Sixth Circuit Joins Split re Whether Crawford Applies Retroactively

Per Fulcher v. Motley, --- F.3d ----, 2006 WL 996615 (6th Cir. Apr. 18, 2006):

Several circuit courts of appeal have addressed the retroactivity of Crawford [Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) (holding testimonial out-of-court statements by witnesses barred, under the Confrontation Clause, unless witnesses unavailable and defendants had prior opportunity to cross-examine witnesses, regardless of whether such statements are deemed reliable by court, abrogating Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597,)]. The Second, Tenth, and Seventh Circuits have held that Crawford does not apply retroactively. The Ninth Circuit has held that Crawford does apply retroactively and that [Antiterrorism and Effective Death Penalty Act (AEDPA)] does not bar such retroactive application.

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The Teague [Teague v. Lane, 489 U.S. 288, 301, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989)] analysis requires this Court to 1) determine whether Crawford announced a new rule, 2) determine whether that rule was a “watershed rule” in criminal procedure, 3) apply the rule in the case at bar (if the rule is found to be retroactive), and 4) determine whether any resulting error was harmless. Because Ash's statement falls squarely within the facts of Crawford, the parties do not dispute the statement's inadmissibility under Crawford.

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Because Crawford is a watershed rule of criminal procedure, I would apply Crawford [retroactively] to find that the introduction of Ash's taped statement violated Petitioner's rights under the Confrontation Clause of the Sixth Amendment. . . .