

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