Ellsworth v. Warden, N.H. State

United States Court of Appeals
For the First Circuit

No. 02-1226

RAYMOND ELLSWORTH,

Petitioner, Appellant,

v.

WARDEN, NEW HAMPSHIRE STATE PRISON, and PHILIP MCLAUGHLIN,
ATTORNEY GENERAL FOR THE STATE OF NEW HAMPSHIRE,

Respondents, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Joseph A. DiClerico, Jr., U.S. District Judge]

Before

Boudin, Chief Judge,
Torruella, Selya, Lynch, Lipez, and Howard,* Circuit Judges.

Andrew R. Schulman with whom Getman, Stacey, Tamposi,
Schulthess & Steere, P.A. were on brief for appellant.
James D. Rosenberg, Assistant Attorney General, for appellees.

June 16, 2003

OPINION EN BANC

*
Judge Howard is recused in this matter.
 BOUDIN, Chief Judge. Raymond Ellsworth appeals from the

district court's judgment denying his petition under 28 U.S.C.

§ 2254 (2000) for a writ of habeas corpus. Between 1988 and 1992,

Ellsworth worked at the Spaulding Youth Center ("Spaulding"), a

residential school and treatment facility for children with

emotional, behavioral, and neurological impairments, in Northfield,

New Hampshire. Ellsworth was a "cottage teacher" at Colcord

Cottage, a dormitory facility at Spaulding for boys between the

ages of six and twelve. His job included supervising the boys at

meals and on field trips, meeting with several students on a weekly

basis, and sleeping in the staff room at the cottage approximately

once a week.

In November 1991, an eleven-year-old boy named Matthew

was transferred from another treatment facility to Spaulding's

Colcord Cottage. In November 1992, Matthew accused Ellsworth of

sexual abuse. In January 1995, Ellsworth was tried in New

Hampshire state court on four counts of aggravated felonious sexual

assault and eight counts of felonious sexual abuse, relating to

three different alleged episodes of abuse. The primary evidence at

trial was the conflicting testimony of Ellsworth and Matthew.

Matthew testified that Ellsworth sexually abused him on

three separate occasions. He claimed that the first occurred on a

bicycle trip near Spaulding in the summer of 1992. Matthew stated

that Ellsworth lured him into the woods by claiming that he heard

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a noise and then pulled down his own pants and told Matthew to

touch and put his mouth on Ellsworth's penis. Matthew said that

Ellsworth's penis became erect when Matthew did this and that

Ellsworth also took off Matthew's pants and touched his penis.

Matthew claims that Ellsworth threatened to hurt him if he told

anyone about the incident.

According to Matthew, the second incident took place at

a swimming pond near Spaulding when Matthew went swimming with

Ellsworth and another Spaulding resident named Stephen. Matthew

claimed that the three were in the pond and that Ellsworth asked

Stephen to swim away. Matthew recalled that no one else was at the

pond and that Ellsworth removed both of their bathing suits,

touched Matthew's penis and buttocks, and told him to put his mouth

on Ellsworth's penis. Matthew said that Ellsworth again told him

not to tell anyone about the incident.

The third and final incident allegedly occurred when

Matthew returned early to Spaulding from a weekend home-visit and

Ellsworth was the only staff member on duty. Matthew stated that

while he was putting on his pajamas, Ellsworth entered his room and

touched him. He also asked Matthew to put his mouth on Ellsworth's

penis.

Ellsworth denied all three incidents. He claimed that he

never took a bicycle ride with Matthew without others present, and

that he did not draw Matthew into the woods. He also stated that

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he did go swimming with Matthew and Stephen, but that nothing

sexual occurred. Ellsworth denied that he ever abused Matthew at

the cottage.

Little direct or circumstantial evidence supported either

side's version of events. Another cottage resident testified that

Matthew had previously told him that Ellsworth had molested him in

the afternoon but mentioned nothing concerning the evening abuse

about which Matthew testified at trial. Stephen, the boy who

accompanied Matthew and Ellsworth on the swimming trip, also

testified and stated that he went on two such trips with Matthew,

but that the pond had been crowded on both occasions and that he

had been within twenty feet of Matthew and Ellsworth and did not

notice anything unusual. Ellsworth offered evidence, described

below, seeking to cast doubt on Matthew's credibility but the

evidence was not allowed.

The jury convicted Ellsworth on two counts of aggravated

felonious sexual assault and five counts of felonious sexual

assault. He was sentenced to 18 ½ to 37 years in prison, with an

additional 14 to 28 years in prison deferred. The New Hampshire

Supreme Court affirmed Ellsworth's conviction. New Hampshire v.

Ellsworth, 142 N.H. 710 (1998). Ellsworth then petitioned for

habeas relief in the federal district court on three grounds:

first, that the prosecution violated Brady v. Maryland, 373 U.S. 83

(1963), by failing to turn over exculpatory evidence; second, that

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the trial court violated the confrontation clause, U.S. Const.

amend. VI, by refusing to permit him to cross-examine Matthew as to

sexual abuse by a babysitter when he was three; and third, that the

trial court had similarly erred in excluding testimony from a

counselor at the Pine Haven School, where Matthew lived after he

left Spaulding, that Matthew falsely accused boys there of peeking

at him in the shower and at the toilet and of stealing his toys.

The district court rejected all three constitutional

claims and denied the petition. Ellsworth appealed, and a divided

panel of this court reversed the district court on all three

grounds. Concerned with the precedential effect of certain of the

panel's rulings, the en banc court granted rehearing sua sponte and

withdrew the panel opinion (as is customary when rehearing en banc

is granted). We now resolve the merits, concluding that only one

of Ellsworth's three constitutional claims is substantial and that

as to it further proceedings are required.

Appellate review of the district court's denial of habeas

relief is de novo, Almanzar v. Maloney, 281 F.3d 300, 303 (1st Cir.

2002), cert. denied, 123 S. Ct. 80 (2002), but we accord deference

to the state court as to issues it actually decided. 28 U.S.C.

§ 2254(d)(1) (2000). In this case, the state court addressed only

Ellsworth's claim that the trial court violated his rights under

the confrontation clause by refusing to allow him to admit

testimony from the counselor at Pine Haven. The state court did

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not address Ellsworth's other two claims, and thus our review of

those claims is de novo. Fortini v. Murphy, 257 F.3d 39, 47 (1st

Cir. 2001), cert. denied, 535 U.S. 1018 (2002).1

We begin with the Brady claim. Brady requires the

prosecution to provide a defendant access to exculpatory evidence

that is in the prosecutor's control. 373 U.S. at 87; Conley v.

United States, 323 F.3d 7, 14 (1st Cir. 2003) (en banc). Withheld

evidence warrants undoing a conviction only when "there is a

reasonable probability that, had the evidence been disclosed to the

defense, the result of the proceeding would have been different,"

a "reasonable probability" here being one that is "sufficient to

undermine confidence in the outcome." United States v. Bagley, 473

U.S. 667, 682 (1985).

Ellsworth claims that the state withheld evidence as to

three matters but only one seems to us potentially powerful enough

even arguably to meet the reasonable probability standard.2 This

is an intake note written by Jan Smith, Director of the Program for

1
The state argues that Fortini is undermined by Early v.
Packer, 123 S. Ct. 362, 365 (2002). We do not think this is so--
Early said only that deference does not depend on the state court
citing federal case law--but Ellsworth's other claims fail even
under a de novo standard and therefore fail a fortiori under a more
deferential one.
2
The other two were (first) a critical incident report written
by someone at Spaulding indicating that Matthew had been having
dreams regarding his prior sexual victimization and (second)
Spaulding records indicating that the staff at Spaulding was trying
to get the case against the person who had previously sexually
abused Matthew re-opened.

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Emotionally Disturbed Boys at Spaulding, indicating that Matthew

alleged that he was abused by staff members at Hampstead Hospital,

where he stayed prior to his stay at Spaulding, that Matthew

expressed concern that he would be sexually assaulted at Spaulding,

and that Spaulding would need to take special precautions to

protect staff members from false accusations if Matthew enrolled.

The intake note is exculpatory; it suggests that Matthew

had made false accusations of sexual abuse against caretakers in

the past. But there are two problems: first, the note itself is

inadmissible as double hearsay; someone at Hampstead Hospital told

Jan Smith that Matthew's accusations there were false and she then

recorded this in her intake note. See New Hampshire v. Winders,

503 A.2d 798, 802 (N.H. 1985).3 Second, New Hampshire only permits

the defendant to introduce extrinsic evidence of a prior false

allegation of sexual assault by the victim if the allegations are

similar and the defendant can show that the prior allegations were

"demonstrably false." New Hampshire v. Gordon, 770 A.2d 702, 704

(N.H. 2001); accord New Hampshire v. White, 765 A.2d 156, 159 (N.H.

2000).

3
The note might be admissible as a business record of
Spaulding if it recorded Smith's own knowledge of a prior false
accusation, N.H. R. Evid. 803(6); but a note recording what someone
outside the hospital told her is not within the business records
exception when offered for the truth of the report, N.H. R. Evid.
805. See generally Ricciardi v. Children's Hosp. Med. Ctr., 811
F.2d 18 (1st Cir. 1987); Johnson v. Lutz, 170 N.E. 517 (N.Y. 1930).

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 The circuits are split on whether a petitioner can have

a viable Brady claim if the withheld evidence itself is

inadmissible. Most circuits addressing the issue have said yes if

the withheld evidence would have led directly to material

admissible evidence.4 We have never squarely ruled on this

question, but cf. United States v. Hemmer, 729 F.2d 10, 16 n.3 (1st

Cir.), cert. denied, 467 U.S. 1218 (1984); United States v. Ranney,

719 F.2d 1183, 1190 (1st Cir. 1983), yet given the policy

underlying Brady, we think it plain that evidence itself

inadmissible could be so promising a lead to strong exculpatory

evidence that there could be no justification for withholding it.

Wood v. Bartholomew, 516 U.S. 1, 6-8 (1995), implicitly assumes

this is so.

Whether the intake note at issue in this case undermines

confidence in the verdict is a more difficult question. The clear

implication of Jan Smith's note is that someone at Hampstead

Hospital, where Matthew made the prior allegations, told her that

the allegations were false. If the defense had known about the

note before trial, it presumably could have traced those at

Hampstead who could testify as to the circumstances of the

allegations and the basis for believing them to be false. Whether

4
See, e.g., United States v. Gil, 297 F.3d 93, 104 (2d Cir.
2002); Bradley v. Nagle, 212 F.3d 559, 567 (11th Cir. 2000), cert.
denied, 531 U.S. 1128 (2001); United States v. Phillip, 948 F.2d
241, 249 (6th Cir. 1991). But see Hoke v. Netherland, 92 F.3d
1350, 1356 n.3 (4th Cir. 1996).

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the evidence would convincingly establish that Matthew had lied is

hard to know but surely the episode most likely would have been

investigated and the implication that someone at Hampstead believed

it false is strong.

If strong evidence of a prior false accusation exists, it

would be very powerful. The setting and type of alleged lie are

similar, so this evidence would be far more potent than a random

unrelated episode of untruthfulness by Matthew. Some evidence of

Matthew's background, and possible instability, was admitted at

Ellsworth's trial. Coupled with such proof, evidence that Matthew

had falsely accused caretakers before could easily have created the

reasonable doubt necessary to acquit Ellsworth in what was

otherwise largely a credibility contest. The lack of any

significant corroborating evidence makes this case unusual and

heightens the concern about any Brady violation.

But this case presents a further peculiarity.

Ellsworth's counsel now has the lead available to him and a basis

for knowing how Jan Smith reached her conclusion. The district

court stated that the intake note was prepared after an intake

session at Spaulding when Matthew was referred there from

Hampstead; and at this intake session, Jan Smith talked with

Matthew and his mother, Matthew's psychiatrist at Hampstead, a

Hampstead social worker, and a Hampstead nursing supervisor.

However, Ellsworth's counsel has not explained whether these

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sources have been questioned; and, if so, whether this has led to

admissible evidence or whether evidence once existed but is no

longer available; or, if the lead has not been pursued, why not.

Curiously, the state has not emphasized this gap.

Nevertheless, it would be very odd for us to require a

new trial because of a wrongly withheld lead unless the lead would,

or would likely, have led to valuable new evidence which was itself

arguably admissible (the final decision is for the state court).

However unlikely it might be after eight years, the state would be

entitled to retry Ellsworth if the writ were granted; yet such a

remedy would be incongruous unless evidence existed that might

alter the result at such a trial. Habeas doctrine is flexible

enough for us to condition a grant of the writ on the outcome of a

further inquiry into where the lead, even though wrongly withheld,

would have taken Ellsworth. Cf. Manko v. United States, 87 F.3d

50, 55 (2d Cir. 1996); Stewart v. Coulter, 48 F.3d 610, 617 (1st

Cir.), cert. denied, 516 U.S. 853 (1995).

If there exists admissible evidence that Matthew made

demonstrably false accusations at Hampstead Hospital under similar

circumstances and Ellsworth was not otherwise aware of these

allegations at the time of the first trial, a new trial is

required. If admissible evidence of false accusations never

existed, the writ should be denied. If it did or may well have

existed but has been lost because of the Brady violation and the

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ensuing delay in discovery of this fact, Ellsworth may have a good

claim to a new trial, cf. California v. Trombetta, 467 U.S. 479,

486-88 (1984), but we need not definitively resolve this issue. It

is difficult to foresee every possible outcome of a further inquiry

and--apart from a clear-cut decision that the evidence does exist

or never existed--the district court must exercise its own judgment

in the first instance.

In his supplemental brief, Ellsworth argues for the first

time that the state standard for the admission of such evidence--

that prior false accusations be not only false but "demonstrably"

so--is itself too demanding and therefore unconstitutional. For

this proposition, he cites some state court authority but no

Supreme Court or federal circuit case in point. As we explain

below, the confrontation clause objection is pretty well limited to

extreme cases where the state restriction is patently unreasonable,

so Ellsworth's newest claim is an uphill struggle; but we need not

resolve the issue now.

The initial question on remand is whether Ellsworth can

produce non-hearsay evidence that Matthew previously made false

accusations in pertinently similar circumstances. If he cannot do

so, the constitutional issue is moot; this is equally so if he

produces evidence that Matthew did make "demonstrably false"

accusations. If and when Ellsworth produces admissible evidence of

prior accusations that were probably false but not "demonstrably

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false," he is free to make his new constitutional argument in the

district court (subject to whatever other limitations--e.g., Teague

v. Lane, 489 U.S. 288 (1989)--might otherwise apply).

One other issue may be presented on remand. If the state

continues to contest the issue, the district court on remand should

also decide whether Ellsworth had independent knowledge of the

intake note at the time of trial. In general, "[e]vidence is not

suppressed if the defendant either knew, or should have known of

the essential facts permitting him to take advantage of any

exculpatory evidence." United States v. LeRoy, 687 F.2d 610, 618

(2d Cir. 1982), cert. denied, 459 U.S. 1174 (1983). The district

court did not resolve the issue because it resolved the Brady claim

on a different ground.5

The "should have known" standard refers to trial

preparation; and whether or not Ellsworth was careless in his

perusal of the file while a cottage teacher does not matter. But

if he in fact knew of the note at the time of his trial and failed

to pursue the lead, then his Brady claim might well be barred. The

state has identified nothing in the record that shows affirmatively

5
The district court held that the intake note was not material
because Ellsworth knew that Matthew's parents feared that he had
made false allegations in the past and because the district court
thought that the prosecution's case was quite strong. In our view,
evidence that Matthew had in fact falsely accused other caretakers
of sexual abuse is much more potent and, as to the strength of the
case against Ellsworth, it appears to us to have rested largely on
Matthew's otherwise uncorroborated allegations of abuse.

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that Ellsworth did have timely knowledge of the note, but it does

point to an Ellsworth affidavit filed in connection with the habeas

petition that--in listing information new to Ellsworth--omits the

note or its contents. The omission may or may not be significant;

but we cannot dismiss the state's claim of knowledge out of hand.

Finally, we reach Ellsworth's claims under the

confrontation clause. Ellsworth first argues that the trial court

should have allowed him to introduce evidence that Matthew was

sexually abused when he was three years old. Ellsworth claims that

this evidence would have been relevant as a possible explanation

for why Matthew could describe sexual acts in such detail, thus

making more plausible the possibility that Matthew was fabricating

his claim against Ellsworth. The district court held that the

exclusion of this evidence did violate Ellsworth's rights under the

confrontation clause, but that the error was harmless.

Harmless or not, we do not think that Ellsworth has shown

a violation of the confrontation clause at all. "The Confrontation

Clause lies obscurely behind . . . claims of evidentiary error

because, in a few extreme cases, the Supreme Court has invoked it

to overturn state court restrictions on cross-examination or

impeachment. However, such a challenge is tenable only where the

restriction is manifestly unreasonable or overbroad." United

States v. Gomes, 177 F.3d 76, 81-82 (1st Cir.), cert. denied, 528

U.S. 911, 941 (1999). Cf. Chambers v. Mississippi, 410 U.S. 284

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(1973) (overturning the defendant's murder conviction where the

court excluded evidence that another person had repeatedly

confessed to the murder).

Ellsworth cannot make such a showing here. Courts

routinely exclude evidence regarding the sexual history of an

alleged victim of sexual abuse. See, e.g., Fed. R. Evid. 412.

These restrictions are designed to give sexual assault victims

"heightened protection against surprise, harassment, and

unnecessary invasions of privacy." Michigan v. Lucas, 500 U.S.

145, 150 (1991). The evidence of abuse when Matthew was three is

far from highly probative as to his sexual knowledge at age twelve.

Compare United States v. Begay, 937 F.2d 515, 520-24 (10th Cir.

1991).

The earlier abuse was obviously remote in time and

different in circumstances and the prosecution never argued that

the alleged abuse was Matthew's only source of sexual knowledge.

And, even if the jury did not know on its own that a twelve-year-

old had likely acquired some general knowledge of sex, Matthew

himself testified at trial that he participated in group

discussions at Spaulding regarding topics such as "good and bad

touching," showing an alternate basis for at least some of his

sexual knowledge. Finally, Ellsworth himself indicated in his

testimony that Matthew had been abused in the past.

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 Our result here is similar to the Tenth Circuit's

decision in United States v. Powell, 226 F.3d 1181 (10th Cir.

2000), cert. denied, 531 U.S. 1166 (2001). There, the defendant

was accused of sexually assaulting a thirteen-year-old girl. At

trial, the defendant sought to introduce evidence regarding the

victim's allegedly flirtatious behavior in the past, but the

district court ruled that the evidence was inadmissible under Fed.

R. Evid. 403 and 412. Id. at 1197. On appeal, the Tenth Circuit

rejected the defendant's confrontation clause claim, explaining

"the relevance of [the victim's] alleged conduct to rebut any

inference the jury may have drawn regarding her sexual naivety is

too attenuated. . . ." Id. at 1199.

Perhaps under state law the trial judge should have

admitted the episode as to what happened when Matthew was three;

quite likely many judges would have admitted it. But trial judges

are constantly making on-the-spot judgments as to whether evidence,

although formally relevant, is too remote, likely to lead to

unnecessary excursions, or partly or wholly duplicative--the range

of considerations embraced in the federal courts by Rule 403's

balancing test. Fed. R. Evid. 403. Close calls are common and,

right or wrong, do not thereby become constitutional violations.

Delaware v. Van Arsdall, 475 U.S. 673, 678-79 (1986).

Ellsworth's remaining claim is that the trial court

violated the confrontation clause by refusing to allow him to offer

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testimony from a counselor at the Pine Haven School, the facility

where Matthew lived after he left Spaulding, that Matthew falsely

accused boys at the school he attended after Spaulding of peeking

at him in the shower and at the toilet and of stealing his toys.

Here Ellsworth has a further hurdle because the state court

considered the constitutional claim and rejected it, so under the

statute we can only reverse if the state court decision was

contrary to, or involved an unreasonable application of, clearly

established federal law as determined by the Supreme Court. 28

U.S.C. § 2254(d)(1).

Quite apart from the higher standard, there is nothing

unusual about limiting extrinsic evidence of lies told by a witness

on other occasions; under the Federal Rules of Evidence, exclusion

of such evidence is the usual rule and even cross-examination as to

such lies is limited. The theory, simple enough, is that evidence

about lies not directly relevant to the episode at hand could carry

courts into an endless parade of distracting, time-consuming

inquiries. In this instance, a lie about toy stealing or peeping

at a different time and location from the alleged sexual abuse by

Ellsworth is classic "collateral" evidence regularly excluded in

federal criminal trials. See Fed. R. Evid. 608(b).

The judgment of the district court is vacated and the

case is remanded for further proceedings consistent with this

opinion.

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--Separate opinions follow--

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 LIPEZ, Circuit Judge (concurring). I am pleased to join

Chief Judge Boudin's opinion for the en banc court, including the

decision to remand Ellsworth's Brady claim to the district court

for an evidentiary hearing. Having concluded in my earlier dissent

from the panel decision, now withdrawn, that Ellsworth had failed

to establish a Brady violation, I wish to explain briefly my

concurrence in the court's decision to remand the Brady claim for

further consideration.

Relying on our previous decision in United States v.

Ranney, 719 F.2d 1183 (1st Cir. 1983), I had concluded that the

evidence disclosed in Jan Smith's intake note failed Brady's

materiality requirement because almost all of the withheld evidence

would have been inadmissible at trial. See id. at 1190

("Inadmissible evidence is by definition not material, because it

never would have reached the jury and therefore could not have

affected the trial outcome."); see also United States v. Hemmer,

729 F.2d 10, 16 n.3 (1st Cir.), cert. denied, 467 U.S. 1218 (1984).

Today the en banc court has ruled, in conformity with a majority of

the circuits, that the petitioner can also establish a viable Brady

claim by demonstrating that withheld evidence, though itself

inadmissible, would have led directly to the discovery of material

admissible evidence. Under this sensible rule, Ellsworth is

entitled to an evidentiary hearing where he will have the

opportunity to establish that information in the withheld intake

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note would have led the defense to other material exculpatory

evidence.

I also concluded, on the basis of the present record,

that Ellsworth either had or should have had independent knowledge

of the intake note prior to trial. See United States v. Diaz, 922

F.2d 988, 1007 (2d Cir. 1990) ("Evidence is not 'suppressed'

[within the meaning of Brady] if the defendant either knew, or

should have known of the essential facts permitting him to take

advantage of any exculpatory evidence."). Of necessity, I drew

inferences from a record which never addressed directly Ellsworth's

awareness of the intake note. In its supplemental brief to the en

banc court, the state has asserted vigorously that Ellsworth knew

or should have known of the intake note prior to his trial.

Assuming the state maintains this position on remand, the en banc

court has also directed the district court to further investigate

at the evidentiary hearing the nature and timing of Ellsworth's

knowledge of the intake note. This issue is a critical element of

Ellsworth's Brady claim, and I agree that it warrants additional

treatment by the district court.

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 TORRUELLA, Circuit Judge, concurring in part and

dissenting in part. I concur in the majority's decision to grant

an evidentiary hearing on remand, but I write6 separately because

I respectfully think this Court needs to go further. Not only is

the Brady claim based on the Jan Smith intake note and other

withheld exculpatory evidence sufficiently strong to warrant a new

trial, but I also think that the defendant has raised two

meritorious Confrontation Clause claims and therefore dissent from

the majority's affirmance of those claims.

As the majority states, "[l]ittle direct or

circumstantial evidence supported either side's version of events"

in this case. There was no corroboration of the boy’s testimony as

to the criminal acts themselves. The jury had no information that

would help it test the boy’s credibility because, as the majority

correctly points out, the evidence Ellsworth offered "seeking to

cast doubt on Matthew's credibility . . . was not allowed." The

possibility that an innocent man was convicted is very real, and a

new trial, not just an evidentiary hearing on a limited due process

issue, is warranted.

6
I reiterate here the bulk of the original panel opinion,
written by Judge Betty Fletcher, which has been vacated.

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 I. Analysis

A. Standard of Review

As explained by the majority, a de novo standard of

review applies to both the Brady claim and the Confrontation Clause

claim regarding cross-examination about Matthew's prior abuse. The

"claim that the trial court violated [Ellsworth's] rights under the

Confrontation Clause by refusing to allow him to admit testimony

from the counselor at Pine Haven," however, is subject to

deferential review under the Antiterrorism and Effective Death

Penalty Act (“AEDPA”), 28 U.S.C. § 2254.

B. Brady Claim

The district court found that there were essentially two

new and undisclosed pieces of evidence - the Jan Smith note

expressing concern that Matthew might make false accusations of

sexual abuse and the reports bearing on the extent to which Matthew

had been reliving and dreaming about his earlier abuse - but

concluded that “[t]aken as a whole, in the context of the other

information known to the defense, that information was not of

significant value.” I disagree. The information that the

Spaulding director recognized, and was concerned, that Matthew had

a tendency to accuse people of sexual abuse does seriously

undermine one’s confidence in the outcome of the trial. The

district court maintains that this information is insignificant

because Ellsworth knew that Matthew’s parents had such a concern,

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but it is an entirely different matter that a Spaulding director,

a professional who works with emotionally disturbed boys on a daily

basis, highlighted this as a potential problem. Especially in

light of the extent to which the trial judge curtailed cross-

examination of Matthew himself, this information becomes even more

important. Had the jury been presented with this information,

along with the information that Matthew was reliving his abuse, it

seems to me far from clear that it would have reached the same

conclusion as to Matthew’s credibility.

Likewise, the fact that Matthew had recently been

reliving and having nightmares about his earlier abuse is also

significant here. The jury reached its conclusion that Matthew’s

allegations were credible with no information about a part of his

life that bore significantly on his mental and emotional state.

Looking at the evidence cumulatively, as Kyles requires,

514 U.S. at 437, the suppressed evidence is sufficient to undermine

confidence in the jury’s verdict. While I am joining the

majority's decision in order to provide Ellsworth with at least an

evidentiary hearing, my preference would be to reverse the district

court on the Brady claim and grant the writ of habeas corpus so

that he receives a new trial.

C. Confrontation Clause Claims

The majority "do[es] not think that Ellsworth has shown

a violation of the Confrontation Clause at all." I disagree. I

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think that Ellsworth has two legitimate claims under the

Confrontation Clause: one for the erroneous exclusion of the

evidence of his prior abuse and one for the exclusion of testimony

regarding his prior false accusations.

1. Prior Abuse

The district court found that Ellsworth’s Confrontation

Clause rights were in fact violated by the trial court’s refusal to

allow cross-examination of Matthew on the issue of his prior sexual

abuse, which his defense counsel argued was relevant both (1) as an

explanation for why he could describe sexual acts in such detail

and (2) to show the possibility that he was fabricating his claim

against Ellsworth. Matthew’s guardian ad litem maintained that the

abuse should not be brought up at trial due to its being too far in

the past and the possible detrimental effect of such cross-

examination on Matthew.

The trial court ultimately ruled that the prior abuse was

“irrelevant” because it was too different in nature from the

conduct with which Ellsworth was charged, and because Ellsworth did

not prove that it was the prior abuse, rather than some other

source of information, that might have provided Matthew with his

sexual knowledge. The trial judge allowed defense counsel to

cross-examine Matthew only as to the general facts of his

participation in group therapy, and the fact that the group

discussed the difference between “good touch” and “bad touch.” No

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other evidence of Matthew’s prior sexual abuse was introduced at

trial; the jury knew only that Matthew was at Spaulding and had

participated in group therapy, not that he had been sexually abused

earlier in his life. With all due respect to the majority, I fail

to see how a group discussion of "good and bad touching" can be

viewed as providing Matthew with the same sort of detailed sexual

knowledge he would have gleaned from having undergone abuse

previously.

In this case, the district court correctly rejected the

trial court’s rationale for denying Ellsworth the right to cross-

examine Matthew concerning his earlier sex abuse. The district

court observed that the state courts had all ignored the common

element of fellatio in both Matthew’s earlier experiences and the

charged conduct in this case, and concluded that the evidence at

issue “might have provided facts from which jurors could have

appropriately drawn inferences related to the reliability of

Matthew as a witness.” I agree with the district court that

Ellsworth’s rights under the Confrontation Clause were violated

when the trial judge failed to allow him to cross-examine Matthew

on his earlier sexual abuse.

I disagree with the district court's finding that this

error was harmless, however, and find that the trial court’s bar on

cross-examination of Matthew does indeed give rise to “grave doubt

about whether a trial error of federal law had substantial and

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injurious effect or influence in determining the jury’s verdict.”

O’Neal v. Mcaninch, 513 U.S. 432, 436 (1995). The trial court made

a critical mistake when it denied Ellsworth the opportunity to

present the jury with facts from which to draw a more accurate

picture of Matthew’s emotional and psychological condition.7

7
In Delaware v. Van Arsdall, 475 U.S. 673 (1986), the Supreme
Court enumerated several factors that go into assessing whether
error is harmless, including “the importance of the witness’
testimony in the prosecution’s case, whether the testimony was
cumulative, the presence or absence of evidence corroborating or
contradicting the testimony of the witness on material points, the
extent of cross-examination otherwise permitted, and, of course,
the overall strength of the prosecution’s case.” 475 U.S. at 684.
Looking at this case in light of the Van Arsdall factors, the
harmfulness of the error becomes even clearer:
(1) The importance of the accusing witness's testimony in the
prosecution's case is impossible to overstate. The district court
itself recognized this: Matthew was Ellsworth’s only accuser and
the only witness to the alleged incidents. Matthew’s testimony was
the whole of the prosecution’s case.
(2) The testimony was not cumulative. The district court
itself observed that there was no other testimony about Matthew’s
sexual history. Moreover, in light of the district court’s
emphasis on the graphic details Matthew recounted, the source of
those details was extremely significant and not reached by other
testimony.
(3) There was evidence corroborating Matthew’s testimony, but
not on material points. The district court thought the
corroboration to be material, but it was only marginally so. The
other evidence was only “corroborating” to the extent that there
were occasions when Ellsworth took the boys on trips, took them
swimming, and stayed overnight at Colcord Cottage. There was no
corroborating evidence of the abuse itself.
(4) The extent of permitted cross-examination was very
limited. Matthew was permitted to testify in an extremely general
way that he talked about “good touch” and “bad touch” in group
therapy. This did not provide the jury with any information about
his background and prior abuse.
(5) The overall strength of the prosecution's case was not
overwhelming. It involved a sympathetic victim and a lurid
accusation, but, at bottom, it turns on the word of an unstable
witness - a child at that.

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Accordingly, I would reject the district court’s conclusion that

the trial court’s error in curtailing Ellsworth’s cross-examination

of Matthew was “harmless.” The district court should have been

reversed on this claim.

2. Prior False Accusations

At trial, Ellsworth had proffered that Craig Klare’s

testimony would show that Matthew had made false accusations

against students at Pine Haven, the school he attended after

Spaulding. Klare, one of Matthew’s counselors, related that

Matthew falsely accused other boys at the school of peeking at him

in the shower, of peeking under his toilet, and of stealing toys

that he himself had hidden. The trial court ruled that Ellsworth

could cross-examine Matthew about these incidents, but excluded

Klare’s testimony. On cross-examination, Matthew denied that the

incidents ever occurred.

The district court found that it was neither contrary to

nor an unreasonable application of Supreme Court precedent for the

New Hampshire state courts to exclude the testimony of Craig Klare,

which would have rebutted Matthew’s denials, under New Hampshire

Rules of Evidence8 404(b) (barring introduction of evidence of

propensity evidence) and 608(b) (regarding credibility evidence)

8
The text of these rules is identical to that of the
corresponding Federal Rules of Evidence.

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 The district court correctly noted that the Supreme Court

has established that, at least under some circumstances, due

process may require that a criminal defendant be permitted to

introduce extrinsic impeachment evidence, even despite contrary

evidentiary rules, in order to protect a weighty or critical

defense interest. See, e.g., Crane v. Kentucky, 476 U.S. 683, 690-

91 (1986) (holding that defendant’s constitutional rights would be

violated “if the State were permitted to exclude competent,

reliable evidence bearing on the credibility of a confession when

such evidence is central to the defendant’s claim of innocence”).

The Supreme Court delineates the doctrine as follows: a state may

"establish rules excluding evidence from criminal trials" provided

"they are not 'arbitrary' or 'disproportionate to the purposes they

are designed to serve.'" United States v. Scheffer, 523 U.S. 303,

308 (1998) (internal citations omitted). Accord Montana v.

Egelhoff, 518 U.S. 37, 43 (1996) (state evidentiary rule “not

subject to proscription under Due Process Clause unless ‘it offends

some principle of justice so rooted in the traditions and

conscience of our people as to be ranked as fundamental’”).

Whether a principle of justice is “fundamental,” according to the

Supreme Court, is to be assessed historically, with reference to

the common law. Egelhoff, 518 U.S. at 43-44.

The question here, then, is whether the trial court’s

decision to exclude the Klare testimony under Rules 404(b) and

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608(b) was either contrary to, or an unreasonable application of,

the rule established in Scheffer and Egelhoff: namely, that states

may formulate their own evidentiary rules so long as those rules do

not infringe on a weighty interest of the accused or offend a

fundamental common-law principle of justice. The district court

concluded that the trial court’s exclusion of the Klare testimony

did not rise to this standard. First, Ellsworth did not establish

that there was a sufficiently weighty defense interest in the

testimony to outweigh the evidentiary rules precluding its

introduction. Second, in any case, the testimony appeared to be

proffered only as a “general” attack on Matthew’s credibility

rather than one targeted at exposing potential bias or motivation

to lie. This distinction is significant because the Supreme Court

has held that the latter is a right entitled to the full protection

of the Confrontation Clause whereas the former is not. See, e.g.,

Van Arsdall, 475 U.S. at 678-80; Davis v. Alaska, 415 U.S. 308,

316-17 (1974).

I find that the district court’s application of Scheffer

and Egelhoff to bar Klare’s testimony, viewed in the context of the

trial, was objectively unreasonable. To conclude, as the district

court did, that Klare’s proffered testimony did not bear on

Matthew’s potential bias or motive for lying is simply incorrect.

At trial, defense counsel was permitted only to ask Matthew himself

whether he had accused other children at Pine Haven of peeking at

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him or stealing his toys - all of which Matthew flatly denied.

Thus, the jury was left only with Matthew’s unrebutted denials, and

no evidence at all that the incidents in fact occurred – in some

ways, an outcome far more prejudicial to Ellsworth than if counsel

had not been allowed the cross-examination at all.

Accordingly, it is hard to conceive how Ellsworth’s

interest in impeaching Matthew’s testimony could have been more

weighty. The jury was left to draw the conclusion that there was

no rebuttal to Matthew’s denials. As to the issue of impeachment

to show adverse motive or bias versus “general impeachment” of a

witness’s credibility, Klare’s proffered testimony would have done

much more than simply demonstrate Matthew’s alleged “propensity to

make false allegations about voyeurism and theft;” it would have

demonstrated to the jury the kinds of circumstances that unsettled

Matthew enough to evoke untrue accusations – that constituted his

motivation and his own set of biases. I would therefore reverse

the district court on this claim as well.

II. Conclusion

I do not minimize or disregard the genuine suffering that

Matthew has gone through in his short life. Nor do I conclude that

he was not Ellsworth’s victim. However, the mere fact that a

defendant stands accused by a sympathetic victim of a repulsive

crime does not justify depriving him of his constitutional right to

a fair trial. I agree with the majority that at the very least

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Ellsworth is entitled to an evidentiary hearing on remand. My

preference, however, would be to reverse the district court on all

three claims and remand with instructions to issue the writ of

habeas corpus.

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