Charles R. Burns v. Donald Clusen

This is a disturbing and elusive case which admits of a number of different approaches, all of which can lay claim to some support in the record and all of which present substantial problems of analysis as well as of policy. As I see it, the state fell short in discharging its burden of showing that L.L. was “unavailable” to appear as a witness at the trial. In my view the state failed not so much because its determination was clearly wrong but because the elements underlying the determination were stale and therefore the record support is inadequate.

Judge Evans in the district court has…