No. 10- IN THE SUPREME COURT OF THE UNITED STATES

Transcription

1 No. 10- IN THE SUPREME COURT OF THE UNITED STATES VICTORIANO BENITEZ, v. STATE OF MARYLAND, Petitioner, Respondent. On Petition for Writ of Certiorari to e Court of Special Appeals of Maryland PETITION FOR A WRIT OF CERTIORARI Andrew V. Jezic Jonaan R. Oates Jezic, Krum & Moyse, LLC 2730 University Boulevard West Suite 910 Wheaton, Maryland (240) RICHARD D. FRIEDMAN Counsel of Record 625 Sou State Street Ann Arbor, Michigan (734) (734) (fax) rdfrdman@umich.edu

2 QUESTIONS PRESENTED 1. Should a witness be deemed unavailable for Confrontation Clause purposes because of a en existing physical or mental illness or infirmity even ough a reasonably short postponement would allow e witness to testify at trial? 2. Should determination of wheer a witness is unavailable for purposes of e Confrontation Clause take into account simple and reasonable measures, oer an attempting to enforce a timely subpoena, at e prosecution could have taken in advance to assure at e witness would be able to testify at trial?

3 TABLE OF CONTENTS TABLE OF AUTHORITIES... iv PETITION FOR A WRIT OF CERTIORARI...1 OPINIONS BELOW...1 STATEMENT OF JURISDICTION...1 RELEVANT CONSTITUTIONAL PROVISION...1 STATEMENT OF THE CASE...2 REASONS FOR GRANTING THE WRIT...8 I. THE FEDERAL AND STATE COURTS ARE SHARPLY DIVIDED ON THE QUESTIONS PRESENTED BY THIS PETITION II. THE DECISION BELOW REFLECTS A FUNDAMENTAL MISUNDERSTANDING OF, AND SERIOUSLY IMPAIRS, THE CONFRONTATION RIGHT III. THIS CASE IS AN EXCELLENT VEHICLE FOR DETERMINATION OF THE QUESTIONS PRESENTED AND FOR GIVING LOWER COURTS GUIDANCE ON HOW UNAVAILABILITY SHOULD BE DETERMINED CONCLUSION...19 APPENDIX Opinion of e Court of Special Appeals of Maryland Judgment of e Circuit Court of Montgomery County, Maryland Order of e Court of Appeals of Maryland Denying Certiorari Order of e Court of Appeals of Maryland Denying Rehearing Excerpts from Trial Proceedings... A1 B1 C1 D1 E1 July 30, 2007 Trial Proceedings... E1 ii

4 July 31, 2007 Trial Proceedings... E14 August 3, 2007 Trial Proceedings... E49 iii

5 TABLE OF AUTHORITIES CASES Barker v. Wingo, 407 U.S. 514 (1972)...11 Burns v. Clusen, 798 F.2d 931 (7 Cir. 1986) Crawford v. Washington, 541 U.S , 13, 14, 20 Mattox v. United States, 156 U.S. 237 (1895)...14 McKinney v. Fisher, 2009 WL (D. Idaho 2009)...9 Motes v. United States, 178 U.S. 458 (1900)...12 Ohio v. Roberts, 448 U.S. 56 (1980)...11, 12, 18, 19, 20 People v. Garland, 777 N.W.2d 732 (Mich.App. 2009), appeal denied, 783 N.W.2d 109 (2010)...9 People v. Roberts, 146 P.3d 589 (Col. 2006)...11 Peterson v. United States, 344 F.2d 419 (5 Cir. 1965)... 4, 5, 10 Phillips v. Pitchess, 451 F.2d 913 (9 Cir. 1971), cert. denied, 409 U.S. 854 (1972) Smi v. United States, 106 F.2d 726 (4 Cir. 1939)...11 State v. Button, 11 P.3d 483 (Idaho 2000)...10, 11 State v. Hess, 2004 WL (Ohio App. 5 Dist. 2004) State v. Jefferson, 194 P.3d 557 (Kans. 2008)...9 State v. Perry, 159 P.3d 903 (Idaho App. 2007)...10 State v. Steward, 547 P.2d 773 (Kans. 1976)...9 St. Clair v. Commonweal, 140 S.W.3d 510 (Ky. 2004)...9 United States v. Allie, 978 F.2d 1401 (5 Cir. 1992) iv

6 United States v. Amaya, 533 F.2d 188 (5 Cir. 1976) United States v. Boatner, 478 F.2d 737 (2d Cir. 1973)...11 United States v. Hay, 527 F.2d 990 (10 Cir. 1975) United States v. Mann, 590 F.2d 361 (1st Cir.1978)...12 United States v. McGowan, 590 F.3d 446 (7 Cir. 2009) United States v. McGuire, 307 F.3d 1192 (9 Cir. 2002)... 9 United States v. Rollins, 487 F.2d 409 (2d Cir. 1973)...9 United States v. Tirado-Tirado, 563 F.3d 117 (5 Cir. 2009) United States v. Yida, 498 F.3d 945 (9 Cir. 2007)... 12, Wiee v. Commonweal, 2008 WL (Va. App. 2008) RULES Federal Rule of Evidence , 20 Maryland Rule of Evidence SECONDARY SOURCES AMERICAN JURISPRUDENCE, 2D, EVIDENCE (2008)...10 JOHN H. WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW(Chadbourn rev. 1974) MISCELLANEOUS Statement of Justice Scalia concerning Amendments to Rule 26(b) of e Federal Rules of Criminal Procedure, Apr. 29, 2002, available at rules/cr-26b.pdf v

7 PETITION FOR A WRIT OF CERTIORARI Petitioner Victoriano Benitez respectfully petitions for a writ of certiorari to e Court of Special Appeals of Maryland to review e judgment against him in Victoriano Benitez v. State of Maryland, No (September Term, 2007). OPINIONS BELOW The orders of e Court of Appeals of Maryland denying certiorari, App. C1, and denying reconsideration (D1), e opinion of e Court of Special Appeals of Maryland, App. A1-43, and e relevant trial proceedings, App. E1-53, are all unpublished. JURISDICTION The Court of Special Appeals of Maryland issued its decision on December 14, That court issued an order denying reconsideration on March 11, The Court of Appeals of Maryland denied certiorari on June 11, 2010, and denied reconsideration of at decision on September 20, This Court has jurisdiction under 28 U.S.C. 1257(a). RELEVANT CONSTITUTIONAL PROVISION The Six Amendment to e United States Constitution provides in relevant part: In all criminal prosecutions, e accused shall enjoy e right... to be confronted wi e witnesses against him [and] to have compulsory process for obtaining witnesses in his favor. 1

8 STATEMENT OF THE CASE Petitioner was convicted of serious crimes in part on e basis of testimony taken at a prior trial and presented to a second jury via audio tape. This was done because at e time of e second trial e witness, a crucial one for e prosecution, was out of state and deep into her nin mon of pregnancy. The prosecution knew about is before a jury was empaneled but revealed it only afterwards. The prosecution never sought, and indeed opposed, a continuance. And e trial court declined to consider wheer a brief continuance at would allow e witness to testify live would be, or would have been, reasonable. Petitioner was severely prejudiced by is blatant violation of his confrontation rights. The decision of e Maryland courts conflicts wi decisions by oer courts recognizing at a temporary infirmity is not sufficient for a witness to be deemed unavailable for purposes of e Confrontation Clause if a reasonable continuance would allow e witness to testify at trial. It also stands in clear contrast to decisions recognizing at e prosecution has an affirmative responsibility to shape circumstances making it more probable at witnesses will be able to testify live. Petitioner was tried, beginning February 5, 2007, in e Circuit Court for Montgomery County, Maryland, on multiple counts of child sexual abuse. Petitioner was married to e paternal grandmoer of e alleged victim, a girl named Yesenia. The abuse allegedly took place in e late 1990s, when Yesenia, born December 23, 1989, was a young child. A critical witness for e prosecution was Yesenia s younger sister, Jasmine, born July 24, Jasmine testified at on one occasion she witnessed Petitioner putting his hand near Yesenia s private parts; she was e only person oer an Petitioner and Yesenia who was present on any of e occasions when abuse allegedly occurred. She also testified at on several oer 2

9 occasions Yesenia had told her at Petitioner had touched her inappropriately. Petitioner s counsel, believing at Jasmine s demeanor undermined her credibility, cross-examined her in a restrained manner. Petitioner testified in his defense, denying all allegations; e eory of e defense was at e accusations were promoted by Yesenia s moer in e context of a divorce from, and custody battle wi, Petitioner s stepson. 1 The jury deliberated for over twelve hours. During deliberations, defense counsel was able for e first time to interview Jessica O., a half-sister of Yesenia and Jasmine. Jessica reported at Yesenia had told her at a friend of Yesenia s moer had touched Yesenia inappropriately. The jury was unable to reach a verdict. On February 12, 2007, e court declared a mistrial. It en scheduled a new trial, before e same judge, to begin July 30, On at date, before selection of e second jury began, Petitioner asked for a continuance to allow him additional time to find Jessica, who had been avoiding service. The State opposed e motion, and e court denied it. Almost immediately after e jury was empaneled, e prosecution moved in limine for admission of an audio tape of Jasmine s testimony from e first trial. Jasmine had moved to Florida and e prosecutor presented a letter from a physician explaining at she was eight and one-half mons pregnant, wi labor to be induced wiin a few days if she did not give bir naturally; e physician advised at she could not travel to Maryland at at time. Petitioner s counsel vigorously objected to introduction of e tape. He argued at e 1 Yesenia s first accusations were made approximately nine days after her moer was released from prison, a short time after e moer was served wi custody and divorce papers and nine mons after Petitioner left e house where Yesenia lived. 3

10 Confrontation Clause precluded introduction of Jasmine s prior testimony unless she was unavailable, App. E10-11, 16, and at she should not be deemed unavailable because she would be able to testify after a relatively brief continuance, App. E16; he offered to waive any speedy trial or double jeopardy objections to such a continuance. App. E13, 18. He noted at he had not known at Jasmine could not attend trial at e designated time until after jeopardy had attached, and after e prosecution had opposed his motion for a continuance. App. E Counsel also pointed to ways in which Petitioner was prejudiced by presentation of Jasmine s prior testimony: First, he had received important new information after Jasmine testified at e first trial at would be crucial in a renewed cross-examination in particular, e suggestion by Jessica at a friend of Yesenia s moer had been e true perpetrator. Second, Jasmine s demeanor in testifying at e first trial was so tentative at it undercut her credibility. App. E Thus, e jury at e second trial would not have e benefit of e full demeanor evidence. App. E23. Furermore, because he regarded Jasmine s demeanor at e first trial as so weak, he had conducted a relatively mild cross-examination, App. E22-23 a choice at would not be appropriate given at e jury could not observe Jasmine. And he cited Peterson v. United States, 344 F.2d 419 (5 Cir. 1965), a leading case holding at admission of prior testimony by a witness who was in an advanced stage of pregnancy at e time of trial violated e Confrontation Clause because e prosecution should eier have sought a continuance or foregone use of e witness s testimony. App. E16, 23. The trial court, noting at Peterson was pretty clear in discussing wheer or not e witness will be available in e near future, wheer or not a postponement should be requested, asked for e State s argument in response. App. E31. The State made no genuine attempt to distinguish Peterson. (The State said at Peterson held at e prosecution should have been 4

11 required to elect eier to proceed wiout [e witness s] testimony or to request a continuance, App. E33, but of course at was precisely e situation in is case.) Raer, e State rejected e approach of at case, saying repeatedly at it had no auority before a Maryland court. E32, 34. And, ough Petitioner had clearly invoked e Confrontation Clause, e State argued at e only constraint was Maryland Rule of Evidence 5-804(4), which provides at a declarant is unavailable for purposes of e hearsay exceptions listed in Rule if e declarant is unable to be present or to testify at e hearing because of dea or en existing physical or mental illness or infirmity : App. E32. [T]he Maryland Rule... is what governs our obligations.... And our rule specifically says a en existing physical infirmity. We re not talking about someing at could be changed in a mon, two mons. Specifically e rule says a en existing. It is existing right now. It is now en existing. The trial court adopted e prosecution s approach raer an at exemplified by e Peterson case. It treated e Maryland rule as stating e governing standard on unavailability. App. E Thus, it expressed e opinion at Jasmine s inability to travel because of e late stage of her pregnancy clearly made her per se unavailable. App. E5-6. It declined to consider wheer a continuance long enough to allow Jasmine to testify would be practical, or would have been practical had e prosecution asked for it before e jury was empaneled, App. E37 ( I m not going to grant a continuance. So factor at out.); in passing, it referred to e state s right to a speedy trial and to expeditious proceedings in a criminal case. App. E45. Accordingly, e trial court regarded e prosecution as having had no obligation oer an to attempt to enforce compliance wi a timely subpoena. App. E43 (pointing out at State issued 5

12 subpoena, took steps to ensure service, and was prepared to pay for witness s transportation: But for e condition at e witness is in her final stages of pregnancy, she would be able to travel. ). And, ough it characterized e prosecution s conduct as not... very polite, App. E44, and as having rown a fast ball at e defense, App. E12, it completely discounted any prejudice: The State is stuck wi e tape of her previous testimony, e direct examination. The defense is stuck wi e cross-examination. No one is at an advantage. It s a wash in terms of what is witness will say to e jury.... [B]o sides are stuck wi e same testimony. Ap. E Thus, e court admitted e audio tape of Jasmine s testimony. Yesenia s testimony contradicted herself about e frequency of e presence in e house of her moer's live-in boyfriend, who may have been e abuser but of course Petitioner was not able to examine Jasmine on is matter. Once again, Petitioner testified, denying all allegations. In closing, e prosecutor argued at ere was absolutely no evidence... from is witness stand at some oer dude did it. App. E50. And again in rebuttal, e prosecutor argued: There is no evidence before is Court, none, before you, at anyone oer an Victoriano Benitez molested Yesenia. App. E53. During Petitioner s closing argument, e court prohibited counsel from commenting on e State s failure to produce Jasmine as a live witness. App. E Petitioner was found guilty of one count of child abuse, two counts of second degree rape, and four counts of sexual offense in e ird degree, and sentenced to a total of forty-five years in prison. In e Court of Special Appeals, Petitioner again argued (among oer grounds for reversal) at, even assuming Jasmine could not come to court when e trial was held, she should not be 6

13 deemed unavailable because a relatively brief continuance would have allowed her to testify at trial. App. A39. Petitioner explicitly invoked e Confrontation Clause in making is argument. Appellant s Brief, at 32. But e court rejected e argument. It held at after setting is case in for a retrial, e prosecutor made reasonable efforts to procure e attendance of Jasmine. App. A41. Presumably because e court did not furer elaborate ose reasonable efforts were no more an e ones noted by e trial court, service of a subpoena and willingness to pay for Jasmine s travel had she en been able to travel. Certainly e court did not consider how long a continuance would have been necessary to allow Jasmine to testify at trial or wheer such a continuance would have been reasonable. Like e trial court, it treated e en existing standard of e Maryland rule as controlling, App. A40, and it simply held: App. A41. But for [Jasmine s] pregnancy, her imminent delivery date, and her doctor s orders, she would have been able to travel from Florida to attend e second trial. Therefore, we adopt e reasoning of e trial court and hold at Jasmine was unavailable and us her former testimony was admissible. The Court of Special Appeals affirmed e judgment of conviction, and declined a motion (stated on oer grounds) for reconsideration. Petitioner en sought certiorari from e Court of Appeals of Maryland, among oer reasons because e Court of Special Appeals erred in affirming e circuit court s ruling at Jasmine was unavailable. Petitioner argued, at page 12 of e petition, at when balanced against e minimal prejudice of a brief postponement, e significant restraint on e Appellant s Six Amendment right of Confrontation was unwarranted. The Court of Appeals denied certiorari, App. C1, and en denied rehearing. App. D1. This petition follows. 7

14 REASONS FOR GRANTING THE WRIT I. THE FEDERAL AND STATE COURTS ARE SHARPLY DIVIDED ON THE QUESTIONS PRESENTED BY THIS PETITION. Under Crawford v. Washington, 541 U.S. 36, 68 (2004), e Confrontation Clause prohibits introduction of a prior testimonial statement against an accused unless he has had an adequate opportunity to be confronted wi e witness and e witness is unavailable to testify at trial. In is case, ere is no doubt at Jasmine s prior statement testimony from e first trial is testimonial for purposes of e Confrontation Clause. The critical question is wheer e witness should be deemed unavailable to testify at trial. The decision of e Maryland courts highlights conflicts among e lower courts on two issues, one relatively narrow and one relatively broad. The narrower issue is is: If a witness is unable, because of an illness or infirmity existing at e time designated for trial, to come to court to testify, is at sufficient in itself for her to be deemed unavailable to testify, wiout regard to wheer a continuance of reasonable leng would allow e witness to testify at trial? Under e decision of e Maryland courts in is case, e answer is affirmative. The trial court, e reasoning of which was explicitly adopted by e Court of Special Appeals, and e Court of Special Appeals itself, bo noted at Jasmine was unable to travel to court to testify because of e advanced state of her pregnancy. Notwistanding e arguments made by Petitioner, neier court considered wheer a continuance of reasonable duration would have allowed her to testify at e second trial. This decision was in accord wi ose of numerous courts, bo federal and state. Indeed, one has to look no furer an cases involving pregnant witnesses to find decisions holding at an infirmity existing at e time of trial is sufficient for e witness to be deemed unavailable wiout 8

15 2 considering e possibility at a continuance could avoid e problem. This view appears to be in accord wi e approach behind Fed. R. Evid. 804(a)(4), a provision adopted by approximately 40 states, including Maryland, under which a witness is deemed unavailable if she cannot attend trial because of dea or en existing physical or mental illness or infirmity. Indeed, as noted above, e trial court and e Court of Special Appeals bo applied at language in is case, and deemed it sufficient to resolve e question of unavailability for purposes of e Confrontation Clause as well as of state evidence law. The majority of courts, however, take a position in stark contrast to ese decisions. They insist at e duration of e illness or infirmity is a critical factor in determining wheer e witness should be deemed unavailable, because if e condition is a relatively brief one en e court should grant a continuance raer an admit e prior statement of an absent witness. The Peterson case, which Petitioner cited at trial, and like is one involving a witness in advanced pregnancy, is 2 See United States v. Rollins, 487 F.2d 409, 412 (2d Cir. 1973) (characterizing a witness who was out of state and pregnant, wi advice from her physician at she not travel, as unavailable in e ordinary sense of e term ); Phillips v. Pitchess, 451 F.2d 913, 918 (9 Cir. 1971), cert. denied, 409 U.S. 854 (1972) (prosecution laid sufficient foundation to satisfy Confrontation Clause because by e time e second trial commenced [e witness] was at such an advanced stage of pregnancy at she was unable to safely travel ); State v. Jefferson, 194 P.3d 557, 560 (Kans. 2008) (citing State v. Steward, 219 Kan. 256, , 547 P.2d 773 (1976) (no abuse of discretion in allowing admission of testimony from earlier trial of same action, when witness unavailable because of advanced pregnancy) ); St. Clair v. Commonweal, 140 S.W.3d 510 (Ky. 2004); McKinney v. Fisher, 2009 WL (D. Idaho 2009) (relying on United States v. McGuire, 307 F.3d 1192 (9 Cir. 2002), also a pregnancy case, in disposing of a Confrontation Clause claim wiout considering e possibility of a continuance: Given at e facts here showed at Small was suffering from complications during her late-term pregnancy, which McKinney 2did not seriously dispute at e time, e good fai requirement was satisfied. ); People v. Garland, 777 N.W.2d 732 (Mich.App. 2009), appeal denied, 783 N.W.2d 109 (2010) ( Based on e evidence on e record showing at e victim was experiencing a high-risk pregnancy, at she lived in Virginia, and at she was unable to fly or travel to Michigan to testify, e trial court did not clearly err by determining at e victim was unavailable. ). 9

16 3 a leading example. But e cases involve oer types of infirmity as well. Indeed, one recent court recognizing at [a] witness is not unavailable... merely because he or she cannot be present on a particular day held at, alough e witness suffered from a terminal illness, in e short term she might well recuperate enough to give her testimony at trial. Therefore e trial court erred in declaring her unavailable. State v. Perry, 159 P.3d 903, (Idaho App. 2007). Courts taking is approach often follow e lead of Wigmore in holding at e critical question is wheer e duration of e illness or infirmity is in probability such at, wi regard to e importance of e testimony, e trial cannot be postponed. 5 JOHN H. WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW 219 (Chadbourn rev. 1974). See, e.g., United States v. McGowan, 590 F.3d 446, 455 (7 Cir. 2009); Burns v. Clusen, 798 F.2d 931, 937 (7 Cir. 1986); United States v. Amaya, 533 F.2d 188, 191 (5 Cir. 1976); State v. Button, 11 P.3d 483, 487 (Idaho 2000) ( e unavailability of a witness must be of such duration at a continuance is not a practical alternative ); accord 29 AM.JUR.2D, EVIDENCE 765 ( The trial court may consider e expected duration of e illness and grant an adjournment if e witness can be expected to recover wiin a reasonable time. ). Thus, prosecutors frequently request continuances so at eir witnesses will be able to 3 Peterson v. United States, 344 F.2d 419, 425 (5 Cir. 1965) ( Mrs. Flora was not dead, beyond e reach of process nor permanently incapacitated. She was simply unavailable at e time of trial because of her pregnancy. Considering e seriousness of e charges and if e Government desired to use Mrs. Flora's testimony, it should have requested a continuance to a time when she could probably be present. ) 10

17 4 5 testify at trial in pregnancy cases, among oers and ey are held accountable if ey do not. E.g., Smi v. United States, 106 F.2d 726 (4 Cir. 1939); Button, supra, 11 P.3d at 488 ( We hold at by failing to request a continuance under e circumstances of is case, e state failed to exercise good fai reasonable effort to obtain e testimony [of e absent witness] ). The decision in is case implicates a broader conflict as well. Decisions like is one, deeming a temporary disability to be sufficient for a determination of unavailability, allow e prosecution to treat e situation at e time designated for trial or immediately beforehand as fixed. If, given at situation, e prosecution cannot by reasonable measures procure e witness s testimony at trial at e designated time, en ey declare e witness unavailable. Thus, e Court of Special Appeals held in is case at e prosecution made reasonable efforts to procure e attendance of Jasmine, App. A41, but it recited no such efforts. Apparently, it was referring to e efforts noted by e trial court, issuance and service of a subpoena, and willingness to arrange for transportation. By contrast, oer decisions reject is narrow frame of reference for assessing e prosecutor s obligation. They recognize at e standard of reasonableness at determines [t]he lengs to which e prosecution must go to produce e witness, see Ohio v. Roberts, 448 U.S Wiee v. Commonweal, 2008 WL (Va. App. 2008) (continuance of nearly ree mons due to e unavailability of a material witness for e Commonweal as a result of her doctor's ordering her to be on bed rest during e final stages of her pregnancy ); State v. Hess, 2004 WL (Ohio App. 5 Dist. 2004) (continuance granted in part because of e unavailability of a complaining witness due to pregnancy as her doctor ordered her to bed rest ). 5 E.g., United States v. Hay, 527 F.2d 990, (10 Cir. 1975); United States v. Boatner, 478 F.2d 737, 742 (2d Cir. 1973); People v. Roberts, 146 P.3d 589 (Colo. 2006). Such a continuance usually does not pose a speedy trial problem. E.g., Barker v. Wingo, 407 U.S. 514, 531 (1972) (noting at a valid reason, such as a missing witness, should serve to justify appropriate delay ). In is case, Petitioner made clear he was willing to waive any speedy trial objection. App. E22. 11

18 (1980), may require e prosecutor to take anticipatory action to increase e probability at e witness will testify at trial. Some cases adopting is approach involve witnesses who have been deported or oerwise allowed by federal prosecutors to leave e country. In United States v. Mann, 590 F.2d 361 (1st Cir.1978), for example, e court explained at implicit in e duty to use reasonable means to procure e presence of an absent witness is e duty to use reasonable means to prevent a witness from becoming absent. Id. at 368. And, wiout adopting a per se rule requiring compulsory means, e Fif Circuit agreed at e government's good fai efforts to assure e witnesses' availability at trial should include efforts aimed at keeping e witnesses in e United States. United States v. Allie, 978 F.2d 1401, 1407 (5 Cir. 1992). Accord, e.g., United States v. Tirado-Tirado, 563 F.3d 117, 123 (5 Cir. 2009) ( The measures taken by e government in is case do not constitute good fai or reasonable efforts to secure e physical presence of Garay-Ramirez at trial. The government failed to make any concrete arrangements wi Garay-Ramirez prior to his deportation....); cf. Motes v. United States, 178 U.S. 458 (1900) (Confrontation Clause violated when witness disappeared rough negligence of Government). 6 6 Note also United States v. Yida, 498 F.3d 945 (9 Cir. 2007). There, after e court discussed Confrontation Clause principles as underlying e material Federal Rules of Evidence, e court held at a witness should not be considered unavailable given at e Government had deported him wiout informing eier e trial court or e defense, wiout taking a video deposition, and wiout having any means of compelling his return. The court held: Here, it is clear at e appropriate time-frame should not be limited to e government's efforts to procure Reziniano's testimony after it let him be deported, but should instead include an assessment of e government's affirmative conduct which allowed Reziniano to be deported to Israel in e first instance, similar to e First Circuit's assessment in Mann. 498 F.3d at Judge Gould, auor of e majority opinion, also wrote a separate opinion 12

19 At stake, en, are two fundamentally different visions of e prosecution s obligation when it seeks to introduce e prior testimony of a witness wiout bringing e witness to trial. Under e view reflected by decisions like at of e Maryland Court of Special Appeals in is case, it is sufficient for e prosecution to issue a subpoena shortly before e designated trial date even ough, under e circumstances en existing, e witness could not en be brought to court. Under e alternative view, e prosecution should do what it can to shape e situation to act, one might say, as it presumably would, if it had to bring e witness in, because e accused had not had a prior opportunity for confrontation. Such shaping of e situation might require affirmative advance steps to increase e probability at e witness could be brought to trial on e scheduled trial date. Or, as in a case like is one, it might require noing more an a request for a brief postponement of at date. II. THE DECISION BELOW REFLECTS A FUNDAMENTAL MISUNDERSTANDING OF, AND SERIOUSLY IMPAIRS, THE CONFRONTATION RIGHT. When a prosecutor seeks to introduce testimony given at a prior proceeding by a witness who does not testify at e current trial, e Confrontation Clause states what might be called an absolute rule and a rule of preference. The absolute rule is at e prior testimony is not admissible if e accused did not have an adequate opportunity and sufficient motive to examine e witness, presumably at at prior proceeding. Crawford, 541 U.S. at 68. Even if at rule is satisfied, our system prefers live testimony at trial, and so e prior testimony should not be admitted at e current trial if e witness is available to testify ere. Id. The trial court e reasoning of which was adopted by e Court of Special Appeals failed to recognize at is rule of preference is an emphasizing e constitutional support for e result. Id. at

20 integral part of e doctrine of e Confrontation Clause. See App. E12 ( I ink you re out of e window on Crawford, because you already cross-examined e witness. ), App. E43-44 (discussing Confrontation Clause only in context of prior opportunity for cross-examination). But for at least four reasons, it is important to maintain is rule at is, to require at, even if e accused has previously had an opportunity to be confronted wi e witness, e prosecution procure e live testimony of e witness if it can feasibly do so. First, live testimony gives e trier of fact e opportunity to observe e demeanor of e witness in testifying. E.g., Mattox v. United States, 156 U.S. 237, (1895); United States v. Yida, 498 F.3d 945, (9 Cir. 2007). This opportunity is lost completely if a transcript is 7 presented instead, and lost nearly completely if, as in is case, an audio transcript is presented. And in is case e lost opportunity was particularly important, because as articulated by Petitoner s counsel, wi no refutation by e prosecutor or e court Jasmine s demeanor was weak and likely to undermine her credibility. Second, since [w]itnesses who testify live at e current trial speak as of e current time, while witness testimony via transcript speaks as of e time of e prior proceeding, and cannot be updated e accused can only use recently acquired information in cross-examining a witness if at testimony is live. The ability to cross-examine a witness at trial using e most 7 A video recording may, depending on various circumstances, including its quality, preserve an adequate opportunity to observe e witness s demeanor. Petitioner suggested in is case at presenting Jasmine s testimony by video would mitigate e prejudice. App. E24. The Confrontation Clause may not allow e prosecution to present testimony in e first instance by means of video transmission, when e witness and e accused are not in e same location, see Statement of Justice Scalia concerning Amendments to Rule 26(b) of e Federal Rules of Criminal Procedure, Apr. 29, 2002, available at rules/cr-26b.pdf. But e question in is context is wheer video transmission of e witness s testimony is sufficient, given at e accused already has had an opportunity to be confronted wi e witness and at it is difficult for e witness to come to court. 14

21 current investigative information available cuts to e heart of e Six Amendment's confrontation clause. Yida, supra, 498 F.3d at 951 (quoting in part an amicus brief submitted in at case by Petitioner s counsel). Again, is case is a strong illustration of e problem: In is case, after Jasmine testified at e first trial beginning before e conclusion of at trial and running right rough Yesenia s testimony at e second trial, immediately before e audio tape was played Petitioner s counsel learned information at would have led to a more searching cross-examination of Jasmine, if he had had e opportunity. Third, witnesses who testify at bo proceedings may expose inconsistencies between e two versions of eir testimony, at can be exploited by e adverse party during cross-examination at e second proceeding, but witnesses whose prior testimony is introduced rough a transcript at e current trial do not. Again, e core of e accused's right to confront e witnesses against him is implicated. Yida, supra, 498 F.3d at 951. Of course, it is impossible to know wi certainty wheer Jasmine would have testified inconsistently wi her testimony at e first trial; e trial court s ruling shortcircuited e opportunity to find out. But given at e witness was a young girl, testifying about events from e prior decade, it is certainly plausible at she would have. It bears emphasis, and Petitioner freely acknowledges, at an accused does not have an absolute right to a second cross-examination, or even a right to cross-examine a witness as of e time of trial or to have e jury observe e witness s demeanor; if a witness becomes truly unavailable between e first trial on a charge and e second, en presumptively he must accept e 8 first examination as is. But Petitioner should not be stuck wi e cross-examination from e 8 Presumptively, because in a given case e accused may demonstrate at e situation has changed so much between trials at he should not be deemed to have had an adequate opportunity 15

22 first trial to use a phrase of e trial court, endorsed by e Court of Special Appeals, App. A39, 41 if e second trial can feasibly be held in such a way at e witness can testify live. And e supposed fact at e prosecution is stuck wi... e direct examination from e first trial does not eliminate e problem; to say at e matter is a wash, as e trial court did, ignores e fact at it is e accused who has a constitutional right to be confronted wi e witness, whose testimony may be, and in is case clearly was, instrumental in convicting him of a serious crime. Finally, it is not at all true at e prosecution is stuck wi e examination from e first case. If a witness could be brought to trial but e prosecution has e option of presenting prior testimony instead, en e prosecution has a glaring opportunity for manipulation. As Yida said, allowing e prosecution to present a transcript, raer an live testimony, may lead to e presentation of at transcript when live testimony is vulnerable for e prosecution's case. 498 F.3d at 951. The Yida court elaborated on e point by quoting a passage from e amicus brief submitted by Petitioner s counsel: If e prosecution believed at its case would be stronger by presenting e live, vivid testimony of e witness at e current trial, an by presenting e transcript of e prior testimony, en e prosecution would presumably secure e witness's presence and testimony at e current trial. Suppose, however, e witness's demeanor tends to be such at it diminishes raer an enhances his credibility; similarly, suppose e prosecution believes at cross-examination of e witness at e current trial would likely impeach her testimony more powerfully an would a reading of e transcript from e prior proceeding. In such circumstances, e prosecution might prefer to stand pat, using e transcript raer an presenting e witness live at trial. 498 F.3d at 951 n.8. As Yida indicated, e possibility of prosecutorial manipulation was not at and motive to cross-examine, e prior testimony should not be admitted at e second trial even if e witness is en truly unavailable. Wheer or not ose changes were so great in is case is not a question now presented. But e situation did indeed change, and given at Jasmine could have testified at e second trial if ere had been a brief continuance, e loss of at opportunity prejudiced Petitioner. 16

23 issue in at case. But it certainly is in is case, given at (1) a relatively brief continuance would have resolved e problem created by Jasmine s temporary infirmity, (2) e prosecution purposely did not reveal e problem until after e jury had been empaneled, when presumably e court would be less likely to order a continuance, and (3) Jasmine s testimony was vulnerable in large part for precisely e reasons suggested in e passage just quoted, because her demeanor was poor and because cross-examination based on current information would likely have been far more damaging to her testimony an e initial cross was. If e State had ought it needed Jasmine to testify at trial, but her condition prevented her from doing so for several weeks, ere can be little doubt at it would have done what many prosecutors have routinely done in similar situations sought a brief continuance. It would have ought it needed her to testify at trial if she had not previously been subjected to cross-examination or if it appeared at e trial court would hold at she was available to testify. Presumably if e prosecution had sought a continuance so at a witness could testify live, e court would have granted it, as many courts have done. The rule adopted by e Maryland courts, at a temporary infirmity renders a witness unavailable wiout respect to wheer e witness could testify at trial given a reasonable continuance, erefore opens a window for manipulation by e prosecution. The only way to close at window is to adopt e contrary rule of e majority of courts, at in determining wheer a temporary infirmity should be deemed to render a witness unavailable a court must consider wheer a reasonable continuance would allow e witness to testify live. III. THIS CASE IS AN EXCELLENT VEHICLE FOR DETERMINATION OF THE QUESTIONS PRESENTED AND FOR GIVING LOWER COURTS GUIDANCE ON HOW UNAVAILABILITY SHOULD BE DETERMINED. 17

24 Because determination of unavailability requires consideration of all e circumstances of e case, unavailability determinations are usually heavily fact-bound. Hence, alough e question of unavailability arises wi great frequency, is Court has not taken a case since Ohio v. Roberts, 448 U.S. 56 (1980), calling on it to consider e circumstances in which a witness should be deemed unavailable. But is case presents an issue at is crisp and well-defined, not dependent on e facts of a particular case, and on which e lower courts are in conflict wheer an infirmity at makes a witness unable to testify at e time designated for trial renders her unavailable for purposes of e Confrontation Clause wiout consideration of wheer she would be able to testify given a reasonable continuance. The case erefore presents an opportunity for e Court not only to resolve is issue but also to give broader guidance on e time frame wiin which courts should consider unavailability. This case in particular presents unusually strong advantages for considering e questions presented, because it clearly illustrates each of e reasons why e Confrontation Clause prohibits e use against an accused of prior testimony unless e witness is unavailable at trial. First, e deprivation of e jury s ability to observe Jasmine s demeanor evidence was critical because, Petitioner argued, her demeanor undercut e persuasiveness of her testimony. Second, use of e prior testimony meant at at e second trial e trial at which he was convicted counsel was unable to cross-examine Jasmine on e basis of significant information he had learned since Jasmine testified at e first trial. Third, e prosecution knew full well before jeopardy attached at Jasmine would be unable to testify at trial for some weeks, and yet it did not seek a continuance. Presumably it calculated at it would be better off using a recording of Jasmine s prior testimony an presenting her as a live 18

25 witness subject to fresh cross-examination. This case erefore presents a clear example of e danger of manipulation at e rule followed by e Maryland courts creates at is, (1) e effect of at rule in giving e prosecution e choice of wheer to stand pat wi e testimony given at e first trial or to seek more favorable testimony at e second trial, and (2) e prejudice at is choice may cause e defense. Finally, given e circumstances among oers, Jasmine s age and e long time lapse since e events she purported to describe is is a case in which it would be notably unsurprising if e testimony she gave at e second trial was substantially inconsistent wi e testimony she gave at e first. Nor is ere any impediment to e Court taking is case. First, ere is no doubt as to e jurisdiction of is Court. Second, e case comes here on direct appeal, simplifying e questions presented. Third, e Confrontation Clause issue is clearly preserved for review by is Court. At trial, Petitioner objected vigorously on Confrontation Clause grounds to admission of Jasmine s prior testimony. The trial court and e Court of Special Appeals bo explicitly considered and rejected eir arguments, and e Court of Appeals denied review. Four, ere can be no plausible contention of harmless error. Jasmine s testimony was significant to e case, and Petitioner lost e opportunity to cross-examine her contemporaneously and to have e jury observe her demeanor. Finally, Petitioner raises before is Court no oer issues at might result in reversing his conviction or mitigating his sentence. The case revolves entirely on e questions presented. CONCLUSION It is notably ironic at e last case in which is Court considered how to determine wheer 19

26 a witness should be deemed unavailable is none oer an Ohio v. Roberts, 448 U.S. 56 (1980). Crawford, in discarding e Roberts regime, cut e tie between e traditional rule against hearsay and e law governing e Confrontation Clause of e Six Amendment. Courts generally realize now at e accused s right to have an opportunity for cross-examination cannot be nullified by characterizing e statement, in accordance wi hearsay standards, as reliable. But is case indicates at some courts are missing e point on e oer side of confrontation doctrine, dealing wi unavailability. The Maryland courts, like numerous oers, treated e en existing standard enunciated by Fed. R. Evid. 804(a)(4) and its state counterparts as governing e unavaiability inquiry under e Confrontation Clause, and us failed to consider at a reasonable continuance would have allowed Jasmine to testify subject to confrontation at e second trial. This Court should intervene to ensure at e lower courts do not continue to commit such flagrant errors. For e foregoing reasons, e petition for a writ of certiorari should be granted. RESPECTFULLY SUBMITTED is 20 day of December, Andrew V. Jezic Jonaan R. Oates Jezic, Krum & Moyse, LLC 2730 University Boulevard West Suite 910 Wheaton, Maryland (240) RICHARD D. FRIEDMAN Counsel of Record 625 Sou State Street Ann Arbor, Michigan (734) (734) (fax) rdfrdman@umich.edu 20