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Irving L. Cross v. Hardy, 7th Cir No. 09-1666, 1/13/11

7th circuit decision, reversed, Hardy v. Cross, USSC No. 11-74, 12/12/11

Habeas Review – Confrontation – Pre-Crawford (Ohio v. Roberts) Showing of Witness Unavailability

The state court (Illinois) unreasonably applied controlling Supreme Court precedent in finding good-faith efforts to secure the presence of the declarant, before determining that she was unavailable so that her first-trial testimony could be read to the jury at Cross’s re-trial. Cross was charged with sexual assault of A.S. His defense was that he gave her money and drugs in exchange for consensual sex. After mistrial, A.S. told her family she wasn’t going to testify again, and she failed to show for the re-trial. State investigators talked to family members, and searched morgues and jails in an attempt to locate her. The state court held that this was a sufficient good-faith effort to satisfy the unavailability requirement of Ohio v. Roberts, 448 U.S. 56, 74-75 (1980). On 2254 habeas review, however, the 7th Circuit holds that the effort was insufficient, given the centrality of the witness:

Given the importance of A.S.’s testimony, the state was obligated to exert great effort to locate her. “The more important the witness to the government’s case, the more important the defendant’s right, derived from the Confrontation Clause of the Sixth Amendment, to cross-examine the witness.” United States v. Foster, 986 F.2d 541, 543 (D.C. Cir. 1993). And as the Tenth Circuit has explained, “the more crucial the witness, the greater the effort required to secure his attendance.” Cook v. McKune, 323 F.3d 825, 835-36 (10th Cir. 2003); see also United States v. Mann, 590 F.2d 361, 367 n.6 (1st Cir. 1978) (“A lesser effort might be reasonable where the testimony goes to minor, collateral, or uncontested matters.”). A.S.’s testimony here was crucially important to the state’s prosecution, as she was the complainant and sole witness. And the importance of her live testimony is underscored by the apparent credibility issues from Cross’s first trial. …

In light of A.S.’s importance as a witness, the state should have taken other proactive measures to secure her presence at the second trial, particularly given that the state had ample notice of A.S.’s tremendous reluctance to testify again. “If there is a possibility, albeit remote, that affirmative measures might produce the declarant, the obligation of good faith may demand their effectuation.” Burns v. Clusen, 798 F.2d 931, 937 (7th Cir. 1986). One such measure available to the state was to subpoena A.S. immediately after it learned of her reluctance to testify. We do not believe that the state is required to subpoena every reluctant witness in order to adhere to the Sixth Amendment, but, here, where A.S. was a critical witness and the state had ample notice of her reluctance to testify and her proclivity to disappear without informing anyone of her whereabouts, the state should have issued a subpoena to secure A.S.’s presence at the second trial….

This case pre-dates Crawford v. Washington, 541 U.S. 36 (2004), and because that case isn’t retroactive, Roberts applies. Nonetheless, Crawford also requires unavailability before “testimonial” hearsay satisfies confrontation, 541 U.S. at 68, so the holding in Cross may have valence under Crawford. Same re: showing of unavailability for hearsay purposes, § 908.04(1)(e).

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