PRESS RELEASE

The United States Supreme Court will hear oral argument Wednesday in Nevada’s appeal of a 2005 federal Ninth Circuit Court of Appeals ruling in the case of Whorton v. Bockting. The lower court’s habeas corpus ruling overturned the 1988 conviction of Marvin Bockting for the sexual assault of his six-year-old stepdaughter. The Court determined that a 2004 Supreme Court decision in Crawford v. Washington, which changed the rules governing the testimony of witnesses, must be retroactively applied.

Since the Supreme Court’s 1989 decision in Teague v. Lane, new rules announced in its opinions cannot be used to invalidate convictions already affirmed on appeal, unless the new rule is fundamental to a fair trial. The purpose of the decision was to prevent the lower federal courts from creating new rules of law on habeas corpus, disrupting thousands of convictions and sentences already affirmed on appeal by state courts relying on existing law. The Criminal Justice Legal Foundation (which was cited by the Supreme Court in Teague) has joined the case to encourage a decision overturning the Ninth Circuit’s ruling.

“The issue in this case is whether the rule change announced in Crawford qualifies as fundamental,” said Kent Scheidegger, the Foundation’s Legal Director. “The answer is clearly no, but the Ninth Circuit has misinterpreted the rule and the legal landscape in order to reach the opposite conclusion,” he added.

A Nevada jury found Marvin Bockting guilty based upon evidence which indicated that he had engaged in anal, vaginal and oral sex with his stepdaughter, Autumn, in January of 1988. On January 17 of that year, while Bockting was away from home, Autumn woke up crying. When her mother, Laura, asked why, the girl said she could not tell because, “daddy said you would make him leave and that he would beat my butt if I told you.” After Laura reassured her daughter, Autumn described how Bockting had engaged in several sex acts with her. Laura took her daughter to a hospital for an examination and met with a police detective. The girl was too upset to answer the detective’s questions at that time, but a physical examination verified that the child had been sexually abused. Two days later in a tape recorded interview with the detective, Autumn described what Bockting had done to her and demonstrated some of the positions with anatomically correct dolls. Several elements of her description and the words used to characterized them were obviously based upon personal experience, rather than coaching.

At the preliminary hearing, Autumn became upset when asked questions about the sex acts and would not respond. The Judge allowed the hearing to continue and admitted the testimony of Laura and the police detective, which proved adequate to bring the case to trial. At trial, the judge allowed Autumn’s tape-recorded description of the crime to be admitted, ruling that, based on her emotional state, the child was unavailable to testify. Witnesses for the prosecution included the physician who had examined Autumn who testified that her injuries had occurred within one week of her examination. The jury also heard testimony from a mental health expert who explained that children typically experience a denial phase after being sexually abused, and an admission by Bockting that he was the only adult male in the child’s company during the week she was abused.

Following his conviction, Bockting appealed, arguing that the admission of the child’s statements (hearsay) was unconstitutional, denying his right to confront the witnesses against him. The Nevada Supreme Court rejected this claim, citing U. S. Supreme Court precedent that allows such statements under certain circumstances. Two years later, the United States Supreme Court vacated that judgment and sent the case back to the Nevada Court for reconsideration of the case in light of the high court’s 1990 decision in Idaho v. Wright. That decision reaffirmed the earlier precedent to allow hearsay in some circumstances after applying a test to determine if the statement satisfied “particularized guarantees of trustworthiness.” In 1993 the Nevada Supreme Court upheld Bockting’s conviction ruling that Autumn’s statements did qualify as trustworthy.

Bockting’s subsequent appeal of that holding was rejected by the federal District Court, which found that the Nevada court’s analysis was a reasonable application of existing law. While Bockting’s appeal of the district court ruling was pending in the Ninth Circuit, the Supreme Court announced its decision in Crawford v. Washington. In Crawford, the Court overturned its earlier decisions (including Idaho v. Wright) and held that all “testimonial” hearsay evidence is barred with the possible exception of dying declarations.

In February 2005, a three-judge Ninth Circuit panel overturned Bockting’s conviction, ruling that the Crawford decision qualified as a new rule of law which must be applied retroactively because it was fundamental to a fair trial. The Ninth Circuit later rejected Nevada’s request to have a larger panel of judges review the ruling.

When the Supreme Court agreed to reconsider the case this fall, the National Association of Criminal Defense Attorneys and the Public Defense Service of the District of Columbia, joined by several retired federal judges, filed arguments supporting the Ninth Circuit’s interpretation and application of Crawford. The Attorneys General of 38 states and the Criminal Justice Legal Foundation have filed arguments encouraging a decision to overturn the Ninth Circuit’s holding.

In its amicus curiae (friend of the court) brief, the Foundation argues that the new rule announced in Crawford does not meet the criteria to be considered fundamental. Pointing out that there have been no new rules of fundamental magnitude announced in recent history, the CJLF brief argues that the exception in the Teague decision, which allows the lower federal courts to declare a new rule fundamental and apply it retroactively, should be abandoned.

“An exception that is always sought but never correctly found only creates unnecessary complexities and a pointless delay of justice,” said Scheidegger.

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