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September 13, 2012
My New Essay: The Purpose Driven Rule: Drew Peterson, Giles v. California, and the Transferred Intent Doctrine of Forfeiture by Wrongdoing
Well, after posts ther last several days about the Drew Peterson conviction and the transferred intent doctrine of forfeiture by wrongdoing, I finally put my thoughts together in essay entitled, The Purpose Driven Rule: Drew Peterson, Giles v. California, and the Transferred Intent Doctrine of Forfeiture by Wrongdoing. That essay is now available on SSRN. Here is the abstract:
On September 6, 2012, a jury convicted Drew Peterson of the murder of his third wife, Kathleen Savio. Media accounts of the verdict indicated that jurors were primarily swayed by the admission of hearsay statements by Savio as well as Peterson’s third wife, Stacy Peterson. Numerous stories reported that the prosecution admitted these hearsay statements pursuant to “Drew’s Law,” a statutory codification of the common law doctrine of forfeiture by wrongdoing that the Illinois legislature enacted solely for purposes of the Peterson prosecution. In fact, these statements were admitted under the common law doctrine of forfeiture by wrongdoing, and the viability of Peterson’s appeal hinges upon the constitutionality of the transferred intent doctrine of forfeiture by wrongdoing.
The doctrine of forfeiture by wrongdoing typically applies in the witness tampering context: When a defendant on trial for some crime (e.g., robbery) intends to and does procure the unavailability of a prospective witness against him at that trial, the prosecution can admit the witness’s hearsay statements at that same trial (the robbery trial). But does the doctrine also apply at the defendant’s trial for murdering the prospective witness, with the defendant’s intent to render the witness unavailable at the first trial transferring to the second trial? This essay contends that the Supreme Court’s opinion in Giles v. Califonria endorsed a transferred intent doctrine of forfeiture by wrongdoing by making the operation of the doctrine dependent upon causation and intent rather than causation and benefit.
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Colin: A very insightful essay, but I query: Did Peterson allegedly kill Kathleen (3rd wife) to prevent her from being "a witness" or "a party" in the divorce proceedings? I would argue "a party." She would have received his pension, child support, etc. merely by being alive - had arguably very little to with her being a witness.
Point Being: if a defendant makes a person unavailable for trial in Case A (divorce) for some reason other offering witness testimony, the docreine of forfeiture should not apply. Accordingly, if it desn;t apply in Case A (divorce), it can never apply in Case B (murder) under a transferred intent theory. There is simply nothing to transfer.
I suspect all of these arguments will be raised by appeal team
Posted by: Barry | Sep 13, 2012 10:40:42 AM
Barry: Thanks. I'm not sure whether I agree or disagree with what you are saying. I see your point, but it almost makes me think that forfeiture makes more sense in the killing-a-party fact pattern than the killing-a-witness fact pattern.
Hypo 1: Vince sues Dan for assaulting him. Ed is an eyewitness. Dan kills Ed to prevent him from testifying at trial, with the hope that this means that Vince won't win the action and get monetary damages from Dan. Ed's hearsay statements can be admitted at trial. This is a classic forfeiture case, and everyone agrees that forfeiture should apply here.
Hypo 2: Same facts as above, but Dan kills Vince, again, with the goal of preventing Vince from winning the action and getting monetary damages from Dan. Dan is now prosecuted for murdering Vince. Should Vince's hearsay statements be admissible against Dan?
I would argue "yes." Dan intended to render Vince unavailable for the assault trial. Yes, his goal was to render Vince unavailable as a party, but part of being a party (and specifically a plaintiff in a civil case) is testifying as a witness against the defendant.
The goal of forfeiture is deterring conduct that threatens the integrity of the trial system. Killing a witness poses such a threat. But doesn't killing a party/witness pose an even greater threat?
Posted by: Colin Miller | Sep 13, 2012 11:49:26 AM
I think that Barry and I and for that matter five members of SCOTUS all share a similar concern to your line of reasoning Colin and that concern can best be phrased as a question: How do you cabin it?
Taken to it's logical extreme every person is a potential witness to a future crime. Under your logic just about anything that's ever said to anyone can be admitted so long as the person later winds up dead. Perhaps that is another way of understanding Scalia's "other litigation" comment; he's not thinking of crime a vs crime b but drawing a distinction between civil and criminal litigation. That the common law rule of FBW only applies to witness tampering in the criminal context. Indeed, every analogy you drew in your article Colin was drawn to the criminal law.
Let's take an example at the other extreme. My neighbor and I don't get along and that's public knowledge. He comes to my house one night drunk and starts yelling at me because my dog pissed on his lawn. He won't leave when I ask him to leave so I verbally threaten him by telling if he doesn't leave I'm going to kill him. Still drunk, he goes home to his wife and babbles to her that I swore I was going to kill him dead. Two days later he's found dead in the woods by a gunshot wound. The police can find no other evidence but after hearing the widow's story they arrest me. Should her testimony be admitted under a FBW.
I'd argue no. Was my neighbor a witness to a crime? Yes. I can think of several crimes. Maybe he was a witness to the crime of trespass by my dog. Maybe he was a witness to a crime of verbal assault because I threatened him. I still say so what, that he was a witness to a crime. The crime to which he was a witness to is too far attenuated from murder. The common law, if it is to be common, has to have some sense of proportion built in to it. Take the Peterson case. I'd like to know within the USA how many people have ever been prosecuted for the crime of tampering with a witness during a divorce proceeding; I bet the answer is just about zero. Especially in a divorce proceeding that seems to have been run-of-the-mill in every other way.
The way I read you paper Colin is as a justification for every two-bit prosecutor whose in cahoots with a tin horn judge to railroad some poor helpless fellow. I don't think the purpose of the common law is to support that under the guise of FBW.
Posted by: Daniel | Sep 13, 2012 12:24:20 PM
I think that the party distinction is not the key. The question is whether the intent is to snuff out her testimony (?). Anyway, I am sure you will be thanking all of us for our support. Otherwise we will have to kill you. Or maybe not.
Posted by: Rick Underwood | Sep 13, 2012 12:29:59 PM
Colin: Giles and FRE 804(b)6) are clear to me that before the forfeiture doctrine can ever be invoked it must be proven that the acts of the wrongoing party were engaged in with the intent of making the putative declarant unavailable "as a witness" and "for no other purposes." That is why Giles' girfriend's statements were ultimately not allowed in - prosecution did not carry its burden of proof that she was killed to prevent her from testifying "as a witness" in murder case (or DV case). I have just a few concluding comments:
1. If Drew killed Kathleen so she would not be around to collect ANY pension/child support (by virtue of her death), he did so without regard for her being a witness against him. rather simply her being a party. Forfeiture arguably doesn not apply.
2. On the aother hand, If Drew killed Kathleen so she would not TESTIFY as to the AMOUNT of pension/child support she is entitled, the forfeiture doctrine arguably does apply.
3. I doubt the trial court engaged in such a nuanced analysis of the situation; and as Scalia noted, the doctrine of forfeitures should be strictly and narrowly construed. The courts themselves jeopardize the integrity of the judicial system when they allow for the expansion of the doctrine.
4. I suspect you and I have have thought more about this matter than just about anyone in the country over the past few days :) Thank you very much for the dialogue!
Posted by: Barry | Sep 13, 2012 12:47:29 PM
Daniel: I think that there are two separate issues: (1) What is the showing of intent that initially triggers the doctrine of forfeiture by wrongdoing; and (2) Can this intent transfer to a subsequent crime? My essay addresses this second question in the affirmative. It takes no position on the first question with regard to issues such as burden of proof, whether intent to render the witness unavailable at some trial must be the only or primary intent, or whether there even needs to be a pending trial at the time of the killing.
So, if your issue is the ease with which forfeiture is first proven, we might be in agreement. My only point is that forfeiture once proven should apply to all subsequent trials where the witness's statements are relevant.
Posted by: Colin Miller | Sep 13, 2012 4:30:59 PM
Barry: Thanks for all of the comments. I just have one final question for you. You read Giles as saying that the defendant's act must have been for no other purpose than rendering the victim unavailable as a witness. What if a defendant charged with assaulting a neighbor kills another neighbor partially because that other neighbor is going to testify against him at the trial and partially because the two have a longstanding feud? Or, what if a defendant kills his co-worker partially because the co-worker is going to testify at a sexual harassment trial brought by another co-worker against him and partially because the co-worker got the promotion that the defendant wanted? Assuming that rendering these witnesses unavailable was the primary purpose and the other purposes were secondary, would you apply forfeiture?
Posted by: Colin Miller | Sep 13, 2012 4:38:38 PM
The idea that the triggering intent and the transfer of intent are separate events is an artificial and arbitrary formalism. There is a direct nexus between the two: the judge who is deciding the case. The judge isn't making a determination of the triggering intent in isolation and with no foreknowledge of the transfer of intent. He's making a decision about the triggering intent precisely because he wants to know if he can transfer it.
Lets look at the last half of of the quote posted from Justice Scalia. "There is nothing mysterious about courts' refusal to carry the rationale *further*. The notion that judges may strip the defendant of a right that the Constitution deems essential to a fair trial, on the basis of a prior judicial assessment that the defendant is guilty as charged, does not sit well with the right to trial by jury. It is akin, one might say, to “dispensing with jury trial because a defendant is obviously guilty.” Crawford, 541 U.S., at 62, 124 S.Ct. 1354."
You're concerned about the transfer of intent in one direction but that language makes it obvious that Scalia is concerned about the transfer of intent in the opposite direction. Scalia is concerned that the judge will conclude the defendant is guilty based upon rumor, innuendo, media coverage, etc. (the "prior judicial assessment") and then transfer that assessment backwards onto his determination of who is and who is not a witness under FBW. It is that transference that is the key to understanding the concern that animated the court to take up Giles in the first place.
Ultimately, Giles isn't a case about the purpose of FBW; Giles is a case about the purpose of the Confrontation clause. Whatever the merits of the common law rule of FBW to protect the integrity of the judicial system that merit does not trump the Confrontation clause. The issue of judicial subterfuge needs to be taken seriously; SCOTUS takes it seriously. From a historical standpoint combating judicial subterfuge is one of the primary purpose of the Confrontation clause. It's no coincide that in Giles Scalia quotes from his own opinion in Crawford on that score. FBW might be about protecting the judicial system from nefarious defendants; Giles is about protecting the judicial system from nefarious judges. So we can't think about the triggering intent and the transfer of intent as two separate issues because in the judge's mind...at least the mind of the nefarious judge...they are one and the same thing.
Posted by: Daniel | Sep 13, 2012 9:57:30 PM
Colin to Barry:
I just have one final question for you. Do you read Giles as saying that the defendant's act must have been for "no other purpose than rendering the victim unavailable as a witness?"
Barry to Colin:
A better way to state my understanding of Giles is that in order for the doctrine of forfeiture to apply, it must be proven that a defendant engaged in (or acquiesced to) acts expressly designed to prevent another from testifying against him "as a witness" vs. engaging in wrondoings designed "for some other purpose" that fortuitously (for the defendant) resulted in the person being unavailable as a witness.
It is based on this understanding of the law that I posited the following: If the evidence showed Drew Peterson allegedly killed Kathleen Savio to avoid paying her child support (i.e., a dead mother isn't entitled to child support for children she is not alive to raise) then the primary (if not sole) "intent" of the killing was arguably to secure financial gain by her death (akin to collecting insurance money as the beneficiary of a decedent's life insurance policy), not to prevent her from being a witness against him. In such a case, I would argue the forfieture doctrine would NOT apply.
In the situations you hypothicated, it is my belief the doctrine of forfeiture would apply because you conditioned it on an evidentiary finding that the killings were done to either partially or primarily make the persons unavailable as a witness.
Our our understandings copasetic?
Posted by: Barry | Sep 13, 2012 11:25:58 PM
Daniel: That's a fair point. But it seems to me like Justice Scalia weighs all of the things you mentioned (the dangers of prior judicial assessments, protecting the judicial system from nefarious defendants, etc.) and ultimately concludes that we have to have a transferred intent doctrine of forfeiture by wrongdoing. Again, from footnote 6:
"We do not say, of course, that a judge can never be allowed to inquire into guilt of the charged offense in order to make a preliminary evidentiary ruling. That must sometimes be done under the forfeiture rule that we adopt—when, for example, the defendant is on trial for murdering a witness in order to prevent his testimony. But the exception to ordinary practice that we support is (1) needed to protect the integrity of court proceedings, (2) based upon longstanding precedent, and (3) much less expansive than the exception proposed by the dissent."
That's all I'm advocating in the paper: If a defendant kills a witness to prevent him from testifying at Trial A, that intent should transfer to Trial B, the defendant's murder trial for murdering the witness.
Posted by: Colin Miller | Sep 14, 2012 3:28:32 AM
Barry: How about this fact pattern. Pat enters into a contract with Dan, and Dan then breaches the contract. Dan breached the contract because of an argument with Pat and doesn't Pat getting anything out of the contract. Pat sues Dan. Dan kills Pat to prevent him from recovering. Pat's wife continues pursuing the action, and the case proceeds to trial. Should Pat's hearsay statements be admissible against Dan? And, in Dan's trial for murdering Pat, should Pat's hearsay statements be admissible? I would answer "yes" to both questions.
Posted by: Colin Miller | Sep 14, 2012 3:43:58 AM
Colin: For the reasons set forth below, I counter your definitive "yes and yes" with an uncertain "maybe and maybe."
In my opinion, you correctly noted in a prior post in a different thread that the salient inquiry requires an anaysis of defendant's "cause and intent" [Giles majority position] v. "cause and benefit" [Giles dissenters position]. You stated in your presented facts that, "Dan killed Pat to prevent him from 'recovering.'" This is arguably different than "Dan killing Pat to prevent him from 'testifying' and securing a 'judgment.'"
Point being: If Dan would have killed Pat (win or lose in the civil trial), hellbent on ensuring that Pat never receive any of his money, his killing had ostensibly little (if anything) to do with Pat testifying as a witness.
That is the difficulty with the forfeiture doctrine: 1.) it is very fact dependant, 2.) requiring a judge to get inside the head of a defendant and ascertain his/her true intentions and then 3.) strictly and narrowly (according to the U.S. Supreme Court) see if they were "designed to prevent the unavailability of a witness." Suffice to say, in some cases, it might be easier to determine how many angels fit on the head of a pin.
Posted by: Barry | Sep 14, 2012 12:37:13 PM
I'll accept the idea of transferred intent so long as one takes the Scalia quote at its face value. The very first words in that statement are "we do not say never" which is a far cry from saying that transferring of intent is the normal practice. Scalia is declaring in that footnote an *exception;* it's not an example that illustrates a general rule to be applied in cases at the nexus of the Confrontation right and FBW. What is that narrow exception Scalia is thinking of that meets the criteria he lists? The one discussed in the Souter concurrence, "classic" cases of domestic violence. I'll accept the idea of transferred intent so long as it's understood to be cabined to that limited context. Otherwise, the language in the footnote simply swallows the whole opinion.
"That is the difficulty with the forfeiture doctrine: 1.) it is very fact dependant, 2.) requiring a judge to get inside the head of a defendant and ascertain his/her true intentions and then 3.) strictly and narrowly (according to the U.S. Supreme Court) see if they were "designed to prevent the unavailability of a witness." Suffice to say, in some cases, it might be easier to determine how many angels fit on the head of a pin."
Well said Barry and I heartily agree. The only thing I would add is that I think that 2) can be deduced or inferred from objective circumstances.
Posted by: Daniel | Sep 14, 2012 2:58:35 PM
Barry: These are all good points. It will be interesting to see courts grapple with these issues.
Posted by: Colin Miller | Sep 15, 2012 3:31:27 AM
Daniel: These are also good points. Again, it will be interesting to see how far courts take a transferred intent theory.
Posted by: Colin Miller | Sep 15, 2012 3:33:17 AM