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The Hunt for a Missing Government Witness In a Criminal Prosecution

Posted By Paul J. Larkin, Jr. On December 12, 2011 @ 1:41 pm In Legal | Comments Disabled

Critics of the Supreme Court of the United States sometimes say that the Court is hopelessly divided on the issues and does not mean what it says in its opinions.  But a decision handed down today helps put the lie to both criticisms.  Not only was the Court unanimous, but it also made clear that it means what it has been saying – repeatedly – over the past decade:  namely, federal courts cannot grant habeas corpus relief to a state prisoner if the state courts’ decision to deny him relief was reasonable, and a state court’s decision can be reasonable even if the federal courts disagree with the result.

In today’s case, Hardy v. Cross, the Supreme Court unanimously reversed a judgment of the US Court of Appeals for the Seventh Circuit that had freed a state inmate in Illinois, on the ground that the prosecution had not made a “good faith” effort to locate a witness before using her prior testimony against the defendant at a retrial.

The defendant, Irving Cross, was charged with kidnapping and sexually assaulting the victim.  Despite expressing her fear of testifying, the victim testified at Cross’s trial in a halting manner, which resulted in a split verdict:  acquittal on some counts, but an inability to reach a verdict on the remainder.  The victim told the prosecution that she would testify at a retrial, but absconded before trial began.  The state made repeated and varied efforts to locate the witness – e.g., asking the victim’s family about her whereabouts, checking with the victim’s school and ex-boyfriend, local hospitals, the local Medical Examiner’s Office, etc. – all to no avail.  The state courts therefore allowed the prosecution to use the victim’s first-trial testimony against Cross at his retrial. Cross was acquitted of some remaining charges and convicted on others.

In a habeas corpus action brought under federal law, the Seventh Circuit concluded that the state had not made a sufficient effort to locate the witness, because there were additional steps that the prosecution could have taken – e.g., issuing the victim a subpoena.  The Supreme Court reversed, concluding that the state’s efforts were sufficient under its decisions in Barber v. Page (1968) and Ohio v. Roberts (1980), because they were reasonable, despite being unsuccessful. Because Cross was seeking federal habeas relief under the Antiterrorism and Effective Death Penalty Act, he could not prevail if the state courts’ decisions were reasonable.  Because the state’s efforts were precisely that, the Court held, Cross was not entitled to habeas corpus relief.


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