"Crawford" retroactive?

The Supreme Court last Monday agreed to address a furtherance of its 2003 Crawford v. Washington decision which reiterated the Constitutional guarantee of being allowed to confront one’s accusers. The question before the Court now is whether the Crawford decision can be made retroactive.(Docket)

The defendant, in trial court, was accused of, found guilty, and sentenced to life in prison for sexually abusing his 6-year old step-daughter, even though the daughter didn’t testify at the trial and her responses to questioning by police differed from her testimony at the preliminary hearing. “Although this case has been before the Nevada Supreme Court twice,” the 9th. Circuit Court of Appeals said on February 2005, “and the United States Supreme Court on one (other) occasion, resolution now rests on interpretation of… Crawford v. Washington, in which the Court definitely held that ‘testimonial statements of witnesses absent from trial have been admitted only where the declarant is unavailable and only where the defendant has had prior opportunity to cross-examine.’” (Opinion)

The question of whether there is “retroactivity” depends, in the opinion of the 9th. Circuit, on whether or not Crawford represents a “new rule,” stating that if it does, it has to be examined in the light of Schriro v. Summerlin, 542 U.S. 348 (2004)

“New rules apply retroactively only where they place,” the 9th. Circuit concluded, “‘certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe,’ or where the new rule is ‘implicit in the concept of ordered liberty.’ Teague v. Lane, 489 U.S. 288 (1998)”