*3 RIPPLE, Before CUDAHY and Circuit SWYGERT, Judges, Senior Circuit Judge.
SWYGERT, Judge. Circuit Senior appeal issue in this from denial of corpus peti- petition is whether the habeas right to sixth amendment confron- tioner’s in his state court trial was violated tation so, and, was harm- if whether violation hold doubt. We beyond a reasonable less violation, Following there was a but leading up the events application preliminary hearing, of the harmless error doctrine this case involves at- requires tempts bring us to affirm the district court. testify L.L. to court to as a August material pros- witness. charges arising This case involves telephoned ecutor L.L. and asked her to incidents, separate both oc- two of which appear court; investigator a defense also day, the same and in M.S. curred on which L.L., contacted as did a County Kenosha participants.1 and L.L. were The first took Department Sheriff’s officer. L.L. re- place May 1:00 about a.m. fused, stating forgiven she had which M.S. was confronted outside her time required and that Bible her Kenosha, apartment by a man Wisconsin to “turn the prosecutor other cheek.” The her gun who into her with a forced car arrangements made to have L.L. arrested lot, parking told to drive to a she where *4 and extradited from Illinois aas material intentionally garbage collided en- with cans witness, but she abandoned the effort after abling escape. her to M.S. iden- positively learning hospitalization. of L.L.’s Burns, wearing tified who was old an Army jacket patch, September with as a her assailant. On 1980 L.L. admit- was Niles, to psychiatric ted ward of a evening day, the late the same hospital. treating Her psychiatrist, Illinois vicinity, within same a L.L. was cus- Busby, upon Dr. David described her ad- Upon walking tomer in a restaurant. out mission as lot, parking by to the she was accosted almost like a case basket ... catatonic gun, car, man drew a forced her who into stupor with hallucinations and delusions and ordered her to drive to a area. secluded would in spot ... stand one talk and to put gun pulled her There he to head and wall, tó eat. refuse proceeded trigger, sexually to assault her, attempted and to choke her awith wire. She called out the name to “Jesus” Apparently part of the sickness was to left, save her. Before the assailant he in place stand one and call upon Christ money L.L. of the in purse robbed her and began to get Jesus save her ... as she beat her about the with end head the butt better, we found that this a flash- was gun. his previous experience back to her at the alleged time assault she when had petitioner
L.L. identified the as her as- called also out for Christ Jesus to save sailant, picking photo out his from those her. police offered her to view at station days several after the assault. Police re- given treatment, She including was medical petitioner’s jacket covered from his resi- feedings drugs, intravenous and and dis- L,L.’s dence; the blood on it stains matched charged pursuant October (a type in only
blood rare ÁB found three limiting hospital’s policy patient’s stay in percent population). Petitioner’s “acute ward” treatment to one month. scratched; face been had L.L. testified that Busby Dr. recommended transfer to anoth- she her trying scratched assailant while hospital longer care, er term for but L.L.’s escape. parents caring daugh- insisted on for their ter at home. later,
On May days sixteen testi- L.L. fied on prelimi- discharge, direct examination at the At the time of L.L.’s doc- nary hearing. hearing was continued tor estimated that her had im- condition to May proved twenty percent: at which time she ten was cross-ex- “much bet- by eating, physically, dressing, amined defense counsel. ter communi- Cross-exami- identity cating, hallucinating, long- nation on the issue of no probably was exhaus- tive; positive merely holding adhered standing L.L. to her identifica- er a room crying calling tion of as her and Jesus.” assailant. Bible out for initials, by 1. The courts wom- their and we state have referred to the two en will do same. stating “schizophreniform that her outpatient treatment disor- pursue agreed to She agreement. The ruling. was extant at the time of his not abide der” but did “dis- Although originally-scheduled L.L.’s father as characterized trial date doctor and testified that held turbingly protective” days, to be within a few in fact doctor’s refused the recommenda- postponed finally father was twice the case and long hospitalization. term reassigned tion to Reserve Corbett. with personal last contact The doctor’s February The trial first set 1981. During month was on October time, L.L. the State filed a motion At October, however, parents L.L.’s con- prohibit limine defense counsel from telephone almost with doctor sulted offering any evidence of contact between during one the conversa- every day, granted defendant. The L.L. L.L. briefly Busby spoke Dr. with tions motion, stating State’s defense re-hospital- not need said that she “did who had counsel indicated he wished to confer spoke 1980 he In December ization.” twice parents prior making any L.L.’s with being the parents, the last call availability L.L.’s determination about for hearing. night before court, indi- appearance the court it cated would await determination. events, these on November Given that, requested, The court further stated if declaring sought an order the State hearing pres- it would conduct a outside the testify at trial. L.L. unavailable *5 jury purpose the for the deter- 5; ence of of ac- it was motion was filed December mining appropriateness the of L.L.’s testi- by prosecutor’s affidavit companied that fying and also indicated it would be telephone conversa- concerning her earlier hearing helpful on motion to have the assistance of medical or L.L. A tion with personnel Dr. to aid the determi- psychiatric on at which held December was physical had and condi- he had no direct nation of L.L.’s mental Busby testified that attempt L.L. since October The defendant did not to personal contact with tion. Busby hearing di- present almost months. Dr. L.L. at such a or 18—or two have “schizophreniform disor- agnosed expert testimony. L.L. as offer der,” “schizophrenia.” later referred to began on When trial March was opinion that if L.L. He was Judge urged counsel Reserve Cor- Burns’ “high testify there forced to at trial was review Zievers’ decision with to bett anywhere probability that cause it would L.L.; appearance regard to the court relapse and from a moderate to substantial day refused. The next Judge Corbett The counsel symptoms.” defense return visiting testified L.L. had Burns that been testimony to counter expert did not offer week, recently jail twice a most him at testimony. the doctor’s trial, prior to the and defense 2V2 weeks immediate- judge The state court did not prelimi- moved to exclude L.L.’s counsel motion, on the but continued ly rule State’s hearing testimony. fa- nary Petitioner’s January At the matter until present he had been dur- testified that ther preced- hearing Burns testified that on the meetings. L.L. ing of these He said one him at ing Sunday a was delivered to Bible aide, working as a him she was nurse’s told L.L., in which jail letter school, nursing preparing to enter was place on requested that he L.L.’s name L.L. not good.” that L.L. did “felt He stated her, and jail, list the visitor’s write to mentally prosecutor to be ill. The appear “accept the Lord into his life.” offered She testified, indicating she that after also him, did so occa- and she on two to visit jail, she sub- learned of L.L.’s visits following sions the week. subpoe- actually L.L. served a poenaed during visits. upon her one those na At continuation the conclusion However, telephone subsequent conversa- una- hearing, judge ruled that L.L. was prosecutor L.L. convinced meaning of tion with testify vailable within 908.04(l)(d), subpoena rely and to Rule Evidence to enforce Wisconsin § previous ruling that L.L. was (1965). “una- vailable.” provision of the Confrontation Clause prosecutions, that “in all criminal the ac- petitioner’s The court denied motion and right cused shall enjoy the ... to be con- noted that the defense counsel had not fronted with the against witnesses him” subpoenaed parents, proved L.L. or her stands as a parte bar to “ex by evidence” actually she nursing had entered right affidavit. This to confront one’s ac- judge school. The reiterated that he had right, cusers is a appli- fundamental made agreed hearing on the hold a unavailabil- by cable to the states the fourteenth ity question if the defendant wished to amendment’s Due Process Clause. Point- challenge judge’s ruling. However, he Texas, er v. emphasized petitioner that the had intro- (1965). L.Ed.2d 923 professional testimony duced no prove longer that L.L. no suffered from mental Constitution, I, The Wisconsin Art. preliminary hearing illness. L.L.’s testimo- provides that the accused enjoy shall ny thereupon was into received evidence right to meet the witnesses face to face. present the trial was court. M.S. in court As the Wisconsin explicitly Court during the trial and identified Burns as her recognized, granted rights under the assailant; subject she was cross-exami- Confrontation Clause the State and Fed nation defense counsel. eral Constitutions are identical. State v. trial, Burns, At the close of was Wis.2d 332 N.W.2d appeal convicted of all An five counts. directly certified to the Wisconsin Although the Confrontation Clause and Court, petitioner. which denied relief hearsay designed generally rule are dissenting appeal argued in that votes values, protect they similar are not con “stale,” the doctor’s gruent and stand in some tension. More demonstrating the burden of L.L.’s than once courts have found violation of *6 unavailability seemingly placed had been though confrontation values even the testi petitioner, and that state had failed mony was recognized admitted under a prove that L.L. was unavailable at time hearsay exception. Green, v. California of trial. petition The district court denied a 149, 155, 1930, 1933, 399 U.S. 90 S.Ct. 26 corpus, for holding writ of habeas (1970). hand, L.Ed.2d 489 On the other petitioner’s right while sixth amendment apply courts have declined to the Confron violated, confrontation had been it was literally tation Clause so as to reach the appeal harmless error. An is now taken to abrogating extreme result of virtually ev
this court.
ery hearsay exception. United States v.
—
Inadi,
U.S.—,
1121, 1125,
106 S.Ct.
I
(1986);
Roberts,
The interest secured the sixth demonstrate the the de right is clarant it amendment of cross-examina- whose statement desires to use tion, 65, 100 against the face-to-face at a defendant. Id. at at confrontation trial. S.Ct. Alabama, prosecution v. 380 2538. The must Douglas U.S. 85 make strin-
937 hearsay is under cer- a declarant mission statements to show that gent efforts 719, exceptions only tain as an alternative to Page, 390 U.S. Barber unavailable. (1968). losing all evidence from that source. Ina- 88 S.Ct. di, at 106 S.Ct. 1126. fact- Second, augment accuracy in the us, by ensuring the defendant In the case before con- finding process evi- that because his counsel means to test adverse cedes cross-exam- an effective preliminary hearing, dence, counte- ined L.L. at her the Confrontation Clause testimony required marked former indicia only hearsay such as is has nances reliability and the second reliability.” Reliabili- of meets test. adequate “indicia of testimony in a case L.L.’s former is unmarred ty inferred without more can be firmly suggestions or of unreliabil- falls within a inconsistencies where the evidence ex rel. exception. ity. Compare, In other cases United States hearsay Hay- rooted (7th excluded, Wolff, 658 F.2d 464-66 must be absent wood v. the evidence Cir.1981). case, In the if L.L. guarantees of instant showing particularized “unavailable,” Roberts, truly at Ohio v. trustworthiness. hearing parts preliminary meets both at 2539. at clearly constitutional test ad- and Wis Rules of Evidence The Federal missible. hearsay rule are in accord with consin 804(a)(4) analysis. Fed.R.Evid. two-part proving The burden of the unavaila “unavailability” to in as a witness defines bility upon party of the witness rests present or person unable to be clude a offering prior testimony. If there is hearing death or because of testify remote, at the possibility, albeit that affirmative illness existing” physical mental declarant, or produce “then might measures law on this infirmity. or Wisconsin obligation good demand their faith Wis. same as federal law. point Roberts, is the 448 effectuation. Ohio v. U.S. at 908.04(l)(d). a witness Whether Stats. 74, 100 lengths S.Ct. which § preliminary question is a “unavailable” prosecution go produce must wit prior recorded predicate admissibility for question of ness is a reasonableness. Cali 804(b)(1) or Green, testimony under Fed.R.Evid. n. U.S. fornia 908.045(1)(1979-80). 4 Wein 1951 n. 26 L.Ed.2d Wis.Stats. Evidence, ¶ 804(a)[01]and Berger, (1970). stein & 11804(b)(l)[01]at 804-35 the State In a situation where ar prelimi- Although testimony at a former witness is unavailable because gues that a *7 guaran- hearing benefits from certain
nary illness, judge must consider of mental the hearsay state- reliability that other tees of severity of duration the the the both oath, in being under (e.g., duration, lack made regard ments it is not illness. With suggesting circumstances writing, unavailability under finding essential to a accuracy, subject to for care and permanent. the need The duration of illness be opportunity for cross-examina- adequate only probability long an in illness need be tion), that, regard trier of fact cannot observe to the enough proper so Additionally, a trial can testimony, of the declarant. of the importance demeanor (and hearing Amaya, preliminary postponed, cross-examination not be United States 188, Cir.1976), citing it) (5th ordinarily is a much-less 191 5 completed at 533 F.2d (Chadbourn 1406(a) of a searching exploration Wigmore, the merits Evidence into § rev.1974). mental rather trial, func- In the case of a simply its case than a because judge’s trial determining physical disability, the limited than a tion is the more one is there often is more difficult because probable cause exists to hold task whether uncertainty prognosis. as to Page, greater 390 U.S. for trial. Barber v. accused (11th Wilson, 1262 707 F.2d 725, Federal Parrott v. at 1322. Thus the at denied, 104 Cir.), prefer- express a cert. Rules and Wisconsin law judge 311 A must L.Ed.2d and ad- possible, live if ence for desirability weigh speedy of a der trial schizophrenic classified outside disor- against possibility that a further delay ders suggested because evidence a tenden- may competent. cy find the declarant acute toward onset and resolution and likely recovery premorbid more levels of severity, mental itself may As illness Thus, functioning. began if L.L.’s illness automatically not render a witness una- (when no later mid-September than judge must vailable. consider the hospitalized), she was then by definition it symptoms, what tasks witness is then would longer have lasted no than mid- all capable of. While victims violent March approximately which is trauma, may crimes suffer emotional some time petitioner’s began. trial greater anguish victims suffer far normally accompanies appear- Busby’s testimony than Dr. may well have See, States, e.g., ances. Warren United reflected precise some confusion on the use (two (D.C.App.1981) A.2d diagnostic 828-29 given new terminology, psychiatrists independently change conclude that if the recent in standard. Unfortu- rape testify, nately, victim were forced to diag- distinction between the severely probability incapacitating psy- schizophrenia noses of and acute schizo- chological injury high phreniform semantic, was because her de- disorder is not but levels). pression had reached suicidal substantive. The judge, state court never- theless, inconsistency did resolve the considerations, Given those there is the doctor’s testimony. Nor did defense question that L.L. no was unavailable pursue apparent cross-examination con- September early pros at the time the tradiction, present opposing medical tes- arrangements ecutor made to have L.L. timony, argument or offer oral or discus- prosecutor arrested extradited. The Instead, sion. petitioner’s counsel reasonably produce abandoned the effort to hearing asked the court whether the could hospital L.L. when she learned of L.L.’s adjourned be following Busby’s Dr. testi- ization. L.L.’s mental at the condition time mony and for a rescheduled conference at a psychiatric of admission to the ward was future date. undoubtedly stupor severe—“catatonic and, The judge immediately did not rule on delusions,” with hallucinations and re- motion, the State’s but continued the mat- speculative. future covery the near ter January hearing until At 1981. at the time the But State filed motion testified L.L. had writ- seeking declaring an order L.L. una- ten to him and offered visit him at the vailable, hearing and a held Decem- jail. judge Trial then Zievers ruled Busby ber Dr. had had no direct hearing conclusion of the that L.L. was personal contact with L.L. since dis- to testify meaning unavailable within the charge hospital from the on October of Wisconsin Rule of Evidence 908.- Moreover, hearing at the Dr. Busby 04(l)(d), and that he was diagnosis his schizophre- offered as “acute diag- ... had been [satisfied [L.L.] disorder,” general- niform also but referred suffering nosed and was from acute ly “schizophrenia.” term Under the schizophreniform up and in- disorder *8 (Diagnostic DSM-III and Statistical Man- cluding discharge the her date of ... (3d ed.)), ual Mental Disorders which of schizophreniform the acute [and] psychiat- had the become new standard for on the of disorder state the record con- July 1980, “schizophreni- ric evaluation to be extant mean- tinues and within the a diagnostic form disorder” was new cate- ing pertinent provision of the stat- gory whose essential features were identi- ute so to a of as warrant declaration schizophrenia cal to those of the ex- with added) unavailability, (emphasis ception (including that the duration the ac- phases) finding tive and residual than potentially was less six That was inconsistent ruling months and more than two weeks. Accord- with his was that L.L. unavailable ing Manual, schizophreniform Although Judge to the for disor- trial in future. finding any explicit Busby’s earlier determination that made there Zievers never “high probability” was a of a “moderate possible of duration regard with relapse” a substantial if L.L. were forced finding illness, made he a factual L.L.’s (and testify thereby had to confront its use of implicitly (by that assumed courtroom). person Burns in term) the witness’ specific medical com- To illness was short-term. mental Certainly, the of significance L.L.’s Judge Corbett pound problem, Reserve jail prose visits to the was not lost on the finding and made adopted the earlier later cutor, L.L., subpoena decided who de on no record. finding his based almost own spite finding the earlier unavailability. of Bus- not Dr. Judge could review Corbett However, prosecutor then decided not transcript of that by’s testimony because subpoena to enforce the after she talked In- yet prepared. testimony had not been with L.L. and learned of L.L.’s views with prosecutor’s judge stead the relied regard testifying at trial. These actions testimony, summary of L.L.’s brief oral trial, prosecutor, two weeks before Supreme Court which, as the Wisconsin a “good evinced a lack of faith effort” on out, in sev- pointed was inaccurate dissent part pres State to secure L.L.’s respects.2 important eral suggested, ence at trial. Such actions in stead, that elected not to seek State up-to- findings on No the basis subpoena enforcement L.L.’s because it respect to date were made with evidence uncooperative had an witness on its hands. or conditions physical mental witness’ Judge There is evidence that Corbett im trial, though time of even about plicitly found the witness unavailable be medical ex the time interval between the testify, cause she was reluctant to not be the determi amination of witness and then-existing she suffered cause from unavailability highly relevant. nation of mental illness.3 Benfield, 593 F.2d United States Court, reviewing The Wisconsin State, Cir.1979); (8th 817 n.4 Sheehan v. inconsistent lower these and flawed court 765-66, Wis.2d N.W.2d findings, pick forced and choose in was diagnosis If of L.L. of a short-term was coherency. effort to create some As an disorder,” trial “schizophreniform Judge points out in her Abrahamson dis- the court judge had to consider whether criticizing analysis, the majority sent to allow the grant should a continuance majority could Wisconsin Court testify. 5 Evidence Wigmore, witness accept finding of not the circuit court fact 1974). (Chadbourn ed. p. 119 rev. duration) (and, thereby, nature as to the on a sec Corbett’s reliance L.L.’s mental illness and still reach the Busby’s of Dr. Rather, ond-hand recital majority it did. substi- result the accura particularly agreed detrimental to finding. The court tuted its own findings L.L.’s activi cy schizophrenia schizophreni- of his because of and acute diseases, January February activ ties in disorder were different form Yet, Busby lengths ities Dr. could not have been of manifestation. different which early though Decem has to be that the of when he testified it assumed circuit aware visiting testimony, Burns L.L. understood the doctor’s ber. The fact that terms, jail to Dr. the medical and the characteristics at the was relevant face-to-face judge would be attorney, The circuit stated that he “out district without 3. The assistant oath, cotton-picking transcript in his if he “blamed the under mind” benefit of a attorney attorney or the district district assistant the court that witness suffered formed bringing Busby’s prog she said she’s for not in when disorder" and that Dr. "schizoid counseling going testify believe in psychiatric it to refuse to and didn’t nosis was that "without *9 years system has and the fact that she now approximately to four the whole would take three her forgiven this man Bible tells so.” if State v. and the she could recover she would.” before Burns, 131, 158-59, Burns, 112 332 N.W.2d N.W.2d 757 State v. Wis.2d Wis.2d 332 112 (1983). (1983). 757 940 schizophreniform
of acute disorder risky undertaking court, before That is a for a for finding, Supreme made its Wisconsin it which it uniquely qualified. is not Most ignore finding. Court forced to finding troublesome here is its that L.L.’s majority The found that witness suf testifying, attitudes towards which de- she from “schizophrenia” fered and “became a “religious,” scribed as symptoms were of a schizophrenic.” Burns, catatonic State v. mental The majority speaks disease. of 131, 136, 146, 332 112 Wis.2d N.W.2d 757 seeking “refuge L.L.’s in religion her from (1983). haunting experience,” shadows her “pitiable in The her letters and visit to him majority Wisconsin court evaluated discrepancies jail product in medical of a terminology ... mind rendered “the clearly seriously and concluded that record ill due to the defendant’s assault expected Busby that Dr. shows” L.L.’s re- upon her.” 332 N.W.2d Id. at 765. The covery years to take a minimum two Wisconsin Court well be (consistent schizophrenia). But, Dr. right religious that L.L.’s objections stated Busby to never referred L.L.’s illness as testifying represented a serious mental instead, “schizophrenia”; he merely spoke illness spiritual and not conviction. But general concerning schizophrenia in terms making finding such a sensitive and recovery period difficult complex area is enough any difficult generally disease. He remarked about time attempted and should not be on the prognosis modifying L.L.’s or without re- months-old, basis of a inconsistent record tracting diagnosis his initial of “acute schi- and a lack of up-to-date expert medical zophreniform disorder.” testimony. best, Busby’s confusing diagnosis
At
Dr.
us,
brings
supports
inevitably,
That
finding
acute
schizophreni-
disorder,
question
schizophrenia.
of what deference
form
At
we
af
should
hospital,
findings
time she left the
L.L. had im-
ford to the state court
in this case.
proved twenty percent by
Busby’s
Dr.
findings
tes- The
of fact
state courts in habe
timony,
gradually
and she
presumed
recovered about
as actions shall be
to be correct
percent
Busby
five
more! Dr.
court,
testified
unless the federal
on consideration
possible
that “it is
she would
continue
whole,
of the record as a
concludes that
improve
years
over ‘X’ number of
...
such factual
“fairly
determinations are not
perhaps eventually
spontane-
recover
supported” by the record.
28 U.S.C.
ously
said,
in that
As Dr. Busby
manner.”
2254(d)(8).
applies
rule
equally
That
“schizophrenia is
for its difficulty
notable
findings
appellate
trial courts and
recovery,
you
and when
see ten or twen-
Mata,
courts.
v.
Sumner
percent
ty
improvement
time,
in a month’s
545-47,
764, 768-69,
66 L.Ed.2d
get
you
hopeful
patient
is a
that this
who
(1981)
curiam);
722
(per
Wainwright
get
will
well.” Id.
941
necessarily
The determination
includes
case,
subsidiary facts
instant
In the
A
legal
ultimate
issue at stake.
wit
suf-
L.L. was
determinations
are the
unavailability is not an external event
ill- ness’
“then-existing mental
fering from
capable
being
of
measured or observed.
trial,
as
and the facts
the time
ness” at
293,
Sain,
309 n.
v.
372 U.S.
of See Townsend
duration
probable
severity and
6,
“basic, 6,
745,
83 S.Ct.
755 n.
existing
mental illness” at the time of
For the
sufficiently
long-enough
severe and of
outlined,
reasons previously
we hold that
probable duration so as to make continu-
the State has not fulfilled its
burden
inappropriate,
proving
ance
was based on inconsist-
L.L.’s unavailability
precedent
as a
ent
Although
and out-of-date information.
to offering
prior
her
testimony.
prose
pre-
may
determination
have been
cution has neither
stringent
made
efforts
sumptively
if
correct
it had been made fol-
to
unavailable,
show that L.L.
pro
was
nor
lowing
unavailability hearing,
a recent
it
duced
proof
affirmative
of L.L.’s actual
presumptively
unavailability
not
correct based on
at the time of trial in March
the stale factual information
to
available
Instead we are left with an out-dat
the court.
prediction,
ed
one
may
which
or
not
have been accurate on the eve of trial.
fact,
Judge
did no more
Corbett
than
defer
prosecution’s
brief oral sum-
A witness cannot be declared “una
mary
Judge
original findings,
Zievers’
simply
vailable”
prosecutor
because the
or
and the Wisconsin
Court restated
circuit court concludes that
the witness
them
(ignoring
single might
a second time
not
testify.
want to
The witness
important
finding Judge
most
Zievers
“persist
refusing
must
to testify con
L.L. suffered from
cerning
made—that
acute schi-
subject
matter of
state
[her]
zophreniform disorder). Additionally,
despite
in ment
an order
judge
of the
to do
Busby
December 1980 Dr.
did not
908.045(1)(1982).
so.” Wis.Stats.
When
questions
could not answer the crucial
stake,
another individual’s liberty is at
which determine whether a witness has a
decision to allow a
exempt
witness to be
mental illness that would render her una-
public duty
from the
testify
to
must be
court,
vailable. What were the nature and severi-
made
the trial
not the witness or
ty of L.L.’s
Burns,
illness at that
time? What
the state. State v.
112 Wis.2d
symptoms?
were the
(1983)
What tasks was she
(Abrahamson,
porary data. Rather, to refuse testify. prosecu to “unavailability”
Because prove tion has the burden to that the wit fact, question mixed of law and section ness “then-existing has a mental illness.” 2254(d) only mandates deference insofar as It is true in this case that the defense presumptively there findings are correct advantage counsel did not take of numer support legal which the ultimate opportunities conclusion ous to force the State to meet that L.L. an unavailable witness at clearing its burden or to aid the court petitioner’s Concluding time of away Nevertheless, trial. as we confusion.5 the bur underlying findings do that state court den is not on prove that L.L. record, fairly supported by State, are not we was available. The burden is on the independent, offer plenary burden, our own if review and it fails to meet that press mining appropriateness 5. Defense testifying; counsel did not in cross-exami- of L.L.’s clarify subpoena nation parents prove the inconsistencies in Dr. Bus- did it L.L.'s by's diagnosis; school; subpoena nursing it did not issue a she had entered or it did offer trial; presence any professional testimony prove L.L. to secure it did not L.L. no opposing expert testimony; longer introduce medical it suffered from mental illness. Reserve advantage Judge deficiencies, did not take conduct, of the court’s offer to Corbett chastized the defendant for these requested, hearing require if outside the but did not the State to presence jury purpose subpoena for the of deter- enforce the for its chief witness. avail- tribute the verdict obtained.” Id. find the witness either judge must bring the U.S. at 828. In the able, the State before context of require requires trial, which it information issue is whether absent consti updated prosecutor evidence, If a tutionally-forbidden to make a determination. honest and *12 ruling unavailability, early an jurors might very secures fair-minded well have until the of trial delay start 26, and there is brought not-guilty Id. at verdicts. 87 the earlier information so as to make at 829. The that there was S.Ct. fact some “stale,” upon obligation remains the incrimination or circumstantial evidence information offer current prosecutor does render the error harmless. U.S. ill- witness’ proving that the status Greer, 1295, 1302 Burke F.2d ex rel. v. 756 changed. Because the test is ness has not Cir.1985). Rather, (7th against case illness,” prose- “then-existing mental “overwhelming” the defendant must be pre- an rely on irrebuttable cutor cannot apply order to error the harmless rule. unavailable, always sumption that “once 1122, 1133 Shue, United States v. 766 F.2d sum, the on the In burden unavailable.” (7th Cir.1985) (amended opinion). continuing unavailability is a prove State to vary The Court does not harmless one. type error standard with the of constitu conclusion, independent our re In issue, right prescribes rather tional at but finding court of unavaila view of the state Chapman one standard —the standard. agree us to bility in this case leads with Once trial has been identified error as finding The assessment. district court magnitude, one of then constitutional record. made a confused and “stale” on Chapman applied to standard is determine as a matter of law The circuit court erred must be whether conviction reversed. by unavailable as a witness. finding L.L. Greer, 789 F.2d U.S. ex rel. v. Miller previous resulting The use of her testimo (7th banc). Cir.1986)(en 443-444 Confron appearance trial ny of her live at instead subject are tation Clause violations of his sixth amend deprived petitioner Arsdall, analysis. same Delaware v. Van against a witness right ment to confront — —, U.S. 106 S.Ct. 89 Therefore, affirm the district him. we (1986); Harrington 674 v. L.Ed.2d Califor holding petitioner’s sixth amend that nia, 395 89 S.Ct. U.S. right ment to confrontation was violated. (1969); United States (7th Cir.1984); Key, 725 F.2d 1125-27 II F.2d 1104-06 Gagnon, Mattes conclusion that there was a Our (7th Cir.1983). right of petitioner’s violation of confronta inquiry tion does not end our because con inquiry The must conduct is we this sort can stitutional errors of in certain light an harmless of a whether error is error. circumstances constitute harmless host of factors. These factors include the Finding of a federal constitutional error testimony in the importance of the witness’ require does not an automatic reversal of case, prosecution’s whether conviction; there be some such errors cumulative, presence of absence of which, case, setting particular in the of a contradicting corroborating or evidence insignificant unimportant are so testimony of the witness material harmless, they may be deemed consistent cross-examination oth points, extent of Chapman with the Constitution. v. Cali course, and, permitted, over erwise fornia, strength case. prosecution’s all of the Del L.Ed.2d 705 Arsdall, aware v. Van ap Although not unmindful Supreme Court we are imposed has deferring state propriateness of prosecution proving on the the burden of impact error courts’ assessments of the “beyond doubt a reasonable that the [con our trials, must conduct own complained of on state we did not con- error stitutional] examination of the factors the state court charge had it not been bolstered L.L.’s relied on. reason, identification. For petitioner asks that relief granted also be to the only issue in this case is the substan- remaining kidnapping charge against M.S. dispute regard identity tial problem We have little rejecting argu- assailant. addition to the identifica- applies ment as it to the kidnapping convic- tion M.S. as her assailant made at both trial, present tion. M.S. was preliminary hearing in court the State at trial and independent proof pe- subject submitted other positive- cross-examination. She person titioner was the who committed the ly assailant, identified the as her assault on L.L. having ample had opportunity to observe gave her assailant. M.S. descrip- detailed
First, M.S. testified at trial that Burns *13 tion petitioner, of the including Army the had committed an abduction of similar na- fatigue jacket patches with on it which was ture less than twenty-four hours earlier in similar to the by police one vicinity the recovered in the (petitioner same lived in the Second, occurred). petitioner’s area search of where both crimes residence. Finally, police petitioner’s observed scratches on just M.S. was abducted several blocks from day face the after the incident. The crime petitioner's proximity home and in laboratory expert pubic testified that the grocery store where Burns was seen an jeans hair found on L.L.’s hers were not hour earlier. petitioner’s and could have been pubic hair. The presented evidence by the Finally, importantly, police and most the concerning State kidnapping the of M.S. recovered Bums’ blood-stained blue denim stands alone. It help needed no from
jacket from his day residence the after the L.L.’s identification of the at the jacket assault. The was similar to the one preliminary hearing. peti Denial of the by worn L.L.’s assailant. The State crime right tioner’s expert reported confront L.L. had lab that three of no ad the blood jacket type stains on the were of verse effect on the kidnapping AB—a conviction only strain found in percent involving three of the M.S. The undeniably error was population type L.L.’s blood is AB. beyond harmless any reasonable doubt as —and and the M.S. conviction of Burns on the argues Petitioner the use of the kidnapping charge must stand. We affirm harmless error test would entitle Burns to the order of the denying district court relief he was convicted on four because corpus writ of habeas on L.L., that count. arising counts out of the assault on preliminary hearing and L.L.’s testimony regard With to the convictions for provided only account of what occurred involving against L.L., the counts the crime night on the in question. Without that agree we must with the district court that testimony, petitioner insists, prosecu- beyond the error was harmless a reason prove tion would have been unable to which, committed, depart if able doubt. We do any Chap crimes not were man; According who them. nor do peti- we dilute it inference. committed argument, remaining tioner’s special case, State evi- But under the facts of this including analysis pubic dence of the hair probable impact preliminary hearing jacket and blood-stained description and testimony upon jury only cumula injuries L.L.’s independent proba- had no Apart testimony, physi tive. from that value; tive the evidence could not be linked cal jacket evidence the blood-stained any particular offenses without L.L.’s (stained type), with L.L.’s rare blood testimony. against similar crime committed inM.S. vicinity, same and M.S.’s identification at Petitioner also asks this court to deter- overwhelming mine trial all constitute evidence that M.S.’s identification of Burns regard jury with to the first to the same determi incident was not would lead enough reliable guilt. to convict him of the nation of Judge persuasive, approach Evans’ it is jury decided on basis which but, here, certainly perhaps and un- error unconventional case was altered focusing apparently not on precedented had no on outcome. practice, it effect — U.S.—, Clark, question admission of L.L.’s whether Rose See n. was harmless former error but against Burns was woven question case instead whether the state’s It was so evidence. present from circumstantial failure L.L. as witness at trial hold no overwhelming we that unless In was harmless error. effect Ev- can of the Confrontation Clause change violation ans to assess the chances of a tried error, must we ever constitute harmless in result if a new trial were ordered. undis state court conviction leavé this Judge Swygert, in a clear and well-rea- turbed. agrees opinion panel, soned for the Affirmed. court’s determination that the district discharge state failed to its burden of CUDAHY, concurring: Judge, Circuit showing thereby availability L.L.’s disturbing case committed constitutional error. elusive This is a connection, ap- Judge Swygert both of a number of different which admits problems district face difficult claim some of def- lay can proaches, all which *14 findings erence to the of the all of which Wisconsin support in the record and Judge resolving courts in this basic issue. problems analysis of as present substantial hand, it, Ripple, fell other accords these policy. As I the state well as of see showing findings degree of deference I am of a unable discharging its short in burden part the confusion or appear a to muster because to as that L.L. was “unavailable” labeling uncertainty psychiatric syn- In my view the state at trial. witness to dromes seems vitiate the force of the so much because its determina- failed not event, any In state determinations. wrong because clearly tion was but pro- appears clearly error here to me more underlying the determination elements (the as- timely cedural failure to make support record were stale therefore sessment) necessarily than substantive. inadequate. Nonetheless, analy- Ripple’s I think has in the district court Judge Evans question. presents us a difficult sis with demonstrating opinion persuasive written a agree Judge Swygert certainly er I that committed constitutional Wisconsin apparently Judge Ripple “unavail- duty that failing ‘good to “meet faith’ ror its question mixed of fact prove ability” presents or procure the of L.L. to to to a federal court on a unavailability.” and law as which time of trial her required corpus petition is not to Clusen, F.Supp. 1447 habeas 599 Burns v. on, 2254(d) presumption 28 (E.D.Wis.1984). Judge apply the U.S.C. Evans went subsidiary But on such however, of the of correctness. to hold that the admission L.L. suffered from questions evi as whether hearing testimony into preliminary schizophrenia (long-term) or acute schizo- live presenting trial in lieu of dence at (short-term) or the in- disorder phreniform He reached error. witness harmless religious from L.L.’s ferences to be drawn after this of harmlessness determination psychiatric of an underlying as indicator analysis purposes behavior careful of presumably to defer to an we are He condition clause. determined the confrontation courts, and degree the state appropriate to only purpose that witness that here here to the Wisconsin might perhaps present jury so observe be trial court. opposed to state by the Court as his or her demeanor was frustrated Mata, 449 U.S. 101 And con Sumner prior statement. he See use of the (1981); 722 Holleman 66 L.Ed.2d rather than the S.Ct. the defendant cluded that (7th Duckworth, 395 Cir. 700 F.2d nonappearance. state from L.L.’s benefited position as 1983). in the same are not Although I find We F.Supp. 1448-50. 599 946 Abrahamson, assailant,
Justices Heffernan who to ability observe her not on her moving filed opinion dissents ability truthfulness. Her to observe her Court, Wisconsin written thoroughly probed assailant was in her Despite able and Justice Day. articulate preliminary cross-examination at the hear- however, concerns, that, these I believe And, ing. course, opportunity although question is made difficult cross-examine is the heart the confronta- deference, obligation the state failed Roberts, tion clause.1 See Ohio v. discharge showing burden its “una- 63-64, 2531, 2537-38, 100 S.Ct. vailability.” (1980); Texas, L.Ed.2d Pointer v. 400, 406-07, Although 1065, 1069-70, I therefore believe the state U.S. its I obligations, (1965)(“A failed to meet full major also L.Ed.2d 923 reason under- may appropriate believe that it be here to lying the constitutional confrontation rule adopt approach a somewhat unconventional give charged is to a defendant with a crime ques- harmless error issue or even opportunity an to cross examine the wit- proposition tion the “unavailability” against him.”) nesses invariably key must furnish the error Second, nothing there is in this case to magnitude. constitutional The extraordi- suggest that the place crime did not take nary, unique, if not of this circumstances that the defendant was misidentified as the may permit departure case a minor perpetrator. Usually when we are assess- First, the usual analysis. although the ing the effect on a jury admitting im- state failed to show that L.L. una- evidence, proper we are entitled to as- vailable, it is not clear to me sume that that could proper- evidence ever rights defendant’s of confrontation were brought ly jury. be before the In the case significantly regard violated. we us, however, question before inis what should examine the three purposes of the L.L.’s testimony presented be form requirement: (1) confrontation that the tes- *15 testified, jury. the Had L.L. she most like- timony (2) in question oath, under be that ly would have identified the defendant as opportunity there be full for cross-examina- though her assailant —even one whom she (3) tion jury and the that be an accorded apparently forgive. would In unlikely the opportunity appraise credibility to based on prior event that she recanted her testimo- the demeanor of the pre- witness. theAt ny, she could overwhelmingly have been liminary hearing L.L. testified under oath impeached. assault, Soon after the L.L. subjected and was to an cross-ex- extensive positively photograph identified a of the amination about the surrounding events unequivocally defendant. She identified the crime and about her identification of the defendant as her at pre- assailant the pointed defendant. As Evans liminary hearing, and her out in identification opinion his district court only thorough withstood function of cross-examination. the confrontation requirement Even L.L.’s letters to was not in and visits the defend- fulfilled this was to case jail only allow the in jury to observe ant tend to confirm his role demeanor. But as L.L.’s is credibility apparently perpetrator at stake of the Finally, not crime. here. The of the focus point defense was on her state undoubtedly would to her reli- Wigmore guage comments: judges begin- of counsel and from the ning hearsay present day: purpose The main rule and essential of confron- opponent oppor- [Wigmore quotes tation is to secure for the numerous authorities at tunity opponent of length.] process cross-examination. The Thus the in main idea of confrontation, pur- demands pose not idle for the opponent’s oppor- is confrontation that of the witness, upon gazing being of cross-examination; or of tunity of the former is him, gazed upon by purpose but for the of feature, merely preliminary the dramatic cross-examination, which cannot had ex- be measure, appurtenant the latter. to cept by personal putting the direct and of Wigmore, J. V § Evidence 1395 at 150-52 questions obtaining the and answers. immediate (1974). signifi- That this is true and essential clear, cance of confrontation is from the lan-
947
Rather, this
de-
explain her recanta-
offenses.
case should be
gious
to
convictions
forthright
cided
to
by the
adherence
tion.
principles
of
governing
basic
the role
unavailability
Third,
turns on
the issue of
corpus
federal courts
habeas
actions.
of
appraisal of the mental illness
a difficult
545-46,
Mata,
539,
v.
Sumner
449 U.S.
duration of a
The extent and
the victim.
768,
764,
(1981)
66
722
S.Ct.
L.Ed.2d
101
(Sumner I),
the effect of
mental illness—and
witness’s
held
Court
testify against
assailant —are
having to
an
of
presumption
correctness accorded
to
this case
difficult
determine
often
of
findings of fact
state courts under
trou
presented particularly
have
seem
2254(d)(1966)
28
extends
find
U.S.C.
questions.
difficulty
of
close
bling and
ings
appellate
fact of
courts
by the confusion
is evidenced
these issues
findings
state
con
when those
of fact are
uncertainty
labels
about the
“schizo
opinion.
tained in the court’s .written
See
schizophreniform dis
phrenia” and “acute
1307,
Young,
also Love v.
781 F.2d
1310
though
L.L.
have been
order”. Even
(7th Cir.1986)
curiam).
(per
holding
This
“available,”
psychiatric history
indi
the Court in
reaffirmed
Sumner v.
psychological
if she
risk of
trauma
cates a
Mata,
592-93,
455 U.S.
102 S.Ct.
does
And the state
have
had testified.
(1982)
1304-05,
(per
ness with short or intermediate
improvement
term. finding prosecutrix was suf- that the
fering long-term mental illness Therefore, supported by the record.
fairly findings our cannot substitute
we of the Wisconsin
findings
minority
Goode,
Supreme Court. findings the witness by the
Bound which would like- a mental illness
suffered years requir- and that
ly continue for two I testify relapse, cause
ing her to could the confrontation find no violation of
would judgment affirm the
clause and would district court. KOLENTUS, al.,
Michael et
Plaintiffs-Appellants, Avco Preci-
AVCO CORPORATION Division, Corpora- Avco
sion Products
tion, Bank, and Chemical Defendants-
Appellees.
No. 85-1143. Appeals,
United States Court
Seventh Circuit.
Argued Sept. 1985. Aug.
Decided *18 record, substituting its for that support in the view the facts [the ... fair Appeals Court.” Id. at 383. the Court of erred Florida Court believed that]