Tuesday, October 24, 2006

Confrontation win in Tenth Circuit

Madeline Cohen, a federal public defender in Denver, won habeas relief in Stevens v. Ortiz, where the Tenth Circuit found such a serious Confrontation Clause violation that it granted 2254 relief vacating Mr. Steven's first degree murder conviction. Here is a brief summary of the holding:

We must decide here if the Colorado trial court violated Mr. Steven's Sixth Amendment rights when it admitted the custodial confession of Mr. Swiger, a non-testifying accomplice, that also inculpated Mr. Stevens in a murder-for-hire.

We conclude that the reasoning of the Colorado Supreme Court was contrary to clearly established federal law, and the introduction of the accomplice confession violated Mr. Stevens's rights under the Confrontation Clause. Further, the Sixth Amendment error was not harmless.

This case was final before Crawford. Interestingly, though, the Tenth Circuit holds that the four-justice plurality in Lilly v. Virginia, 527 U.S. 116 (1999) is sufficient to show "clearly established federal law" for 2254 purposes and that the Colorado Supreme Court's decision allowing the accomplice's confession without confrontation violates that clearly established federal law. I think it is even more clear now under Crawford. (I hope it is anyway--I just filed a brief on a very similar issue).

Thanks to Paige Nichols for alerting me to this.

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