Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Federalism is under attack from an unlikely assailant: the state of New Mexico. To understand why, consider the U.S. Supreme Court’s observation that “[s]tates are still entirely free to effectuate under their own law stricter standards [for retroactivity of new procedural rules] than those we have laid down and to apply those standards in a broader range of cases than is required by this decision.” Johnson v. New Jersey, 384 U.S. 719, 734 (1966) (declining to give Miranda v. Arizona, 384 U.S. 436 (1966), retroactive effect). The court’s decisions in Teague v. Lane, 489 U.S. 288 (1989), and Griffith v. Kentucky, 479 U.S. 314 (1987), ultimately overruled the retroactivity precedent that Johnson applied. But no one seriously contended that Teague or Griffith abrogated the notion that state courts could afford broader retroactive effect to new procedural rules than required under federal retroactivity precedent-at least not until 2005. In November 2005, New Mexico filed a petition for certiorari in New Mexico v. Forbes, No. 05-644, framing the first question presented as follows: “Did the New Mexico Supreme Court violate the Supremacy Clause when, on [state] collateral review, it retroactively applied this Court’s decision in Crawford v. Washington to this 1983 conviction?” The premise underlying New Mexico’s petition-i.e., that state courts may not apply Crawford‘s holding retroactively on state collateral review if Teague bars federal courts from doing so on federal habeas review-directly conflicts with Johnson‘s dictum and ignores the first principles of federalism. The issue arises in a case with a tortured procedural history. The prosecution introduced into evidence at trial the tape-recorded statement of a co-participant implicating Ralph Rodney Earnest in two murders. On direct appeal, the New Mexico Supreme Court vacated Earnest’s conviction, finding his inability to cross-examine the declarant to be fatal. State v. Earnest, 703 P.2d 872 (N.M. 1985). The U.S. Supreme Court, however, granted New Mexico’s petition for certiorari, vacated the judgment and instructed the New Mexico Supreme Court to reconsider the confrontation clause claim in light of Lee v. Illinois, 476 U.S. 530 (1986). See New Mexico v. Earnest, 477 U.S. 648 (1986) (per curiam). On remand, the New Mexico Supreme Court affirmed Earnest’s conviction. State v. Earnest, 744 P.2d 539 (N.M. 1987). Twenty years after it had vacated Earnest’s murder conviction on direct appeal, the New Mexico Supreme Court vacated Earnest’s conviction by applying Crawford‘s holding retroactively on state collateral attack. State v. Forbes, 119 P.3d 144 (N.M. 2005). Applying its home-grown test, the New Mexico Supreme Court concluded that Crawford did not announce a “new rule” as applied to the unique facts before it: “Granting Earnest a new trial is consistent with our responsibility to do justice to each litigant on the merits of his own case. Our decision is limited to the very special facts of this case, highlighted by the fact that the very law this Court applied to Earnest’s case twenty years ago has now been vindicated, which entitles him now to the same new trial he should have received back then.” The New Mexico high court relied on state law retroactivity principles to afford Earnest a remedy that he could not have obtained from a federal court, something the Supreme Court explicitly authorized, if not encouraged, in Johnson. But New Mexico complains that this reliance violated Teague‘s constraints on retroactive application of new rules. That complaint stands federalism on its head. States may set procedural rules Teague, after all, is a limitation on a federal court’s power to disturb a state court’s final judgments. By contrast, “[s]tate courts hearing claims for collateral review . . . are free to set their own retroactivity rules independent of Teague . . . so long as [they] give federal constitutional rights at least as broad a scope as the [U.S.] Supreme Court requires.” State v. Fair, 502 P.2d 1150, 1152 (Ore. 1972). Invoking this very principle, the Supreme Court of Missouri recently rejected Teague and retroactively applied Ring v. Arizona, 536 U.S. 584 (2002), to a defendant whose case was final when Ring issued. State v. Whitfield, 107 S.W.3d 253, 264-68 (Mo. 2003). Reasonable people may disagree over whether the New Mexico Supreme Court’s retroactive application of Crawford to disturb a 20-year-old murder conviction constitutes wise criminal justice policy. However, the prospect of state courts invoking state law to give broader retroactive effect to new rules of criminal procedure than do federal courts offends no constitutional principle whatsoever. On the contrary, it reinforces the core values of federalism inherent in our constitutional system. The U.S. Supreme Court, therefore, should unceremoniously deny New Mexico’s petition for certiorari because the New Mexico Supreme Court’s judgment rests on adequate and independent state law grounds. Steve Sanders is a partner in the Chatham, N.J., criminal defense firm Arseneault, Fassett & Mariano, and is a trustee of the Association of Criminal Defense Lawyers of New Jersey.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.