I haven’t written much lately. The main reason is, as usual, my workload. Normally my sense of outrage over what’s happening to our nation would overcome that drawback and I would write anyway. However, the thing which concerns me the most — the potential destruction of our way of life once the right-wing is firmly ensconced in the United States Supreme Court — is actually irrelevant to me. I live in California.

Not many people know this — surprisingly, not many criminal defense attorneys know it, either — but in 2004, the United States Supreme Court made an earth-shattering ruling in criminal law. To understand this, I need to provide a little background.

At trials, it is not unusual — as in life outside the justice system — for someone to try to introduce evidence of something someone said in order to prove a point. In life outside the justice system, gossip, rumor and innuendo are often enough to “convict” a person; that is, someone will tell someone else that they “heard” that so-and-so is a dishonest person, or cheated on his wife, or some other negative thing and many of those who hear this second-, third-, or fourth-hand (or more) “evidence” will accept that so-and-so really is dishonest, or a philanderer, or whatever else it is claimed that he is. Within the justice system, things are not supposed to work this way. After all, there’s no real way to “test” or “check” to verify that the “evidence” being introduced is reliable. And in a justice system that still pretends that accused persons are innocent until proven guilty, it’s kind of important to make sure you don’t convict someone only, or even primarily, based on gossip.

Prior to the case of Sir Walter Raleigh who “discovered” and named Virginia was convicted and sentenced to death based on “testimony” offered by Lord Cobham who was not present in court because he was said to have conspired with Raleigh against the King and was locked away. At one point, Raleigh presented, as evidence, a note from Cobham declaring that he (Raleigh) was innocent. The note had been tied around an apple by Cobham and thrown from his prison cell. The prosecution introduced another note, which Cobham had been forced by the authorities to sign, stating that the note Raleigh had was a lie. After Raleigh was convicted, two of the “judges” noted that it was a terrible tragedy and that justice had been ignored. (The King changed his mind and Raleigh was put in prison, instead of being killed. Later in life, however, he was again arrested and convicted on trumped up charges with rumors and lies for evidence. He was then beheaded.)

In Crawford, the U.S. Supreme Court said that it was clear that the Sixth Amendment was intended to prevent these kind of abuses. And, the Court said, the bad thing about the rule from Roberts was that it allowed this type of evidence — hearsay, rumor, innuendo — to come in even though it was supposed to have “particularized guarantees of trustworthiness.” Michael Crawford’s case was a perfect example. Sylvia’s statement was “hearsay.” (“Hearsay” is technically a statement made by someone outside the court, but offered in court “to prove the truth of the matter asserted.” Thus, Sylvia’s statement was hearsay because it was made outside the court — at the police station — and was offered in court to prove that it was true that Lee was unarmed when Michael attacked him.)

Using the rules from Roberts, the trial court determined that the testimony of Crawford’s wife was trustworthy; that is, there were “particularized guarantees of trustworthiness” and the tape recording was okay. A Washington Court of Appeals looked at the same evidence and used the same rules from Roberts and said that it did not. The Washington Supreme Court then looked at the same evidence, used the same rules from Roberts and decided, as had the trial court, that the evidence was trustworthy. In short, Roberts pretty much “means” whatever the courts want it to mean at any given time. Thus proving that Roberts rule itself is unreliable.

Not so with the Sixth Amendment. The Sixth Amendment, the Supreme Court said, requires that “testimonial hearsay” must be subjected to cross-examination. One reason for this is to make sure there is an opportunity to face the witness and question him. This, we hope, makes it easier for the fact-finder (usually a jury) to judge for themselves how reliable the testimony is.

But, as I said, I live in California. We’ll never have to worry about this here. In California, the ends justify the means and when a California court wants to convict someone, the holdings of the United States Supreme Court mean nothing. Zip. Zero. Or, as we say here, “nada.” And that’s true even if the “California” court is actually a federal court.

A case in point is Graves v. Yates (E.D. Cal. 2005) 2005 U.S. Dist. LEXIS 29355. (Sorry, I can’t find a public link to this case.) In Graves, the Court used the old Roberts rule to decide that statements made by a witness to a police officer bore “indicia of reliability” and could be admitted. But, if Crawford overruled Roberts, how could the Court do this?

Well, said the District Court, the United States Supreme Court did not really define what counts as “testimonial hearsay.” Furthermore, in analyzing the question, the Crawford Court guideline as to what counts as “testimonial hearsay” is:

…statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.

In Graves, the statements were made by the victim of a crime talking to a police officer. “[V]oluntary statements made by a victim to police, without the stress of interrogation” are not “testimonial.” (Graves, 2005 U.S. Dist. LEXIS 29355 at p. 14.) Apparently, according to the District Court, no objective witness would believe that statements a victim made to a police officer about a crime might be used in a trial. Thus, the Court said, “Crawford is inapplicable.” (Ibid.)

I could give you more — California courts have made even more bizarre statements along similar lines when it comes to gang testimony — but this blog entry is long enough already. The bottom line is that we Californians don’t really have to worry if the rest of you allow the United States Supreme Court to become totally screwed up. We don’t follow what those idiots say anyway.

And we damn sure don’t care about your Constitution.