Sixth Circuit

Sixth Circuit Grants Habeas Petition for Lower's Court's Objectively Unreasonable Application of the Confrontation Clause

A liberal result (granting a criminal defendant's habeas petition) from a quite conservative judge (John Bush).


Today, in Miller v. Genovese, the U.S. Court of Appeals for the Sixth Circuit granted Dwight Miller's petition for a conditional writ of habeas corpus. Miller is challenging his murder conviction and life sentence.

Habeas petitions often divide the Sixth Circuit, but not today. The panel of Judges Batchelder, Bush and Moore was unanimous. Judge Bush wrote for the court. His opinion begins:

When the English Crown sentenced Sir Walter Raleigh to death for treason without allowing him to cross-examine the key witness against him, Lord Cobham, it sparked a public outcry. Crawford v. Washington, 541 U.S. 36, 44, 50 (2004). That controversy culminated in English law developing a right to confront witnesses. Id. at 44. Almost two centuries later, the American Founders enshrined that right in the  Confrontation Clause of the Sixth Amendment.

This case presents a wrinkle on Raleigh's trial. What if Raleigh had, in fact, been allowed to cross-examine Cobham and uncover his motive to lie but—and here's the  catch— Raleigh was not allowed to reveal to the jury the portion of Cobham's testimony disclosing that motive? Would that scenario have been any less offensive to principles of justice than an outright denial of Raleigh's right to cross-examine Cobham? To ask those questions is to answer them. Confrontation of an adverse witness necessarily entails that the trier of fact be allowed to learn the material results of that confrontation. That did not happen with respect to a key witness in the murder trial of Dwight Miller. For that reason and others explained below, the Tennessee Court of Criminal Appeals's application of clearly established law (namely, the Supreme Court's Confrontation Clause jurisprudence) was objectively unreasonable. We therefore reverse the district court's denial of habeas corpus and remand for it to grant Miller a conditional writ of habeas corpus.

The opinion concludes:

Maybe, as the State believed and the trial judge suspected, Kathy Blackwell was lying when she claimed that she could not remember anything that she had told the police in her prior statements. Or perhaps, as Miller believes, Blackwell was lying during her second appearance when she claimed that she suddenly could remember and then testified consistently with her prior statements to the police. For our purposes, and for purposes of applying the Confrontation Clause generally, it does not matter which testimony was true. Instead, what matters is that the jury had the opportunity to decide for itself whether to believe Blackwell. By redacting her testimony, the trial court denied the jury in Miller's second trial that chance and violated Miller's confrontation right.

The Tennessee Court of Criminal Appeals's application of the Confrontation Clause's protections to that decision to redact Blackwell's testimony was objectively unreasonable. The trial court justified the admission of Blackwell's prior testimony based on her unavailability. But it could not justify redacting the products of Miller's cross-examination. The confrontation guarantee that Sir Raleigh's trial inspired is not just the right to cross-examine; equally important, it is the right to share with the jury the information the cross-examination  reveals. We therefore reverse and remand for the district court to grant Miller a conditional writ of habeas corpus.

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  1. Conservatives and leftists can both be liberals — at a certain point, there are (small “l”) liberal principles that both the left and right agree on. I think this is such a case…

  2. “Conservative” has two meanings in this context. It could mean favoring particular outcomes. Or it could mean conservative in one’s interpretation of the Constitutional or statutory provisions at issue.

    These diverge where there is a clear textual and historical basis for the right being asserted. Even if the outcome is not “conservative,” in such a case a conservative in the second sense will rigorously enforce those rights.

    Antonin Scalia, whom I think all would admit is regarded as a “conservative,” nevertheless was for vigorous enforcement of enumerated Constitutional rights, which included not only First Amendment rights, but also Confrontation clause (see Crawford v. Washingont) and the requirement that a jury in a criminal case find all elements of hte crime. (Apprendi v. NJ and Blakely v. Washington). The fact these rulings favored criminal defendants did not perturb him one bit.

    See here for a more thorough discussion:,examine%20witnesses%20for%20the%20prosecution.

  3. Since the murder occurred 26 years ago, I suspect that the State and Miller will enter into some agreement where he pleads to a crime and is essentially sentenced to “time served.”

    Of course, he could decide to fight the charge since the Sixth Circuit described the case as “weak.” However, new technology might be enough to bolster the case for the prosecution. If it does not, and he is unwilling to take the “sure thing” that has him free by the Fourth of July, it will be a VERY challenging re-trial.

  4. Given how routinely the Supreme Court reverses the 6th on Habeas petitions, is there some reason to believe that this time really is different?

    She refused to testify at all. She was locked away in jail. Then she did testify, so that she didn’t remain locked in jail any longer.

    Unless you can provide some evidence that she was told that she had to testify that the defendant was guilty, I see no reason why the second trial was ever ordered.

    “I don’t recall” is what you say when you don’t want to tell the truth, but you don’t want to tell a lie because you might get caught, and convicted of perjury. So what the first trial did seems reasonable to me.

    “The harmful result, Miller argues, is that part of the testimony that the jury never heard was Blackwell’s statement that she had testified differently on her return to the courtroom because she did not want to go to jail. That omission, according to Miller, deprived the jury of information that called into question the credibility of Blackwell’s testimony in support of Miller’s murder conviction.”

    Except the 1st jury heard that part, and still found him guilty.

    Seriously, what are the grounds for:
    A: Requiring a 2nd trial AND
    B: Requiring that every single thing she said in court in the 1st trial be repeated at the 2nd trial

    This looks like “heads I win, tails you lose” BS, to me

  5. Having read as much of the opinion as I’m willing to stomach, what this appears to me is a case where the appeals court judges have decided that they disagree with the jury, so they’re going to make up a ruling in order to reverse the jury.

    I’m willing to be convinced otherwise, But you’ve got your work cut out for you:

    The trial court thought she was lying about her memory problems. So, out of the jury’s presence, the judge sent Blackwell to jail, and to help her remember, gave her reading material from both parties: the State offered statements that she had given to police shortly after the murder, and Miller offered notes that his investigator took when speaking with her just before trial.

    After the State finished presenting the rest of its evidence, the trial court called Blackwell back to testify as the court’s own witness. The judge told the jury, “I asked her to take her statements and go back and-and try to remember what happened and see if her memory improved any.” The judge then directed Blackwell to “turn and face that jury and tell them what happened, and I want you to tell them the truth.” She testified exactly in line with the statements the State had provided for her to read while she was in jail. During cross-examination, Miller’s attorney asked Blackwell how she had regained her memory. Blackwell replied: “I don’t want to go to jail.”

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