In March 2004, while the Springsteen appeal awaited an opinion and Scott’s appellate attorney prepared for his scheduled appearance before the Texas Third Court of Appeals, Michael D. Crawford v. Washington came before the Supreme Court; at issue, interpretation of the Confrontation Clause.
During Crawford’s trial for the murder of a man he thought was about to rape his wife, prosecutors had used a statement his wife had made to police to help convict him. But because she couldn’t be compelled to testify against her husband, her testimony had been read to the jury by a police officer, arguably robbing the defendant of his right to cross-examine his accuser. When the Washington State Court of Appeals agreed, Crawford’s conviction was overturned. But when the prosecution appealed, the state supreme court reversed the decision, declaring his wife’s testimony admissible under the 1980 Ohio v. Roberts ruling. This held that the Confrontation Clause did not bar the admission of out-of-court statements of witnesses unavailable for cross-examination, as long as they bore “adequate indicia of reliability,” which could be “inferred” by what the court called “firmly rooted hearsay exception”—in other words, the same tactic Smith had used against Sicola the previous May.
Since Roberts, case law had allowed trial judges some leeway in deciding when a nontestimonial statement could be considered reliable, either because it fell within the hearsay exception or contained “particularized guarantees of trustworthiness.” But in its March 2004 Crawford ruling, the Supreme Court overturned twenty-three years of case law in a unanimous decision reasserting the original limitations of the Confrontation Clause.
Judge Antonin Scalia wrote the majority opinion.
“Where testimonial statements are at issue,” he wrote, “the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation….Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty. This is not what the Sixth Amendment prescribes.”
Crawford overturned convictions all over the country. To gauge Scalia’s passion about this issue, it’s instructive to read the blistering dissent he would write in 2011’s Michigan v. Bryant, a case in which police officers had been allowed to take the stand to recall the words of a crime victim who’d identified his assailant only minutes before dying. The vote was 6–2 against the petitioner, Elena Kagan abstaining, and Scalia began, “Today’s tale—a story of five officers conducting successive examinations of a dying man with the primary purpose not of obtaining and preserving his testimony regarding his killer but of protecting him, them and others from a murderer somewhere on the loose—is so transparently false that professing to believe it demeans this institution….Today’s opinion distorts our Confrontation Clause jurisprudence and leaves it in a shambles. Instead of clarifying the law, the Court makes itself the obfuscator of last resort….”
Mary Kay Sicola was confident that Crawford rendered Lynch’s decision in Springsteen wrong. Scott’s statement “is testimonial hearsay under Crawford,” she said, “and requires a finding of error. There is no way around it.”
Equally optimistic, Jim Sawyer said the ruling would finally put an end to a practice that had been “standing the Constitution on its ear.”
Carlos Garcia remained cautious. The state, he said, was likely to argue that the Yogurt Shop cases were different.
Bryan Case, head of the appellate division of the DA’s office, said that because his office redacted the statements so they reflected only the declarant’s guilt, they represented a different kind of “firmly rooted hearsay.” Crawford, he blithely maintained, would not apply.
A wary Lynch fervently hoped not to be overturned.
In June, Ariel Payan argued before the Third Court of Appeals, citing Crawford, and Bryan Case appeared for the prosecution.