Appeals court overturns molestation conviction

Wednesday, Feb. 23, 2005 | 11:08 a.m.

CARSON CITY -- A federal appeals court, in a split decision, has overturned the sexual assault conviction of a Las Vegas man who was sentenced to life in prison and has been behind bars for more than 16 years for allegedly molesting a 6-year-old girl.

The 9th U.S. Circuit Court of Appeals on Tuesday issued a writ of habeas corpus on behalf of Marvin H. Bockting, now 45. Bockting's appeal had been twice denied by the Nevada Supreme Court.

The circuit court of appeals, in a decision written by Judge M. Margaret McKeown, said District Judge Donald Mosley erred when he allowed prior statements of the 6-year-old to be admitted at trial. The problem was that the statements were not subject to cross-examination.

Bockting had been living in a motel in Las Vegas with his wife and two stepdaughters when the girl told her mother that Bockting had sexually abused her in 1987. She reportedly told her mother that Bockting had threatened to "beat my butt if I told."

An examination was conducted by a doctor at the Rape Crisis Center and he determined that the child had physical injuries indicative of sexual molestation, according to court documents. The girl allegedly told a Metro Police Detective Charles Zinovitch the same thing she had told her mother about the alleged molestation.

At a justice court preliminary hearing the child became upset when she was asked about being touched by Bockting. Upon further questioning, she said she could not remember what occurred and did not remember whether she had talked with the detective. The preliminary hearing continued with the testimony of the mother and the detective and Bockting sent to district court for trial.

At the district court trial, Mosley ruled that the girl's hearsay statements were admissible because she was effectively unavailable for trial. Without having the opportunity to cross-examine the girl, Bockting was convicted and went into the state prison in September 1988.

The Nevada Supreme Court in 1989 dismissed Bockting's first appeal. But the U.S. Supreme Court in 1990 ordered the Nevada court to take another look at the case. The Nevada Supreme Court in 1993 affirmed the conviction, saying the hearsay statements of a child concerning sexual assault is "facially constitutional."

In her ruling, McKeown wrote:"Admission of the interview evidence without cross examination violated Bockting's constitutional right to be confronted with the witnesses against him."

McKeown wrote that this could not be harmless error because the statements of the girl admitted at trial were central to the conviction.

Judge John T. Noonan wrote a concurring opinion, agreeing the writ should be issued in favor of Bockting.

But Judge Clifford Wallace dissented, saying that a decision by the U.S. Supreme Court issued after the case was argued before the appeals court in January 2004, was not retroactive to state convictions, except in narrow exceptions.

The decision by the U.S. Supreme Court held that in criminal proceeding, statements of witnesses absent from the trial are admissible only where the defendant is unavailable and only when the defendant has had a prior opportunity to cross-examine.

Wallace said since the ruling by the U.S. Supreme Court was issued after the appeal court heard arguments, it should not apply. Instead he said the previous legal authority should prevail where hearsay evidence should be admitted where the victim was not available and the evidence had reliability.

Victor Schulze, capital case coordinator in the state Attorney General's Office, today said Nevada will either apply for a rehearing before the full 9th U.S. Circuit Court of Appeals or it will take the case to the U.S. Supreme Court.

He said this morning that Bockting would not be released from prison until all the state's appeals are exhausted.

Schulze reiterated Wallace's argument, that Mosley and the Nevada Supreme Court did everything according to the law at the time that they heard the case.

The decision by the circuit court of appeals is confusing because the three judges took different positions on the matter, Schulze said. McKeown said the 2003 decision is a new rule and is retroactive to past convictions, while Wallace held it was a new rule but was not to be applied retroactively and Noonan said it was not a new rule and did not discuss the issue of retroactivity.