¶24 (dissenting) — The majority holds that a United States Supreme Court case which overrules 24 years of precedent fundamentally altering the standards for admission of hearsay evidence under the confrontation clause of the United States Constitution is not a new rule which requires the observance of procedures implicit in the concept of ordered liberty.7 I disagree.
Sanders, J.¶25 Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), marked a complete reversal of the confrontation clause standards articulated in Ohio v. Roberts, 448 U.S. 56, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980). Before Crawford, the confrontation clause was thought to permit hearsay evidence where there were “adequate ‘indicia of reliability,’ ” which could be “inferred without more in a case where the evidence falls within a firmly rooted hearsay exception.” Roberts, 448 U.S. at 66. But after Crawford, testimonial statements of absent witnesses are inadmissible unless the witness is unavailable and the defendant had a prior opportunity for cross-examination. Crawford, 541 U.S. at 68.1 therefore conclude this is a “ ‘watershed rule[ ] of criminal procedure’ implicating the fundamental fairness and accuracy of the criminal proceeding,” and “ ‘without which the likelihood of an accurate conviction is seriously diminished.’ ” Schriro v. Summerlin, 542 U.S. 348, 352, 124 S. Ct. 2519, 2523, 159 L. Ed. 2d 442 (2004) (quoting Saffle v. Parks, 494 U.S. 484, 495, 110 S. Ct. 1257, 108 L. Ed. 2d 415 (1990)). Further, the new rule “ ‘alter [ed] our understanding of the bedrock procedural elements’ essential to the fairness of [the] proceeding” and thus must be applied retroactively. Sawyer v. Smith, *277497 U.S. 227, 242, 110 S. Ct. 2822, 111 L. Ed. 2d 193 (1990) (quoting Teague v. Lane, 489 U.S. 288, 311, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989)).
¶26 While I acknowledge the majority cites a significant number of cases that have reached a different conclusion, these cases are not binding precedent and were wrongly decided. If Crawford was not a “watershed” case, I do not know what is.
¶27 Further, while the majority cites many cases that essentially quote the “magic words” of Teague and Schriro, dismissing retroactivity claims with little further analysis, the majority rejects cases that provide in-depth retroactivity analysis and persuasive reasoning. Three courts that have comprehensively analyzed the retroactivity of United States Supreme Court decisions regarding the confrontation clause have concluded that such decisions apply retroactively.
¶28 Most recently, the Ninth Circuit concluded that Crawford applies retroactively in Bockting v. Bayer, 399 F.3d 1010 (9th Cir. 2005). Bockting resulted in three opinions and provides the best explication of the Crawford retroactivity issue yet published. The majority opinion noted “[t]he Supreme Court has repeatedly and without deviation held that the purpose of the Confrontation Clause is to promote accuracy.” Bockting, 399 F.3d at 1017. “[T]he heart of the Court’s concerns in Crawford was the reliability of admitted evidence. Where admitted evidence is unreliable, the accuracy of convictions is seriously undermined. . . . [The rule in Crawford] is an ‘absolute pre-requisite to fundamental fairness.’ ” Id. at 1018-19 (quoting Sawyer, 497 U.S. at 244).
¶29 The Bockting majority further noted that “the [Supreme] Court describes the right of confrontation as a ‘bedrock procedural guarantee.’ ” Id. at 1020. The concluding paragraph merits extensive quotation:
*278The Court has found repeatedly that the purpose of the Confrontation Clause is to promote accuracy, and thus Crawford rejected the Roberts framework as reflective of “a fundamental failure on our part to interpret the Constitution in a way that secures its intended constraint on judicial discretion.” Viewing these holdings together leads to the conclusion that the Crawford rule is one without which the likelihood of accurate conviction is seriously diminished.
Id. at 1021 (citations omitted) (quoting Crawford, 541 U.S. at 67).
¶ 30 While “the Ninth Circuit’s interpretation of federal constitutional law is persuasive authority,” State v. Hanna, 123 Wn.2d 704, 718, 871 P.2d 135 (1994), habeas granted sub nom. Hanna v. Riveland, 87 F.3d 1034 (9th Cir. 1996), in this case it is more than persuasive. In the Ninth Circuit “[o]nce a panel resolves an issue in a precedential opinion, the matter is deemed resolved, unless overruled by the court itself sitting en banc, or by the Supreme Court.” Hart v. Massanari, 266 F.3d 1155, 1171 (9th Cir. 2001). The majority opinion in Bockting is binding on all federal district courts and all subsequent appellate panels until overruled en banc or until the United States Supreme Court decides the issue. Given the Ninth Circuit has now resolved the exact same issue contrary to the majority opinion, Markel will merely file a habeas petition and receive his relief in federal court. See, e.g., Hanna, 123 Wn.2d 704.
¶31 A similar exhaustive analysis of Crawford’s retroactivity was performed by New York State trial court judge Marcy L. Kahn. Justice Kahn ultimately held:
As noted, the Supreme Court held in Crawford itself, and the New York Court of Appeals has held in Eastman, that the right to confront witnesses is a “bedrock rule” of criminal procedure. (Crawford v. Washington, [541 U.S. at 42,] 124 S. Ct. at 1359; People v. Eastman, 85 N.Y.2d 265, 275 [, 648 N.E.2d 459, 624 N.Y.S.2d 83 (1995)]). Further, the violation of a defendant’s right to cross-examine a witness who has made a testimonial statement against him or her, according to Crawford, calls into question *279the reliability of the testimony admitted at trial. This concern implicates the fundamental fairness of the trial, may have a significant effect on the integrity of the fact-finding process, and could compromise the jury’s determination of a defendant’s guilt, as long-standing Supreme Court precedent has shown. Accordingly, applying Teague’s teachings, this court finds that the rule announced in Crawford is a “watershed” rule of Criminal Procedure, and thus applies to cases on collateral review.
People v. Watson, 5 Misc. 3d 1013(A), 2004 N.Y. Slip Op. 51364(U), 2004 WL 2567124, at *7, 2004 N.Y. Misc. LEXIS 2133.8
¶32 Finally, Graham v. Hoke, 946 F.2d 982 (2d Cir. 1991), examined the United States Supreme Court’s reversal of its precedent regarding the confrontation clause. While the issue differed slightly,9 the factors the Second Circuit found relevant to determine whether the new rule should be applied retroactively are very similar to the circumstances in Crawford,. The United States Supreme Court’s reversal of a landmark precedent concerning the “ “bedrock procedural element’. . . [of] the right of confrontation; a right which the Supreme Court long ago referred to as being ‘[o]ne of the fundamental guarantees of life and liberty* ”10 required the Graham court to find the rule should be applied retroactively. Given that Crawford (1) dealt with a very similar procedural rule concerning (2) the same bedrock confrontation principle and (3) overruling a landmark prior precedent, thus fundamentally changing our understanding of the requirements of the bedrock principle embodied in the confrontation clause, I can only conclude that the Graham court’s extensive analysis is right on *280target, and that Crawford must be applied retroactively. Collectively, Bockting, Watson, and Graham present the best reasoned and most persuasive analysis on whether Crawford should apply retroactively, and I would simply follow these courts’ learned example.
¶33 If Crawford applied, the Markels would clearly be entitled to a new trial. The testimony of Officer Somday and Suzanne Craig constituted testimonial hearsay because Ricki’s statements were obtained by police interrogation, as defined in Crawford. 541 U.S. at 52. Ricki was unavailable, having been ruled incompetent to testify because of her age, and there was no opportunity for prior cross-examination as required by Crawford. Id. at 1374.
¶34 I dissent.
C. Johnson, J., concurs with Sanders, J.See In re Pers. Restraint of St. Pierre, 118 Wn.2d 321, 326, 823 P.2d 492 (1992).
The New York Court of Appeals is the highest appellate court in the State of New York.
Graham examined the United States Supreme Court’s overruling of Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968), by Cruz v. New York, 481 U.S. 186, 107 S. Ct. 1714, 95 L. Ed. 2d 162 (1987). Cruz overruled Bruton on the issue of whether admitting interlocking confessions in a joint trial violated the confrontation clause.
Graham, 946 F.2d at 994 (quoting Kirby v. United States, 174 U.S. 47, 55, 19 S. Ct. 574, 577, 43 L. Ed. 890 (1899)).