Nevada Attorney General George Chanos appears at the U.S. Supreme Court Wednesday to argue a case involving a Nevada man sentenced to life in connection with the sexual assault of his 6-year-old stepdaughter. Photo by The Associated Press.
Franny Forsman
WASHINGTON -- The federal public defender of Nevada on Wednesday urged the U.S. Supreme Court to reverse the 1988 conviction of a Las Vegas man who was not allowed to cross-examine his 6-year-old stepdaughter and was convicted of sexually abusing her.
"If he were tried today, those statements (by the stepdaughter) would not have come in," said Franny Forsman, the public defender.
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Forsman was referring to a 2004 ruling by the Supreme Court that says statements made outside court can only be admissible if the witness is unavailable and the defense had the opportunity to cross-examine that witness.
But the 2004 ruling came 16 years after Marvin Bockting received a life sentence for the 1987 rape of his stepdaughter while her mother was away from the Las Vegas motel where they lived.
The girl began to testify during a preliminary hearing, but her story changed, Forsman said.
At that point, the judge ruled that she would be unavailable to take the stand at trial. Instead, a police detective explained to the jury what the girl reported.
Nevada Attorney General George Chanos argued Bockting's conviction should stand.
Applying the 2004 ruling to Bockting could lead to a significant number of new trials for older cases, Chanos said.
He said the 2004 ruling "modifies the contours" of cross-examination, but does not require accusers to confront the defendant in court.
Irving Gornstein, a Justice Department lawyer, told the justices that Bockting had the right to cross-examine the girl's mother and the detective who testified about what the girl told them.
"This was not an across-the-board denial of cross-examination," Gornstein said.
Forsman said relief for her client would not "open the floodgates" for other convicted criminals.
She said appeals had to be filed within one year of the 2004 ruling, and only five of 49 appeals had been granted relief.
"This case is an example of dire need for cross-examination," Forsman said. "It goes to the integrity of the fact finding process."
During Wednesday's hour-long hearing, the nine justices gave little indication about how they are likely to rule on the Bockting case.
Justice Anthony Kennedy singled out the court's problem if it upholds the 9th U.S. Circuit Court of Appeals in the case, which said the rule should apply retroactively and overturned Bockting's conviction.
"We have to look at the rule in the whole universe of cases, not just your case. It seems to me that was the problem you had in arguing in this area, and maybe you can suggest some way out. I don't see it," Kennedy said.
Justice Antonin Scalia questioned whether the court ruled in the 2004 case in such a fashion that the confrontation of accusers at trial is a "bedrock principle. You know it when you see it. ... It's like obscenity."
Alan Raphael, an associate law professor at Loyola University Chicago School of Law, said Bockting's chances are "very slim."
"The court has never found anything that meets the exception of a bedrock principle of criminal procedure which would require a retroactive application" of the 2004 ruling, said Raphael, who has written about the Bockting case for the legal publication Preview.
After Wednesday's hearing, Chanos said he was optimistic about the court's decision, which is expected within the next three or four months.
Forsman said she does not know what to expect.
"I don't have a real sense of where the court is, and I thought I would have a better idea after the arguments," Forsman said.
