[DV_listserv] Legal updates related to or applicable in DV cases

[Domestic Violence issues]

STATE COURT RULING THAT VICTIM WAS UNAVAILABLE AFFIRMED
Hardy, Warden v. Cross, 565 US __ (December 12, 2011) (per curiam) (7th Circuit /
Illinois). Petitioner was tried in Illinois state court for a knifepoint kidnapping and sexual
assault. He admitted the act but claimed that the victim (A.S.) had traded him sex for drugs and
money. Although the victim was terrified of petitioner, she voluntarily appeared at trial and
testified, albeit haltingly. The jury acquitted him of kidnapping but hung on the sexual-assault
charges, and the court declared a mistrial and set it for retrial. A week before the retrial date, the
prosecutor disclosed that the victim had disappeared and that the police could not find her
despite an extensive search. Over petitioner's objection, the court found that the police effort to
find the victim was "way beyond due diligence" and allowed the state in the retrial to present the
victim's testimony in the first trial by having a law clerk read her answers. The jury found
petitioner guilty, and the state court of appeals affirmed. Petitioner then filed a petition for
habeas corpus relief in federal court. The district court dismissed the petition but the Seventh
Circuit reversed, ruling that the state court's ruling was an unreasonable application of federal
law, because the state had not made a sufficient effort to find the victim.
Held: Reversed and remanded. [1] "In Barber v. Page, 390 U S 719 (1968), we held
that a witness is not unavailable for purposes of the confrontation requirement unless the
prosecutorial authorities have made a good-faith effort to obtain his presence at trial. In Barber,
we held that a witness had not been unavailable for Confrontation Clause purposes because the
State, which could have brought the witness to court by seeking a writ of habeas corpus ad
testificandum, had made absolutely no effort to obtain his presence at trial apart from
determining that he was serving a sentence in a federal prison. We again addressed the question
of witness unavailability in Ohio v. Roberts, 448 US 56 (1980)," and held that "the State had
discharged its duty of good-faith effort." [2] "In the present case, the holding of the Illinois
Court of Appeals that the State conducted the requisite good-faith search for A.S. did not
represent an unreasonable application of our Confrontation Clause precedents. Whether or not
the state court went too far in characterizing the prosecution's efforts as 'superhuman,' the state
court identified the correct Sixth Amendment standard and applied it in a reasonable manner."
[3] The prosecutor's decision not to subpoena the victim did not establish a lack of due diligence:
the victim had expressed fear about testifying at the first trial but had nevertheless appeared in
court and had taken the stand. The State represented that A.S., although fearful, had agreed to
testify at the retrial as well. We have never held that the prosecution must have issued a subpoena
if it wishes to prove that a witness who goes into hiding is unavailable for Confrontation
Clause purposes, and the issuance of a subpoena may do little good if a sexual assault witness is
so fearful of an assailant that she is willing to risk his acquittal by failing to testify at trial."
[4] "The Sixth Amendment does not require the prosecution to exhaust every avenue of inquiry,
no matter how unpromising. And, more to the point, the deferential standard of review set out in
28 USC § 2254(d) does not permit a federal court to overturn a state court's decision on the
question of unavailability merely because the federal court identifies additional steps that might
have been taken. Under AEDPA, if the state-court decision was reasonable, it cannot be
disturbed."
http://www.supremecourt.gov/opinions/11pdf/11-74.pdf

COURT ERRED BY ORDERING FORFEITURE OF CAMERA FOR SPO VIOLATION
State v. Olson, __ Or App __, __ P3d __ (December 8, 2011) (per curiam) (Lincoln)
(AAG Justice Rillera). The circuit court issued a stalking protective order (SPO) that prohibited
defendant from contacting B, a high-school student, or any member of B's immediate family.
Defendant violated the SPO by going to B's high school and taking pictures of B's sister. The
court found him in violation of SPO, found him guilty of criminal trespass, imposed a
probationary sentence, and ordered, as a condition of probation, that he forfeit the camera.
Held: Reversed and remanded for resentencing. [1] ORS 161.045(4) generally provides
that a criminal conviction does not allow "forfeiture of property ... except where a forfeiture is
expressly authorized by law." No statute authorizes forfeiture of a camera in these
circumstances. [2] ORS 137.540(2), which authorizes conditions of probation, does not permit
forfeiture of property as a condition of probation.
http://www.publications.ojd.state.or.us/A142327.pdf

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