Can I confront you now?

If you've been around this blog for a while, you know how much I love my Confrontation Clause issues.  They are easily my favorite issues to write and to argue and just to ponder.  And, of course, I also love football.  And true crime stories.  Which brings us to the latest twist in the strange, sad saga of Rae Carruth.

Remember Rae Carruth?  He's the former Carolina Panthers wide receiver who, in the middle of the 199 season (his 3rd in the NFL), was accused of arranging the murder of his pregnant girlfriend, Cherica Adams.  Happily, the child was delivered safely before its mother died, though rumor has it the child is not exactly healthy.  There was also the side story of Carruth jumping bail after Cherica died and being found a few days later, hiding in the trunk of a car.  In 2001, he was convicted of conspiracy to commit murder and a couple smaller charges, and I haven't given him much thought since.

Until today, when I read that he is appealing his convictions in federal court.  Some of the evidence presented in court were statements Cherica Adams made to a paramedic, a nurse, and police before she slipped into a coma.  Those statements implicated Carruth, but because she died, Carruth's defense was never able to cross-examine her. When I read that this morning, the appellate defender in me let out a big gasp and said, "Oh, snap!"  Because this, my friends, is a good issue.  There may be some procedural issues (I'm not an expert in federal habeas by any stretch, I'm not getting into the question of whether Crawford applies retroactively, etc.), but on the merits of the Confrontation issue, it's a good issue.

See, in 2001, those statements were admissible under the current state of U.S. Supreme Court law.  But things have changed since then.  Oh, how they have changed.  Back in 2001, the district court was able to decide those statements were sufficiently reliable to be admitted at trial regardless of the defense's inability to cross-examine the witness.  In cases where a hearsay declarant was unavailable to testify at trial, district courts were empowered to consider the circumstances in which the statement was made to decide whether the statement was admissible without cross-examination.  Happily, in 2004, the Supreme Court overruled that dreadful precedent and said the Sixth Amendment means what it says: the accused has the right to confront his accuser.  If the witness isn't available and the statement is testimonial in nature (roughly meaning a statement made in anticipation of a prosecution), the statement cannot come in unless the defense has had the opportunity to cross-examine the witness.  So much simpler and more constitutional than the old rule.

So going back to Carruth's case, Cherica Adams told a police officer among others that Carruth was involved in her shooting.  The defense never got to cross-examine her.  There are lots of significant facts this short article doesn't include that would be necessary to properly analyze the Confrontation issue.  Was she responding to medical questions?  Was she safely in the ambulance?  Was the police officer asking questions and she was responding?  I am a big, big law nerd because I have been pondering these questions all day long.

The real lesson of this is what a difference 3 years makes.  If Carruth's trial had happened just 3 short years later, he wouldn't  have these grounds for appeal because his case would have been tried fairly the first time.  Courts do that all the time, though.  They change the rules midstream and it's usually with not even an, "Oops, sorry," to the poor schmucks whose appeals were done even the day before this new rule was announced.  I'm really hoping the federal court in this case won't find some stupid procedural bar to keep from considering Carruth's legitimate confrontation issue.  Maybe even without Cherica's statements, there was plenty of evidence to convict Carruth.  Maybe not all of her statements would be excluded under proper confrontation analysis.  But a court should at least consider the possibility that Carruth deserves a do-over.