Hardy v. Cross

Certiorari granted and the judgment of the Seventh Circuit Court of Appeals in Cross v. Hardy is reversed.

Petitioner Cross was charged with kidnapping and sexually assaulting a victim at knifepoint. At trial, the victim was the State’s primary witness. She testified and was cross-examined by Cross’ attorney. The jury found Cross guilty of kidnapping and the judge declared a mistrial on the sexual assault charge. The State decided to re-try Cross on those charges. At the second trial, the victim could not be located despite the State’s numerous visits to the victim’s home and the home of her father, checks at the victim’s school, the home of the victim’s old boyfriend, and several government agencies. The State moved to have the victim declared unavailable and to introduce her prior testimony at the retrial. The trial court granted the motion and admitted the victim’s prior testimony. The jury at the retrial found Cross guilty of two courts of criminal sexual assault. On appeal, the Illinois Court of Appeals affirmed the district court’s determination that the victim declarant was unavailable and that her prior testimony was properly admitted at retrial. Cross eventually exhausted all his appeals and was denied certiorari by the U.S. Supreme Court.

Cross filed a petition for a writ of habeas corpus in federal district court arguing that the State court erred in admitting the prior testimony of the allegedly unavailable witness because the State had failed to make a good-faith effort to obtain the declarant’s presence at trial. The district court denied Cross’ petition. The Seventh Circuit reversed concluding that the Illinois Court of Appeals was unreasonable in holding that the State had made a sufficient effort to secure the victim’s presence at the re-trial.

The Supreme Court held that the Illinois Court of Appeals had correctly determined that the State had conducted the requisite good-faith search for the victim. It explained that under the Sixth Amendment, a prosecutor is not required “to exhaust every avenue of inquiry, no matter how unpromising.” The Court further explained that under the Antiterrorism and Effective Death Penalty Act of 1996, a federal court is not permitted to overturn a state court just because the federal court “identifies additional steps that might have been taken.” 28 U.S.C. §2254. Thus, a state court’s decision, if reasonable, must not be disturbed.