Nathan Berkman v. Frank Vanihel, 33 F.4th 937

Background

Nathaniel Berkman was tried twice for the killing of his cocaine supplier; first trial: acquitted of first-degree murder and hung on felony-murder; second trial: convicted of felony murder.
Arlene Timmerman, Berkman’s girlfriend and key State witness, testified at the first trial and was cross‑examined by defense counsel.
At the second trial Timmerman began testifying but became suddenly ill; after the judge interviewed and observed her in chambers the court declared her unavailable.
The trial court admitted Timmerman’s prior (first‑trial) testimony into evidence; defense objected and moved for mistrial, arguing Crawford confrontation rights.
State appellate court affirmed the admission (finding no abuse of discretion in unavailability determination and noting prior cross‑examination); Indiana Supreme Court denied transfer.
Berkman filed federal habeas relief raising a Crawford claim; the district court denied relief but granted a COA limited to whether the state court unreasonably applied Crawford; the Seventh Circuit affirmed denial under AEDPA.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether admitting Timmerman’s prior testimony violated the Sixth Amendment under Crawford	Berkman: reading prior testimony denied face‑to‑face confrontation and jury’s opportunity to observe live cross‑examination	State: Crawford allows prior testimony if witness is unavailable and defendant had prior opportunity to cross‑examine	Court: No violation — witness was unavailable and Berkman had prior cross‑examination; state court’s application of Crawford was reasonable
Whether the trial court had a continuing duty to reevaluate Timmerman’s availability after the recess	Berkman: trial court should have re‑assessed availability after recess and waited longer before declaring unavailability	State: court reasonably acted on contemporaneous observation of sudden, serious illness and prior hospitalization	Court: No clearly established Supreme Court authority imposes such a continuing‑duty rule; AEDPA deference applies; state court ruling reasonable
Whether the state appellate court erred by not addressing the State’s burden to prove unavailability	Berkman: appellate court failed to enforce prosecution’s burden to prove unavailability	State: record showed consensual conclusion (judge, prosecutor, defense) that Timmerman could not continue; burden satisfied	Court: No contradiction with Supreme Court precedent; record supports finding of unavailability and no unreasonable application of law
Whether the state appellate court should have applied de novo review to the unavailability determination	Berkman: constitutional issue requires de novo review, not abuse‑of‑discretion standard	State: unavailability was fact‑ and demeanor‑driven; abuse‑of‑discretion review appropriate for trial‑court credibility/demeanor findings	Court: Supreme Court has not prescribed a different standard; appellate court reasonably deferred to trial judge’s firsthand observations

Key Cases Cited

Crawford v. Washington, 541 U.S. 36 (Confrontation Clause bars admission of testimonial statements unless witness unavailable and defendant had prior opportunity to cross‑examine)
Ohio v. Roberts, 448 U.S. 56 (discussed as predecessor framework to Crawford)
Burns v. Clusen, 798 F.2d 931 (7th Cir.) (discussed by parties re: continuing duty and review of unavailability determinations)
Brecht v. Abrahamson, 507 U.S. 619 (harmless‑error standard applied on federal habeas review)
Yarborough v. Alvarado, 541 U.S. 652 (stands for limits on relief under AEDPA when fair‑minded jurists could disagree)
Harrington v. Richter, 562 U.S. 86 (AEDPA’s high threshold for habeas relief)
Glebe v. Frost, 574 U.S. 21 (circuit precedent is not ‘clearly established’ Supreme Court law)
Early v. Packer, 537 U.S. 3 (state courts need not cite Supreme Court precedent to avoid being 'contrary to' it)
Motes v. United States, 178 U.S. 458 (Supreme Court examples recognizing unavailability due to illness)