The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

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.