Thursday, June 26, 2008
Forfeit Victory, Take 8: Interesting Interpretation of Giles Opinion At SCOTUSblog And My Second Take On The Opinion
Over at SCOTUSblog, Lyle Denniston has an interesting analysis of the Giles opinion. Denniston notes that:
"Justice Scalia, in comments that appeared to be made at least partly to hold two of the six votes (and thus majority prevailing over three dissents), said that state courts were free now to probe what Giles’ intent was in killing his former girlfriend. If there is proof of an 'abusive relationship' that ends in murder, Scalia said, that might support a finding that the crime represented an intent 'to isolate the victim and to stop her' from reporting the abuse or cooperating with a criminal investigation.
He added: 'Earlier abuse, or threats of abuse, intended to dissuade the victim from resorting to outside help would be highly relevant to this inquiry, as would evidence of ongoing criminal proceedings at which the victim would have been expected to testify.' That is the kind of potential evidence of intent that state courts may now examine, the opinion said.
Justice David H. Souter, in a separate opinion joined by Justice Ruth Bader Ginsburg, gave special emphasis to the situation that might be present if a 'domestic abuser in the classic abusive relationship' sought to keep the victim from seeking help from law enforcement officers. 'If the evidence for admissibility shows a continuing relationship of this sort, it would make no sense to suggest that the oppressing defendant miraculously abandoned the dynamics of abuse the instant before he killed his victim, say in a fit of anger,' Souter wrote.
Since their votes were essential parts of the majority, the added emphasis on a situation of domestic abuse (an emphasis that the three dissenters embraced, incidentally) could limit the impact on prosecutions that the Court’s decision might otherwise have."
These are all good points, but what I would draw from these statements when viewed of the context of the entirety of the opinions is that "evidence of ongoing criminal proceedings at which the victim would have been expected to testify" appears to be the sine qua non for application of the forfeiture by wrongdoing doctrine in this type of domestic violence case. As I noted yesterday, Scalia indicated that the "intent" required for application of the doctrine is that it was the specific intent/purpose/design of the defendant to render the witness unavailable to testify against him. With that being the case, I just don't see how "earlier abuse, or threats of abuse, intended to dissuade the victim from resorting to outside help" could meet that standard because the defendant's behavior wouldn't be specifically directed toward preventing the victim's testimony but instead would be directed toward preventing any type of help, whether it be legal, familial, or spiritual. I would, however, love to be wrong on this front.
In this sense, Denniston's argument that the Giles opinion might be less harmful to domestic violence prosecutions than it appeared at first blush could be overstating the case. At the same time, the passages cited by Denniston might signal a different way in which Giles could be less harmful to prosecutions in general than I first thought. Sticking to my formulation of Scalia's majority opinion as requiring "specific intent," the passages cited by Denniston seem to indicate that Scalia also allows for application of the doctrine based upon "transferred intent." In other words, if a husband is already facing domestic abuse charges against his wife and then murders her to prevent her from testifying against him in that case, obviously the specific intent/purpose/design of this act was not to prevent his wife from testifying against him at his subsequent murder trial because there could be no such trial under after he murdered his wife. But according to the way I read the passages cited by Dennistion, the husband's intent to silence the wife in the domestic abuse trial would transfer to the murder trial and allow for application of the doctrine.
For an example of this scenario, let's look at the case of State v. McCarley, which I blogged about in February. As I noted then:
"In McCarley Charlene Puffenbarger filed a paternity/child support suit in November 1991 naming Willard McCarley as the father of her two year old son. On January 20, 1992, a neighbor came to Charlene's apartment and found her dead on a couch with several scalp lacerations, defensive wounds on her hands, and a leather strap wrapped twice around her neck. After trial, McCarley was found guilty of aggravated murder after, inter alia, witnesses testified about statements Charlene made to them after she brought her paternity suit and before her murder, which were admitted pursuant to Ohio Rule of Evidence 804(b)(6), its version of the forfeiture by wrongdoing doctrine, which allows for the admission of "[a] statement offered against a party if the unavailability of the witness is due to the wrongdoing of the party for the purpose of preventing the witness from attending or testifying. The Court of Appeals of Ohio found that this evidentiary ruling was erroneous because "[i]t would be a very strange case indeed if a person murdered another for the purpose of preventing the other from testifying in their own murder trial."
Again, according to the way I read the passages cited by Dennistion, if Puffenbarger intended to prevent McCarley from testifying against him in the paternity/child support suit, his intent could transfer to the murder trial and allow for application of the doctrine.