CA7 concludes that there was no good-faith effort to locate an unavailable witness.

Cross v. Hardy, No. 09-1666 (7th Cir. Jan. 13, 2011) (Williams, J.) — The district court reversed the denial of habeas relief to an Illinois state prisoner after concluding that the prosecution did not make a good-faith effort to locate an unavailable witness at his second trial on kidnapping and sexual assault charges.

The victim in this case was a teenaged prostitute; the petitioner’s defense was that the sex was consensual after he gave the victim money and crack cocaine in exchange for sex. The victim testified at the petitioner’s first trial, but “her demeanor and manner of testifying appeared to raise some concerns about her credibilty.” The jury acquitted the petitioner of the kidnapping charges but hung on the sexual assault charges. The petitioner was then retried on the sexual assault charges. The day before the second trial was to begin, the prosecution asserted that the victim had disappeared and sought to use her testimony from the first trial instead. The victim’s mother had reported that the victim had gone missing over two weeks before. The police could not locate her, and found no record of her being in the county hospital, jail, or morgue. There was some thought that the victim had either gone to Waukegan, some 40 miles from the scene of the crime in Chicago, or to cosmetology school in another unspecified city. The petitioner objected that these were not good-faith efforts to locate an unavailable witness, but the trial judge disagreed and allowed a law clerk to read the victim’s prior testimony into the record at the second trial. The petitioner was convicted and sentenced to a total of 60 years in prison. The Illinois Appellate Court affirmed the conviction and rejected the petitioner’s Confrontation Clause objection, and the Illinois Supreme Court denied discretionary review.

Given the importance of the victim’s testimony, the court concluded, the state was obligated to exert great effort to locate her.” See also Cook v. McKune, 323 F.3d 825, 835-36 (10th Cir. 2003) (stating that “the more crucial the witness, the greater the effort required to secure his attendance”). The victim’s testimony here was “crucially important” to the prosecution, and the jury deserved an opportunity to evaluate the victim’s demeanor as a witness, especially in light of her poor performance at the first trial. Without the victim’s “live testimony, the second jury was forced to make a credibility determination based on the cold transcript, which it could not objectively do, particularly given the law clerk’s more fluid and inflected reading of the transcript.” The state knew well in advance of the second trial that the victim was reluctant to testify, yet they did not even begin to locate her until three weeks before the trial began and a week before she eventually ran away. The state should have subpoenaed her because she was the most important witness, but it did not. Subpoenas, after all, are “strong evidence of good faith.” Overall, the state’s “failure to more thoroughly investigate [the victim’s whereabouts was] insufficient to protect” the petitioner’s Sixth Amendment rights. The state courts thus unreasonably rejected the petitioner’s Confrontation Clause claim.