Decision in Whorton v. Bockting overturns earlier Ninth Circuit ruling
The United States Supreme Court has unanimously reversed a 2005 ruling by the Ninth Circuit Court of Appeals which had overturned the 1988 conviction of Marvin Bockting for the sexual assault of his six-year-old stepdaughter. The lower court’s ruling in Whorton v. Bockting held that the 2004 Supreme Court Crawford decision, which sharply limited the use of previously admissible out-of-court statements, applied retroactively to invalidate Bockting’s conviction.
The California-based Criminal Justice Legal Foundation had joined Nevada’s appeal of that ruling to argue that the Crawford decision announced a new rule of law which the Supreme Court’s 1989 holding in Teague v. Lane said cannot be applied retroactively unless it qualifies as a “watershed rule” which is fundamental to a fair trial.
Writing for the unanimous Supreme Court, Associate Justice Samuel Alito concluded, “In sum, we hold that Crawford announced a ‘new rule’ of criminal procedure and that this rule does not fall within the Teague exception for watershed rules.”
“The Supreme Court’s decision in this case supports our view that few, if any, fundamental rules are left to be discovered by the courts,” said CJLF Legal Director Kent Scheidegger. “The reason that the Court and Congress put limits on rule-making by the lower federal courts is to prevent convictions, such as this one, from being needlessly overturned,” 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 six-year-old stepdaughter, Autumn, in January 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 characterize 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 examining physician 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 was unconstitutional, denying his right to confront the witnesses against him. The Nevada Supreme Court rejected this claim, citing United States Supreme Court precedent that allowed 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 regardless of its reliability, 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, joined by several retired federal judges, filed arguments supporting the Ninth Circuit’s interpretation and application of Crawford. The Criminal Justice Legal Foundation joined the Attorneys General of 38 states to file arguments encouraging a decision to overturn the Ninth Circuit’s holding.
Since the Supreme Court’s 1989 decision in Teague v. Lane, new procedural 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. CJLF was cited by the Supreme Court in Teague for providing the basis for its decision.
In its amicus curiae (friend of the court) brief, the Foundation argued 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.