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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