At the time of the second trial, that reluctant witness went missing. The prosecutor moved the trial court to admit the testimony of the witness from the prior trial due to her unavailability. The prosecutor argued as to the litany of efforts the State had made in keeping in touch with the witness and maintaining contact with her as well as their frantic, last-minute, unsuccessful scramble to determine her whereabouts.
The trial court granted the State’s motion to admit the prior testimony. The Illinois Supreme Court upheld the decision only to be reversed by the Seventh Circuit Federal Court arguing that they (the judges sitting on the Seventh Circuit bench) felt that the State’s efforts were not “reasonable.” The Seventh Circuit judges felt that three leads out of the dozens and dozens the State explored were not adequately investigated. Those included investigating a cosmetology school where the witness hadn’t attended for months and contacting several old friends that had little if any connection to the witness or the family of the witness. Finally, the Seventh Circuit held that the State failed to subpoena the witness immediately after the first trial even though she promised to testify, albeit reluctantly, at the retrial.
The USSC held that the Seventh Circuit stepped in it by overstepping. “[T]he deferential standard of review set out in 28 U. S. C. §2254(d) does not permit a federal court to overturn a state court’s decision on the question of unavailability merely because the federal court identifies additional steps that might have been taken.” In short, the “reasonableness” standard must be considered from a reasonable perspective—not as an exercise of creative judicial second-guessing.
The Law Offices of Colón & McNelis, P.A. aggressively represents people throughout Central Florida in Personal Injury, Social Security/Disability, Immigration, Family, Criminal Defense, and Probate matters. Colón & McNelis, (863) 534-3777, www.colonandmcnelis.com.