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Another summary, unanimous AEDPA reversal

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Once again, the US Supreme Court has summarily and unanimously reversed a federal court of appeals for failure to observe the command of Congress that federal habeas is only to correct clearly wrong state court decisions, not to substitute the federal court's judgment for the state court's on close questions.  The case is Hardy v. Cross, No. 11-74.

Does it violate the Confrontation Clause of the Sixth Amendment when a witness testifies at a defendant's first trial, with cross-examination, but disappears before the retrial, and the prior testimony is read at the second trial?  Generally not, as long as the prosecution made a good faith effort to locate the witness.  See Ohio v. Roberts, 448 U.S. 56, 75 (1980) (overruled on other grounds in Crawford v. Washington, 541 U.S. 36 (2004).)

Comparing the efforts made in this case with those deemed sufficient in Roberts, it seems quite clear that they were more than sufficient.  The state courts so held.  The Seventh Circuit held that this decision was not only wrong but unreasonable, the AEDPA standard for overturning the state court judgment in this manner.  That decision was itself unreasonable, so clearly so that the high court did not even need to take merits briefing and hear argument.

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It looks like the facts of this case (i.e., the defendant was convicted on the testimony of an unavailable victim) skewed how the Seventh Circuit looked at the case. To think that Judge Williams (the author of the Seventh Circuit's less than lucid opinion) was actually considered for the Supreme Court is frightening.

This case isn't as bad as most of the AEDPA summary reversals, but it reflects very poorly on the panel, especially the author.

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