Thursday, June 26, 2008

The First Thing We Do, We Kill All The Witnesses, Part Deux

We're reliably informed that the Supremos in Washington handed down the decision in Giles v. California that extends and strengthens Scalia's toxic infatuation with the Confrontation Clause.

Giles shot his estranged girlfriend Brenda Avie six times and claimed he was defending himself against the unarmed woman. Some weeks beforehand, police were summoned to a domestic disturbance at the Giles residence and Brenda Avie spoke to an officer and said Giles had threatened her with a knife and assaulted her.

The People introduced the statements into evidence at trial over Giles' objections under Cal. Evid. Code section 1370 and Giles was convicted of murder and sentenced to prison.

On appeal, the California Court of Appeals affirmed, finding that Crawford v. Washington recognized the doctrine of forfeiture by wrongoing, which embodies the commonsense notion that a criminal defendant should not profit by his own wrongdoing, as Giles had.

The Supremes differed, finding that even when a defendant manages to make a witness disappear, the witness' statements cannot be used at trial because the poor dear did not have an opportunity to confront the witness.

Unless he intended to procure the witness' unavailability, then, it seems that in Scalia's view, a defendant owns an absolute right to eliminate witnesses against him, just as long as he doesn't do anything so overt as to offer a bribe.

In his dissent, Breyer implies that the result is incongruous, because it exchanges the presumption that a person knows the consequences of his criminal acts, with one of a subjective determination of intent and a purpose to procure the nonappearance of a witness.

But dissenters rarely are remembered.

However, there is hope. In Thomas' concurrence he notes that there was no contention that the statement Avie made to police was nontestimonial. Alito makes the same observation, saying it was not at all clear whether the statement made by Avie was testimonial or not, but that the issue was not before the Court.

What's clear about that subject is what I call the Jeff Dawson Open Mike Policy. When Jeff was with the Winterset PD and he was headed out to a domestic, he'd take the car with the video equipment, park it and leave the video equipment running. He thus had a live mike recording the entire transaction, unsolicited statements, excited utterances and all.

It's a practice that's worthy of further study, if the objective of the justice system is to offer protection to victims and punishment to wrongdoers. On the other hand if Scalia figures that the best and highest purpose of the system is to further a toxic infatuation with confrontation above all else, then he's scored a victory of sorts.

It's quite evident he never was a prosecutor.


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