Kill Me Again: D.C. Court Of Appeals Narrowly Reads Forfeiture By Wrongdoing Doctrine In Stabbing Appeal

"Under the forfeiture-by-wrongdoing doctrine, a defendant forfeits his Sixth Amendment right to be confronted by a witness against him, as well as his objection to the introduction of hearsay, if he wrongfully procured the unavailability of that witness with the purpose of preventing the witness from testifying." Roberson v. United States, 961 A.2d 1092, 1095 (D.C.2008) (emphasis added) (citing Giles v. California, 128 S.Ct. 2678, 2684 (2008)).

And, as the above language, Giles, and the recent opinion of the District of Columbia Court of Appeals in Zanders v. United States, 2010 WL 2944294 (D.C. 2010), the doctrine of forfeiture by wrongdoing can never apply to statements made by the alleged victim of crime regarding the identity of the perpetrator of that crime. But what about if the perpetrator attacks the victim with the intent of killing him and later finishes the job. Can statements made between these two events be admitted under the doctrine?

In Zanders, Thomas Zanders  was convicted of several felony offenses in connection with the stabbing of Allan Lancaster in May 2000, and of the murder of Lancaster and a bystander six weeks later. After the initial stabbing, Lancaster told police officers at the fire station and hospital where he was taken that he was stabbed by Zanders. Evidence produced at trial indicated that Zanders stabbed Lancaster because Lancaster had previously robbed Zanders. Six weeks after the stabbing, Zanders allegedly finished the job, murdering Lancaster as well as a bystander.

After Zanders was convicted, he appealed, claiming, inter alia, that Lancaster's statements after the stabbing were improperly admitted under the forfeiture by wrongdoing doctrine. The District of Columbia Court of Appeals agreed and reversed Zanders' convictions relating to the stabbing, finding that the prosecution failed to present any evidence that Zanders killed Lancaster with the purpose of preventing him from testifying against him. Instead, the court found that the evidence supported the theory that Zanders killed Lancaster as revenge for the robbery that Lancaster previously committed against Zanders.

I get the court's point, but I disagree. Instead, I think that in the unsuccessful-murder-attempt-followed-by-successful-murder-attempt fact pattern in cases such as Zanders, an intent to prevent the victim from testifying at trial should be implied. Sure, Zanders wanted to kill Lancaster based upon the robbery, which is what led to the initial stabbing. And, of course, that robbery still formed the partial basis for Zanders later, successful attempt at Zanders' life. But once Zanders failed in his initial attempt to kill Lancaster, isn't it pretty easy to infer that Zanders had an additional reason to want to kill Lancaster?

After his initial attempt to kill Lancaster failed, Zanders must have known that he could have been prosecuted for attempted murder and that Lancaster's testimony would have been essential to that prosecution. So, why couldn't the court assume that Zanders was motivated at least in part in his later, successful attempt at Lancaster's life by a desire to prevent Lancaster from implicating him at a trial related to the stabbing?

-CM