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WASHINGTON-Prisoners and criminal defense attorneys hoping that the U.S. Supreme Court will make a blockbuster sentencing decision retroactive found little encouragement in the justices’ recent ruling rejecting retroactivity of another major criminal procedure decision, this one involving the U.S. Constitution’s confrontation clause. In Whorton v. Bockting, No. 05-595, the high court on Feb. 28 unanimously held in an opinion by Justice Samuel A. Alito Jr. that its 5-4 ruling in Crawford v. Washington, 541 U.S. 36 (2004), is not retroactive to cases final on direct review. Crawford held that “[t]estimonial statements of witnesses absent from trial” are admissible “only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine [the witness].” “I don’t think the unanimous decision written in the fashion it was by Justice Alito gives us a lot of hope” that the high court will find that its 2004 ruling in Blakely v. Washington, 542 U.S. 296, is retroactive, said Jeffrey T. Green, a partner in the Washington office of Sidley Austin who filed an amicus brief on behalf of the National Association of Criminal Defense Lawyers supporting retroactivity in last week’s case. Blakely, which struck down the state of Washington’s sentencing scheme, held that a jury, not a judge, must find facts beyond a reasonable doubt to support a sentence that is above the state’s sentencing system’s range, even if it is below the ultimate statutory maximum for the crime. The Crawford decision, at the heart of last week’s ruling, was, like Blakely, a major jolt to the criminal justice system. Crawford overruled a more than two-decade-old precedent- Ohio v. Roberts, 448 U.S. 56 (1980)-which held a more liberal view of the admissibility of hearsay statements. In deciding whether Crawford was retroactive to cases already final on direct review, Alito last week applied the complex retroactivity analysis announced by the court in Teague v. Lane, 489 U.S. 288 (1989). Crawford, he wrote, was a new constitutional rule-not dictated by prior precedent at the time the defendant’s conviction became final-and thus not retroactive unless it falls within Teague‘s exceptions: One, the rule is substantive, or two, the rule is a “watershed rule” of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding. Crawford, he said, was a procedural, not a substantive rule. And, he added, unlike Gideon v. Wainwright, 372 U.S. 375 (1963)-the only watershed rule recognized by the court thus far-the Crawford rule did not alter “our understanding of the bedrock procedural elements essential to the fairness of a proceeding.” If the sentencing ruling in Blakely were found retroactive, most experts agree, that would have a much greater practical impact than Crawford retroactivity. A dissenting Justice Sandra Day O’Connor warned in Blakely that sentences for more than 270,000 federal defendants-not to mention state defendants-would be open to collateral attack. The justices did consider Blakely retroactivity earlier in the term in Burton v. Waddington, No. 05-9222, but ultimately decided the case on other grounds. Whether Crawford was a new rule was an “easy question,” said Jeffrey Fisher of Stanford Law School who argued for Blakely retroactivity in the Burton case. Whether Blakely is an “old rule,” dictated by the 2000 decision in Apprendi v. New Jersey, 530 U.S. 486, and thus retroactive to Apprendi, he said, is “still a live question.” Retroactivity less clear Sentencing scholar Douglas Berman of Ohio State University Michael E. Moritz College of Law said last week’s Crawford-related decision makes Blakely retroactivity or even Apprendi retroactivity less clear. “It’s a very careful, to-the-point decision that strikes me as saying as little as possible,” he said. “I think it gets nine votes in part because nobody is eager to fight a different fight in this case.” The court’s resistance to retroactivity is based on both a practical concern about the impact and a principled concern about finality, said Sidley’s Green. “Those of us interested in justice from an individualized perspective, we don’t share that, and perhaps we don’t appreciate its power as much as our colleagues on the other side and the courts.”

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