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A landmark U.S. Supreme Court ruling that restrains prosecutors from relying on unchallenged statements from unavailable witnesses is not retroactive, the 2nd U.S. Circuit Court of Appeals has ruled. The circuit’s unanimous ruling is another welcome determination for state and federal prosecutors, who might have had to beat back numerous new attacks on old convictions if the Supreme Court’s ruling in Crawford v. Washington, 124 S. Ct. 1354, was deemed retroactive. So far, federal courts throughout the country have agreed with the Second Circuit’s interpretation. In New York, a state judge has disagreed, finding that last year’s U.S. Supreme Court ruling was so profound that it should be given “watershed” status under state precedent. In its ruling last week, Mungo v. Duncan, 03-2706, the 2nd Circuit said that Crawford announced a new rule that brings about “substantial changes in the protection given by the Confrontation Clause.” But the question of retroactivity, the court said, depended on whether the new rule was necessary to the fundamental fairness and accuracy of criminal trials. “As we see the operation of the Crawford rule, it is likely to improve accuracy in some circumstances and diminish it in others,” Judge Pierre N. Leval wrote for the court. Leval said that Crawford would likely improve accuracy by excluded unreliable hearsay. It could reduce accuracy, he said, by preventing juries from hearing reliable out-of-court statements that were previously admissible. The court concluded that the new rule was not available for collateral attack, meaning that defendants who have exhausted direct appeals through state courts could not turn to Crawford to give their appeal new life in a habeas corpus petition. “It settles an issue that could have affected scores, if not hundreds of cases,” said Mark Dwyer, chief of appeals at the Manhattan District Attorney’s Office. Amy Appelbaum, an assistant district attorney in Brooklyn who litigated the Mungo appeal, said the circuit’s ruling “supports the concept that if judges decide an issue correctly under the law as it existed at the time, a defendant can’t use subsequently developed law to overturn a valid conviction.” Randall D. Unger, who represented Marcus Mungo, who is serving 25 years to life for murder, said the ruling marked an unfortunate conclusion to a one-witness case that he called “troubling.” The federal courts, he said, have set a high standard for “watershed” status and retroactivity. “It would have to be something so earthshaking that nobody could ignore it,” he said. The Supreme Court has yet to recognize any of its ruling as “watershed” since it discussed the concept in Teague v. Lane, 489 U.S. 288 (1989). HEARSAY EXCEPTIONS LIMITS The Court’s ruling in Crawford imposed limits on hearsay exceptions that allowed prosecutors to introduce testimonial statements from witnesses who had not been cross-examined. The ruling upended the 24-year-old precedent of Ohio v. Roberts, 448 U.S. 56 (1980), which supported hearsay exceptions for unchallenged statements by dying witnesses, co-conspirators and others as long as judges considered the statements reliable. Under Crawford, a testimonial statement cannot be admitted unless the witness takes the stand or is cross-examined before trial. Mungo was prosecuted for murder in the 1990s, when Roberts prevailed. He was arrested for attempted robbery in murder in June 1997. Plainclothes police officers patrolling a Brooklyn neighborhood in a taxi heard shots being fired and drove to the scene. They found Brent Arthur, who said he had been shot by two men who tried to rob him. The police saw two men running from the scene, helped Arthur into their car and gave chase. They found Mungo and another man, LeShawn Stewart, hiding in a doorway of a fourth-floor apartment at a housing project. By the time they returned to the car, Arthur was lying on the ground, writhing in pain from his wounds. One officer told Arthur that an ambulance was on the way. Another walked Stewart over to him and asked, “Is that the guy who shot you?” Arthur said yes. He also answered yes when the officer brought Mungo forward. When the officer said he needed to know “exactly who shot you,” Arthur responded, “The guy in gray.” He then died. Mungo was the man in gray. He was convicted and sentenced based on Arthur’s dying statement. Stewart was not indicted. Mungo appealed, and his conviction was affirmed by the Appellate Division, 2nd Department, which found the victim’s statement was properly admitted under a hearsay exception. The state Court of Appeals declined to review the case. Judges Thomas J. Meskill and Jose A. Cabranes concurred on Judge Leval’s ruling. Unger said he will consider a last attempt at an appeal to the U.S. Supreme Court.

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