Federal appeals court says Oregon man should be given a new hearing

PORTLAND — A federal appeals court panel has ruled that an Oregon man who didn't have the chance to confront the witness whose testimony was used against him should get a hearing on the issue.

The panel's 2-1 ruling issued this week by the 9th U.S. Circuit Court of Appeals overturns decisions by the Oregon Court of Appeals and the Oregon Supreme Court, as well as a federal judge in Portland.

Michael Smith of Salem found his ex-girlfriend and another man inside his home, rifling through his belongings in 2003. A scuffle ensued. Smith was accused of hitting the man with a hand cart and taking his ex-girlfriend's keys and phone.

At trial, his ex-girlfriend was subpoenaed to testify but never showed up. Prosecutors were unable to get the other man to appear, either, and did not produce the hand cart they said Smith used to hit the other man. Prosecutors did introduce into evidence a picture of the hand cart with a dark substance on it, which they said was blood. The substance was never tested, so it's unclear whether it was blood or whose blood it was.

A Salem police officer responding to the scene heard a description of the incident from Smith's ex-girlfriend, and his secondhand account was the only evidence used at Smith's trial, where Smith was convicted by a judge of third-degree robbery and second-degree assault and sentenced to eight years in prison.

Smith's attorney argued that the police officer's testimony was hearsay, but a judge allowed it.

Nine months after his conviction, the U.S. Supreme Court modified the rules concerning statements from unavailable witnesses, colloquially referred to as the "Confrontation Clause." Their new interpretation said that the accuser must have had a chance to cross-examine the witness at some point before the testimony was introduced.

Smith never got that chance, and used this modified interpretation in arguing to the Oregon Court of Appeals, which summarily shot down his appeal. The Oregon Supreme Court declined to hear the case.

Smith petitioned from prison to federal court, saying he had ineffective attorneys at the trial and appellate level, and that he was denied due process when the officer's secondhand account was allowed into evidence.

U.S. District Judge Michael Mosman ruled in 2011 that there were lots of procedural problems with Smith's appeal, especially that he hadn't raised the Confrontation Clause issue at trial. Mosman said Smith was now asking him to make "a series of legal leaps" to agree with his argument.

Mosman concluded that the federal courts couldn't decide the case on its merits because Smith didn't raise the Confrontation Clause at trial and the Oregon Court of Appeals didn't find any error with the trial court's findings.

The appeals court disagreed and sent the case back to Mosman with the instruction that he can review the petition from Smith.

Chief Judge Alex Kozinski dissented from the majority and agreed with Mosman, arguing that the Oregon Court of Appeals denial of Smith's appeal was grounded in state law, precluding the federal courts from reviewing it.

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