Crime & Federalism

Crawford v. Washington in the Eleventh Circuit

Today the Eleventh Circuit handed down an interesting opinion that addressed two Crawford v. Washington issues.  Namely:

(1) whether, under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004), a warrant of deportation is testimonial evidence subject to confrontation at trial;
(2) whether, under Crawford, a defendant has a right to confrontation at sentencing.

U.S. v. Cantellano (here).  The panel held that a warrant of deportation is not testimonial:

We are persuaded that a warrant of deportation does not implicate adversarial concerns in the same way or to the same degree as testimonial evidence. A warrant of deportation is recorded routinely and not in preparation for criminal trial. It records facts about where, when, and how a deportee left the country. Because a warrant of deportation does not raise the concerns regarding testimonial evidence stated in Crawford, we conclude that a warrant of deportation non-testimonial and therefore is not subject to confrontation.

Slip op. at 7.  I know nothing about warrants of deportation.  Immigration guys and gals: Does the panel's opinion here make sense? 

Next, the panel holds that a defendant does not have a right to confront his accusers at sentencing, even though the accusations made at sentencing can literally cause the defendant to serve years more in prison.  The panel noted that "the right to confrontation is a trial right," id. at 9, and thus (tautologically), "The right to confrontation is not a sentencing right."  Id. at 10.

Reading the panel's "analysis" reminds me of one of the late Judge Richard S. Arnold's guidelines for opinion writing (paraphrased): "The opinion must be based on reason, not authority.  Strings cites are therefore not preferred."  [UPDATE: I have more on Judge Arnold's methods in this post.]  Read pages 9 and 10 of the slip op., and you'll see why Judge Arnold's death still saddens me.  The panel glosses over what is a very interesting and complicated issue, and opts for string cites rather than persuasive reasoning.

Two-Way TVs and the Confrontation Clause

In United States v. Bordeaux, No. 04-1369 (8th Cir., Mar. 7, 2005) (Arnold for Gibson and Smith, JJ.) the court handed the Confrontation Clause two major victories.  First, the court held that allowing the complaining witness in a child molestation case to testify through a two-way circuit television system violated the Confrontation Clause.  Second, the court rejected the assertion that statements made for medial treatment are non-testimonial, and furthermore, that admitting statements made during a forensic interview violate the Confrontation Clause unless the declarant is put through the crucible of cross-examination.  Let's elaborate.

Cross-examination, and the whether and why rule

Does a defendant have the right under the Confrontation Clause to flesh out before the jury details of a plea agreement?  Yes.  The constitutional right to cross-examination demands that a defendant be permitted to a ask not only whether a witness is biased, but also why the witness might be biased.  Thus, the "whether and why" rule.  United States v. Schoneberg, No. 03-30127 (9th Cir., Nov. 17, 2004) (Kleinfeld, for Nelson and Fisher, JJ.)

Jeremiah Schoneberg and Robert Woodbury were old friends.  During high school, Woodbury sold marijuana to Schoneberg.  They kept in touch after high school, although the extent of their friendship is uncertain.

According to Woodbury, Schoneberg was involved in drug and money laundering conspiracies.  Although Woodbury was the head of the group, the government gave him a good deal if he ratted on his underlings.  Woodbury copped a plea that would require him to serve less than 4 years.

At trial, the defense counsel tried running Woodbury through the crucibile of cross-examination but was stopped by the judge. 

Schoneberg's attorney got Woodbury's plea bargain into evidence, but was not permitted to cross examine Woodbury about whether his testimony was affected by the government's promise to move for a sentence reduction if his testimony satisfied the government. The trouble started when defense counsel asked Woodbury to confirm that under his agreement, "the only party that is going to determine whether you're telling the truth today, as you're standing on the witness stand, is the United States government, the United States Attorney." Woodbury answered, "I don't know sir. I don't know how the law works." Before defense counsel could begin punching away at what was arguably an evasive and misleading answer, the judge said, "What are you getting at? The jury decides whether he's telling the truth. " Defense counsel read Woodbury one of the paragraphs of his plea agreement and asked him to confirm that it meant "[t]he United States, those folks right there, a party to this lawsuit, are the sole people that determine whether you're telling the truth or not." Woodbury again claimed not to know "how the law works," [See, Ethical Question, below].  and the prosecutor objected to defense counsel's question, saying "that's a misrepresentation. " The judge agreed, "[T]he jury in this case is the sole determiner of the credibility of the witnesses in this case."  about that it's the government's obligation to determine the truth, because it isn't. It's the jury's determination in this case." Defense counsel was unsuccessful in persuading the district judge that he was entitled to explore Woodbury's incentive to please the government.

Judge Kleinfeld continued:

The constitutional right to cross examine is subject always to the broad discretion of a trial judge to preclude repetitive and unduly harassing interrogation, but that limitation cannot preclude a defendant from asking, not only whether the witness was biased but also to make a record from which to argue why the witness might have been biased.  Exposure of a witness' motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination.

Moreover, the error was reversible:

The importance of the testimony to the case, presence or absence of other evidence corroborating or contradicting the witness, extent of permitted cross-examination, and overall strength of the prosecution's case are among the factors we consider in determining whether the error is harmless.

Here, the sole issue in the case was whether the jury believed Woodbury or Schoneberg.  Woodbury's word was the only inculpatory evidence.  As such, the conviction must be reversed.

Ethical Question: Why didn't the AUSA stop the proceedings to tell the judge that he had explained the plea bargaining process to Woodbury?  If the AUSA had explained the process to Woodbury, then he knew or should have known that Woodbury was perjuring himself.  But the AUSA did nothing to stop the witness from committing a felony by lying to the judge and jury.

First Recorded Cross-examination

Today I was re-reading one of my favorite books, One Man's Freedom by Edward Bennett Williams. Williams (who represented both Jimmy Hoffa and Senator Joe Mccarthy), reminded of the first transcript we have of a cross-examination. Also of note: It is an early report of a victim of a false criminal accusation.

It comes from the Thirteenth Chapter of Daniel.

In Babylon there lived a man named Joakim, who married a very beautiful and God-fearing woman, Susanna, the daughter of Hilkiah; her pious parents had trained their daughter according to the law of Moses.

Joakim was very rich; he had a garden near his house, and the Jews had recourse to him often because he was the most respected of them all.

That year, two elders of the people were appointed judges, of whom the Lord said, "Wickedness has come out of Babylon: from the elders who were to govern the people as judges."

These men, to whom all brought their cases, frequented the house of Joakim.

When the people left at noon, Susanna used to enter her husband's garden for a walk. When the old men saw her enter every day for her walk, they began to lust for her. They suppressed their consciences; they would not allow their eyes to look to heaven, and did not keep in mind just judgments.

Though both were enamored of her, they did not tell each other their trouble, for they were ashamed to reveal their lustful desire to have her.

Day by day they watched eagerly for her.

One day they said to each other, "Let us be off for home, it is time for lunch." So they went out and parted; but both turned back, and when they met again, they asked each other the reason. They admitted their lust, and then they agreed to look for an occasion when they could meet her alone.

One day, while they were waiting for the right moment, she entered the garden as usual, with two maids only. She decided to bathe, for the weather was warm.

Nobody else was there except the two elders, who had hidden themselves and were watching her.

"Bring me oil and soap," she said to the maids, "and shut the garden doors while I bathe."

They did as she said; they shut the garden doors and left by the side gate to fetch what she had ordered, unaware that the elders were hidden inside.

As soon as the maids had left, the two old men got up and hurried to her.

"Look," they said, "the garden doors are shut, and no one can see us; give in to our desire, and lie with us.

If you refuse, we will testify against you that you dismissed your maids because a young man was here with you."

"I am completely trapped," Susanna groaned. "If I yield, it will be my death; if I refuse, I cannot escape your power. Yet it is better for me to fall into your power without guilt than to sin before the Lord."

Then Susanna shrieked, and the old men also shouted at her, as one of them ran to open the garden doors.

When the people in the house heard the cries from the garden, they rushed in by the side gate to see what had happened to her.

At the accusations by the old men, the servants felt very much ashamed, for never had any such thing been said about Susanna.

When the people came to her husband Joakim the next day, the two wicked elders also came, fully determined to put Susanna to death. Before all the people they ordered: "Send for Susanna, the daughter of Hilkiah, the wife of Joakim."

When she was sent for, she came with her parents, children and all her relatives.

Susanna, very delicate and beautiful, was veiled; but those wicked men ordered her to uncover her face so as to sate themselves with her beauty.

All her relatives and the onlookers were weeping.

In the midst of the people the two elders rose up and laid their hands on her head.

Through her tears she looked up to heaven, for she trusted in the Lord wholeheartedly.

The elders made this accusation: "As we were walking in the garden alone, this woman entered with two girls and shut the doors of the garden, dismissing the girls. A young man, who was hidden there, came and lay with her. When we, in a corner of the garden, saw this crime, we ran toward them.

"We saw them lying together, but the man we could not hold, because he was stronger than we; he opened the doors and ran off. Then we seized this one and asked who the young man was, but she refused to tell us. We testify to this."

The assembly believed them, since they were elders and judges of the people, and they condemned her to death.

But Susanna cried aloud: "O eternal God, you know what is hidden and are aware of all things before they come to be: you know that they have testified falsely against me. Here I am about to die, though I have done none of the things with which these wicked men have charged me."

The Lord heard her prayer.

[Now comes the cross-examiner] As she was being led to execution, God stirred up the holy spirit of a young boy named Daniel, and he cried aloud: "I will have no part in the death of this woman."

All the people turned and asked him, "What is this you are saying?"

He stood in their midst and continued, "Are you such fools, O Israelites! To condemn a woman of Israel without examination and without clear evidence? Return to court, for they have testified falsely against her."

Then all the people returned in haste. To Daniel the elders said, "Come, sit with us and inform us, since God has given you the prestige of old age."

[Enter the Crucible of Cross-Examination]

But he replied, "Separate these two far from one another that I may examine them."

After they were separated one from the other, he called one of them and said: "How you have grown evil with age! Now have your past sins come to term: passing unjust sentences, condemning the innocent, and freeing the guilty, although the Lord says, "The innocent and the just you shall not put to death.' Now, then, if you were a witness, tell me under what tree you saw them together."

"Under a mastic tree," he answered.

"Your fine lie has cost you your head," said Daniel; "for the angel of God shall receive the sentence from him and split you in two."

Putting him to one side, he ordered the other one to be brought. "Offspring of Canaan, not of Judah," Daniel said to him, "beauty has seduced you, lust has subverted your conscience. This is how you acted with the daughters of Israel, and in their fear they yielded to you; but a daughter of Judah did not tolerate your wickedness. Now, then, tell me under what tree you surprised them together."

"Under an oak," he said.

"Your fine lie has cost you also your head," said Daniel; "for the angel of God waits with a sword to cut you in two so as to make an end of you both."

The whole assembly cried aloud, blessing God who saves those that hope in him.

They rose up against the two elders, for by their own words Daniel had convicted them of perjury.

According to the law of Moses, they inflicted on them the penalty they had plotted to impose on their neighbor: they put them to death. Thus was innocent blood spared that day.

Hilkiah and his wife praised God for their daughter Susanna, as did Joakim her husband and all her relatives, because she was found innocent of any shameful deed.

And from that day onward Daniel was greatly esteemed by the people.

Co-conspirators' Statements Inadmissible in CA2

Crawford is being felt in the Circuits.  The Second Circuit held on Tuesday that co-conspirator statements are inadmissible against a criminal defendant unless the defendant had a prior opportunity to cross-examine the speaker.  United States v. Bruno, 2004 WL 2039421    (2d Cir., Sept. 14, 2004).  Judge Miner, for Judges Katzmann and Tsoucalas, wrote:

We turn first to whether the District Court’s admission of two hearsay statements — a plea allocution and [ ] grand jury testimony — violated the Confrontation Clause of the Sixth Amendment in light of the Supreme Court’s recent decision in Crawford v. Washington. There, the Court held that the Confrontation Clause was violated when the state trial court admitted a statement made by the defendant’s wife to the police, notwithstanding the wife’s unavailability to testify at trial due to the invocation of the marital privilege. Specifically, the Court held that testimonial statements of witnesses absent from trial are to be admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine. In reaching this conclusion, the Court identified earlier lower federal court cases where testimonial statements had been admitted in contravention of its interpretation of the Confrontation Clause, including cases where a plea allocution showed the existence of a conspiracy, and cases involving the admission of grand jury testimony.

***
[T]he District Court plainly erred in admitting into evidence testimonial hearsay statements that the Crawford Court expressly stated are not admissible under the Confrontation Clause. We hasten to observe that the able District Court made its rulings before the Supreme Court issued Crawford, and that only a soothsayer could have known with any certainty that the Court would change the legal landscape. That these statements were clearly admissible under our interpretation of the Confrontation Clause at the time they were admitted is of no moment, however, given that an error is plain if it is clear or obvious at the time of appellate consideration.

Id. at *7-9.