LV case could have national impact

Monday, Aug. 15, 2005 | 11:21 a.m.

CARSON CITY -- In a case that has national implications, the state attorney general's office will appeal to the U.S. Supreme Court a decision overturning the conviction of a Las Vegas man found guilty of the sexual assault of a 6-year-old relative.

Senior Deputy Attorney General Victor H. Schulze said Friday the 9th U.S. Circuit Court of Appeals has been asked to hold its order overturning the conviction of Marvin Bockting. A petition for the Supreme Court to review the case is being prepared.

In 2004 the U.S. Supreme Court put more restrictions on hearsay evidence being presented at criminal trials, and then a panel of the 9th Circuit Court, in a 2-1 vote, decided the Supreme Court decision should be retroactive.

The Supreme Court ruled that prior statements of witnesses absent from the criminal trial are admissible only when the witness is unavailable and only when the defendant has had a prior chance to cross-examine the witness

In the Bockting case, the young victim was not available at trial and her prior statements were admitted into evidence.

Judge Clifford Wallace of the appeals court, who dissented from the original ruling, said it will spark a great number of appeals from inmates now in prison.

The 9th Circuit refused Thursday to have the full court re-hear the case. Wallace objected, saying the Supreme Court ruling should be applied only to future cases. He wanted the full court of 9th Circuit to hear the case.

Wallace said the retroactivity decision "will open the door for a slew of habeas petitions from prisoners whose convictions were based, even partially, on out-of-court testimonial statements."

Schulze said five other federal circuit appeals court have ruled the Supreme Court decision is not retroactive. Because of the conflict between the appeals courts, Schulze said he believed the Supreme Court would accept the case. He suggested that oral arguments could be as early as January next year.

Schulze said he has been getting calls from prosecutors and attorneys general from Oregon to California asking what Nevada is going to do in light of the Bockting ruling and the way it could affect many cases.

If the U.S. Supreme Court upholds the 9th Circuit Court ruling, it could mean that numerous past convictions in these types of cases could be overturned. It would require numerous retrials and young victims would be forced to take the stand at trial and be subject to cross-examination.

Also if the ruling is affirmed by the nation's highest court, that rule would apply nationwide. At present five other five circuit courts have held that the rule of the Supreme Court on juvenile witnesses applied from the date of the ruling, not to past cases.

Attorney General Brian Sandoval said this was "definitely" a case that must be taken to the U.S. Supreme Court.