US Supreme Court: 06-8273

8/14/2019 US Supreme Court: 06-8273

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Official - Subject to Final Review

IN THE SUPREME COURT OF THE UNITED STATES

- - - - - - - - - - - - - - - - - x

STEPHEN DANFORTH, :

Petitioner :

v. : No. 06-8273

MINNESOTA. :

- - - - - - - - - - - - - - - - - x

Washington, D.C.

Wednesday, October 31, 2007

The above-entitled matter came on for oral

argument before the Supreme Court of the United States

at 10:01 a.m.

APPEARANCES:

BENJAMIN J. BUTLER, ESQ., Assistant Minnesota State

Public Defender, Minneapolis, Minn.; on behalf of the

Petitioner.

PATRICK C. DIAMOND, ESQ., Deputy County Attorney,

Minneapolis, Minn.; on behalf of the Respondent.

1Alderson Reporting Company



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C O N T E N T SORAL ARGUMENT OF PAGE

BENJAMIN J. BUTLER, ESQ.

On behalf of the Petitioner 3PATRICK C. DIAMOND, ESQ.

On behalf of the Respondent 30REBUTTAL ARGUMENT OFBENJAMIN J. BUTLER, ESQ.

On behalf of the Petitioner 53




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P R O C E E D I N G S

(10:01 a.m.)

CHIEF JUSTICE ROBERTS: We'll hear argument

first this morning in Danforth v. Minnesota.

Mr. Butler.

ORAL ARGUMENT OF BENJAMIN J. BUTLER

ON BEHALF OF THE PETITIONER

MR. BUTLER: Mr. Chief Justice, and may it

please the Court:

In this case, the Minnesota Supreme Court

held that this Court had prevented it from deciding for

itself which State prisoners can go into Minnesota State

courts to raise Federal constitutional challenges to

their conviction. This is incorrect.

A State court is free to fashion -- the

State courts are free to fashion their own jurisprudence

as to who may raise a Federal constitutional question in

State court in the context that if you hear State courts

and State legislatures can make their own policy

decisions about the costs and benefits of allowing State

prisoners to challenge their otherwise final convictions

based on new rules of Federal constitutional criminal --

JUSTICE KENNEDY: Well, I propose if the

State of Minnesota really cared about this, it could

have its own confrontation rule. Does it have a




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confrontation rule?

MR. BUTLER: The State constitution, Justice

Kennedy, has a confrontation clause. Its jurisprudence

on the confrontation clause, its own, is identical to

this Court's jurisprudence. So, yes, theoretically, a

Petitioner could always go in and make a State court

challenge to his State court conviction. The question

JUSTICE KENNEDY: That means the State isn't

necessarily tied in knots. It has the option to do

substantively what it chooses.

MR. BUTLER: The question in this case, Your

Honor, I think, is that whether -- is the question of

whether it has to. Yes, a State prisoner can make a

State court challenge to his conviction. The question

is, does he have to? In this case, Mr. Danforth

challenges his conviction under the Federal

Constitution.

JUSTICE KENNEDY: Well, page 2 of your reply

brief, the yellow brief, you take issue with the State,

and you say the State is wrong if there is a decision

either way on the confrontation clause and it's

questionable under Federal law, we can review it. I can

concede that's right, but that doesn't get you home.

That's the problem.




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MR. BUTLER: Well --

JUSTICE KENNEDY: That is the problem.

You're now creating a regime in which State courts are

reaching questions that we said ought not to be reached

for final convictions.

MR. BUTLER: Your Honor --

JUSTICE KENNEDY: And that was the basis on

which we decided Crawford.

MR. BUTLER: Your Honor, it's simply a

regime under which the State court, as it can in any

number of other contexts, can choose to consider the

merits of a litigant's claim. The Federal question --

the Federal question here is -- well, there are two. In

this case, it's whether Federal law prevents the State

court from hearing it, but the substantive Federal

question is whether Mr. Danforth's conviction violates

the confrontation clause.

JUSTICE SCALIA: And you think that our

holding in Teague was that it did, but we're not going

to let you out of jail?

MR. BUTLER: I think --

JUSTICE SCALIA: You think that's really

what we said in Teague, that even though your

constitutional rights were violated, we're going to

foreclose the remedy of habeas corpus? I -- I find it




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difficult to believe that that -- you know, any

responsible court could make such a determination.

MR. BUTLER: Your Honor, what the Teague

Court did was set up a procedural and a prudential limit

on a defense available for the State in the particular

form of habeas corpus.

JUSTICE GINSBURG: That issue is not a

necessary part of your case at all, but you don't have

to suggest that you could depart. You could do less

than Teague. For example, Griffith. You can accept

that as a given because it doesn't touch your case.

Isn't that so?

MR. BUTLER: That's correct, Your Honor.

Griffith sets forth, as we see it, the minimum

requirements of Federal law, that a new rule must be

applied to all cases that were pending when the new rule

is announced. That's what the Federal Constitution

requires.

CHIEF JUSTICE ROBERTS: Well, Federal rules

don't have minimums and maximums. They have a rule.

And as Justice Kennedy pointed out, you can have a State

rule under the State constitution that goes further. It

seems to me that the States' determination to apply

Crawford retroactively must be based on a disagreement

with this Court's Teague analysis, which refers back to




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the substantive elements of Crawford. So, in other

words, the disagreement at bottom is a disagreement

about how to read the substantive requirements of

Crawford.

MR. BUTLER: Respectfully, Mr. Chief

Justice, I don't think that's necessarily true. I think

the disagreement, if there is one, is with this Court's

policy decision in Teague to -- that the Court announced

in Teague as to whether to allow such challenges.

There's no disagreement as to the substance of Crawford

or to the substance of the Sixth Amendment. Nobody has

ever reached that --

CHIEF JUSTICE ROBERTS: Well, how do you --

I understand your point. Teague has both elements to

it. But if you're applying Teague, there are certain

exceptions that are based on exactly what the underlying

right is, what the Crawford right is. Is it a watershed

rule? Is it something else? And the court makes a

determination as a matter of Federal law on those

points. And what you're arguing for is discretion in

the State to disagree with those substantive

determinations.

MR. BUTLER: What we're arguing for,

Mr. Chief Justice, is discretion in the State to

disagree with the general policy rule that a court will




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not consider a new rule when considering the validity of

a conviction on, in Teague's case, habeas or on

collateral review.

JUSTICE KENNEDY: It's a general policy

rule, but it may well, as in the Crawford case, as a

good example, have affected this Court's initial

determination to strike off in a new direction. We did

so knowing that there's a possibility that we wouldn't

upset final convictions.

MR. BUTLER: Well --

JUSTICE SCALIA: And I think it is --

JUSTICE KENNEDY: -- to that effect.

JUSTICE SCALIA: Is it not a substantive

determination of Federal law when you say that this

constitutional change that we're making in this case or

that we have made in a past case is not retroactive?

That means there was no constitutional violation in the

past prior to the announcement of this case, and what

the State -- what you want the State court to be able to

say is yes, there is a Federal constitutional violation

for which we're going to give a remedy in habeas.

MR. BUTLER: I think, Justice Scalia and

Justice Kennedy, if I could address your points in turn,

on Justice Scalia's question about whether there was or

was not a constitutional violation, if the Court is




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really holding that there was -- that something -- that

there was no constitutional violation at the time

Petitioner's conviction became final or at the time

Mr. Bockting's conviction became final in the habeas

case, then what the Court is really holding is that

Crawford didn't just interpret the confrontation clause;

it somehow changed the confrontation clause, that the

confrontation clause meant -- that the confrontation

clause said one thing at one point and now says

something else.

JUSTICE SCALIA: I think that's exactly what

Crawford means, and I think that's exactly what

happened. That's what it means, whether it's a new

rule. What does a new rule mean? It means it didn't

used to be the rule, but it is the rule after this case.

Now, you can argue, and there are many

originalists who would agree with you, that there

shouldn't be such a thing as a new rule, but once you've

-- once you've agreed that there can be new rules, if

this Court says this is a new rule, we acknowledge it

wasn't the rule before, but it's new, it will not have

retroactive effect, it seems to me that the State would

be contradicting that ruling by saying oh, in our view

the law used to be exactly what you say it newly is.

MR. BUTLER: But the question, Your Honor --




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test, and then later on we got Griffith and Teague, and

the Court has refined, usually through the scope of

Federal habeas corpus --

JUSTICE ALITO: And during the period

between Linkletter and Griffith, did the State -- if the

Supreme Court said that a decision was not retroactive,

did State supreme courts feel free to apply it

retroactively?

MR. BUTLER: It -- there -- there doesn't

seem to be any case law on that point, Your Honor, that

I'm aware of. State courts usually, as they do today,

usually followed this Court's retroactivity decision.

But it is unclear whether they thought they had to or

whether they just chose to. The question --

CHIEF JUSTICE ROBERTS: Can a State -- can

they pick -- can a State pick and choose? Can it say

that we are going to allow Crawford claims to be applied

retroactively, but other claims, we're not going to?

MR. BUTLER: I think, when it -- if you

consider, Mr. Chief Justice, that the Teague rule is a

procedural rule about who gets to make what claims, then

I think the answer to your question is yes. The State

court could say --

CHIEF JUSTICE ROBERTS: Well, and if you

think that the Teague rule is an assessment of the

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Alderson Reporting Company



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forcing us to make the -- to draw the very lines that we

said we ought not to draw in Hudson.

MR. BUTLER: No, Your Honor.

First of all, what Hudson -- the Hudson case

asked was whether exclusion of evidence was required

under the Fourth Amendment when the violation of the

Fourth Amendment was a no-knock violation.

The word "required" appears throughout the

opinion in Hudson, and the answer was no, it doesn't.

The Fourth Amendment doesn't require exclusion of

evidence.

But there was no suggestion in -- in Hudson

that the State court could not then say, here is a

Fourth Amendment violation. We need to come up with

what the remedy is. The Constitution doesn't require us

to suppress the evidence, so we are -- we either choose

not to --

JUSTICE KENNEDY: But -- but you agree with

me, then, that under your position, the State could

apply an exclusionary rule.

MR. BUTLER: Yes, Your Honor, it could under

State law. And if --

CHIEF JUSTICE ROBERTS: Based on the

distinction between right and remedy, a distinction that

is -- that in countless areas of the law we -- we have

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said is -- is an ephemeral one?

MR. BUTLER: Well, the -- that is not based

on that distinction. That is one way to look at it,

Mr. Chief Justice, that in -- in the Hudson context, it

is definitely a question of right and remedy.

There's no question in Hudson that the

defendant's Fourth Amendment rights were violated. The

question is what remedy is required by the Constitution.

Here, Mr. Danforth wants the Minnesota State

Court to consider whether his constitutional rights were

violated. It did not hold that they were not. It held

that it could not consider the merits of his claim

because of Teague.

And in other settings this Court, in its

other limitations on the availability of habeas corpus,

has described these prudential rules like Teague as

gateway claims.

JUSTICE SCALIA: Mr. Butler, let me -- this

is a habeas case, but I assume the same issue could come

up in a -- in a direct appeal to the State Supreme

Court. Is it your position that in a direct appeal, the

State can determine to be retroactive constitutional

rights that we have said are not retroactive, on direct

appeal, now, not habeas?

MR. BUTLER: As long, Justice Scalia, as the

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State acknowledges that it is using State law to do so,

that it is -- that it is not mismanaging this Court's

retroactivity jurisprudence. In other words, as long as

it doesn't think, well, we -- we must do this.

JUSTICE SCALIA: If it bases its decision on

the Federal Constitution, and we have said that this

Federal constitutional rule is not retroactive, what --

what do they say on a direct appeal?

MR. BUTLER: On a -- on a direct --

JUSTICE SCALIA: And my next question is

going to be whatever they say, when it comes up to us,

what do we do?

MR. BUTLER: It would -- it would depend on

the facts of the case, Your Honor.

JUSTICE GINSBURG: I'm -- I'm confused on

this one, because I thought it was part of our

retroactivity jurisprudence that the States must apply

that new rule while the case is still in the pipeline,

while it is on direct appeal, not that they -- well,

they just may, but they absolutely must apply it

retroactively. I thought that's what Griffith said.

MR. BUTLER: That is, Your Honor, what

Griffith says, and that's -- that's what -- that's --

JUSTICE SCALIA: My case was not in the

pipeline. The prosecution began after our new decision.

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Okay? And it comes up to the State Supreme Court. Can

the State Supreme Court, despite the fact that we've

said the decision is not retroactive, make it

retroactive? And your answer is yes?

MR. BUTLER: My answer is --

JUSTICE SCALIA: Habeas or not?

MR. BUTLER: My answer, Your Honor, is that

if the -- the --

JUSTICE GINSBURG: If it comes up after --

if the prosecution is after the Federal decision, of

course, the decision has to apply.

MR. BUTLER: Yes, I think that's correct,

Justice Ginsburg. The decision would apply. If the

prosecution starts after this Court announces a new rule

and then says that it is not retroactive -- when you

announce that it is not retroactive, it is not

retroactive to cases that are already final.

If the case hasn't even begun yet, then, of

course -- then, yes, then the new rule would apply.

CHIEF JUSTICE ROBERTS: Does your -- does

your approach apply to legislative enactment's as well?

Let's say Congress passes a law and it provides as

particular remedy, and it says this remedy shall not be

retroactive but only apply in new cases.

Can the State say well, we think it ought to

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retroactive, it's hard to say what kind of right you

have.

MR. BUTLER: If, Your Honor -- think about

the -- the tax cases, for example, American Trucking and

McKesson, the case -- the companion case. In both of

those cases, especially McKesson, the Court held that

where there has been a violation of somebody's

constitutional rights and the -- and the State owes that

person some sort of a remedy, then the State can give

whatever remedy the minimum requirements of the Federal

Constitution or Federal law are, but can also go

further.

CHIEF JUSTICE ROBERTS: Sure, as a matter of

State law.

MR. BUTLER: Yes.

CHIEF JUSTICE ROBERTS: But here you are

arguing in favor of retro-application of Federal law.

There is no issue -- as Justice Kennedy pointed out, you

can have a State confrontation clause and do whatever

you want with it. But you are relying on the Federal

provision.

MR. BUTLER: What -- what we are relying on

-- we are relying, Mr. Chief Justice, on the substance

of the Sixth Amendment, yes. That is the substantive

claim Mr. Danforth makes.

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JUSTICE SOUTER: No. But you are also

relying, as I understand it, on State common law, in

effect. And you are saying, that so long as the State

common law does not give less by way of remedy and

relief than the Federal decision requires, the State is

free, as a matter of State remedial common law, to do

more. That's your point, isn't it?

MR. BUTLER: That is absolutely my point,

Justice Souter.

JUSTICE SOUTER: You are saying that,

ultimately, the State's choice in this case rests upon a

choice of State common law about procedure leading to

remedy.

MR. BUTLER: It is not even just State

common law, Justice Souter. It is state statutory law.

CHIEF JUSTICE ROBERTS: No. No. I would

have thought the very least Teague is, is Federal common

lawful. In other words, this is the Federal law of

remedies. I think it is more than that. I think it is

substantive constitutional -- substantive Federal

constitutional law. But it's at least Federal common

law, and doesn't Federal common law preempt State common

law.

MR. BUTLER: Only, Mr. Chief Justice, if the

Federal interest is so strong as to outweigh all of the

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State court interests. And when it comes to the

remedial question of does this person have a right to go

to State court and challenge his conviction, that is

quintessentially the matter of State law.

JUSTICE SCALIA: That always assumes that

that's a remedial question, and that the question is not

was the Constitution violated at the time this act

occurred. That -- if that's the question, then you

acknowledge that the State can't change the situation.

MR. BUTLER: That's true, Justice Scalia.

That if this Court -- if Teague is a rule that says what

the Constitution was at a particular time, then it is

much harder for us, we would probably have to make a

State law claim.

JUSTICE GINSBURG: But if you can say -- it

is a little odd that the State executive can say, yes,

as far as we're concerned, we like the new law, or what

was always the law but the Court wasn't perceptive

enough to see that, we like it, so we're not going to

raise Teague. It would be an anomaly, would it not,

that the executive of the State is not bound by Teague,

but the courts are?

MR. BUTLER: That's correct, Justice

Ginsburg. And that's -- the waiver doctrine about

Teague shows why Teague is not a decision about what the

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law was.

JUSTICE SCALIA: I assume that the State

executive can do that with respect to any Federal law

that it's authorized to implement, simply choose not to,

couldn't it? That's prosecutorial discretion.

MR. BUTLER: No, Justice Scalia,

respectfully, I don't think that's true. If the law at

the time of Mr. Danforth's conviction became final said

there's no confrontation violation, and we go to State

court or Federal habeas court, for that matter, and the

State chooses to say we don't want to apply Teague,

we'll take him on on his Crawford claim. That, under a

view that the law has changed, that allows the State

executive branch through waiver or even worse, through

procedural default, inaction, to change the substance of

Federal law.

JUSTICE KENNEDY: You want us to write an

opinion which begins with the sentence, "This Court has

no interest in the extent to which its constitutional

decisions upset final judgments"?

MR. BUTLER: No, Justice Kennedy, I don't

think that's what the opinion should start with. I

don't necessarily think that that's true. I don't know

that there's no interest in much of anything in this

case.

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When you weigh and balance the interests,

however, the interests of the State courts in

controlling access to their courthouse doors, in

reviewing that their own judgments -- I mean, Teague

gets back to a comity decision. Whatever Teague is is

based almost not exclusively but primarily on comity and

respect for State courts. Federal courts are not --

JUSTICE ALITO: If Crawford had been a

decision of the Minnesota Supreme Court, is it clear

what retroactivity rule they would have applied?

MR. BUTLER: No, Justice Alito, it's not.

The State court has used in the past the Linkletter

balancing test. It's also used something akin to

Teague. And then in this case, they held for Federal

rules they have to use Teague.

JUSTICE SOUTER: Mr. Butler, if as you say

Teague is, in effect, a comity rule, then what is your

answer, in effect, to Justice Scalia's point that we

make a decision when we come down with a substantive

legal judgment about the Constitution, we make a

decision as to whether the rule is retroactive or not?

And he says that if you look at Teague as simply, in

effect, a comity decision, that's inconsistent with the

determination that we have made, because if you say

okay, we as a State will apply it earlier than the Feds

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say we have to, you, in effect, are changing the

substantive determination that we have made, that the

decision is not retroactive.

What is the retroactivity analysis that

underlies your comity analysis of Teague?

MR. BUTLER: The retroactivity analysis,

Your Honor, when this Court makes a decision is that, as

Justice Ginsburg suggested earlier, Griffith. The Court

says when it makes a new rule, when it announces what it

believes to be a new rule, that it knows that it will

apply to a certain group of cases.

It doesn't know -- it can't know anything

more than that, because the Court doesn't exercise

control over other courts --

JUSTICE SOUTER: Alright, but let's be more

specific. What does it know about retroactive

application under Griffith?

MR. BUTLER: That it will apply.

JUSTICE SOUTER: And it will apply to some

cases that depend upon facts and have eventuated from

trials that are --

MR. BUTLER: -- that are already finished.

JUSTICE SOUTER: Right. So that there's is

going to be some retroactivity?

MR. BUTLER: Yes, absolutely.

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JUSTICE SOUTER: And if there is going to be

some retroactivity, then I take it your position has got

to be and is our substantive decisions are not so much

retroactive or non-retroactive, but retroactively

applied, to some extent, and not retroactively applied

to others, and a State is free to apply it more

retroactively than ours. Is that the nutshell?

MR. BUTLER: That is the gravamen of our

argument, Justice Souter.

JUSTICE SOUTER: So your answer to Justice

Scalia is, I take it, not that the decision is

retroactive or not, but there is a decision about the

degree to which applications will be retroactive or not?

That is what underlies your case?

MR. BUTLER: That's correct, Your Honor.

JUSTICE SCALIA: Then do you think the State

is free to decide how and when and whether it will,

quote, apply? I mean, simply to separate the law from

the application of the law seems to me no answer at all.

Is there any other area where you say well,

yes, there was a Supreme Court decision; but whether to

apply that decision is up to the State?

JUSTICE STEVENS: You're overlooking what I

understand to be the basic distinction you're drawing.

I know the Chief Justice has cast doubt on it. But I

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think there is a basic distinction between rights and

remedies.

And you're holding -- I understand your

position to be that the remedy may not be retroactive,

even though the decision itself can assume that there

would have been a violation from the beginning of the

Constitution today we may have misinterpreted before.

But if there is a violation of the right, then there's a

decision about what kind of remedy shall be imposed.

And you can say we will not impose a remedy

for past wrongs, even though we must impose them in the

future and we can let other states decide whether to

post a remedy or not. And that's totally consistent

with the holding that the violation is always

retroactive, but the remedy may not be.

MR. BUTLER: I think that's correct, Justice

Stevens. When you talk about remedy --

CHIEF JUSTICE ROBERTS: -- it is the other

way around which makes it problematic. You are going to

say the remedy is retroactive even if there's no right.

You're going to say where we have decided that there is

no remedy and, therefore, if you have a right, it's -- I

don't know what you get out of it -- you want to say,

no, there is a remedy.

MR. BUTLER: What I want to say, Mr. Chief

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Justice, is that if there is a violation of the test of

the Sixth Amendment confrontation clause, this Court

decides what remedies are required, what remedies for

certain people and perhaps for other people what

remedies are not required. Justice Harlan in Mackey

called it the body responsible for defining the scope of

the -- what he called the writ, in other places, the

adjudicatory process.

In this case it's State post-conviction

review. It is that body that decides whether there

shall be either a remedy, you want to call it a remedy

for the violation, you want to call it who decides

whether the decision shall be applied retroactively, as

opposed to whether it is retroactive. It is the

group -- it is whoever is controlling the adjudicatory

process.

JUSTICE GINSBURG: It's subject to the

floor, that the floor that this Court sets, it must be

retroactive to a certain extent.

MR. BUTLER: That's correct, Justice

Ginsburg. Subject to the floor, it is then up to the

governing body to decide how much protection to give.

And that gets back to Justice Stevens's point -- the

States can always choose to give either -- you can call

it a greater remedy, you can call it a larger

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retroactive application, as long as the substance of

Federal law doesn't change, then it is a State question.

JUSTICE STEVENS: It is the same as the

question of whether to apply the exclusionary rule.

MR. BUTLER: It is.

JUSTICE STEVENS: That was a remedial

decision. Everybody agreed the knock and announce

business was a violation. The only question was on

remedy. And there are lots of rights that -- for which

there's no remedy. Look at all our implied cause of

action cases, you will find many, many examples of that.

MR. BUTLER: In habeas corpus as well,

Justice Stevens. If you file your habeas petition one

day late, no remedy. If you don't preserve the issue in

the trial court, no remedy.

CHIEF JUSTICE ROBERTS: So you have to

argue, and this is why I think the distinction has been

rejected in so many other areas of the law, you have to

argue that the remedy question is totally separate from

an analysis of the right. Because otherwise, you are

saying the State courts have the right to disagree with

our determination of what the Federal right is. If you

think the remedy, the question of remedy draws some

substance from what the right is, which I would have

thought is obviously the case, then it seems to me

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you're asserting a power on the basis of the State court

to overturn our Federal law determinations.

MR. BUTLER: We are not asserting, Mr. Chief

Justice, that the State court has the ability to

disagree with this Court's interpretation of the Federal

Constitution.

What we are asserting is that the State

courts and the State legislatures have the ability to

decide who can come into State court and what claims the

State court can listen to.

And I want to -- before I -- my time, I

wanted to address -- Justice Kennedy had a concern

earlier about knowing the scope of the application of a

right when you announce a substantive decision.

And the answer to that, I believe, is that

the court -- not only does it already know it's going to

go -- it will apply to anything pending on direct

review, but that -- that -- that question is much more

complicated than it seems. Different States have

different time lines for when something is pending on

direct review. How long it takes an appeal to pass

through the State court process? What requirements of

the defendant are there?

In Minnesota it takes about 15 months to run

a direct appeal. And so a defendant can sit there for

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15 months and know that he's probably going to get the

benefit of any decision this Court announces. In

another State it might take two years. In another State

it might take six months. There's different groups of

defendants -- even under the Griffith standard, we

already don't have the sort of uniformity that the

Respondent thinks is so -- thinks is so important in

this area.

There's always -- things are always left to

the matter of State courts to -- to decide -- to have

their own procedural rules and decide how best to use

their adjudicatory processes, and all this Court can do

is announce the best Federal rules it thinks the

Constitution supports, have some idea of what the

minimum requirements of those rules are going to be; and

then it is up to the State courts to decide what other

remedies to give for the violations that -- if this

Court holds something is a violation, then it is up to

the State courts to decide as a minimum who it will

apply to.

If there are no further questions, I'll

reserve my time.

CHIEF JUSTICE ROBERTS: Thank you -- thank

you, Mr. Butler.

Mr. Diamond.

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ORAL ARGUMENT OF PATRICK C. DIAMOND

ON BEHALF OF THE RESPONDENT

MR. DIAMOND: Mr. Chief Justice, and may it

please the Court:

Federal law controls the retroactivity or

non-retroactivity of new constitutional rulings. This

Court determines the constitutional requirements --

JUSTICE STEVENS: May I ask you, just at the

outset, when you use the term retroactivity, are you

saying there was no violation of the Constitution before

the decision, or there just is no remedy for it?

MR. DIAMOND: Your Honor, I think in this --

this Court has made it clear in the retroactivity area

that retroactivity is a question of the substantive

constitutional standard that will applies to a specific

defendant. I think the Court's cases from Payne,

Griffith, Yates --

JUSTICE STEVENS: -- one of the cases where

the line is drawn when the expiration of the direct

review has passed. Is it your view that at that

particular point in time a constitutional violation

either exists or it does not exist? It's not a remedy

question?

MR. DIAMOND: That's correct, Your Honor. I

don't believe this is a matter of remedy. This Court,

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for example, in Reynoldsville Casket wrote that Teague

itself is not a limitation on remedy. What it is, is a

limitation on the principle of retroactivity itself.

JUSTICE KENNEDY: Is part of that because of

what's involved in expectations? That's the Smith case,

where we said the determination of whether a

constitutional decision is retroactive Is every bit as

much a question of Federal law as the decision of the

substantive right itself. We said that in Smith.

MR. DIAMOND: Yes, Your Honor, and the point

is that the substantive rights and retroactivity are not

two different things.

JUSTICE KENNEDY: And here the

expectation -- in Smith it was the expectation of people

in the private sector. Here the expectation is one of

finality of judgments.

MR. DIAMOND: Exactly, Your Honor.

JUSTICE SOUTER: Then how do you -- how do

you reconcile that answer with the point that your

brother made just before he sat down, and that is,

taking standard Griffith analysis, the application of a

so-called new rule is going to vary depending on how

long it takes a person on direct appeal to get through

the State court system?

And it seems to me that that is inconsistent

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with your view that there has got to be one rule with

respect to the date of application as a matter of

substantive Federal law, because we know for a fact

that, depending how long it takes to get through the

State appellate system on direct review, the new rule

may be applied and it may not be applied.

MR. DIAMOND: Your Honor, two points: First

of all, I think Griffith is very clear, that finality is

that point. Griffith is very clear, and it defines

finality as that point when the direct appellate process

has run, and this Court -- and the opportunity to

petition this Court for review is over. Secondly, Banks

II, a retroactivity case from this Court, says that it's

up to the Federal courts to define finality. Remember

in Banks II there was a question of whether the

Pennsylvania courts passing on waiver requirements

somehow destroyed the finality of --

JUSTICE SOUTER: I understand your -- your

point about finality, and finality has a well-known

operative effect. But one operative effect when the

Federal courts have defined finality and have said it is

not final until -- a case is not final until direct

review is over -- one consequence of that is that a

substantive Federal rule will be applied to an

individual in one State whose crime and whose trial

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procedure is different in time from that of a defendant

in another State.

So that the consequence is that the

substantive rule will apply to some people who acted on

date X and it will not apply to some people who acted on

date X; and that, it seems to me, is inconsistent with

your answer to Justice Stevens's question.

MR. DIAMOND: Your Honor, given the varied

proceedings at the State level, that -- that is

inevitable no matter what time this Court --

JUSTICE SOUTER: And if it is inevitable, I

don't see how you can answer Justice Stevens's question

the way you did.

MR. DIAMOND: Your Honor, the point in

Griffith is that in terms of uniformity, this is -- in

terms of providing similarly situated people, the best

the Court can do in this area is to cut -- to make the

point at finality --

JUSTICE SOUTER: And the finality point in

effect establishes a way of calculating the application

of a rule in any given State in any given case, but it

will not result in the uniform application of the rule.

Isn't that correct?

JUSTICE SCALIA: Yes, that's correct. You

have to say that's correct.

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(Laughter.)

MR. DIAMOND: And --

JUSTICE SCALIA: But I think you can also

explain that the reason it's correct is the Court

probably would have liked to say yes, we're making up a

new rule; the Constitution didn't use to say this; and

this rule will apply from now on to all actions taken by

individuals from now on. But then, you know, Justice

Harlan says my goodness, you're going to give relief to

this individual and not give relief to other individuals

who are making the same claim and already have cases

pending? You have to treat them equally. So we will

make an equitable exception for that.

But basically, the existence of that

exception does not prove that the Court was not

purporting to make a substantive rule. There's an

exception to the application of that substantive rule

for pending cases, which is totally understandable.

MR. DIAMOND: Which, Your Honor, is Griffith

and is defined by Federal law.

JUSTICE STEVENS: Can you give me an example

of a case in which this Court candidly said, we're

announcing a new rule which was not the law before?

Aren't we always interpreting what we thought the intent

of the framers was from the beginning, even though we

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may have gotten it before? What is your best example of

a new rule, in the sense it's a different rule of law as

opposed to a different remedy? See, all these equitable

considerations go to the remedy. But the notion we can

make up a new rule of law at will strikes me as a very

dramatic departure from what I understand the rule of

law to require.

JUSTICE SCALIA: I'm really glad to hear

that.

(Laughter.)

MR. DIAMOND: Your Honor, I think the

point -- this isn't Blackstone -- Blackstone is not the

only view here. The point is that finality is -- is not

a competing concern, but the point --

JUSTICE STEVENS: Finality is a condition

for fashioning the right remedy. There's no doubt.

Everything you say is necessary for treating litigants

in a -- in a fair manner. But that all goes to remedy,

not to the violation.

JUSTICE SCALIA: Don't we call it a new

rule in Teague?

JUSTICE KENNEDY: -- expectations as being

questions of remedy?

MR. DIAMOND: Excuse me, Your Honor.

JUSTICE KENNEDY: It seems to me that your

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-- your answer to Justice Souter's question earlier

should be that there is uniformity. Some States are

fast, some are slow, but in the end there is a final

judgment which is a settled expectation, and the

substance of the law honors settled expectations, which

is finality.

MR. DIAMOND: Your Honor -- and that point

is -- the point of finality is a recognized point of

what is necessary for the integrity of judicial

decision-making.

JUSTICE SOUTER: That's sort of like

defining order as random order, isn't it?

MR. DIAMOND: I disagree, Your Honor. I

think that as Justice Harlan said in the -- in the

Williams and Mackey dissents, there is -- a decision

that is always subject to revision is really the

functional equivalent of no decision at all. It's what

makes judicial decisions judicial.

JUSTICE SOUTER: And -- and the concern is a

concern not so much.

JUSTICE KENNEDY: And the concern is not so

much a concern not so much for the defendant here but

for the States, isn't it? We don't want -- we think

there is -- there is an important value implicit in

habeas, and one of those values is that there be a limit

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to the degree to which we are going to upset the settled

expectations of the States. Isn't that right?

MR. DIAMOND: Your Honor, the State's

interest here can be vindicated by the State by applying

State law.

JUSTICE GINSBURG: That's not the point. I

thought that Teague was driven not by some abstract

notion about finality, but the intrusion on State

decision-making. Here was State that had conducted an

entire process that appeared to be in line with what the

Federal law then appeared to be. And then the State is

told by some Federal habeas court, State, you've got to

do it all over again, because you didn't -- you didn't

predict that we were going to interpret the Constitution

differently. I thought that the really motivating idea

of Teague was it addressed the Federal forum and said,

Federal forum, don't step on the States' toes, don't

make them redo trials that have long since been over.

MR. DIAMOND: Your Honor, I'm here

representing the State of Minnesota, and the intrusion

that I'm concerned about in this case is a State court

judge adopting some Federal optional -- sort of Federal

requirement, and applying it as opposed to using State

law that can be reviewed and overturned and for which

that State court judge is accountable to the citizenry

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of the State.

JUSTICE KENNEDY: Well, I must say I have

serious problems with your position in that regard.

If you were not to prevail in this case

and -- or, pardon me, if the Petitioner were to prevail

in this case, and there were a ruling on what Crawford

means, or doesn't mean, we could review it. I think the

Petitioner is absolutely right on that point.

MR. DIAMOND: Your Honor, I think that it's

difficult. If you look at, for example, the recent case

in Minnesota, Krasky, dealing with essentially the same

evidence that's at issue in this case, if the State was

adopting Krasky as some State standard, then this Court

wouldn't be in a position to review it. If it's

adopting Krasky as a -- as the Federal standard, then

the question is, how is it that the State is adopting

something as a matter of the Federal Constitution that

is not a Federal constitutional requirement?

JUSTICE BREYER: The question I have is, to

go back, you said two separate things. One is you say

the question here is a matter of Federal law. I'll give

you that. It's a matter of Federal law.

But the question is, what's the content of

the Federal law? Does the Federal law say to the States

-- State, in a collateral review proceeding, you want to

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apply Crawford retroactively to people whose convictions

were long ago, do it, we don't care?

And a lot of Teague says that should be the

Federal rule, if it's called a Federal rule.

But then you said a different thing, in

answer to Justice Stevens. The different thing was but

the substantive rule of Crawford only takes effect as of

the day of Crawford and into the future.

Now, on that position, or take any other

date you want as one year earlier or whatever you're

going to pick there, if you're right about that, you

win.

But how could you be right about what I call

there a metaphysical point? Because on the metaphysics,

as Justice Souter just pointed out, imagine three people

who have three identical trials each one year before

Crawford. The first person is called Crawford, and he

wins.

The second person is called Smith, and he's

delayed forever in the appeals process.

And the third person is called Jones, and he

get a quick appeal, convicted, in jail at the time of

Crawford.

Now we know that the first two Crawford

applies to, but metaphysically, if the law of Crawford

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was the law at the time of the first two trials, why

wasn't it the law in terms of what the rights are in

respect to the third person whose trial was held at

precisely the same time?

MR. DIAMOND: Your Honor, the point I think

is that this is a point that Griffith makes, that when

your conviction becomes final, that your stake -- if I

can call it that -- in changes in the law come to a

close.

JUSTICE BREYER: I agree with that.

JUSTICE SCALIA: You are saying

metaphysically this Court has no power to enunciate new

constitutional rules metaphysically, but we have done

so, and Teague is full of references to new rules. "We

therefore hold that implicit in the retroactivity

approach we adopt today is the principle that habeas

corpus cannot be used as vehicle to create new

constitutional rules of criminal procedure unless those

rules would be applied retroactively to all defendants."

The opinion is full of new rules.

So -- so, you know, we have violated

metaphysics already. Having violated it, in adopting

new constitutional rules, why should it be any surprise

that we also violated it in the application of those

rules? There should be no surprise at all. Don't get

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hung up on metaphysics, Mr. Turner.

JUSTICE STEVENS: In Crawford itself, it

seems there was quite a bit of attention given to

history long before the original interpretation of the

clause. I guess that was unnecessary because we were

making up new rules. Is that the --

(Laughter.)

JUSTICE BREYER: You've adopted Justice

Scalia's approach through your silence, and I'd ask you

whether -- whether -- whether there isn't just a simpler

explanation that doesn't require us to go into Spinonza,

Immanuel Kant, or even Aristotle. And the simpler

explanation would be simply what Justice Stevens started

with, that Teague is about remedies, and that we assume

that the law was the law at the time of Crawford's

trial, at the time of Smith's trial, and at the time of

Jones' trial.

But Jones is knocked out because he went to

habeas. And that's what Teague is about. Habeas. And,

therefore, if the State wants to apply Crawford

retroactively, let everybody out of jail, that's their

problem. Or their virtue. That's up to them.

That's where Justice Stevens started, and

that's what I would like to hear an answer to.

JUSTICE SCALIA: You wouldn't want to say

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that, Mr. Turner, because that would place you in the

position of saying what we are telling people in these

Teague cases is oh, yes, the Constitution was violated,

but we don't want to hear about it. I mean that's the

alternative, to acknowledge that the Constitution is

violated in all of these Teague cases, some of them

being capital cases, and we nonetheless say well, too

bad, it's on habeas.

I'd like to think that's not what we're

doing, that what we're saying is, this is a new

constitutional rule, there was no constitutional

violation before, and that's why we're letting it stand.

MR. DIAMOND: Your Honor --

CHIEF JUSTICE ROBERTS: I think you're

handling these questions very well.

(Laughter.)

JUSTICE GINSBURG: That was not a question

addressed to you, Mr. Diamond.

MR. DIAMOND: Your Honor, I think that, in

terms of Teague as a remedial limitation, first of all,

I don't think this Court's retroactivity jurisprudence

at all supports that notion.

I also think, for example, while certainly

not directly at issue in the habeas area, in construing

habeas, this Court said that Teague was not so much

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about a standard of review as it was about the standard

that applies itself. And so I think it's very difficult

to square the notion of Teague as a remedial limitation

with this Court's retroactivity jurisprudence.

It's also difficult to square it with the

explicit rejection of that notion in American Trucking

and in Harper and Reynoldsville Casket.

JUSTICE GINSBURG: You do recognize, though,

that one of the propelling forces behind Teague and why

we changed from the Linkletter regime was respect for

State courts' processes and the resistance to the heavy

hand of Federal habeas courts telling States what to do.

It seems a little ironic then if you take an

opinion that was driven by the Feds staying out of the

State courts' territory to say oh, no, we're going to

tell you that it's not -- we control when we want to.

MR. DIAMOND: Your Honor, certainly that was

one of the things that was going on in Teague. But,

respectfully, I think the question -- it's every bit as

intrusive on the State process when a State court judge

applies a new Federal rule to overturn a conviction, as

it is when a Federal court judge does the same thing.

In other words, those comity concerns apply

regardless of forum.

JUSTICE KENNEDY: Isn't what you are saying

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is that the concern in Teague was not only with State

court processes, but with settled expectations of those

who are involved in the criminal system, particularly

victims who are entitled at some point to rely on a

conviction being final?

MR. DIAMOND: Yes, Your Honor.

JUSTICE KENNEDY: We don't usually think of

just of settled expectations as being questions of

remedy. We consider those as being questions of

substance.

MR. DIAMOND: Your Honor, I think if you

look at Justice Harlan's writing in Teague about the

post-conviction -- what should be the rule for

post-conviction, you see he lays out very eloquently

what those concerns are in terms of finality and

uniformity in the post-conviction arena. And what I'm

saying is that those concerns -- certainly comity is a

concern; but those other concerns in terms of finality

and allocation of judicial scarce criminal justice

resources and what kind of a trial are you going to have

11 years after the fact, is it going to be more fair

than the trial that occurred in the first place, all of

those -- apply.

JUSTICE GINSBURG: -- State executives can

upset all those expectations. The State executive says

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I want this -- the issue -- the substantive issue in

this case settled, so I'm not going to raise Teague.

And so Crawford is going to be retroactive because I say

so. It is a bit of an anomaly that the prosecutor has

that power but not the State court itself.

MR. DIAMOND: Your Honor, first of all, I

think the State court is in a business -- is in a

different role in terms of enforcing the constitutional

rights in that situation. In fact, as it relates to the

constitutional right, it is difficult to see what State

interest a judge should be vindicating at that point.

JUSTICE GINSBURG: It is also difficult to

see what Federal interest is vindicated when the State

says we know we have to respect this -- call it what you

want -- new precedent in cases still in the pipeline,

and we don't have to if the case has reached a final

judgment. But "not required to" doesn't say "can't,

even if you want to."

MR. DIAMOND: Your Honor, that brings me

back to the point where I started, which is that the

Constitution doesn't -- remember, we're using the

Federal Constitution here as authority to do something

that, for example, in this case the Minnesota Court

would be otherwise unable to do.

This defendant never raised the State law

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claim. Under -- never had -- this defendant never

raised his State confrontation rights. So in this

proceeding, the Minnesota Court would bar him from

raising his confrontation --

JUSTICE BREYER: Let me take the other point

here, which is Justice Scalia's, which I think I

understand now. Imagine that the Crawford begins to

take effect as of the day of decision. No law like

Crawford before. But for practical reasons and reasons

having to do with courts, we let certain people take

advantage of it. We let person A take advantage of it,

Mr. Crawford. We let person B take advantage of it, who

is on direct appeal. We don't let people in habeas take

advantage of it.

Why don't we let the State take advantage of

it in its collateral proceedings if the State wants to,

for reasons of federalism, for reasons they can do what

they want, for reasons if it is going to be the law in

the future any way?

MR. DIAMOND: Your Honor, my point is that

the State can take -- the State can do that as a matter

of State law. The problem is with allowing the State to

extend the Federal standards here, is that the Federal

standards under Teague and under Griffith, but mainly

Griffith and Wharton together in this case, defines what

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the constitutional requirement -- what constitutional

standard this --

JUSTICE STEVENS: May I ask another sort of

basic question? The Teague rule is a Federal rule --

the Teague ruling. What is your understanding of the

source of that rule? Is it the Court's power to

announce, make Federal common law? Or is it a

constitutionally mandated rule?

I will give you one other decision, cover it

all at once.

And if it were not a judge-made rule, and

rather, it was a statute and it goes beyond regulating

Federal habeas corpus proceedings and effects State

court proceedings, what provision in the Constitution

would have given Congress the authority to enact such a

statute?

MR. DIAMOND: Your Honor, let me --

JUSTICE STEVENS: Interpreting it the way

you interpret it.

MR. DIAMOND: Let me try the first question,

and then we will see where we go. I think the source

of -- the authority for Teague is, frankly, the same

source for authority as it is for Griffith, and as the

same source of authority as in Griffith. Griffith talks

about -- the best I can do for that is Griffith talks

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about it being grounded on basic norms of constitutional

adjudication and the integrity of the judicial decision

making.

JUSTICE STEVENS: Which qualifies for the

Federal system. Where is the authority to regulate the

State system come from?

MR. DIAMOND: Your Honor, I disagree in

terms of that that all applies only in the Federal

system. If you look at, for example, the civil cases,

American Trucking, Reynoldsville, and Harper, they

talked about that same basic norms of constitutional

adjudication applying in the State forum as well.

I'm sorry. There was a second part to your

question which was in terms of Congress being able to

amend or modify Teague in some fashion?

JUSTICE STEVENS: No. Where would Congress

get the authority to require State courts to follow the

rule, the interpretation of Teague that you're advancing

in this Court, that they may not go beyond the decisions

of this Court? What under the Federal Constitution

authorizes the Federal government, either judges or

Congress, to tell State courts that they cannot do what

your opponent argues they should able to do?

MR. DIAMOND: Your Honor, I don't believe

that that's what's going on in the Federal habeas

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statute. I think this Court has said that --

JUSTICE STEVENS: I agree when you are

talking about what Federal court can do -- administering

a Federal habeas corpus. I have no problem. I'm asking

where does the Federal authority to tell State courts

they cannot do what your opponent says they should be

free to do?

MR. DIAMOND: Your Honor, I guess my source

of confusion with your question is I don't understand

Teague is a rule from Congress. I understand Teague is

a rule of this Court in terms -- describing what the

Constitution -- what constitutional standard applies to

what defendant.

JUSTICE STEVENS: In Federal habeas corpus

proceedings, yes.

MR. DIAMOND: Your Honor, that's where the

point of agreement is. I think Teague does many things,

but one of the things Teague does -- and, frankly, not

just Teague, the whole retroactivity jurisprudence of

this Court, Griffith and Teague together set up a

coherent whole. Griffith treats finality. Teague

post-finality. And the process of this Court saying,

you this defendant enjoy this substantive Federal right,

you this defendant enjoy this substantive Federal right

that was active at the time your conviction became

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final --

JUSTICE STEVENS: The protection of this

Court. What -- why can't they provide more protection?

What Federal rule prevents that?

MR. DIAMOND: Your Honor, I think what --

the problem with it is in the constitutional design

itself. In terms of the Constitution provides

requirements. You don't have to get into Teague.

Griffith and Wharton together, Wharton saying Teague

exceptions don't apply to Crawford, those two cases

together basically say the State's requirement to

provide this new constitutional rule ended when this

defendant's conviction became final.

At that point, that is the constitutional

requirement. The constitutional design then is that

States are not free as a matter of Federal authority to

exceed that requirement. They may not rely on Federal

authority to do that. Just the same -- they can

certainly do it as a matter of their own authority. But

the Constitution, for example, this defendant having

waived his State claims, having not raised them, the

Constitution doesn't allow the State of Minnesota --

JUSTICE STEVENS: Suppose it is a knock and

announce violation. They don't want to apply an

exclusionary rule. Can they apply a remedy that will

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fire any officer who does this? Or will they say, no,

you can't do that, because it goes beyond what the

Federal Constitution requires?

MR. DIAMOND: Your Honor, I think that if

that remedy is grounded in State laws, the State of

Minnesota could certainly do that. But I don't think

they can rely on the Federal Constitution to fire any

officer who does that.

JUSTICE GINSBURG: Could a -- could a State

say: We know that Federal habeas, the Fourth Amendment,

is out. Stone v. Powell says when it's -- when you

go through the direct process, that's the end of your

raising a search-and-seizure claim.

Could a State say: Well, we know the Fourth

Amendment is binding on us under the Federal

Constitution, but we think that we should extend the

Fourth Amendment, right, not only to cases on direct

review but to collateral review as well?

Federal habeas courts can't do it, but could

States?

MR. DIAMOND: Your Honor, I think the answer

to that is probably yes, and the reason is different,

though. The reason is the States -- we're not changing

the rights that the person is entitled to.

What we are -- what you're changing -- that

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is -- that is the remedy-and-right question again. And

-- and what I'm saying is that what Teague -- Griffith

and Lorton together say that this person's

constitutional right, the right that he had, was fixed

when his conviction became final, as opposed to the case

where you -- that you're postulating, which is the

question of, yes, the State's going to recognize the

Fourth Amendment right in its post-conviction -- does

the right -- the content of the right, itself, is not

changed in that instance.

JUSTICE SOUTER: Mr. Diamond, let me ask you

a question. Let me ask you a question which is totally

off the point of the Federal Constitution, I guess.

That is, if Minnesota really wants the rule that you

want it to have, its legislature can provide that that

will be the rule, can't it?

The Minnesota legislature can pass a statute

saying nobody gets more than Teague allows.

MR. DIAMOND: Your Honor, I don't think the

Minnesota legislature could -- could go into the

pre-finality area. In other words, the Minnesota

legislature --

JUSTICE SOUTER: Can the Minnesota

legislature say: Look, the -- the Supreme Court of the

United States has -- has come down with some rules. We

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won't characterize them as minimums or anything else.

We'll just say it's a set of rules. It's called Teague,

and Teague is going to be the law for the application of

Federal rights in Minnesota State courts. Is -- can the

Minnesota legislature do that?

MR. DIAMOND: Your Honor, I think, in that

instance, the Minnesota legislature -- I see my time is

up, but I think in that instance the Minnesota

legislature is -- is providing the minimum that the

Constitution requires. So the answer to --

JUSTICE SOUTER: So the answer is yes.

MR. DIAMOND: -- that is yes.

JUSTICE SOUTER: Yes.

CHIEF JUSTICE ROBERTS: Thank you,

Mr. Diamond.

Mr. Butler, you have a minute remaining.

REBUTTAL ARGUMENT OF BENJAMIN J. BUTLER

ON BEHALF OF THE PETITIONER

MR. BUTLER: Thank you, Mr. Chief Justice.

Two quick points in my -- in my one minute:

On finality, the State court can weigh the

costs and benefits of upsetting the finality of its own

conviction, convictions rendered in State court and

appeals rendered in State court.

It can decide, as several States have, that

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the interests in full adjudication of constitutional

claims outweigh the interest in finality.

The question in Teague was whether the

Federal court could decide that for the States, and the

answer is no. But the States can decide that for

themselves.

On Justice Souter's point about what -- or

somebody's point about what the source of authority was,

Mr. Diamond said it was basic norms of constitutional

adjudication, and that is the phrase used in Griffith.

That phrase is a minimum. The basic norms

of constitutional adjudication require the following:

They require application of new rules to pending cases,

even though the conduct had already -- had already

happened.

They don't require anything more than that,

and we're not here asking the Court to hold that they

do. We're simply asking the Court -- I see my time is

up.

CHIEF JUSTICE ROBERTS: Why don't you finish

your sentence.

MR. BUTLER: We are simply asking the Court

to hold that if the State wishes to go beyond the

minimum, they are free to do so.

Thank you.

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CHIEF JUSTICE ROBERTS: Thank you,

Mr. Butler.

The case is submitted.

(Whereupon, at 11:03 a.m., the case in the

above-entitled matter was submitted.)

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28:18 30:14,2331:8 32:1533:7,12 36:138:16,19,21,2342:17 43:19

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Souter's 36:154:7

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30:15 31:21

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start 21:22started 41:13,23

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17:20 18:8,918:14,19 19:219:3,5,6,12,1419:15,22 20:120:3,4,9,14,1620:21 21:2,921:11,13 22:222:7,12,25

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46:22 47:1348:6,12,17,2249:5 50:21,2251:5,5,9,1453:4,21,23,2454:23

states 1:1,126:23 15:1725:12 26:2428:19 36:2,2337:2,17 38:2443:12 50:1651:20,23 52:2553:25 54:4,5

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X x 1:2,7 33:5,6

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year 39:10,16years 10:3 29:3

44 21

US Supreme Court: 06-8273

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