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Hardy v. Cross

December 12, 2011

MARCUS HARDY, WARDEN
v.
IRVING L. CROSS



ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

Per curiam.

565 U. S. ____ (2011)

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U. S. C. §2254, "imposes a highly deferential standard for evaluating state-court rulings and demands that state-court decisions be given the benefit of the doubt." Felkner v. Jackson, 562 U. S. ___, ___ (2011) (per curiam) (slip op., at 4) (internal quotation marks omitted). In this case, the Court of Appeals departed from this standard, and we therefore grant certiorari and reverse.

Irving Cross was tried for kidnaping and sexually assaulting A. S. at knifepoint. Cross claimed that A. S. had consented to sex in exchange for money and drugs. Despite her avowed fear of taking the stand, A. S. testified as the State's primary witness at Cross' trial in November 1999 and was cross-examined by Cross' attorney. According to the trial judge, A. S.'s testimony was halting. The jury found Cross not guilty of kidnaping but was unable to reach a verdict on the sexual assault charges, and the trial judge declared a mistrial. The State decided to retry Cross on those counts, and the retrial was scheduled for March 29, 2000.

On March 20, 2000, the prosecutor informed the trial judge that A. S. could not be located. A week later, on March 28, the State moved to have A. S. declared unavailable and to introduce her prior testimony at the second trial.

The State represented that A. S. had said after the first trial that she was willing to testify at the retrial. The State said that it had remained in "constant contact" with A. S. and her mother and that "[e]very indication" had been that A. S., "though extremely frightened, would be willing to again come to court and testify." Record, Exh. J, p. 111 (hereinafter Exh. J). On March 3, however, A. S.'s mother and brother told the State's investigator that they did not know where she was, and A. S.'s mother reported that A. S. was "very fearful and very concerned" about testifying again. Record, Exh. K, p. E--9 (hereinafter Exh. K); id., at E--14. On March 9 or 10, the investigator interviewed A. S.'s father, who also had "no idea where [A. S.] was." Id., at E--12. The father's only suggestion was to refer the investigator back to the mother.

On March 10, the State learned from A. S.'s mother that A. S. had run away from home the day before and had not returned.*fn1 Exh. J, at 111. Thereafter, "efforts began by members of the Cook County State's Attorney's Office and by law enforcement personnel to locate" A. S. Id., at 112. The State averred that its efforts included the following:

"Constant personal visits to the home of [A. S.] and her mother, at all hours of the day and night. This is where the victim has lived since the sexual assault occurred.

"Personal visits to the home of [A. S.'s] father. This is where the victim lived when the sexual assault occurred.

"Personal conversations, in English and in Spanish, with the victim's mother, father, and other family members.

"Telephone calls, in English and in Spanish, to the victim's mother, father, and other family members.

"Checks at the Office of the Medical Examiner of Cook County.

"Checks at local hospitals.

"Checks at the Cook County Department of ...


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