*1 argument address Nihiser’s second
Congress validly abrogated the States’ Eleventh Amendment when it immunity
enacted Rehabilitation Act. do note We that the two circuits to examine ques- tion found have Section 2000d-7 to consti-
tute a valid abrogation. See Kilcullen v. Labor,
New Dep’t York State 205 F.3d (2d Cir.2000); California, Clark v. (9th Cir.1997). F.3d 1267
III. reasons, foregoing For the we AFFIRM the district court’s dismissal of Nihiser’s with Americans Disabilities Act claim. We REVERSE the district court’s dismissal of
Nihiser’s Rehabilitation Act claim and RE- MAND for further proceedings consistent opinion. with this BRUMLEY, Petitioner-Appellee, Willie WINGARD, Respondent- Curtis
Appellant. No. 00-3515. United States Court of Appeals,
Sixth Circuit. Argued Aug. 2001. Decided and Filed Oct. *4 briefed), (argued and Pub- Fenlon
John Office, Public Defender lic Defender’s Ohio Columbus, OH, Commission, for Petition- er-Appellee. (briefed), Joseph Office
Mark Zemba Ohio, Attorney General of Corrections Cleveland, OH, Section, Stuart Litigation Attorney (argued), Office W. Harris Section, General, Litigation Corrections OH, Columbus, Respondenb-Appellant. for COLE, Circuit Before: MOORE ROSEN, Judge.* Judges; District MOORE, J., opinion delivered J., court, COLE, joined. in which 647-72), ROSEN, (pp. delivered D.J. opinion. separate dissenting OPINION
MOORE, Judge. Circuit Win- habeas Warden Curtis State”) (hereinafter appeals “the
gard * Rosen, designation. Michigan, sitting by E. United States Honorable Gerald Judge Eastern District of District for the petition relief from habeas was denying post-judgment Magis- order transferred to Judge trate Vecchiarelli for a granting report the district court’s order habeas Brumley recommendation. Brumley relief and direct- raised petitioner Willie ground one for relief in his federal retry Brumley complic- for habeas ing the State petition, Confrontation Clause claim. ity aggravated to commit murder. We This claim was described the following AFFIRM the district court’s denial of the way in his petition: habeas “Trial court post-judgment motion. hold State’s We permitted videotape State to enter deposi- the district court did not abuse its Kirklin, Tony tion of at the time incarcer- denying discretion in motion State’s ated an Arizona state correctional facili- post-judgment relief because the dis- ty, in testimony. lieu of live-in-court Trial already trict court had considered and re- court Kirklin found ‘unavailable’ and thus jected arguments in it. In addi- raised Appendix admissible.” Joint tion, we hold that the court did district (“J.A.”) relief, err in granting Brumley habeas be-
cause state court’s admission of (“Tony”) Kirklin was the brother videotaped deposition testimony, without a (“Delmar”), Kirklin of Delmar the individ- showing unavailability, of the witness’s charged ual with the Knapp. murder of *5 contrary „in to an appli- unreasonable and/or Tony passenger was a the car Delmar clearly cation of established murder, driving day was on the of the precedent. (“Davis”) (a Brumley, were Kevin Davis Kirklins), half-brother of Marty and
I. BACKGROUND Tony Marshall. witnessed events Brumley leading Willie was convicted up shooting Knapp by to Ohio, Portage Delmar, County, jury of com- including shooting itself. At plicity to commit aggravated murder with the preparing try time the State was to penalty specifications two death and kid- Brumley Delmar and separately in naping connection with the 1984 abduc- Tony was incarcerated in an Arizona state Becky Knapp. tion and murder of Brum- prison, having been convicted cocaine ley was sentenced to with prison possession intervening years. in the The life.in parole eligibility thirty years on the provided Tony State thus for to be trans- complicity to aggravated ported commit murder from Arizona testify to Ohio to brother, twenty-five count and to a maximum of against his Delmar. Delmar’s tri- count; years kidnaping on the the sen- Brumley’s, al had been scheduled before consecutively. tences were to run pleaded guilty shortly but Delmar before his trial. exhausting After his state appeals,
Brumley filed a application prosecution federal for a The then moved the trial court, writ of corpus, pursuant pursuant habeas to 28 to Ohio Crim. R. 151 and 2945.50,2 § § on U.S.C. October 1997. The Ohio Rev.Code to allow them to 15(A) deposition part deposition, 1. Ohio R. that a Crim. states the trial ... a or all of a so may probable appears be taken it that a far as otherwise admissible under the rules of “[i]f evidence, may prospective appears be used ... witness will be unable to attend if ” prevented attending or will be the witness is out of the state.... from trial or hearing, appears and if it further that his § necessary is material and that it is 2. Rev.Code in relevant Ohio 2945.50 states deposition prevent part: take to ... to a failure "At time after an issue of fact is indictment, 15(F) justice.” specifies upon prosecu- joined Ohio Crim. R. deposition may may apply writing when a be at trial: "At to used tion or the defendant to die be- Knapp had Brumley Delmar said with videotape, Tony, on depose li- Prix’s had seen the Grand prosecution cause she present. counsel and his Brumley dis- videotaping plates. Delmar and cense reasons three offered happen to First, going to was that time. cussed what testimony at Tony’s into the got then the men back difficulty Knapp, pointed prosecution re-enter involved, Knapp Prix. did not require which would Grand procedures court before vehicle. Arizona state order another time. a second transported be Tony could time, according Tony’s deposi- to At that Second, to the ex- pointed prosecution a re- Brumley produced testimony, tion time. Tony a second transporting pense of it out the window pointed volver Third, raised the concern prosecution Knapp. holding After Grand Prix be- parole released on Tony could be seconds, Knapp for a few revolver on place, took Brumley trial of fore the to Delmar Brumley handed revolver beyond the sub- thus that According kill Knapp. him to and told his testi- the State when poena power of said, Brumley “You waste her.” Tony, The state mony would be needed. then exited Delmar the Grand J.A. vigor- this motion over granted court Prix, Knapp, pointed walked over Brumley’s defense coun- objections of ous head, three of her and fired gun at the side Tony, on deposed sel. The shots, Tony testified according Tony. 28,1989.3 April videotape, shot; the first he also that he witnessed pas- he had been a Tony testified that shooting began that before the testified when Del- in Delmar’s Grand Prix senger Prix and started Davis exited the Grand Becky Knapp, who up mar picked Delmar running away from the scene. *6 eventual- at the time. Delmar hitchhiking body Brumley Knapp’s then loaded and Prix to end of a ly drove Grand Prix. The men into the of the Grand trunk road, everyone but Brum- where dead-end Delmar spot, to a secluded where drove Brumley the car. Knapp exited ley and body into the Brumley and carried in were alone the backseat Knapp and body had not been re- (Knapp’s woods. minutes, twenty Prix for around the Grand trial, Brumley’s at the time of covered exited, Brumley after according Tony; to Tony in the area de- despite searches Prix, he where entered the Grand Delmar scribed; subsequently been recov- it has twenty for Knapp and were alone around ered.) deposition, Brumley’s During the interval, Delmar After minutes. objections for the counsel made record Knapp exited the Grand Prix. Knapp Tony. cross-examined Brumley, to behind car—where
walked trial, prosecution pres- to standing— At moved Tony, and the other men were to videotaped deposition, pursuant though to urinate. ent down as and squatted 15(F), Tony because was out time, of the Ohio Crim. R. testified one Tony At that meantime, much,” deposi- In the of the had seen “too state. Knapp men said i.e., up,” “cleaned all the license tion had been Prix’s referring to the Grand rulings had been removed. Tony, objections According plates. J.A. ” (Dissent, 'deposition testimony’ to take the Kirklin’s ... for a commission court 648). depositions "deposition witness.” The term testimo- post accurate, however, ny” as this is the lan- is suggests "the dissent that we "obscure” 3. The guage Code and the the Ohio Revised used deposition was setting” which the trial-like supra. cited Ohio Rules Tony by "consistently referfring] to taken issue, appeal for the court denied his on this at that time stated hold prosecution The ing: it the Arizona “Specifically, record that had contacted this court concludes week, that those previous required authorities the state is not to demon Tony witness, confirmed that ‘unavailability’ authorities had strate the of the as Arizona, incarcerated in and that he still that term was defined ... In Roberts. stead, remain incarcerated for the near to showing reliability addition prosecution The reiterated that future. deposition, of the the state must show great trouble and gone “the State had the existence of one of the circumstances Tony’s deposition 15(F).” to obtain” testi- expense set forth Crim.R. J.A. mony brought (footnote omitted). when he had been Ohio Because was in his trial and that it was com- for brother’s carcerated in Arizona at the time of with the relevant Ohio statutes. plying Brumley’s the requirements of Ohio pointed at 1671. The also J.A. 15(F) Crim. R. had been satisfied. The to the defense’s cross-examination appellate state court reached conclu support admissibility as for the deponent in large part special sion based on the videotaped deposition. videotaped testimony nature of opposed to written transcripts: a video “[S]ince prosecution’s The trial court granted taped deposition gives jury oppor motion on the basis of Ohio Crim. R. 15 tunity to consider the physical witness’ § and Ohio Rev.Code 2945.50. Defense demeanor in determining credibility, objected, preserving arguments counsel approximating comes the closest to appeal. judge The trial overruled circumstances under which actual live tes objections. jury these defense then timony given.” J.A. at 438-39. This the cleaned-up viewed version of the video- however, holding, was limited to cases taped deposition, which included the testi- which the videotaped deposition “was tak mony summarized swpra. en for the specific purpose using it in testimony prose- The trial of two other lieu live at trial.” J.A. important ap- cution witnesses is to this at 436. The declined Ohio First, peal. passenger another to hear appeal. Prix, Davis, Grand testified to what he saw *7 murder; day of the but because Davis Magistrate Judge Vecchiarelli issued Prix away exited the Grand and ran before report and recommendation on November shooting, eyewitness he not an was to 19, magistrate judge 1999. The concluded Brumley the events that occurred after Brumley’s rights that confrontation had produced the revolver. Davis did hear Tony’s been violated the admission of fired, Moreover, pros- shots however. videotaped testimony showing without a produced ecution also witness Donald Tony in the constitu- that was unavailable Sanders, prison who had with been both Specifically, magistrate tional sense. Brumley. Delmar and Sanders testified to judge reasoned that “the state court dis- incriminating Brumley made statements posed requirement unavailability, in prison. while merely stating Supreme that case- Court conviction, Brumley pursued apply
After his law did not because ... the video- court, However, appeals filing thirty-six tape state was reliable. indicated, assignments sug- of error with the Eleventh has or even never me- Appeals. preserved gested, videotape, District Court of He that a other simply claim it is raising his Confrontation Clause dium is admissible because ” Moreover, at 3684. appellate before that court. The state reliable.... J.A. 4, 2000, Judge Polster February that was On judge concluded magistrate permit it to the State’s motion granted constitutional sense. not unavailable magistrate judge’s objections file judge concluded magistrate Finally, recommendation; so, doing report and videotaped depo- that the admission mo- court treated the State’s the district error: “Without was not harmless sition reconsideration of the tion as a motion for testimony, a reasonable Tony Kirklin’s January 2000. judgment entered on Brumley complici- not convict jury could 11, 2000, Brumley, through February On murder.” J.A. ty aggravated to commit counsel, that the dis- objected and moved recom- Vecehiarelli thus Judge 3687. granting order trict court reconsider its Brumley’s petition habeas mended that objec- filed its reconsideration. The State Brumley’s convic- granted respect with judge’s report magistrate tions to the complicity aggravated to commit tion for In February on 2000. recommendation vacated, murder, that the conviction be memorandum, reiterated its the State retry that the State be directed Tony Kirk- that the admission of position Brumley charge within a reason- on videotaped deposition did not violate lin’s judge did not magistrate time. The able , rights. More- Brumley’s confrontation however, recommend, the district over, argument reiterated its the State Brumley’s kidnaping convic- court vacate that, videotape even if the admission of the tion, the constitu- as the record without rights, Brumley’s confrontation violated videotape adequately tionally inadmissible Brumley re- the error was harmless. finding. supported objections, arguing sponded to the State’s report and recommen- Objections to the State had not demonstrated days. ten dation had to be filed within 60(b)(1). for relief under Rule grounds Brumley objections, filed his but the State court its order on district issued Judge Polster to do so. District ^failed 23, 2000, magis- again adopting March opinion and memorandum issued an order report and recommendation. judge’s trate 19, 2000, adopting Judge Vec- January on The district court denied the State’s mo- and recommendation report chiarelli’s judgment. tion for relief from the earlier entered, in Judgment compliance full. was Thus, Brumley held that the district court January with Fed.R.Civ.P. complici- entitled to a new trial on the 27, 2000, filed a January On the State that he ty charges to commit murder but relief under Fed.R.Civ.P. motion for kidnaping to relief on the was not entitled 60(b)(1), claiming surprise as a result of addition, the district court conviction. entry judgment. the district court’s opposing held that motion re- The State claimed to have never been was moot. The State filed a consideration magistrate copy served with *8 timely appeal April on notice judge’s report and recommendation file thus had unaware of the need to been II. ANALYSIS objections. explained The State Appeal- Limited to A. The State Is Not court substituted Warden when district ing the Denial of Its District Court’s Khelleh Konteh for Warden Curtis Win- Rule Motion for Relief Under docket, gard respondent as on counsel 60(b)(1). mistakenly had termi- for the State been matter, must As a threshold we nated as counsel of record at the same improperly is appar- This resolve whether'the State time. substitution/termination 5,1999. Brumley’s habeas arguing the merits of ently occurred on October Gorcyca, beas. Palazzolo v. 244 F.3d Brumley argues appeal. in this petition , —U.S. only appeal is able to (6th that the State Cir.), -, cert. denied denying April court’s 2000 order — - district (2000). L.Ed.2d 60(b) for relief Rule motion the State’s Brumley’s petition habeas Because did not because the State judgment from 24, 1996, by April governed filed after appeal from timely file a notice the Antiterrorism and Effective Death merits, on the judgment court’s district (“AEDPA”). Penalty Act of 1996 Pursu- 19, 2000. January which was issued AEDPA, habeas relief is corpus ant to of that filing timely appeal than Rather adjudicat- respect available with to claims under moved for relief judgment, State only court if the ed on the merits state 60(b); subsequently this motion was Rule adjudication: denied. appeal treat this case as an willWe (1) in a that was con- resulted decision of the court’s denial both the district to, trary or involved an unreasonable 60(b)(1) the dis- motion and State’s Rule of, application clearly established did judgment. final The State
trict court’s law, by determined Federal appeal notice of of the district not file a States; Supreme Court United habeas relief Jan- granting court’s order Instead, a Rule the State filed uary 2000. 60(b) days of motion for relief within ten (2) resulted in a decision that was based judgment; final the district court’s on an unreasonable determination filing appeal. time for the of an tolled the evidence light the facts 4(a)(4)(A)(vi). P. Within R.App. See Fed. presented pro- the State court motion, the the denial of that thirty days of ceeding. appeal a notice of “from State filed entered ... on the 23rd judgment final 2254(d)(1)-(2). Moreover, § 28 U.S.C. March, at 3778. day of 2000.” J.A. That are findings of fact made a state court both the denial of the judgment included and can be contra presumed correct 60(b)(1) grant- Rule motion and State’s can petitioner habeas vened where the on his Brumley’s petition habeas ing of convincing evidence show clear aggra- complicity to commit conviction findings were er the state court’s factual Thus, murder. we read State’s vated 2254(e)(1). § This roneous. 28 U.S.C. to include the appeal broadly notice of applies also presumption of correctness judgment final on the mer- district court’s findings of a state the factual petition. its of habeas appellate record. court based on the state Err in B. The District Did Not Court Mata, 539, 546-47, 101 Sumner Brumley Granting Relief. Habeas (1981). 764, L.Ed.2d 722 Videotaped 1. The Admission of the recently Court has Finding Deposition, Without 2254(d)(1) distinguish § be interpreted in the Was Unavailable “contrary to” and that are tween decisions Sense, Was Con- Constitutional trary Clearly applica Established Su- an “unreasonable those that are preme Precedent. precedent. clearly established *9 tion of’
(a) 405, 362, of Review 120 Taylor, Standard v. 529 U.S. Williams (2000). A 1495, 389 146 L.Ed.2d S.Ct. legal con review de novo We to” “contrary will be in ha- court sitting court state clusions of the district decision 638 Thus, in Supreme prece analyzing Court defendant. this issue
clearly established
court
a set
magistrate judge applied
dent where “the state
confronts
the “unrea-
2254(d)
materially indistinguish
§
of facts that are
application” prong
sonable
be-
decision ...
[Supreme Court]
able from a
Supreme
never ad-
cause the
Court had
arrives at a result differ
and nevertheless
specific
presented by
dressed the
facts
[Supreme
precedent.”
ent from
Id.
Court]
at
petition.
habeas
JA.
406,
1495. A
court
120 S.Ct.
state
Prelesnik,
747,
(citing
v.
Tucker
181 F.3d
“contrary to”
decision is also
established
(6th Cir.1999)).
recent refine-
Given
Supreme
precedent
Court
where the state
law,4however,
ments in habeas
this case is
a rule that
“applies
court
contradicts
analyzed
appropriately
under
the “con-
prece
law set forth” in those
governing
2254(d).
§
trary
prong
to”
Under
405,
dents.
Id. at
1495. A state
S.Ct.
Williams,
state-court decision will cer-
“[a]
applica
court decision is an “unreasonable
...
tainly
contrary
clearly
estab-
Supreme
precedent
tion of’
Court
when
precedent
lished
if the
applies
state court
a
correctly
gov
the state court
identifies the
governing
rule that contradicts the
law set
erning legal principle
unreasonably ap
but
in [Supreme
forth
cases.” 529 U.S.
Court]
plies it to
petitioner’s
the facts of the
case.
405,
example pro-
639
tion, the
Amendment establishes
correct rule to the
Sixth
application
the
case,
ap-
rule
In the
necessity.
the
a rule of
usual
present
In the
facts.
govern-
prior
courts contradicted
where
by
(including
state
case
cases
plied
estab-
occurred),
law as
Clause
ing Confrontation
cross-examination has
the
Supreme
the
in the decisions of
lished
produce,
must either
or
Court,
of
leading
the
case Ohio
especially
of,
unavailability
demonstrate
2531,
Roberts,
56, 100
448 U.S.
declarant whose statement
wishes
(1980). The state trial court
L.Ed.2d
the defendant.
against
to use
without
videotaped deposition
admitted the
aspect operates
The second
once a
determining
deponent
first
be unavailable. Re-
witness is shown to
sense,
constitutional
as
unavailable
flecting
underlying purpose
aug-
of
by Roberts. The state court
required
accuracy
factfinding process
ment
in the
further, determining to
went even
appeals
by
the defendant an effective
ensuring
showing
that a
of una-
its own satisfaction
evidence,
means
test adverse
unnecessary because of the
vailability is
only hearsay
countenances
Clause
reliability
of
testimo-
inherent
marked with
trustworthiness that
such
that the state
court concludes
ny: “[T]his
departure
there
material
from the
is no
the ‘una-
required
not
to demonstrate
is
general
reason of the
rule.
witness,
term was
vailability’ of the
as that
Supreme
the United States
defined
(citations,
marks,
quotation
internal
Id.
at 547. In other
Roberts.” J.A.
Court
omitted). As Roberts makes
and footnote
words,
difficulty with the state courts’
clear,
requires
the Confrontation Clause
application
not with their
of
decisions is
reliability
that the trial court consider
Roberts,
apply
their refusal to
but rather
hearsay
evidence
after
proffered
of
Williams, 529
Roberts at all.
U.S.
Cf.
hearsay
that the
declar-
having established
407,
120 S.Ct.
testify in person.5
ant
is unavailable to
Roberts,
that there are
Although
suggests
Roberts
Supreme
Court
rule,
id. at n.
“general approach,”
exceptions
general
to this
see
two-part
established a
(“A
65,
2531,
unavailability
of
100 S.Ct.
demonstration
U.S.
(citing
Dutton v.
always required.”)
limitations that
Confrontation
Evans,
admissibility
hearsay
imposes on
91 S.Ct.
(1970)
a criminal defendant:
(plurality opinion)),
L.Ed.2d
have
First,
Supreme
precedents
other
with the Fram-
conformance
prior testimony,
clearly established that
preference for face-to-face accusa-
ers’
aspect,
analysis
of confrontation
that we
first to
“believe[s]”
"err[ ]
5. The dissent
Supreme
dispositive by the
Court of
deemed
compartmentalization of the 'una-
strict
[our]
prior
Isaacs'
testimo-
Ohio ... whether Anita
vailability'
'reliability' prongs of the two-
ny
'indicia of reliabili-
... bore sufficient
(Dissent, post
part
set forth in Roberts."
test
Thus,
”).
ty.'
Supreme
Court's order of
us, however,
672.) It is unclear to
how one
interpreted
presentation
cannot be
in Roberts
requir-
quoted passage as not
could read the
any way,
rule
modifying, in
the clear
estab-
turning
showing
unavailability
ing a
before
requires
which
that the
lished in that
reliability. The dissent is cor-
to the issue of
unavailability
showing
re-
State malte
noting
ad-
the Roberts Court
rect
pri-
reliability
proffered
gardless
first,
"reliability”
at 67-
see 448 U.S.
dressed
policy
testimony.
"a
If this rule embodies
did
because the
but it
so
testimony is better than
judgment” that live
decision
Ohio
Court had based its
complains
testimony,
prior
as the dissent
658),
reliability
(Dissent,
judgment
at issue.
post
policy
("We
Supreme Court in Roberts.
was made
case,
§
into evidence in a
may be admitted
2945.50 had been satisfied.
Rev.Code
with the Confrontation
manner consistent
But
R.
requirements
Ohio Crim.
showing
only upon
15(F)
Clause
unavailabilit
§
2945.50 are not identical to
Stubbs,
204,
y.6
Mancusi v.
408 U.S.
See
requirements
the constitutional
established
2308,
Tony Kirklin was available to tes
tify
ciently
satisfy
at least
reliable to
the Confrontation
under the
Clause, despite
unavailability:
rule
in Barber.
Ari
the witness’s
established
Ohio and
[reliability] operates
aspect
zona
enacted the
Act to
“The second
have both
Uniform
a
shown to be unavail
the Attendance of Witnesses from once witness is
Secure
Roberts,
able.”
Proceedings,
a
in Criminal
U.S.
Without
State
added).
cases,
dispense
being
prisoner
with
(emphasis
To
used
mak-
part
personal
the first
of Roberts without first
lieu of
examination and cross-
witness, in
contrary
examination of the
which the
ing such
determination
clearly
prece-
opportunity,
accused has an
established
Moreover,
holding
testing
sifting
dent.
such a
the recollection and
witness,
completely
require-
compel-
eliminate Barber’s
conscience of the
but of
good-faith
him
face
with
prosecutors
ling
ment that
make
ef-
to stand
to face
him,
jury
they may
obtain the
of out-of-state
in order that
presence
forts to
look
*13
judge by
upon
and
his demeanor
witnesses.
and the manner in
he gives
stand
which
appellate
placed great
The state
court
worthy
testimony
whether he is
emphasis
videotaped
on the fact that the
belief.
in
deposition
present
at issue
case had
States,
prepared specifically
been
use
Mattox v. United
(1895).
Brumley’s
Tony’s
trial as a substitute for
Thus, knowing preparation aof then, persuaded present we are that the videotaped deposition as a substitute for appropriately analyzed case is under the testimony the trial constitutionally 2254(d). “contrary § to” prong of 28 U.S.C. available witness is inconsistent with the however, argument, At oral Clause, values of the despite Confrontation counsel, apparently relying on the district reliability. reduced concerns with This analysis court’s under the “unreasonable is supported by view Court’s 2254(d), application” prong §of conceded summary purposes of the of the Confron- that the state courts’ decisions this case tation Clause: contrary were not to established Supreme object primary
The
precedent.
constitu- Court
Because of this conces
provision
question
tional
pre-
argument,
was to
sion at oral
we are reluctant to
affidavits,
depositions
parte
vent
or ex
simply
hold
that the state courts’ decisions
such as were sometimes
in civil
contrary
clearly
admitted
were
established Su-
emotional well-
Thus,
necessity”
based on the
we hold
precedent.
preme
that,
id. at
being
under
of the child witnesses. See
analyzed
alternative
2254(a),
3157;
853,110
courts’
id. at
§
the state
see also
prong
other
(“We
videotaped tes-
Kirklin’s
...
...
that a
conclude
admission
S.Ct. 3157
application of
an unreasonable
timony
physical
psycho-
in the
State’s interest
prece-
Supreme Court
clearly established
child abuse victims
logical well-being of
dent.7
outweigh,
sufficiently important to
may be
cases,
a defendant’s
at least
some
Roberts established
supra,
As discussed
court.”).
her
to face his or
accusers
analyzing the con-
approach for
general
excep-
that this
Craig clearly contemplated
defendants,
rights of criminal
frontation
be limited to
general
rule would
tion
case
present
in the
courts
state
“where denial of
con-
only those cases
for de-
weighty enough reason
lacked a
necessary to further an im-
frontation is
general approach.
from
parting
... where the
portant public policy and
distinguish the Roberts
now seeks to
State
otherwise
present
reliability
by analogizing
eases
line of
*14
(em-
836,
850,
Craig,
v.
Id. at
it was also unreasonable.. Videotaped 2. The of Admission the short, we apply Craig narrowly must Deposition Was Not Harmless Er-
for the same
apply
reason we must
Rob-
ror.
broadly i.e.,
erts
in order
to respect
—
(a) Standard of Review
central concern of the Confrontation
“[t]he
Clause,” which the Supreme Court has
only appropri
Habeas relief is
“ensur[ing]
identified as
the reliability of ate when the admission of constitutionally
the
evidence
criminal defendant
inadmissible evidence was not
er
harmless
by subjecting
rigorous
it to
testing
the
ror. To conclude that the admission was
harmless,
adversary
context of an
proceeding
not
we must determine that the
before
845,
Craig,
the trier
497 U.S. at
state-court error had a substantial and
of fact.”
added).
(emphasis
645 to commit Brigano, ley guilty complicity aggra- 199 of jury’s Hill v. verdict. (6th Thus, Cir.1999), 833, cert. de vated murder. the admission of that F.3d 846-47 1134, 2015, nied, 146 testimony injurious 529 120 S.Ct. had substantial and U.S. Mitchell, 964; v. 179 F.3d jury’s L.Ed.2d impact Gilliam on the verdict. (6th Cir.1999), denied, cert. appeal The State on argues L.Ed.2d U.S. court the Brecht misapplied district (2000) analysis of (applying harmless-error Instead applying standard. of Brecht Abrahamson, 619, 638,
Brecht impact standard to the of the admission of (1993)). 123 L.Ed.2d deposition, the State first argues that we should determine whether
(b) Analysis presentation of the evidence video judge’s magistrate report Adopting testimony tape, Tony instead of live of recommendation, the district court Kirklin, impact: had a substantial “Simply video- concluded that admission stated, it must be how the determined error, deposition was not harmless taped testimony of Kirklin would have Anthony regard Brumley’s complici- at least with impacted jury pre verdict had been aggravated to commit murder convic- ty in-court to on opposed sented live as video The concluded that magistrate judge tion. tape.” Appellant’s Br. at 23. The State evidence, without there was sufficient argues can demonstrate lit “Brumley Brumley videotaped deposition, to convict injurious presen tle or no effect from testimony kidnaping because the opposed tation to live videotape Davis set forth the elements of adequately “In testimony.” Id. continues: State However, the charge. mag- kidnaping words, if Kirklin un Anthony other “[wjithout judge istrate concluded available, videotape testimony, Kirklin’s a reasonable violated the Confrontation have jury Brumley complici- could not convict available, Anthony Clause. If Kirklin was ty aggravated to commit murder.” J.A. at cannot how his testi Brumley demonstrate This conclusion was based on the *16 mony have from that con would differed following considerations: Id. at 24. videotape.” tained on the Tony only Kirklin was witness to the Brumley that come forward observed argument is specious This undermined Becky the used give weapon to murder by juris- this court’s harmless-error both Knapp Delmar Kirklin. He was also well as own In prudence by logic. Brumley the witness heard [who] position the that logic, terms of State’s direct Delmar Kirklin to “waste her.” into the admission evidence the video- no testimony, this crucial evi- Without testimony of constitution- taped deposition which have shown dence existed always be ally witnesses will available aided or Brumley that solicited or abet- in cases where harmless error—at least Kirklin It ted Delmar in the murder. counsel cross-examined defense has all appears that other evidence defendant/petition- deponent—because the merely at the scene of places Brumley to show that he was er will never able which is not crime. murder itself of the constitu- by harmed the admission posi- The State’s tionally infirm evidence. short, without J.A. 3687-88. importance of ignores tion completely testimony videotaped admission of live, recognized by the Kirklin, testimony in-court court concluded Tony district 1895 in Mat- since at least jury could not have found Brum- that Mattox, tox. See 156 U.S. at Tony hold that We Kirklin’s videotaped S.Ct. 337. testimony injurious had a substantial and effect or influence in determining the
In terms of court’s harmless-error jury’s verdict. testimony The of Davis and jurisprudence, the proper standard Sanders is limited. testify Davis did not gauge injurious which to impact of the Brumley he heard tell Delmar Kirklin infirm constitutionally admission of evi- Becky to “waste” Knapp, testify nor did he dence is to consider the evidence before jury Brumley absent handed constitutionally infirm Delmar the revolver Gilliam, evidence. purpose. See 179 F.3d at for that away, Because he ran (holding taped admission of confession of itself, Davis did not witness the shooting invoking witness Fifth privi- Amendment Tony. as did Sanders’s testimony is rather lege to be harmless error on the basis of (at most) incoherent and establishes trial); the other evidence admitted at Brumley said that Kirklin shot Knapp. Sowders, (6th Stoner v. 997 F.2d None of the other witnesses called at trial Cir.1993) (rejecting argument that the ad- testified to handing of the re- mission of the testimony of Delmar, volver to to Brumley’s statement key available was witnesses harmless error to Delmar to Knapp, “waste” or to the record). by examining the rest of the trial shooting itself. This is not a case where the substance of the challenged testimony argues State thus in the al already jury before the from other ternative that the evidence on the record Hill, sources. See 199 F.3d at In- supports Brumley’s conviction for complici stead, this is a case in deposi- which “the ty to aggravated commit murder even key piece ] [was] the of evidence.” Tony without tion Kirklin’s videotaped deposi Stoner, 997 F.2d at 213. Kirklin was tion. points The State clearly the principal State’s witness. As a Davis and Sanders support this argu result, Davis, there can be “no doubt that ment. occupant of the Grand guilty verdict on that murder, Prix on count was day substan- testified to the, tially facts of the influenced incident until admission of produc [the videotaped] tion of the weapon testimony.” murder Id. by Brumley, at 213-14. including Brumley’s statement
victim had seen the Grand Prix’s license C. The District Court Did Not Abuse plates. After Brumley produced the re Denying Its Discretion the State’s volver, however, Davis testified that he Post-Judgment Motion for Relief. started running toward home and thus did *17 not anything see else. As he running, was We review a district court’s de 60(b) Davis heard two shots fired. nial of a Sanders tes Rule motion under the tified to Brumley’s incriminating state abuse of discretion standard. See Futer ments in prison but not was a witness to Sumpter nick v. Township, 207 F.3d (6th of the relevant Cir.2000). events.11 Applying this stan- 11. Of the five men in Delmar's Grand Brumley Prix on case. testify did not on his own day the the Knapp Brumley, murder of guilt phase. behalf in the Marshall testified — Kirklin, Kirklin, Davis, Tony Delmar during Kevin mitigation phase. the His Marty and Tony Davis and many respects differs in from that of Marshall— (by videotaped deposition) Kirklin testified Specifically, Kirklin. Marshall testified that during guilt phase the Brumley’s revolver, Brumley trial. The never handled the never planned defense calling on pointed Delmar at one the Knapp, revolver at and never told point in the trial but instead put did not on a Delmar to “waste” her. J.A. at 2350. error. then it was harmless rights, tion denial court’s dard, the district affirm we rejected this conclu- judge magistrate under Rule The for relief motion of the State’s 60(b)(1) sion, 60(b)(1). “[o]n well. states as Rule just, as are terms and such upon motion these is- reconsidered district The court ... from a party relieve may the court objections filed its the State sues after order, for proceeding judgment, final report and recom- judge’s magistrate the inadvertence, or ex mistake, surprise, magis- the again adopted mendation 60(b)(1). Fed.R.Civ.P. neglect.” cusable Thus, we judge’s trate recommendations. its discre did not abuse court The district not abuse court did that the district hold for re motion denying State’s tion motion denying State’s its discretion in that a dis held previously lief. We have 60(b)(1). The district Rule for relief under discretion abuse its not court does trict the merits already considered court had to a relief post-judgment it denies when them; rejected arguments the State’s argu raising the same issues party objec- file opportunity to given when an rejected by as those post-judgment ments any reasons tions, failed to offer the State (final) judg prior in its court the district its order court to revisit the district for Futernick, F.3d at 313. ment. See relief. granting habeas did case the State present Similarly, objections any arguments not offer III. CONCLUSION recom report and judge’s magistrate judge magistrate mendation that above, AF- we —and stated For the reasons court, adopting the thus the district of ha- granting court’s the district FIRM judge’s recommendation-had magistrate for Brumley on his conviction beas relief already rejected. murder. aggravated to commit complicity Moreover, court’s objections to we AFFIRM district three raises The State post-judg- and recommen- motion judge’s report of the State’s denial magistrate First, argues the State ment relief. dation. deposition tes-
admission ROSEN, dissenting. confron- Judge, did not violate District timony given Brumley rights tation because depo- INTRODUCTION to cross-examine I. opportunity judge’s report magistrate But
nent. ex- us to upon action calls This habeas on correctly focused and recommendation technology of modern the impact amine rejecting unavailability, thus the issue which constitutional values upon the core reliability of emphasis the State’s Confron- Amendment’s the Sixth underlie Second, argues the State testimony. Clause, role proper as the well tation as videotaped deposition, use of a that the state court reviewing federal courts serves deposition, to a transcribed opposed values. interpret these decisions which per- better values Confrontation issues, of these importance Because of the demean- jurors to evaluate mitting the virtual- disagree firmly I with and because judge magistrate deponent. or of analysis majority’s *18 of the every element ly “Video- rejected argument: this clearly matters, length to I at some write of these disadvan- clearly has its testimony taped my dissent. respectfully register live, in-court in lieu when used tages from the this action arises Specifically, Third, testimony.” J.A. admit, over court of a state decision that, if the admission argued State Confrontation a Sixth Amendment confronta- Brumley’s deposition violated challenge, videotaped testimony of wit- decisions rendered under highly dissimi- Kirklin ness at the trial of Petition- lar facts. er/Appellee Brumley charges Willie Neither the Confrontation Clause nor complicity aggravated to commit murder Supreme precedent Court mandates this and Kirklin kidnaping. gave the chal- Rather, result. I hold that the Ohio lenged testimony shortly Brumley’s before reasonably courts construed the decisions trial, in a courtroom with the trial judge Supreme permitting Court as presiding, and for specific, fully antici- introduction of videotaped witness testimo- pated, expressly and purpose disclosed ny trial, taken the specific purpose for
presenting this testimony in in a setting, trial-like and oppor- with full lieu testimony of Kirklin’s live at the forth- tunity for cross-examination the ac- coming trial. Kirklin testified in the pres- cused. Brumley counsel, ence of and his trial as Brumley’s well as friends and relatives II. AND FACTUAL PROCEDURAL gallery, Brumley’s and counsel exten- BACKGROUND
sively cross-examined and re-cross-exam- ined the witness. This testimony then was Although the majority opinion sets fully presented jury a short time forth pertinent most of the background of later in very same courtroom. To this this I wish to highlight few'impor- a day, Brumley has offered neither evidence tant facts and surrounding circumstances nor argument that testimony Kirklin’s the videotaped testimony at issue cross-examination defense counsel First, appeal. while the majority consis- would have deviated in any respect what- tently to Tony refers Kirklin’s “deposition soever from the videotaped version if the testimony,” this characterization tends to prosecution had compelled been again obscure degree to which Kirklin’s tes- incur expense and administrative bur- timony given was in a fully trial-like set- den bringing Kirklin from Arizona to ting. He testified under oath in very trial, Brumley’s just Ohio for over month same courtroom in which Brumley was after costly process this same had been just tried over a month later. Brumley employed to secure presence Kirklin’s and his trial present, counsel were and trial of co-defendant. Brumley’s family and friends per- were view, In my this record establishes that mitted to remain in the gal- courtroom’s Willie Brumley fully availed himself of his lery to observe testimony. Kirklin’s Sixth Amendment right “to be confronted Moreover, the trial judge presided over him,” with the witnesses and spe- this proceeding, after first stating his re- cifically Tony Kirklin. majority con- luctance to “be involved taking deposi- otherwise, cludes reading the relevant tions,” where the prosecutor noted the Supreme precedents Court as stating an somewhat unusual “nature of these cir- inviolable requirement that a witness be cumstances” and the desire “to have as produced live at trial if at possible. all clean videotape presentation Perhaps more remarkably, majority (J.A. 51.) if the need arises.” holds that interpretation pre- of these short, place just examination took only permissible, one, cedents is the jury would have seen it live. that the Ohio courts’ different analysis of Next, constitutional right of parties, confrontation all “contrary was both alike, to” and an “unreason- defense understood that Kirklin’s able application” of these being taken preserved *19 a to those events and trial, eyewitness is an Brumley’s for use videotape on presen- the ... who is critical to requesting In witness purpose. no other and for think that case. We under Ohio tation of the proceeding State’s videotaped this testi- 15(A),1 necessary preserve stat- to his prosecutor very the Rule it is Criminal transcript, stenographic mony by way of ed: that it can be videotape so has as well as from what aware the court is As testi- motion, in lieu of his live the at trial presented in our written stated been Kirklin, There- matter, unavailable to us. Anthony mony if he’s in this witness co- us to [Brumley’s] permit the court to fore we ask is the brother who Kirklin, defendant, whose case taking deposition Delmar with proceed of, current- is already disposed been today. has incarcer- is of Arizona and
ly a resident 41-48.) (J.A. at felony matter. there on a—a ated opposed vigorously Brumley’s counsel of this appearance to obtain order principally on request, the State’s in the Delmar Kirklin witness (i) made a had not the State grounds here a few set for trial had which been 15(A) that showing under Rule sufficient necessary for it was ago, weeks attend” to Kirklin would be “unable in the to obtain order State first where particularly Arizona Court in Circuit appropriate in ob- problem “had no apparently State Anthony attendance requiring for the co-defendant’s taining presence his trial. Kirklin at this (ii) (J.A. 46-47); trial,” expense have two Second, must then State back to bringing Tony Kirklin involved out, him, bring go get sheriffs deputy cogniza- a Brumley’s trial was not for Ohio back, him then come take out and him 15(A) Kirk- taking Rule for under ble basis of five takes a total again, which back (iii) introduc- that the deposition; lin’s expense at the state’s trip round tickets testimony at Kirklin’s tion of housing for the as the related as well of con- Brumley’s right violate trial would are out there. they deputies while federal con- the state and sum, under frontation runs insignificant is not an [Thi]s to see stitutions, jury “the needs because thousands of dollars. into stand, time at the on the the witness live ], there is in this matter Third[ on, able to actually going to be is the trial will be the defendant possibility that Kirk- credibility,” and because his assess [in Arizona] institution from the released might present absence at lin’s matter will the time parole that the defense “predicament” Being a resident trial. up come further on Mr. Kirklin question unable “to beyond he would be another state have that other witnesses various issues of Ohio. the State power subpoena [of] (J.A. at 48- during the trial. to” testified charged in this matter The defendant however, 50.) court, permitted The trial murder, very serious aggravated with forward, explaining: Kirklin, go to witness, proceeding Anthony offense. This prevent a failure deposition in order provides, majority, this Rule by the 1. As noted upon shall time ... justice, part: court pertinent prose- attorney or the defense motion of prospective appears probable that a it If parties, attorney to all cuting and notice will be will be unable attend witness deposi- testimony be taken order that his hearing, attending a trial or prevented from tion. testimony is appears that and if further 15(A). Ohio Crim. R. necessary take his and that it is material *20 gentleman [Tony have this Kirk- testimony I had they at and acted in accor- jail in my jail, my up, Indeed, is for the dance lin] full with this understanding. cross-examination, last week has been over population Brumley’s course by the Federal counsel more than Judge they upon allowed and once called Kirklin felons, explain all don’t certain any are misde- matters for the have benefit of “the put my jail gentlemen meanors to out. full ladies and jury.” So (J.A. 159.) Moreover, at I and have to send back from the record [Kirklin] plainly vigorous he demonstrates the nature keep whence came. Can’t him there. cross-examination, of this during which any I don’t have room in the inn. Your Brumley’s elicited, counsel among other present, client is and there will be the concessions, damaging Kirklin’s testimony ...of direct cross-exami- possibility and (i) that he had being lied to avoid implicat- your nation of the witness with client in a ed murder and “to protect my broth- and that will be present, on vid- placed er,” Kirklin, Delmar co-defendant in his eotape .... I think require- we meet the prior testimony grand before the jury and that ment he has the to confront prior written statement to prosecu- that testify against witnesses him. (J.A.
tors, (ii) 136-37, 149-53); he had consumed a substantial of al- amount is, Obviously, the prosecu- [Kirklin] as victim, cohol time Becky Knapp, me, tor indicates to a material witness as (iii) shot; was that he was unsure who to what happened he will be out of produced the weapon murder or exactly state, institution, in an in another state. “who said what” in the leading moments beyond That of course is subpoena (J.A. (iv) up 136); to the shooting, Ohio, power of the State of although if, that “it would be nice” in exchange for there would be a possibility to return his testimony, gave him a him, if necessary.... [Brumley’s] mo- favorable recommendation for use in his deposition, tion to cancel the will be (J.A. upcoming parole Arizona, hearing I think denied. the rules provide for it. 163-64). way There is no your client can be Finally, and perhaps most importantly prejudiced taking deposition. As in the context of a Confrontation Clause fact, a matter of it might be a benefit to challenge, there is not suggestion even a in taking him the deposition. Absolutely material changes record in the we you then will know and will have a case between the date of Kirklin’s video- copy of ... exactly what this witness taped testimony on April 1989 and the courtroom, has said in the say and would commencement of trial a few if he’s called as a witness. later, 6,1989. weeks on June Although, as (J.A. 49-50.)2 earlier, noted Brumley’s counsel expressly Thus, parties as the concluded their ar- cited this possibility of intervening circum- guments on April proceeded stances aas basis for opposing Kirklin’s testimony, take Kirklin’s Brumley and videotaped testimony, such fully his counsel were change aware he was able to identify at the time videotaped proceeding might well pre- of trial amendment to the indict- (See sented to jury in lieu 1668.) of Kirklin’s live Yet, ment. J.A. at instructed, however, 2. The court also side advantage could use this material to its record of Kirklin's pend- be sealed preparing for trial. court, ing further order of the so that neither *21 itself, that out, provides “[i]n which tion Clause pointed immediately that this the accused shall prosecutions, had ruled all criminal previously trial court alter the any way ... with did not to be confronted enjoy right amendment (See id. at Const., indictment. of the substance him.” U.S. against the witnesses 1672.) the prosecution Consequently, face, language this could amend. VI. On observed, same amendment this Yet, and direct. as is hardly be more clear of the at the even close proper have been lan- straightforward this often the and, thus, tes- after Kirklin’s State’s case— myriad views as produced has guage (See live at trial. if offered timony even right of the of confronta- “true essence” id.) Brumley’s counsel did Notably, tion. position to rebut State’s attempt than the lead- need look no further One the amended ways in which identifying any on the decisions sub- ing Supreme Court cross- have altered his might indictment state, example, variously for ject, which Kirklin. of examination to ‘confront’ the wit- right that the “literal this, suggestion there is no from Apart trial ... forms the core ness at the time of any intervening of before us in the record by the furthered Confronta- of values given have rise to might that developments Green, Clause,” v. tion California to re-call or re-cross-examine a desire 1930, 90 S.Ct. explore Kirklin at trial order Tony (1970); primary or that “[t]he L.Ed.2d 489 his testi- those addressed in beyond issues provision object of the constitutional earlier. Even with mony a few weeks ex depositions question prevent was to or and a hindsight complete of benefit being used affidavits parte record, appeal is con- Brumley’s brief on examination personal in lieu of a prisoner of lacking any sort claim spicuously witness,” of the and cross-examination opportunity a full and fair he was denied States, 237, 242, any of the v. U.S. Kirklin Mattox United to cross-examine (1895); 337, 339, or this witness testified. L.Ed. 409 upon which matters 15 S.Ct. conclude, short, record must on the In we concern of Confron- central “[t]he us, testimony at Kirklin’s live reliability before tation is to ensure Clause any re- not have deviated in trial would defendant against a criminal the evidence testimony given videotaped spect from rigorous testing in it to by subjecting earlier. a short time adversary before proceeding of an context fact,” say so that “we cannot the trier of
III. ANALYSIS is an indis- confrontation that [face-to-face] Amend- Language and of the Sixth pensable Plain Historical element A. The Background Amend- of the Sixth to confront guarantee of ment’s Sup- accusers,” Craig, Maryland ment’s Confrontation one’s Decision to port Court’s 836, 845, 849-50, State U.S. Testimony Videotaped (1990).
Admit
3166,
lowed-!,
cross-examining procedure
e. a
—in
might
have harmonized
testimony
required
the case of such
as is
these textual and historical sources is
ordinary
law
Evidence to be
Consider,
Evans,
quickly
example,
dashed.
given infra-judicially.” Dutton v.
74, 94,
210, 222,
400 U.S.
91 S.Ct.
27
in
the Court’s statement
Green that
(1970) (Harlan, J., concurring
L.Ed.2d 213
right
“literal
to ‘confront’ the witness at
result) (quoting Wigmore,
in
5 J.
Evidence
the time of trial ...
forms the core of the
(3d ed.1940)).
1397,
§
at 131
Justice Har
values furthered
the Confrontation
lan then stated:
Green,
157,
Clause.”
v.
that the Confrontation
have never doubted
that the Confron-
designed
pref-
to establish a
guarantees the
a
tation Clause
defendant
rule, requiring
prosecutor
erential
to
meeting
ap-
face-to-face
with witnesses
hearsay
avoid the use of
where it is
pearing
Coy
the trier of fact.”
v.
before
him
reasonably possible for
to do so—in
Iowa,
1012, 1016,
487 U.S.
108 S.Ct.
words,
other
to produce available wit-
(1988).
Coy,
101 L.Ed.2d
there-
Further
nesses.
consideration
fore,
procedure
invalidated a
which
light
squarely presenting
of facts
screen was erected at trial between the
issue,
not,
as Green did
has led me to
criminal defendant and two child witnesses
happy
conclude that this is not a
intent
him
sexually assaulting
who accused
to be attributed
Framers absent
The
that “there is
them.
Court reasoned
linguistic or historical
compelling
evi-
in human nature that re-
something deep
pointing
dence
that direction.
It is
gards face-to-face confrontation between
ground
common
that the historical un-
and accuser as essential to a fair
accused
derstanding of the clause furnishes no
adjudication.
guide
prosecution.”
solid
trial in a criminal
(internal
quota-
subject,
at 2801
recent
Court’s most
case on the
omitted).
Lilly
Virginia,
see
v.
citations
U.S.
tions and
(1999)
1887, 1894,
with citations noted, the Supreme spoken Court has of a defendant’s to a “face-to-face meet Returning present it is im- ing with appearing witnesses before the mediately present evident that it does not fact,” Coy, trier of anything remotely 487 U.S. at resembling “para- S.Ct. at and has stated that digmatic evil” of trial affidavit that the opportu Confrontation Clause ensures the pre- Confrontation Clause was intended to nity compelling “of to stand Brumley subjected [an accuser] vent. Willie was not accusers, Mattox, jury,” face to face with the *26 by anonymous trial nor he was Here, U.S. at at upon called to to S.Ct. the paHe answer ex state- Brumley confrontation between and ac gathered by ments his prosecution the outside cuser did not occur “live” in of the presence. contrary, his To front the he was in jury, place but took the courtroom a few afforded a full and fair opportunity to trial, preserved weeks before and was against cross-examine the sworn witness him, Kirklin, videotape subsequent presentation for to under conditions that jury in the that same courtroom. forthcoming matched those of his with the judge presiding trial and his significance of this greatly fact is friends and in present relatives the court- diminished, however, when it is recalled room. why the courts and commentators believe
Moreover,
did not look it important
that a confrontation should
to some
proceeding arising
other
in a occur in front
In
of the trier of fact.
context,
Mattox,
wholly different
prelimi-
such as a
for
example,
Court envisioned
nary hearing,
personal
to obtain the evidence it
“a
examination and cross-exami-
witness,
against Brumley
offered
at trial. To the
nation of the
in which the accused
a condition.
testing
appar-
be served
such
One
not
opportunity,
has an
advantage
the conscience of
ent
of confrontation
trial is
sifting
recollection
witness,
opportu-
him to stand
that the trier of fact then has an
compelling
but of
discussed,
nity
just
order that
to witness it. As
how-
jury
face with the
in
face to
him,
ever,
preserved
was
judge by
opportunity
his
this
they may look
through
videotaping
and the manner
this case
of Kirk-
upon the stand
demeanor
testimony
testimony.
whether
lin’s
gives
he
his
in which
Mattox,
worthy
he is
of belief.”
addition,
pointed
In
and as
out Brum-
added).
(emphasis
at 339
ley’s
opposing
videotaping
counsel
Similarly,
Wigmore’s
opines
Dean
treatise
prosecution,
it
procedure sought by
is
element,
“secondary and dis-
albeit
that new developments
conceivable
be-
of confrontation is
pensable,”
testimony
tween the time of the witness’s
presence
“the
ability
compel
to
might
and the time of trial
undermine or
so that his
witness before the tribunal
confrontation,
give
the initial
weaken
may furnish
testifying
while
demeanor
to a desire to “re-confront” the wit-
rise
as can be
credibility
evidence of his
such
example,
might
For
another witness
ness.
Henry Wig-
therefrom.” 5 John
gathered
might
new evidence
change
story,
(Chadbourn
more,
§
Evidence
at 199
upon
previously
uncovered
bears
rev.1974).
Yet,
testimony.
might
while this
taken
legitimate
concern under a differ-
assuming that
the Confrontation well be
Even
circumstances, there is
opportunity
this
ent set of facts and
encompasses
Clause
sug-
us that
actually gaze
nothing
the record before
the trier of fact to
upon
accused,
any
develop-
there were
such new
gests
he confronts the
accuser as
coun-
in ments
this case. While
certainly
opportunity
had such an
jury
raised this
technology
expressly
of vid-
sel was aware of and
Through
case.
testified,
Kirklin
the record
jury
directly
able to
wit-
concern before
eotape, the
tellingly
any
changes
devoid of
material
Tony Kirklin’s demeanor
ness and assess
the date of this
Brumley, and
circumstances between
as he testified
Willie
trial, just
over a
determining
testimony
and the time
to use this information
Moreover, even with the
testimony. month later.
weight
give
to Kirklin’s
hindsight
complete
and a
benefit of
Plainly,
language
Confrontation
transcript, Brumley
pointed
has not
compel
itself does not
a distinction
gave
developments at or before trial
videotaped confronta-
between live and
need,
desire,
indeed,
noted,
to recall
tions;
rise to a
or even
the Clause does
Kirklin for further cross-examination.
require
jury
that the
witness
expressly
short,
all,
there is no reason
believe
hap-
whether as
the confrontation
at trial would have
Kirklin’s live
otherwise.
pens or
*27
videotaped
the
any way
in
from
deviated
Second,
to con-
Brumley’s opportunity
jury.
presented
version that was
fell short of the
arguably
front Kirklin
sig-
I
constitutional
Accordingly,
find no
it did not occur “at the
“ideal” because
in
trial,”
respects
in
two
which
for in nificance
the
seemingly
time
as
called
of
See,
Kirklin
Brumley’s opportunity 'to confront
rulings.
e.g.,
Supreme
certain
Court
imagined
Green,
have differed from some
might
To be
one could
testimony
live
at trial did not result
sociologi-
judgment, presumably based
right
denial of the core constitutional
cal evidence that is nowhere
the record
or,
us,
before
live
is so far
confrontation
so far as the record re-
suggests
might
3.
evidence
The available anecdotal
about which mode of communication
simply
speaker
truth-seeking
better
that it
to view a
serve
function of a
different
worth, daresay
trial. For what it is
I
that the
videotape,
live versus on
and
one form
average juror
good
experi-
has a
deal more
viewing
readily
cannot
be characterized as
assessing
ence in
the demeanor and credibili-
The
"better” than the other.
first Kenne-
ty
people
on television than of individuals
dy/Nixon
during
presidential
debate
the 1960
on the witness stand in courtroom.
campaign provides a well-known illustration
phenomenon.
widespread
of this
The
consen-
Notably,
logic
under the same
that would
Kennedy
sus that
won this contest owes much
construe the Confrontation Clause as forbid-
images projected by
more
to the visual
ding
videotaped testimony,
the use
court
two candidates on television than to what
just
readily
could
conclude that micro-
actually
during
was said
the debate. See
phones
speakers
should
allowed in
White,
Making
Theodore H.
Presi-
courtroom,
they
because
distort to some
(1961).
dent
"It was the
288-90
degree
unamplified speaking
voices
it,”
picture image that had done
with Nixon
witnesses,
thereby
"pure”
diminish
slouched, unshaven,
appearing
haggard
jury’s opportu-
of confrontation and the
*28
after a recent
at 289-90.
illness. Id.
nity to assess demeanor —at
least as com-
of,
acknowledged
pared
presumably,
This
distinction between live
to the
18th
"ideal”
however,
images,
Century
technology.
and televised
tells us little
courtroom without such
of,
veals,
application
clearly
I
able
established
purposes,
of its
undermine
law,
by
the admission of the video-
would hold that
Federal
as determined
the Su
Kirklin at Willie
Tony
of
taped
preme Court of the United States.” 28
Brumley’s
not violate
Brumley’s trial did
2254(d)(1);
§
U.S.C.
see also Williams
Clause.
rights under the Confrontation
362, 120
Taylor, 529 U.S.
1518-
(2000)
(construing
constitutional
assumes,
majority simply
here. The
without dis-
presented
ent set of circumstances
cussion,
present
that the
case is controlled
underlying
majority
the
premise
The
by the Roberts “out-of-court” line of deci-
In Ohio v. Rob-
opinion
simply
stated.
moment,
proceed
the
I
will
sions. For
too
2531,
erts,
56, 100 S.Ct.
65
assumption, although
under
I will re-
(1980),
Supreme
the
Court
L.Ed.2d 597
(and
it
question)
turn to
later.
transcript
written
of a witness’s
held that a
Roberts,
hearing
presented
the facts
testimony
preliminary
at a
Under
against
into
at a sub- where the evidence offered
the
properly admitted
evidence
a
transcript
where the witness
accused was the
of witness’s
sequent criminal
hearing testimony,
at
the Court
testify
preliminary
was not available to
question
prosecution
pro-
trial and defense counsel was able to
held that “the
must either
duce,
of,
prelimi-
unavailability
at the
or demonstrate the
cross-examine this witness
set
the declarant whose statement it wishes to
nary hearing.
ruling,
In so
Court
Roberts,
two-part
test for the admission of use
defendant.”
448
forth
hearsay
over a defendant’s Con- U.S. at
661 examining: condition to the admission of out-of-court “the pro- constitutional Evans, declarations, it Dutton v. cites priety in of the introduction evidence of supra, as a case where “the Court found preliminary hearing testimony of a utility of trial confrontation so remote produced witness not at the defendant’s require prosecution that it did not to subsequent state criminal trial.” produce seemingly available witness.” The Confrontation analysis Roberts, at 65 n. 100 at S.Ct. Roberts focuses on those that factors cases, moreover, n. In other play come into when prosecution dispensed Court has with the element of seeks to admit testimony prior from a in unavailability prerequisite as a judicial proceeding place of live testi- See, troduction of out-of-court statements. mony at trial. In particular, the Roberts White, 353-57, 112 e.g., 502 U.S. at S.Ct. at Court requirement, examined the found 741-43; Inadi, 392-400, at U.S. in a long line of Confrontation Clause at S.Ct. 1124-28. involving prior testimony, cases that be- Thus, specifically when called upon fore such statements can be admitted clarify Inadi to the unavaila- scope government must demonstrate that bility requirement, emphatically the Court the declarant is unavailable. All of the rejected a proposed reading of Roberts as cases cited in Roberts for this “unavaila- holding that “no out-of-court statement [is] bility rule” concern In prior testimony. showing admissible without a of unavaila- particular, Court focused two bility.” 475 U.S. at Inadi ... directly “explored cases that explained: 1124. The Court unavailability.” issue of constitutional Roberts ... does not stand for such a specifically Both cases limited una- evidence, wholesale revision of the law of vailability requirement prior testimo- support nor does it such a broad inter- ny. pretation of the Confrontation Clause. consistently Roberts must be read
Roberts itself disclaimed
intention of
answered,
with
question
the au-
proposing
general
many
answer to the
cited,
thority it
and its own facts. All of
difficult questions arising out of the rela-
simply
these indicate that Roberts
reaf-
tionship between the Confrontation
longstanding
ap-
firmed a
rule ...
that
hearsay.
Clause and
“The Court has
plies unavailability analysis
prior
tes-
sought
theory
not
out a
‘map
timony.
fairly
Roberts cannot
be read
Confrontation Clause that would deter-
to stand for the radical
proposition
...
validity
hearsay
mine the
of all
“ex-
’”
no out-of-court statement can be intro-
ceptions.”
The Court
Roberts re-
government
mained
duced
without a
“[c]onvinced
‘no rule will
”
perfectly
possible problems’
showing
resolve all
the declarant
is unavail-
rejected
the “invitation to overrule a
able.
near-century
jurisprudence”
in order
Inadi,
U.S.
addition,
to create such a rule.
In
(citations
omitted).
1124-25
and footnotes
specifically
Court
noted that a “demon-
Accordingly,
determining
whether the
unavailability
stration of
is not al-
present
in the
case was com-
ways required.”
light
of these limit-
pelled
unavailability
to demonstrate the
statements,
ing
not
Roberts should
introducing
Kirklin before
his video-
read
questions
abstract answer to
taped testimony
presented
but rather as
Willie
a resolution of the issue the
said it
is whether
dispositive question
state,
prosecuting
the reach of the
beyond
testi
“prior
counts as
evidence
proffered
Stubbs, 408
208-
The ma
Mancusi v.
U.S.
precedents.
these
see
mony” under
*31
2308, 2311-13,
concludes,
12,
of
L.Ed.2d 293
with no discussion
33
jority so
92 S.Ct.
And,
course,
Mattox,
Kirklin
(1972),
died,
156
at
matter.
of
had
see
U.S.
trial, in a
testimony “prior”
338,
gave
240,
by
time of the
15
at
S.Ct.
Further,
if we
temporal sense.
purely
retrial.
defendant’s
under the rules of
deciding this case
were
context, it is clear that
in this
Viewed
hearsay,
might
law of
we
or the
evidence
unavailability has been
requirement of
of the
conclude that
the admission
well
of “necessi-
in these cases as a rule
applied
analyzed under the
videotape should be
relies
ty,”
to ensure that
the rule
testimony”
exception
“former
the “bet-
only
“inferior” evidence
where
with its attendant
re
against hearsay,
reasonably
is not
ter” form of evidence
unavailability.
Fed.
of
See
quirement
obtainable,
only
“right
where the
of
804(b)(1).
R.Evid.
[during
initially afforded
cross-examination
However,
examining
upon
testimony] provides
prior
the witness’s
involving “prior testimo-
precedents
purposes
compliance
substantial
with
by
many
I
the fact that
of
ny,”
am struck
requirement.”
the confrontation
behind
proposed
use at
these cases involved
Barber,
722,
at
at 1320.
390 U.S.
88 S.Ct.
wholly
made in a
prior
trial of a
statement
Thus,
enumerating the
ob-
upon
various
different,
In particular,
non-trial context.
Clause,
jects
served
the Confrontation
cases addressed the ad-
several
these
explained:
the Mattox Court then
testimony
prelimi-
at a
missibility
given
saying
There is doubtless reason for
Roberts,
58,
at
nary hearing. See
448 U.S.
that the accused should never lose the
Green,
2535;
100
at
399
S.Ct.
California
safeguards
benefit of
of these
even
1938-40;
165-67,
Ber-
U.S. at
90 S.Ct.
that,
witness;
if
by the death of
314,
California,
89 S.Ct.
ger v.
393 U.S.
permitted to
notes of his
are
540,
(1969);
21
Barber v.
L.Ed.2d 508
read,
advantage
deprived
be
he is
719, 720,
Page, 390 U.S.
88 S.Ct.
of the witness
personal presence
of that
(1968);
1319,
The substance of the constitutional
en under oath while standing before the
protection
preserved
prisoner
accused,
a full opportunity for cross-ex-
in the advantage he
amination,
has once had of
and the chance for the jury to
face,
seeing the witness face to
and of observe the witness’s demeanor.
If the
subjecting him to the ordeal of a cross- prosecution proposes to admit evidence
examination.
is lacking in one or
more
these
areas, we insist that this be
done
Mattox,
U.S.
a matter of necessity, where no better
339-40. Inadi makes a
point:
similar
*32
evidence is available.
In each of the Su-
good
There are
why
reasons
the una-
n
preme Court cases involving prior
testi-
rule,
vailability
developed in
in-
eases
mony,
prosecution’s
the
evidence was de-
volving former testimony,
applica-
is not
ficient in one or more of
respects—
these
ble to [other forms of hearsay]. Unlike
particular,
jury
the
was unable to as-
some
exceptions
other
to the hearsay
sess the demeanor of the
on
witness
the
...,
rules
former testimony often is only
stand while making the statements at is-
a weaker substitute for
testimony.
live
sue, and,
cases,
in some
the opportunity
It seldom has independent evidentiary
for cross-examination was diminished—
significance
own,
of its
but
intended
is
so
the Court insisted upon a showing
replace live testimony.
If the declarant
truly
this
was the best available evi-
is available and the same information
dence.
can
presented
be
to the trier of fact in
the form of live
with full
testimony,
Here,
contrast,
by
the evidence offered
cross-examination and the opportunity
by
prosecution
the
“inferior,”
was not
at
to view the
declarant,
demeanor of the
least not in any
encompassed
sense
by the
justification
there is little
relying
Confrontation Clause. All of
objects
the
the weaker version. When two versions
this
guarantee oath,
constitutional
cross-
—
available,
of the same evidence are
long-
examination; opportunity to
de-
observe
standing principles of the law of hear-
fully
meanor —were
achieved. Brumley
say, applicable as well to Confrontation
was afforded “all that
Amend-
Sixth
Clause analysis, favor the better evi-
ment demands:
‘substantial compliance
dence. But if the declarant is unavail-
purposes
with the
behind the confrontation
able, no “better” version of the evidence
” Roberts,
requirement.’
U.S.
exists, and the former testimony may be
(footnote
Accordingly, would
particular-
is
language
unavailability
of evidence.
from
exempt
dence
if
was intended was
ly ill-chosen what
applied
as set forth
requirement
hear-
on the use
prohibition
other
Court’s
Supreme
and the
Roberts
say. ...
If
were
testimony” decisions.
we
“prior
law of evi-
matter under the
deciding the
Dutton,
95,
anee ... (6th Cir.1990); 804(a)(5). 522, see also 528 901 F.2d means,” Fed.R.Evid. Stoner, (noting at 212 the “case 997 F.2d “rea- held that this have courts Several necessity that be finding of must specific” consideration inquiry entails sonableness” dispense to with confronta- made “in order securing the involved expense court”); 47 Flenoy, v. open Tate tion See, e.g., v. Christian presence. witness’s (6th 27505, 1170, at *3 Cir. 1995 F.3d WL (9th Cir.1994) Rhode, 468 41 F.3d 1995) (“[T]he Jan.24, of reasonable- issue Arizona had the of (holding that State question.”); a factual essentially ness is to secure the efforts made reasonable McKeeve, 1, 8 v. 131 F.3d States United a criminal foreign of witnesses presence Cir.1997) (1st (observing “filtering that depo- offering their trial before evidence, “declining] [under concerns Con- and constitutional into sitions significant a seine woven through that the state bear demand frontation Clause] business, witnesses’ reimbursing tricky expense necessity of is a practical of Ari- Cayman Islands to yield travel from likely will and different situations zona”); Johnpoll, v. States accommodations”); Christian, United different Cir.1984) (2d (holding F.2d (“ faith’ and ‘reasonable- F.3d at 467 ‘Good had the “reason- satisfied the Government fact-intensive, terms that demand ness’ are standard of Fed.R.Crim.P. ableness” rules.”). analysis, rigid not case-by-case the[ to accede to despite ] its “refusal Thus, case, impedi- in a I see no proper foreign certain witnesses that demands” of of a judicial ment to consideration State’s witness and subsistence fees they paid be limited re- conserving interest statute, amounts called for beyond the Moreover, this is just I believe sources.13 they compensated be for time and simply State did not such a case. The jobs).12 gen- More away from their spent Brumley’s right of confrontation sacrifice ‘good that “the erally, we have observed convenience and to its own “administrative artic- faith’ and ‘reasonableness’ standards (Majority Op. subject budgetary concerns.” ... are not ulated Roberts i.e., contrary that a witness recognized, in A also has 12. This Circuit conclusion— 13. possi- produced if at all must be live analogous context Fed.R.Crim.P. ble, expense upon a or demand no matter corresponding Sixth Amendment only disregard State’s resources —would compel presence at trial of witnesses in repeated references in Court's favor, government ex- the defendant’s "good faith” and its decisions to notions pense a relevant consideration in determin- "reasonableness," could, fear, I have dire but indigent ing whether an defendant is entitled increasingly consequences in this era subpoena paying of a without to the issuance if, enterprises. world-wide Even criminal Unit- costs or witness fees. See associated might example, process a of extradition (6th Rigdon, ed 459 F.2d States treaty employed invoked international Cir.1972). defendant re- In that presence at a federal to secure witness’s quested subpoenas be issued under Rule resulting "op- attainment of criminal witnesses, 17(b) all of whom "for seven were might out- well be timal” confrontation in the Federal Peni- at the time incarcerated cost, delay, weighed by considerations Atlanta, Georgia." F.2d tentiary in like, particularly where the use of modern We District Court’s denial affirmed the technology might achieve telecommunication may request, stating of this that "[t]he all or most of the benefits confrontation government expense to the consider the avoiding We should not while costs. such danger public particularly through possibility more constitu- foreclose it- transporting ruling over the constitutional text inmates these tional inherent unless self demands it. F.2d at 380. distances.” 459
671 642.) contrary, it only through county To the was in which Brumley was prosecut- use of its administrative pro- State’s ed was small and had extremely limited cesses, personnel that Brum- budget, and transportation resources —and the of a ley opportunity had the to confront and prisoner inherently is an risky endeavor. Then, through cross-examine his accuser. Thus, I believe that the State’s in success State, fault no this witness was bringing Ohio, Kirklin from Arizona to Brumley’s returned to Arizona before subsequent steps ensure that Brum- Brumley sought, had commenced. What ley had the opportunity to confront this and what the State resisted as wasteful of witness him and that this confron- resources, opportuni- limited was a second tation preserved would be on videotape, witness, ty to confront this despite the toward, should count and not against, any showing that op- absence the first prosecution’s duty to good-faith make a deficient, portunity constitutionally was effort to a presence secure witness’s at that the second confrontation would differ Indeed, trial. this effort would have suc- any way from the first. Under these ceeded, that, if not for the fact through no circumstances, interest, the State’s while State, fault of the the witness was ordered perhaps not comparable to the interest returned to Arizona. in Craig, advanced was sufficient to offset circumstances, In light of these I fail to impact upon Brumley’s right minimal see how the trial court could be deemed to of confrontation. unreasonably have acted in ruling that reasons, For the same even if I were to ’ constitutionally Kirklin was “unavailable” agree that requirement Roberts limited at trial. Page, supra, Barber v. a case the unavailability should apply under the cir- one, majority “very finds similar” to this case, I cumstances of this would hold that 639), (Majority Op. at in fact upon rested requirement this was at satisfied Brum- finding that “the absolutely State made no or, least, ley’s at that the Ohio trial — presence effort to obtain the of [the accus- courts did not act unreasonably so con- ing at trial other than witness] to ascertain noted, cluding. As requires only Roberts prison he was a federal outside good-faith effort pres- to obtain a witness’s Oklahoma,” Barber, place of trial. 390 trial, ence at measured a standard of 723, result, at at U.S. 88 S.Ct. 1321. As a Roberts, reasonableness. See at U.S. the defendant in Barber never cross-exam- 74, 100 at In finding S.Ct. that the discussed, ined this witness. As the State prosecution made no effort at all in this case, good of Ohio did a deal more in this effect, majority, penalizes the thereby ensuring Brumley’s con- for State its successful effort to secure frontation. The Court’s other presence Kirklin’s Ohio the trial of “unavailability” equally cases are distin- all, co-defendant. After guishable, they involve who reasons, witnesses majority if the State was able to died, Mattox, 240, had at U.S. 15 S.Ct. bring Kirklin from Arizona to Ohio for one at one who was out of country, so surely again it can do so for a subse- however, “powerless the State was quent me, compel trial. It seems to trial, Mancusi, his attendance” at analysis unduly disregards U.S. the ex- burden, at pense, administrative and a witness other unknown, bringing factors involved in whose location was her this witness to even to fact, Roberts, parents, Ohio the first time. expense U.S. significant particularly light precedents, lying 2544. Given these —
what we were told at oral argument, spectrum two ends of a broad of “availabil- *40 are circumstances that there law nized “clearly no established” I find
ity,”
[is]
confrontation
utility
“the
of trial
set which
the far different
governs
that squarely
availability
that the witness’s
case,
that the
remote”
such
so
in this
circumstances
of
determined,
n.
before the accused and afford a full and (ii) opportunity cross-examination;
fair confrontation was for view- (iii) ing by jury; there has been no showing any material developments be- tween the time of the accuser’s
and the time of trial. MARTIN, Donald Plaintiff-Appellant, Finally, any might concern that we precedent” create “bad con- dubious —a CO., LAKE INC.; COUNTY SEWER sideration in as each must be Brewery Workers, Beer Bottlers and decided on its own particularly facts—is Drink Soft Local Workers’ Union No. action, in a unwarranted habeas where 1164, Defendants-Appellees. our decision uphold a state court rul- ing says correctness, nothing about No. 00-3716.
but that it means is not “unreason- Appeals, United States Court of able” in light governing Sixth Circuit. precedents. ruling The state court us, in my judgment, easily before satis- Argued Sept. 2001. fies this standard. Decided and Filed Oct.
IV. CONCLUSION All aspects conceivable of the Sixth Amendment of confrontation were afforded to Petitioner Brumley Willie accuser, Kirklin, this case: his testi- oath, fied under a courtroom with the trial judge presiding, and standing while accused;
face-to-face with the Brumley