State Made the Right Call After Witness Vanished

     (CN) – A man convicted of sexual assault cannot get habeas relief because prosecutors admitted prior testimony from his alleged victim when she went into hiding to avoid testifying again, the Supreme Court ruled Monday.
     “When a witness disappears 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 does not require the prosecution to exhaust every avenue of inquiry, no matter how unpromising,” according to the court’s unsigned decision.
     Irving Cross went on trial in 1999 for kidnapping and sexually as­saulting A.S. at knifepoint.
     A.S. gave “halting” testimony about her alleged attack and was afraid to take the stand, according to the trial court. Ultimately the jury found Cross not guilty of kidnapping and could not reach a verdict on the sexual assault charges. After the trial judge declared a mistrial, Illinois decided to retry Cross on the assault charges the following year.
     But A.S. had disappeared and could not be located. Convinced that prosecutors had made every effort to find the witness, the trial court allowed A.S.’s prior testimony to be read into the record. It had “concluded that the state had ‘expended efforts that go way beyond due diligence,’ and that A.S. ‘ha[d] made it impossible for anybody to find where she is … in spite of what I think are superhuman efforts to locate [her].'”
     This time, the jury convicted on two counts of criminal sexual assault. The court uniformly rejected Cross’ appeals, until his case reached the 7th Circuit where a three-judge panel identified three possibilities of locating A.S. that prosecutors failed to explore.
     On Monday, the Supreme Court disagreed that these ideas were noteworthy under the Antiterrorism and Effective Death Penalty Act of1996 (AEDPA), 28 U.S.C. §2254.
     “And, more to the point, the deferential standard of review set out in 28 U.S.C. §2254(d) does not permit a federal court to overturn a state court’s decision on the question of unavailability merely because the federal court identifies additional steps that might have been taken,” the seven page decision states. “Under AEDPA, if the state-court decision was reasonable, it cannot be disturbed.”

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