Melendez-Diaz v. Massachusetts, 557 U.S. __, 129 S. Ct. 2527 (2009), decided by the United States Supreme Court last month, already has had significant implications for criminal prosecutions in North Carolina. The original wave of questions posed to me about the case pertained to its application in pending prosecutions. I wrote about Melendez-Diaz generally and addressed a number of those questions in an earlier paper posted here. A significant part of the second wave of questions posed to me has pertained to application of Melendez-Diaz in post-conviction proceedings, including motions for appropriate relief and federal habeas petitions. Specifically, a number of people have asked about whether Melendez-Diaz applies retroactively to cases that became final before it was decided. I will begin to address that question in this post.
I wrote about retroactivity of judge-made rules five years ago in a paper posted here. That paper sets out the general retroactivity rules and I won’t repeat all of them in this post. However, if you need a primer on retroactivity, that is a good place to start. Since that paper was published, the United States Supreme Court has held that Crawford is not retroactive under the rule of Teague v. Lane, 489 U.S. 288 (1989). See Whorton v. Bockting, 549 U.S. 406 (2007) (Crawford was a new procedural rule but not a watershed rule of criminal procedure). The Teague anti-retroactivity rule applies to new rules of federal criminal procedure. One of the arguments being asserted by defense lawyers is that Melendez-Diaz is not a new rule but rather was mandated by Crawford v. Washington, 541 U.S. 36 (2004). If that is correct, Melendez-Diaz would apply retroactively at least back to the date Crawford was decided, March 8, 2004. See Whorton, 549 U.S. at 416 (old rules apply retroactively).
The United States Supreme Court’s retroactivity analysis requires that, in order to determine whether a rule is new, the court must first determine the date on which the case became final. It then must “assay the legal landscape” at the time the conviction became final and ask whether the rule later announced was “dictated by then-existing precedent–whether, that is, the unlawfulness of [defendant’s] conviction was apparent to all reasonable jurists.” Beard v. Banks, 542 U.S. 406, 413 (2004) (quotation omitted); see also Graham v. Collins, 506 U.S. 461, 467 (1993) (new rule not “dictated” by precedent) (quoting Teague, 489 U.S. at 301). It is not enough that earlier cases support the new rule. See Beard, 542 U.S. at 410. The question is “whether reasonable jurists could differ as to whether precedent compels the sought-for rule.” Id. at 416 n.5; see also Graham, 506 U.S. at 467 (“compelled by existing precedent”). Obviously, “precedent” includes decisions of the United States Supreme Court. But it also includes decisions of the lower courts, both state and federal. See Caspari v. Bohlen, 510 U.S. 383, 395 (1994) (“in the Teague analysis, the reasonable views of state courts are entitled to consideration along with those of the federal courts”); O’Dell v. Netherland, 521 U.S. 151, 166 n.3 (1997) (noting that conclusion that rule is new finds support in the decisions of the state and lower federal courts). And finally, when the rule at issue emerged in a prior case, a lack of unanimity of the deciding Justices is relevant. See O’Dell, 521 U.S. at 159-60 (the “array of views expressed in [the opinion] itself suggests that the rule announced there was, in light of the Court’s precedent, susceptible to debate among reasonable minds”) (quotation omitted). But see Beard, 542 U.S. 416 n.5 (noting that because the focus is on reasonable jurists, the “mere existence of a dissent” does not suffice to show that the rule is new).
When a case explicitly overrules an earlier holding, it clearly creates a new rule. See Saffle v. Parks, 494 U.S. 484, 488 (1990); Butler v. McKellar, 494 U.S. 407, 412 (1990); Graham, 506 U.S. at 467. The inquiry is more difficult when the decision extends the reasoning of prior cases. See Saffle, 494 U.S. at 488; Butler, 494 U.S. at 412-13; Graham, 506 U.S. at 467. Beard is a relatively recent example of how the analysis plays out in the latter context. At issue in Beard was whether the rules announced in Mills v. Maryland, 486 U.S. 367 (1988), and McKoy v. North Carolina, 494 U.S. 433 (1990), applied retroactively. Those cases invalidated capital sentencing schemes that required juries to disregard mitigating factors not found unanimously by the jury. The Beard Court noted that Mills and McKoy relied on a line of cases holding that the sentencer in a capital case must be allowed to consider any mitigating evidence. The Beard Court concluded that although this line of cases supported the Court’s rulings in Mills and McKoy, it did not mandate their holdings. The Court found that the earlier cases considered only obstructions to the sentencer’s ability to consider mitigating evidence whereas Mills focused on individual jurors. The Court thought it “clear” that reasonable jurists could have differed as to whether the [earlier cases] “compelled” Mills. In fact, it noted that in Mills itself, four justices dissented, arguing that the rule from the prior case law did not control. Likewise, three Justices dissented in McKoy, asserting that the prior cases did not mandate the holding. In the end, the Court concluded: “Given the brand new attention Mills paid to individual jurors . . . we must conclude that the Mills rule br[o]k[e] new ground.”
The strongest support for the defense argument that Melendez-Diaz is not a new rule is found in the opinion itself. Writing for the majority, Justice Scalia described the case as a “straightforward application of . . . Crawford,” Slip Op. at 6, involving “little more” than an application of the holding of that case. Id. at 23. Thus, the defense could argue, since Melendez-Diaz was mandated by Crawford, it is not a new rule for cases that became final after Crawford was decided and the Teague anti-retroactivity rule does not apply. In making this argument, the defense might focus on the fact that Melendez-Diaz involved application of the general Crawford rule to a specific situation, as opposed to a modification of the Crawford rule. To amplify this position, the defense might assert that both cases involved precisely the same issue: whether the evidence was testimonial; the only difference between the cases was the type of evidence at issue.
A prosecutor might respond by arguing that Scalia did not make these statements in the context of retroactivity analysis. Also, the prosecution might argue that given the state of North Carolina law (and the law around the country) after Crawford and before Melendez-Diaz, it would be difficult to say that the testimonial nature of forensic laboratory reports was apparent to “all reasonable jurists.” After all, both the North Carolina Court of Appeals and the North Carolina Supreme Court had concluded (more than once) that such items were non-testimonial. Additionally, the decision in Melendez-Diaz was a fractured 5-to-4 decision, indicating that reasonable jurists on the Supreme Court disagreed with its very holding. While Crawford overruled prior precedent (Ohio v. Roberts), the same cannot be said of Melendez-Diaz. However, it can be argued that Melendez-Diaz is an extension of Crawford. Crawford dealt with the testimonial nature of statements by a suspect to the police at a station house after Miranda warnings had been given. Melendez-Diaz by contrast dealt with the testimonial nature of forensic laboratory reports. Thus the argument goes: Melendez-Diaz was not dictated by Crawford; rather, it required an extension of the Crawford rule and thus is a new rule.
Ultimately, the appellate courts will resolve this issue. In the meantime, I hope that this post helps to clarify the relevant law and some of the arguments that might be asserted on both sides. And finally, litigation over the retroactivity of Melendez-Diaz has not been confined to the new rule prong of the Teague test. Another issue that has arisen is whether the Teague test applies in North Carolina state courts in light of Danforth v. Minnesota, 128 S. Ct. 1029 (2008) (holding that Teague does not limit the authority of states to give broader effect to new rules of criminal procedure in state post-conviction proceedings than is required by the Teague rule). I will address that issue in a separate post.