Leif Carlson, Sr. v. Attorney General of California
791 F.3d 1003
9th Cir.2015Background
- On Oct. 12, 2008, Leif Carlson Sr. (Carlson) struck his 7‑year‑old son, Leif Jr.; police observed bruising and arrested Carlson. Officer Ward later interviewed Lena (mother) and Leif Jr. and recorded testimonial statements that implicated Carlson.
- Trial subpoenas were issued for Lena and Leif Jr.; neither appeared for trial. The trial judge initially questioned whether Carlson was complicit in their absence and conducted an evidentiary hearing on forfeiture‑by‑wrongdoing.
- Evidence at the hearing included testimony that (a) Lena was distraught and had mental‑health issues, (b) Carlson was not sleeping at home during the trial days the wife and child were absent, and (c) Carlson instructed other children not to call their mother and suggested she would be "somewhere else." Christian (a stepson) corroborated these facts.
- The trial judge ultimately found, relying on Giles v. California, that Carlson had engaged in conduct designed to keep the witnesses from testifying and admitted Lena’s and Leif Jr.’s statements; the jury convicted Carlson. State courts summarily denied postconviction relief; the federal district court and this panel denied habeas relief under AEDPA.
- The Ninth Circuit affirmed, holding that (1) the contested statements were testimonial and thus ordinarily barred by the Confrontation Clause, but (2) the state court’s application of the forfeiture‑by‑wrongdoing exception was not an unreasonable application of Supreme Court precedent nor an unreasonable factual finding under AEDPA.
Issues
| Issue | Plaintiff's Argument (Carlson) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether Lena and Leif Jr.’s statements were testimonial and thus barred by the Confrontation Clause unless an exception applied | Statements were testimonial and inadmissible because Carlson lacked opportunity to confront and cross‑examine the witnesses | The statements were testimonial but admissible under the forfeiture‑by‑wrongdoing exception | Court: Statements were testimonial; Confrontation Clause would bar them absent forfeiture finding |
| Whether forfeiture‑by‑wrongdoing applied (i.e., did Carlson engage in conduct designed to procure witness unavailability with intent) | Giles requires affirmative, intentional conduct by defendant; mere acquiescence or passive silence is insufficient—trial judge erred by treating passive behavior as forfeiture | The trial court could reasonably infer Carlson actively procured or participated in keeping witnesses away (instructions to kids, concealment, absence from home) | Court: Under AEDPA, state court decision was not an unreasonable application of Giles; evidence could support a finding that Carlson procured nonappearance, so forfeiture exception applied |
Key Cases Cited
- Giles v. California, 554 U.S. 353 (2008) (forfeiture‑by‑wrongdoing requires defendant engaged in conduct designed to prevent witness testimony and intent to do so)
- Crawford v. Washington, 541 U.S. 36 (2004) (testimonial statements of absent witnesses are barred by Confrontation Clause absent prior opportunity for cross‑examination)
- Davis v. Washington, 547 U.S. 813 (2006) (tests whether statements are testimonial—primary purpose inquiry)
- Reynolds v. United States, 98 U.S. 145 (1878) (early articulation that statements of witnesses absent by defendant’s procurement may be admitted)
- Schriro v. Landrigan, 550 U.S. 465 (2007) (AEDPA highly deferential standard; federal courts may not grant habeas relief unless state decision was unreasonable)
- United States v. Johnson, 767 F.3d 815 (9th Cir. 2014) (forfeiture‑by‑wrongdoing proven by preponderance; discussion of requisites for application)