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Thursday, June 23, 2011

No End-Run Allowed under the Confrontation Clause (9th Circuit)

An interesting Confrontation Clause case was decided by the Ninth Circuit on June 9, 2011, Ocampo v. Vail, 2011 WL 2275798 (9th Cir – WA).  The case was an appeal of the denial of a  petition for a federal writ of habeas corpus by the U.S. District Court for the Western District of Washington. The key issue in the case was whether two police officers’ statements generally “outlining” what was said by an alleged witness to a shooting violated Ocampo’s constitutional right to confront his accuser. 

Julio Morales-Castro was fatally shot in the head on the evening of August 9, 2003 outside of a pool hall in Tacoma, Washington. Santana Ocampo was charged with first-degree murder and was found guilty by a jury. He appealed (on the confrontation issue as well as other issues) and the Washington State Court of Appeals affirmed his conviction. The Washington Supreme Court denied review, and Ocampo then sought habeas corpus relief at the federal level.  

His petition for a writ was filed after the U.S. Congress passed the Anti-Terrorism and Effective Death Penalty Act of 1996 (Pub.L. No. 104-132, 110 Stat. 1214 (AEDPA)) and accordingly Ocampo was required to show either an “unreasonable determination” (if the last reasoned state decision was based on an unreasonable determination of the facts in light of the evidence presented); or an “unreasonable application” (a legal determination that was contrary to or involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States).

The Ninth Circuit determined that Ocampo met his burden and it specifically found that the Washington State Court of Appeals unreasonably applied “clearly established Supreme Court Confrontation Clause jurisprudence.” The Court remanded the case with instructions for the District Court to grant the writ unless the State of Washington elects to retry him within a reasonable amount of time.

The confrontation clause was triggered by the absence of an alleged witness Mesial Vasquez, who had reportedly moved to Mexico.

After the shooting, the police showed witnesses at the scene a number of pictures of members of the Hispanic gang Surreno 13, who frequently “hung out” in the area. The witnesses identified Jose Hernandez from the photos. When located by the police, he implicated Ocampo, Vasquez, and another man, Baldemar Vela. According to Hernandez, all four men (Hernandez, Ocampo, Vasquez, and Vela) were in a van the evening of the shooting and stopped to purchase beer. Hernandez told police (and later testified at Ocampo’s trial) that he and Ocampo attempted to steal Morales-Castro’s car and when Morales-Castro came out of the pool hall, Ocampo shot him.

Hernandez was not a particularly good witness at trial. He was an admitted accomplice to the shooting, he reached a plea agreement with the government to testify against Ocampo, his testimony was “inconsistent in several respects with his pre-trial version of events,” his testimony of the facts was inconsistent with other witnesses’ testimony, and most striking, he told two juvenile detention officers as well as his ex-girlfriend that he (and not Ocampo) was the shooter. 

Vela was not a very effective witness either. He was the only other witness who claimed to have seen Ocampo at the scene of the crime. He did so only after being shown a single color Polaroid picture of Ocampo and after having been told that Ocampo had already confessed (which had in fact not happened). At trial, Vela testified that he did not know who the other passengers in the van had been.

The prosecutor called two police officers to testify about the absent Vasquez – only one of whom had ever actually talked to him. Officer Ringer testified that Vasquez corroborated that Ocampo was in the van that evening – despite the fact that Officer Ringer never spoke with Vasquez. Immediately after Officer Ringer’s testimony, Hernandez named Ocampo as the shooter. The other police officer, Detective Webb had spoken with Vasquez. He testified that Vasquez identified Ocampo as being present at the shooting. Defense counsel objected to the testimony of both officers as violative of Ocampo’s right to confrontation.

The prosecution referred to the two officers’ testimony in its closing argument. And the Ninth Circuit found that the prosecution “emphasized Vasquez’s statements.”

The State’s primary argument before the Ninth Circuit was that the confrontation clause was not implicated, because Officer Ringer only “implied the outlines” of Vasquez’s statements, and Detective Webb “did not testify to the substance of any statements Vasquez made.” In other words, the State argued that there was no testimony offered against Ocampo – no statements made by Vasquez had been admitted at trial. 

The Ninth Circuit disagreed and determined that although the State characterized the testimony as an “outline” and not “substance,” the State had indeed introduced statements of Vasquez against Ocampo. A very nice review of Crawford v. Washington, 541 U.S. 36 (2004) as well as several Circuit Court opinions are contained in the opinion. The Court said that descriptions of out of court statements are statements, according to the Supreme Court – the statements need not be verbatim. 

The Circuit Court stated the following, “it would be an unreasonable application of the core Confrontation Clause principle underlying Crawford to allow police officers to testify to the substance of an unavailable witness’s testimonial statements as long as they do so descriptively rather than verbatim or in detail.” The Court also cites to a recent First Circuit case, U.S. v. Meises, 2011 WL 1817855 (1st Cir., May 13, 2011) for a similar proposition. It also stated that if there had been any doubt of what was being offered through Officer Ringer and Detective Webb, the prosecution’s closing argument dispelled any doubt – they were offering statements of Vasquez in his absence and without any prior opportunity for Ocampo to cross-examine him. These statements “had a substantial and injurious effect or influence in determining the jury’s verdict.”

The prosecution’s case had “considerable weaknesses” without Vasquez’s testimonial statements. The Court dismissed the State’s argument that because Ocampo had the opportunity to cross-examine the police officers, he effectively had the opportunity to cross-examine Vasquez. The Court even referred back to Sir Walter Raleigh, and cited Davis v. Washington, 547 U.S. 813 (2006) for the proposition that “having a police officer stand in for an absent witness is not “conceivable”” for confrontation purposes.

It is a well written opinion and should put to rest any government attempt to enter testimonial statements of witnesses through police officers, even if those statements are summarized or in “outline” form. The error below was prejudicial and the case was reversed and remanded.

Ann Murphy

http://lawprofessors.typepad.com/evidenceprof/2011/06/no-end-run-allowed-under-the-confrontation-clause-9th-circuit.html

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