Danforth v. Minnesota and "testimonial" evidence after Crawford

The crucial issue in this case was whether the state courts of Minnesota could give its citizens broader protection in its postconviction or habeas corpus proceedings than the federal courts could provide under federal law. By a vote of 7-2 (opinion by Justice Stevens; dissent by Chief Justice Roberts and Justice Kennedy), the Court held that the states could provide broader relief in their own postconviction proceedings than was available to federal courts.

This is all very abstract until we understand a few of the facts of the Danforth case. As mentioned in my previous essay on this case, Danforth was convicted of a sex crime in part because of video-taped evidence of the child whom Danforth was alleged to have assaulted. The child did not have to appear to testify in person. Nor could the child be cross-examined by defense counsel. Danforth's case concluded in 1999 and he was sentenced to a long prison term. However, in 2004 the US Supreme Court decided that it was required that defendants have an opportunity to confront their accusers. Un-crossexamined video evidence just wouldn't pass constitutional muster. Thus, Danforth stood convicted largely by a process that would have been unconstitutional had he committed his crime a few years later.

So, the big issue was whether Danforth would be able to re-open his case after the 2004 decision. In order to reopen his case, he had to consider the effect of the so-called Teague rule, which allowed the application of "new rules" of criminal procedure to reopen old cases only in fairly narrow circumstances. If the Teague rule was all that Danforth had going for him, there was little chance that he would be able to apply the Crawford ruling to his situation.

But there was a possibility that even if Danforth couldn't pursue his state habeas or postconviction remedy successfully under the Teague rule, he could argue that the Teague rule only established a procedure that was binding in federal courts, and that state courts conducting their own postconviction relief might be able to provide additional protections to defendants. Thus, even if a challenge to his incarceration might not have been possible under Teague, it might have been possible under the MN constitution.

The Supreme Court held that Teague does not constrain the authority of state courts to give broader effect to new rules of criminal procedure than is required by that opinion. This doesn't necessarily mean that MN is required to give Mr. Danforth another trial; it means that they are free to develop their own state postconviction standards that may allow him to get a new trial.

Complexity of the Case

This case was made enormously long and complex because of the conflicting decisions in the Supreme Court over more than two decades regarding the "retroactivity" of new rules of criminal procedure. Justice Stevens himself admitted the problem:

"Our decision today must also be understood against the backdrop of our somewhat confused and confusing “retroactivity” cases decided in the years between 1965 and 1987. Indeed, we note at the outset that the very word “retroactivity” is misleading because it speaks in temporal terms. “Retroactivity” suggests that when we declare that a new constitutional rule of criminal procedure is “nonretroactive,” we are implying that the right at issue was not in existence prior to the date the “new rule” was announced. But this is incorrect. As we have already explained, the source of a “new rule” is the Constitution itself, not any judicial power to create new rules of law. Accordingly, the underlying right necessarily pre-exists our articulation of the new rule. What we are actually determining when we assess the “retroactivity” of a new rule is not the temporal scope of a newly announced right, but whether a violation of the right that occurred prior to the announcement of the new rule will entitle a criminal defendant to the relief sought."

This is all a bit of pleasant philosophical chatter--in other words he is trying to say that rights in the Constitution have always been "there," but that we just "discover" them along the way. The issue then is not the 'creation' of new rights but whether the rights that the Court finds to have been there all along entitle the criminal defendant to relief. But even his stating of this philosophical point is problematic. If the right has always been there, and only "recognized" by the Court at a particular time (like in the Crawford case of 2004), why shouldn't a defendant be able to take advantage of the holding regardless of when the Court "discovered" the rule? It would seem that holding this sort of "realist" approach to jurisprudence makes the rights available to someone based on the "accident" of the Court's discovery of the right. It would make the Court's "weakness," as it were, the test of justice rather than the text of the Constitution itself.

But all of this philosophical rumination quickly gets lost in the review of the several conflicting cases on "retroactivity." When all is said and done, however:

"It is thus abundantly clear that the Teague rule of nonretroactivity was fashioned to achieve the goals of federal habeas while minimizing federal intrusion into state criminal proceedings. It was intended to limit the authority of federal courts to overturn state convictions-not to limit a state court's authority to grant relief for violations of new rules of constitutional law when reviewing its own State's convictions."

Thus, the state courts have a relatively free hand to shape their own patterns of habeas corpus/postconviction relief. In vain did Chief Justice Roberts argue that this might result in different postconviction procedures in various states--and that the possibility might lead to the execution for one person in one state who did precisely the same crime as another person in another state who was given another trial because that state had broader postconviction procedures than the first state. But, when you think of it for a moment, that, or something similar to that, is what frequently happens in death penalty cases anyway. Two defendants are tried for the same crime. Both are convicted and sentenced to death. But each one then pursues his own path. One may eventually be executed and the other may never face death--because of the slowness of trials, the skill of attorneys, the vagaries of judges, etc. Thus, Chief Justice Roberts' hypothetical is sort of a chimera.

It is hard to see how this will be the last case on this subject. But I don't think that anyone really would want to read another such opinion...

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