Danforth v. Minnesota and retroactivity of Supreme Court decisions

This criminal procedure case has 5-4 written all over it. Which means that no one is quite sure how it should come out, but it will come out because, ultimately, there will be five votes for one of the sides. It means that the issue will become "law," but it will probably be such an unconvincing statement of "law" that twenty years (or ten years?) down the line we probably will revise it. But, since we are in 2007/08 and not 2028, we have to understand the issue as it confronts us today. The issue of the case is frightfully easy to state, but is scarily hard to decide. I can do no better than to present some relevant facts of this case, and you will soon catch on.

Danforth's Problem

Though Mr. Danforth has no doubt had many bad experiences in life, among his worst was a March 1996 conviction for first-degree criminal sexual conduct in MN state court. He was sentenced to more than 20 years for this crime. His conviction arose out of sexual abuse of J.S., then six years of age. At trial, the judge found that the boy couldn't stand the withering possiblity of cross-examination and, according to rules applicable at the time, permitted his testimony by video-tape. Defendant's lawyer couldn't cross-examine J.S. After conviction, Danforth appealed to the MN Court of Appeals, which affirmed the admission of the video-tape and conviction. Since the MN Supreme Court declined to review the conviction, his case became final in 1999.

Fast forward five years. In 2004 the US Supreme Court handed down its Crawford decision (541 US 36 (2004)) in which it imposed an "absolute bar to [the admission of] statements that are testimonial, absent a prior opportunity to cross-examine [the declarant]," 541 US at 62. Most scholars and laypeople would say that J.S.'s video-tape testimony was "testimonial." So, we have an interesting tableau here. What was not allowed in 1996 (and which may have led to different results for a guy who now is serving oodles of time in prison) must be allowed after 2004.

The obviousness of the issue is now boring down on us like the light of an oncoming train. Can Danforth get the benefits of the Crawford ruling? Your first reaction might be, "His case is over. How can he?" But in American law a prisoner can always (except if he is held in Guantanamo.....) bring a claim for habeas corpus--the gist of which is the contention that person is being improperly held in prison. This is quite a strong remedy (it is called the "Great Writ" in Anglo-Saxon jurisprudence), and it has been known to spring people from prison from time to time. Thus, Danforth certainly can, and certainly did, bring a post-2004 challenge to his imprisonment. He brought it in state court, and so it is a "state habeas corpus" or "state post-conviction" challenge.

The Legal Question in the Case

So, what is the law when the Supreme Court makes a decision, like it did in 2004 in Crawford, that may have resulted in a very different decision in a case prior to that, like Danforth's MN conviction? Can Danforth reopen his case and, if he can, on what basis would the new ruling possibly apply to his old conviction? Well, the Supreme Court tried to be clear on that one, in a decision that most scholars say is about as clear as Prince William Sound in 1990. In Teague v. Lane, a case having to do with federal habeas corpus rights, the Court concluded that a defendant cannot get the benefit of retroactive application of new criminal procedure rules laid down by the Supreme Court--except in two circumstances. Those two were: (1) if the new rule would make the prior action for which a person was convicted not a crime at all and, (2) if the new rule had to do with a bedrock principle of our legal system. Another word that the post-Teague Court has used is if the new principle is a watershed principle. Sometimes even the best of us are driven to speak in pictures, even if we think we are so rational in our words....

In fact, the Supreme Court just decided (February 2007) that the Crawford decision wasn't one of those watershed decisions (Whorton V. Bockting, 126 S Ct 2017 (2007)) and so the mere fact that it conflicted with an older state or federal decision that held the opposite was no grounds for reopening the case.

But that doesn't resolve every issue in Danforth's mind. Even if the Supreme Court has laid down a rule in Teague that is very narrow--indeed, none, that is zero, or zip, or nada, new rules of criminal procedure after Teague have been held by the Court to be retroactive to earlier criminal procedure decisions in federal cases--there is one unanswered question: Does the Supreme Court's having laid down a rule on retroactivity for federal cases in Teague apply also to state cases, or can state courts be free to devise their own procedural rules that are perhaps more generous than the federal standard?

That is a pretty long question, but it is a pretty important one, too, because it goes to the heart of where federal authority stops and state authority begins (or where they overlap). And, the issue is made more complicated by one further factor. On what basis did the Supreme Court decide Teague in the first place? If it was simply a 'prudential' decision, then there is nothing really sacred about the Court's decision--at least as it relates to state criminal procedure law. Even if it was a case construing the federal habeas corpus law, it could be possibly ignored by the states. But if the Court concludes that Teague was a "constitutional" decision, well, maybe states will not have as much leeway to pursue their own retroactivity rules.

Conclusion

This is not pristine Crater Lake, in Oregon, where you can see down 100' feet in the clear water. It is more like a turbulent, whipped tropical lake, where things get hazy and dirty when you scarcely break the surface. It is, to that extent a scary case. Maybe that is why it was argued this day.

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