Marcus Hardy, Warden v. Irving L. Cross


Irving Cross was tried for kidnapping and sexually as­saulting A. S. at knifepoint. Cross claimed that A. S. had consented to sex in exchange for money and drugs. De­spite her avowed fear of taking the stand, A. S. testified as the State’s primary witness at Cross’ trial in November 1999 and was cross-examined by Cross’ attorney. Accord­ing to the trial judge, A. S.’s testimony was halting. The jury found Cross not guilty of kidnapping but was unable to reach a verdict on the sexual assault charges, and the trial judge declared a mistrial. The State decided to retry Cross on those counts, and the retrial was scheduled for March 29, 2000. On March 20, 2000, the prosecutor informed the trial judge that A. S. could not be located. A week later, on March 28, the State moved to have A. S. declared unavail­able and to introduce her prior testimony at the second trial.

The State learned from A. S.’s mother that A. S. had run away from home the day before and had not returned. Thereafter, efforts began by members of the Cook County State’s Attorney’s Office and by law enforcement personnel to locate A. S. The State also inquired at the Department of Public Health, the morgue, the Cook County Jail, the Illinois Department of Corrections, the Immigration Department, and the post office. The State’s investigator was assisted in the search by a police detective and a victim’s advocate.

The trial court granted the State’s motion and admitted A. S.’s earlier testimony. The trial court concluded that the State had “expended efforts that go way beyond due diligence,” At Cross’ retrial, a legal intern from the State’s attorney’s office read A. S.’s prior, cross-examined testi­mony to the jury. The jury acquitted Cross of aggravated sexual assault but found him guilty of two counts of criminal sexual assault. On appeal, the Illinois Court of Appeals agreed that A. S. was unavailable. The court found that the State had conducted a good-faith, diligent search to locate A. S., and that the trial court had properly allowed the introduction of A. S.’s cross-examined testimony from the first trial. The court, therefore, affirmed Cross’ convic­tions and sentence. The Supreme Court of Illinois denied Cross’ petition for leave to appeal, and the Supreme Court denied Cross’ petition for a writ of certiorari.

Cross then filed a petition for a writ of habeas corpus under 28 U. S. C. §2254 in the United States District Court for the Northern District of Illinois. Cross argued that the state court had unreason­ably applied clearly established Supreme Court prece­dents holding that the Confrontation Clause of the Sixth Amendment preclude the admission of the prior testimo­ny of an allegedly unavailable witness unless the prosecu­tion made a good-faith effort to obtain the declarant’s presence at trial. The District Court denied Cross’ peti­tion, but the Seventh Circuit reversed. According to the Seventh Circuit, the Illinois Court of Appeals was unrea­sonable in holding that the State had made a sufficient effort to secure A. S.’s presence at the retrial. The Sev­enth Circuit stressed the importance of A. S.’s testimony and the manner of her testimony at the first trial.

The Supreme Court held that 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 the Confrontation Clause precedents. The Supreme Court disagreed with the Seventh Circuit’s finding that the State’s efforts were inadequate. The Supreme Court observed that when a witness disappear before trial, it is always possible to think of additional steps that the prosecution might have taken to secure the witness’ presence but the Sixth Amendment did not require the prosecution to exhaust every avenue of inquiry, no matter how unpromising. And also the deferential standard of review set out in 28 U. S. C. §2254(d) did not permit a federal court to overturn a state court’s decision on the question of unavailability merely because the federal court identified additional steps that might have been taken. Under AEDPA, if the state-court decision was reasonable, it cannot be disturbed. The petition for a writ of certiorari was granted, and the judgment of the Court of Appeals for the Seventh Circuit was reversed.