State v. Harper: Forfeiture By Wrongdoing Appeal Likely

Another tip of the hat to Deputy Jason Barnes of the Madison County Sheriff's Department for this interesting article from the Fort Dodge Messenger. It's a thought provoking subject.

At the present time, Sessions Harper is awaiting trial out of Webster County, Iowa, for a particularly brutal homicide, kidnaping, arson and sexual assault case.

At issue are statements that the victim, Holly Michael, made to emergency room personnel prior to her death and whether they can be brought into evidence against Harper. Harper argued that the Sixth Amendment's Confrontation Clause barred admission of the statements because he hadn't been afforded the opportunity to cross examine the statements and the witness was unavailable. Of course, it was Harper's criminal act that made the witness unavailable.

It's a disingenuous argument that Harper makes while angling for a criminal windfall, akin to the man who killed his parents pleading for mercy because he's an orphan.

At issue are several court decisions.

(Parenthetically as we noted here six months ago, it appeared that Justice Scalia has declared war on the victims of domestic abuse. His love affair with the confrontation clause has led him to lose perspective on the subject of domestic abuse-perhaps because he never had a domestic abuse case to prosecute that I've heard about where the complainant went underground and couldn't be found later).

The federal courts have a trilogy of decisions on the question of the interplay of the confrontation clause, unavailable witnesses, and wrongful conduct of the actor. They are Crawford v. Washington, Davis v. Washington and Reynolds v. U.S.

Crawford bars admission of testimonial statements of a witness who did not appear at trial unless unable to testify and the defendant had a prior opportunity for cross examination, and Davis essays to make the distinction between testimonial and non testimonial statements.

Reynolds stands for the proposition that one who makes a witness unavailable to testify should not be entitled to a windfall based on the confrontation clause of the Sixth Amendment (the 'forfeiture by wrongdoing' exception), and in fact the exception was reiterated in Davis.

There's a split over what the scope of the forfeiture by wrongdoing exception really is.

On one hand, the federal courts and those states that adopted the federal version of Rule 804 (b)(6): Forfeiture by wrongdoing. A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness, and on the other hand there are those states such as Iowa that did not adopt the federal rule.

It's clear that the distinction lies between whether there is an intent to make the witness unavailable requirement or not.

The district court's decision to allow the statements of Holly Michael to emergency room personnel is the nub of the issue as far as the defendant is concerned. We have one case in Iowa on the subject and that is State v. Hallum, 606 N.W.2d 351 (Iowa 2000).

In Hallum, the defendant actively procured the witness' unavailability by urging him not to testify, although the witness initially made a statement implicating the defendant. The question of whether the defendant can profit by the criminal act (such as a homicide) that made a witness unavailable seems to be the one that will be in play in State v. Harper.

It certainly seems to be a pressing issue for the community, as an adverse decision would be a clear signal to the criminal community: Get out of jail free by killing the witnesses.

A recent case from the Colorado Court of Appeals sheds some light on this conceptual split and how it might play out. In People v. Vasquez, a defendant made calls to his ex wife in violation of a restraining order which the wife taped. Two days before the trial on harassment charges the defendant's wife was murdered-a fact to which the defendant admitted.

Vasquez made the argument that the tapes should not have been admitted under the doctrine of forfeiture by wrongdoing. The court of appeals summarized the history of the rule, including adverse decisions based on the Federal rule of evidence and its analogues.

The court of appeals sided with the minority because Colorado (like Iowa) did not adopt the Federal rule, the common law doctrine of forfeiture by wrongdoing did not impose a requirement that the defendant intend to prevent the witness from testifying in the same case the testimony was offered, and the rationale for the doctrine is consistent with not requiring such a showing.

Further, Reynolds and Davis did not impose an intent requirement. Basic equity prescribes that a defendant may not profit from his own wrongdoing, regardless of his intent to prevent the decedent from testifying. Vasquez could not claim a right to confront a witness he intentionally killed.

At present, a motion to present an interlocutory appeal on this subject is pending before the Iowa Supreme Court in Harper's case, and I haven't heard what the outcome of that is, or whether the case will go ahead and the issue will be examined on appeal if Harper is convicted.

Stay tuned. This could get all the way to the Big Supremes in Washington one of these days.