Mark Hartman v. Dave Yost, Attorney General of Ohio

I Did the Sixth Circuit err when it reversed the district court’s grant of the writ based on ineffective assistance of counsel during cross-examination when an element of the charge could be proved only by the complaining witness, the witness had not established the element on direct examination, and defense counsel elicited hearsay that bolstered the state’s case on the same element? II “[W]here testimonial evidence is at issue. . . the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.” Crawford v. Washington, 541 U.S. 36, 68 (2004). “If a ‘particular guarantee’ of the Sixth Amendment is violated, no substitute procedure can cure the violation, and no additional showing of prejudice is required, to make the violation complete.” Bullcoming v. New Mexico, 564 U.S. 647, 663 (2011) quoting United States v. Gonzalez-Lopez, 548 U.S. 140, 146 (2006). At Petitioner’s trial, after identifying the analyst who did the testing on its witness list, the State without notice introduced DNA evidence through a substitute analyst who did not do the testing. Surprised defense counsel did not object. The state appellate court found the Confrontation Clause issue was not waived and conducted plain error review. Petitioner challenged