Crime and Consequences

Today, the US Supreme Court granted certiorari in Giles v. California (07-6053), a case that will review whether the Confrontation Clause permits the hearsay statement of a witness who is unavailable for trial because the defendant killed her - even though he did not intend to silence her testimony when he killed her. The California Supreme Court ruled in March of last year that the hearsay statement was admissible, but placed some limitations on how and when the statement would be allowed in court.

In Giles, the defendant was charged and convicted with the murder of his former girlfriend Brenda Avie. According to witnesses, Avie had arrived at the defendant's grandmother's house on the night of the murder, and had talked with defendant for about a half hour. Witnesses then heard the victim yell "Granny" several times followed by a series of gunshots. When witnesses arrived on the scene, they saw defendant standing about eleven feet from Avie with gun in his hands. Defendant then fled the scene and was arrested sixteen days later.

Avie had been shot six times in her torso. Two of the wounds were fatal. Avie had not been carrying a weapon when she was shot.

At trial, defendant testified that he had shot Avie in self-defense. He testified that Avie had a history of violence and had threatened both defendant and his current girlfriend. Defendant also claimed he had shot at Avie only because she had "charged" him, and he was afraid that she had something in her hands when he fired the fatal shots. Defendant claimed he never meant to kill Avie.

The jury did not believe defendant's testimony and convicted defendant of first degree murder.

On appeal, defendant argued that the trial court had improperly admitted a statement that Avie had made to a police officer a few weeks before the shooting. The trial court had admitted Avie's prior statement to a police officer that defendant had held a knife to her throat and threatened to kill her. In allowing the statement, the trial court relied on the pre-Crawford exception to hearsay evidence that allowed statements describing the infliction of physical injury to the declarant when the declarant was unavailable and the statement was trustworthy. The Court of Appeal upheld the admission of Avie's statements, reasoning that the statement was admissible because it fell under a hearsay exception that had been valid at the time of the defendant's trial, and that admissibility was not altered because of the subsequent U.S. Supreme Court ruling in Crawford v. Washington.

When the California Supreme Court decided the case in 2007, it took particular interest in how to define the "forfeiture by wrongdoing" exception post-Crawford. In its decision in Crawford v. Washington, the Supreme Court had held the Confrontation Clause barred the admission of all "testimonial" statements unless the declarant was unavailable and the defendant had a prior opportunity to cross-examine the defendant. An exception to this rule was any "testimonial" statement made out of court by a defendant who was unavailable because of the defendant's wrongdoing. This is known as the "forfeiture by wrongdoing" exception. It allows out-of-court statements to be used at trial even when the defendant cannot confront the witness against him. The statements are allowed on the equitable grounds that the defendant should not be able to benefit from his own wrongdoing.

In Giles's case, the defendant claimed that the "forfeiture" exception was not applicable because he did not kill Avie with the intent of preventing her testimony at any pending or potential trial. In effect, the defendant argued that because he had not intended to stop Avie from testifying, he had not waived his right to confront her about the statements she had made to the police officers. Since he had not waived the right to confront her at trial, the hearsay statements should not have been admitted.

In an opinion authored by Justice Ming Chin, the California Supreme Court reasoned that the "forfeiture" doctrine had been mischaraterized by some courts as a "waiver by misconduct doctrine." The Court reasoned such a characterization was in error because, pre-Crawford, waiver had been characterized as "the 'intentional relinquishment or abandonment of a known right or privilege,' [citations omitted], and is only one means by which forfeiture may occur." People v. Giles, 40 Cal.4th 833, 849 (2007). Therefore, "forfeiture principles can and should logically and equitably be extended to other types of cases in which the intent-to-silence element is missing." Id. For the California Supreme Court it was the "truth-seeking" function of the court that was most important, and factfinders were entitled to access evidence that the defendant had made unavailable through his own actions.

In reaching this decision, the California court also had to rule on how to allow such evidence when the defendant was on trial for the very wrongdoing (murder) that had caused him to forfeit the right to confront the witness. This inquiry was different from classic witness tampering cases where the defendant was typically on trial for an underlying crime and not the crime that made the witness unavailable. This was a tricky inquiry because a finding of forfeiture by the court depended on a court determination of whether the defendant committed the criminal act.

The court concluded that to allow the hearsay statement, the proponent of the evidence had to show by a preponderance of the evidence that the defendant procured the unavailability of the witness. In addition, the court placed limits on when the evidence would be allowed. The statement would be allowed if the witness was genuinely unavailable to testify and the unavailability for cross-examination was caused by the defendant's intentional criminal act. Finally, the prejudicial value of the statement was still to be considered by the court, and the jury was not to be advised of the trial court's determination that it was "more probable than not" that the defendant had committed the underlying act.

It will be interesting to see how the Supreme Court approaches this case. The key question is whether the high court accepts defendant's view that "forfeiture by wrongdoing" is only applicable if the defendant intended to silence the witness, or if it will rely on the "maxim" quoted in Reynolds v. United States, 98 U.S. 145, 159 (1878) "that no one shall be permitted to take advantage of his own wrong; and consequently, if there has not been, in legal contemplation, a wrong committed, the way has not been opened for the introduction of the testimony."

Posted by Lauren Altdoerffer at 02:36 PM | Permalink | Comments (0)

Governor Strickland has issued a "residual doubt" commutation in the case of John Spirko. Doug Berman has this post at Sentencing Law & Policy. Bob Paynter reports here for the Cleveland Plain Dealer, and the PD site has the Governor's statement here. (The Governor's own web site does not have the statement as of this writing, oddly enough.) The order reduces the sentence to life without parole. Doug is critical of this decision:

For a host of political reasons, I understand Gov. Strickland's interest in splitting the difference here. If Spirko is in fact innocent, this commutation is a grave injustice to him; if Spirko is in fact guilty, this commutation is a grave injustice to the victims of his crime and the legal system.

Electronics provides us with a useful analogy for a jury's verdict decision process. In digital electronics (like the RAM in your computer), every transistor is either on or off. Its output voltage is either near the full supply voltage or near ground (zero). In analog electronics (like the old stereo gathering dust in the closet), a transistor's output is proportional to its input. It can be anywhere between ground and supply voltage and is rarely at either end of its range.

The jury has an analog input but digital output. It takes in evidence that is generally not absolutely conclusive proof one way or the other, but the verdict is simply guilty or not guilty. We set, in subjective terms, different trigger levels for different kinds of outcomes: preponderance of the evidence for most civil matters, clear and convincing evidence for some, and proof beyond a reasonable doubt for the guilt verdict in a criminal case. We should not lose sight of the fact that the jury's black-or-white answer is based on shades-of-gray information.

Although not instructed to do so, juries do often set a higher trigger level of proof of guilt before they will return a death sentence in the penalty phase. The Hillside Strangler absolutely deserved the death penalty, but the proof that Angelo Buono was the Hillside Strangler was just barely sufficient, in the jury's view, to return a verdict of guilt, and they struggled with it. Then they quickly returned a life verdict in the penalty phase, and Buono lived out his natural life in prison. Life was not the correct sentence for the multiple, horrific crimes in this case, but the jury decided it was the right verdict given its residual uncertainty on guilt.

Executive clemency authorities -- the governor in most states and clemency boards in a few -- have applied a similar standard, and in recent years they have been getting more explicit about it. In the Troy Davis case in Georgia, for example, the board stayed the execution to consider Davis's claims of actual innocence, stating, "The members of the Georgia Board of Pardons and Paroles will not allow an execution to proceed in this State unless and until its members are convinced that there is no doubt of the guilt of the accused...." (They subsequently suspended their consideration when the Georgia Supreme Court took the case up again.)

We necessarily live in a world of imperfect knowledge. Decisions must be made with the awareness of the limitations of knowledge. Doug's statement is correct that a life sentence in Spirko's case is not the correct sentence. It is an injustice one way or the other, just as it was in the Hillside Strangler case, but we don't know for certain which way. So if the governor's assessment of the evidence is correct, and I will assume for this discussion that it is, then it is the correct decision. Spirko's lawyers can continue trying to prove his innocence, as a comment at SL&P says they have pledged to do. Maybe he will be released some day, and maybe not.

Opponents of the death penalty maintain that anything less than absolute certainty precludes executing a death sentence. Because absolute certainty is unachievable, the argument goes, the death penalty must be abolished. However, that argument fails because abolition of the death penalty will also cost lives through lost deterrence and murders by life prisoners. There simply is no zero-risk option. With a high standard of confidence for executing a death sentence, keeping the death penalty presents a lower risk to innocent life than abolishing it, by a wide margin.

What level of proof is there between "beyond a reasonable doubt" and absolute certainty that allows us to go ahead with an execution? It is a difficult concept to put into words. No doubt different people can look at the same case and come to different conclusions. Even though it is not quantifiable, this final filter at the end of the process is a valuable part of the system.

Posted by Kent Scheidegger at 04:58 PM | Permalink | Comments (0)

In New York, James O'Hare wanted to cash the Social Security check of his roommate, Virgilio Cintron. He had a small problem, though, as Mr. Cintron had died sometime within the preceding 24 hours. Undeterred, Mr. O'Hare and his buddy David Dalaia proceeded to the Pay-O-Matic check-cashing joint with Mr. Cintron in tow, seated in an office chair. Off-duty detective Travis Rapp, eating lunch at a nearby restaurant, thought this looked a tad suspicious and called in the uniforms, report Bruce Lambert and Christine Hauser in the NYT.

In related news, the Supreme Court heard oral argument today in the Indiana voter ID cases, Crawford v. Marion County Election Board, No. 07-21, and Indiana Democratic Party v. Rokita, No. 07-25, transcript here. These cases concern an Indiana law that voters show a photo ID at the polling place. This requirement has a disparate impact on deceased voters. Unlike Mr. O'Hare, persons voting on behalf of the deceased rarely bring the dear departed to the polls with them. Even if they did, after a week or two persons of decomp. do not look much like the pictures on their IDs. Norman Bates would have had a hard time with his mother and her driver's license.

The Indiana Democratic Party doesn't like this law. They evidently believe they would carry the deceased vote by a wide margin. That is certainly true in neighboring Chicago, although I don't know about Indiana.

The argument does not stress the disparate impact on the departed, of course. The claim is that an ID requirement prevents poor people from voting. I find this claim difficult to swallow. My wife works for a county mental health department, and nearly all of her clients are poor. They all have IDs, as they need them for the various government benefits they get. The Indiana law provides that the state Bureau of Motor Vehicles will issue an ID for free to any voter who needs one.

So what does this have to do with crime? Well, for starters, voting fraud is a crime. Second, voting fraud is largely a product of political machines. Such machines get people elected for reasons other than their representation of the people's views on the issues. The people's view of crime is typically that they want the government to do something about it. Fraudulent, machine-driven voting means we get legislators and executives who are less responsive to the people's demands to fight crime, and who may even be criminals themselves, and that is a bad thing. We hope Indiana prevails in this case.

Posted by Kent Scheidegger at 11:06 AM | Permalink | Comments (0)

On New Year's Day in Stockton, California, Lynette Denney died, "for the second time," reports Sara Cardine in the Stockton Record. In 1980, when she was 22, Angelo Michael Melendez shot her in the head and left her for dead. Lynette had refused to have sex with Melendez, and he shot her "at point-blank range under each eye." Miraculously, she didn't die, but complications following surgery "caused her to fall into a permanent, semi-vegetative state." As described in the story, her family cared for her for the next 27 years.

And what sentence did Melendez get for this crime? A mere seven years, and he was released on parole after five. Not only was that a grossly inadequate sentence as a matter of just deserts, but it left this monster free to do it again, and the second time he made sure the victim did not survive. Melendez is presently on death row for the murder of 19-year-old Koi Wilson, also of Stockton.

In 1987, in reaction to the Larry Singleton fiasco, the California Legislature created the crime of aggravated mayhem, Penal Code section 205, punishable by an indeterminate life term. Had this law been in effect in 1980, Melendez could have been adequately punished for the crime against Lynette Denney, and Koi Wilson would probably still be alive.

When you hear calls to roll back sentencing laws and repeat the mistakes of the 1960s, remember Lynette and Koi.

Posted by Kent Scheidegger at 03:11 PM | Permalink | Comments (1)

Orin Kerr has this long, interesting post at the Volokh Conspiracy on "Why the defendant should win in Virginia v. Moore." My reason why the state should win is much shorter and simpler. Mapp v. Ohio, 367 U.S. 643 (1961), which found an exclusionary rule applicable to the states in the Fourth Amendment, was wrongly decided. It is just barely tolerated as a matter of stare decisis and should not be extended anywhere that the Court's precedents do not absolutely require. Whatever federal interest there may be in protecting people from a search that the state could have authorized but didn't, there is none so strong as to require the drastic remedy of excluding evidence for a reason unrelated to its reliability and contrary to the truth-seeking function of the criminal trial.

Posted by Kent Scheidegger at 02:21 PM | Permalink | Comments (3)

Baze argument coverage: SF Chrontrarian Debra Saunders has this column, titled "Dishonest on the death penalty." David Savage of the L.A. Times found the justices skeptical of the attacks on lethal injection, as did Tony Mauro at Legal Times. Linda Greenhouse in the New York Times says the challengers "made little headway." Jess Bravin at the Wall Street Journal writes that the Court "seemed divided" and emphasized the discussion of pancuronium.

Cal. DP Hearings: Howard Mintz of the San Jose Mercury-News has this story on Thursday's hearings of the "California Commission on the Fair Administration of Justice" regarding the death penalty. We find it more than a little strange that a commission set up for the ostensible purpose of studying "fairness" would, as its first action, hire a well-known partisan for one side as its executive director.

California Chief Justice Ron George has this op-ed in the L.A. Times on proposals for reform of the capital case review process.

Stupid Crook Story: "A man who hid hunting knives in his pants to try to steal them from a western Michigan store tripped while fleeing and stabbed himself in the abdomen, police say." AP report is here.

Posted by CJLF Staff at 01:23 PM | Permalink | Comments (1)

Last Friday, Charles Peters, founding editor of the Washington Monthly, had this op-ed in the Washington Post, praising the Illinois legislative accomplishments of Barack Obama. In particular, he notes the bill to require videorecording of interrogations.

This seemed likely to stop the beatings, but the bill itself aroused immediate opposition. There were Republicans who were automatically tough on crime and Democrats who feared being thought soft on crime. There were death penalty abolitionists, some of whom worried that Obama's bill, by preventing the execution of innocents, would deprive them of their best argument.

Wow. That last sentence is an incendiary charge. Peters is claiming that some "death penalty abolitionists" opposed a bill intended to stop the execution of innocent people not for some alternative reason but because they actually want innocent people to be executed to strengthen their case. Now, that is fanaticism.

This accusation does not come from the conservative side of the aisle. Quite the contrary, the Washington Monthly is a left-leaning publication. I don't know if the accusation is true and would be interested in hearing from anyone with solid information on the subject.

Posted by Kent Scheidegger at 10:41 AM | Permalink | Comments (0)

The blog will be offline briefly Thursday morning for hardware upgrades.

Posted by CJLF Staff at 09:42 AM | Permalink | Comments (0)

This is off-topic for the blog, but interesting. The editorial page of the Washington Post is a steady, reliable source of opinion from the mainstream liberal perspective. The editorial page of the Wall Street Journal is pretty much a mirror image on the conservative side. So what to our wondering eyes should appear this morning but a pair of editorials in these two newspapers on the Democratic candidates' statements regarding the Iraq "surge." Can you guess which is which?

What Ms. Clinton, Mr. Obama, John Edwards and Bill Richardson instead offered was an exclusive focus on the Iraqi political failures -- coupled with a blizzard of assertions about the war that were at best unfounded and in several cases simply false. Mr. Obama led the way, claiming that Sunni tribes in Anbar province joined forces with U.S. troops against al-Qaeda in response to the Democratic victory in the 2006 elections -- a far-fetched assertion for which he offered no evidence.

So what we take away from the four Democratic Presidential candidates' stunning display of misinformation and false statements about the surge Saturday evening is that they have simply stopped thinking about Iraq. They seem to have concluded that opposition to the war permits them to literally not know what the U.S. or the Iraqis are doing there. As the nation commences the selection of an American President, this is a phenomenon worth noting.

Posted by Kent Scheidegger at 09:05 AM | Permalink | Comments (0)

Although the big Supreme Court news today is on the Baze argument, two per curiam decisions today in habeas cases are worth noting. First, there is Arave v. Hoffman, which the Court vacated and remanded, as expected. The Ninth Circuit had held that a defendant can make out a case for habeas relief for ineffective assistance of counsel at plea bargaining, even if the trial that follows is fair. Hoffman has now abandoned the claim for relief he won at the Ninth, so there is no live controversy. The citation to United States v. Munsingwear, 340 U.S. 193, 200-201 (1950) at the very end of the opinion serves the dual functions of (1) reminding everyone that the vacated Ninth Circuit decision is not precedent, and (2) enabling bad jokes about "Munsingwear briefs."

Second, on a somewhat related issue, the case of Wright v. Van Patten makes its second trip to the high court. The Seventh Circuit had held that a lawyer's appearance by speakerphone at a plea hearing was per se grounds for relief. The hearing was simply the formal acceptance of a plea deal previously worked out and thoroughly discussed between attorney and client. The state court rejected Van Patten's claim because there was no indication of any prejudice to him. The Seventh granted relief, saying no such showing was required. After the Supreme Court vacated and remanded to reconsider in light of Carey v. Musladin, 127 S.Ct. 1038 (2006), Judges Evans and Williams said, in essence, there is nothing to reconsider. Judge Coffey dissented. The high court today unanimously reversed. Application of the Strickland prejudice standard in this situation is an open question, and the Wisconsin court was reasonable to decide it the way it did.

How many times will the federal courts of appeals have to be slapped down before they understand the difference between "I disagree with that" and "That is unreasonable"?

Posted by Kent Scheidegger at 02:16 PM | Permalink | Comments (1)

Today, the United States Supreme Court heard oral argument in the case of Baze v. Rees, regarding the constitutionality of Kentucky’s method for executing the death penalty. Kentucky uses a combination of three drugs originally developed in Oklahoma and presently in use in every state that has the death penalty except Nebraska. Audio (with still pictures) is on C-SPAN. Transcript is on the Court's site.

Overall, the argument appeared to go well for the state. Even Justice Stevens said the state had "a very strong case" (p. 41).

In the three-drug method, the first drug is a massive dose of anesthetic, approximately 10 times the amount needed to make a person unconscious for surgery. The second is a paralyzing agent that prevents involuntary muscle movement. The third is a large dose of potassium chloride, which stops the heart, causing death.

There is no dispute that this method is painless when properly administered. On the other hand, there is also no dispute that potassium chloride would be extremely painful if injected in a conscious person. Experts on both sides agree that could happen if, and only if, the initial anesthetic did not enter the bloodstream.

This case therefore involves the questions of whether a risk of pain in an execution method designed to be painless can be a violation of the Eighth Amendment, the standard for determining the amount of risk that is tolerable, and the extent to which available alternative methods weigh in that balance.

The standard for resolving this question is uncertain because the Supreme Court has not squarely addressed a method of execution in modern times. Nineteenth century decisions rejected attacks on the firing squad and the electric chair, but the twentieth century cases were decided on procedural grounds.

In today’s argument, most of the justices appeared to be very interested in bringing the issue to a close, rather than setting the stage for further litigation. However, they disagreed on how best to do that, probably reflecting a disagreement on the underlying standard.

The petitioners in this case argue strenuously that the use of a single, massive dose of barbiturate alone is an available, painless, foolproof alternative. The justices seemed to be agreed that the record in the present case does not support this assertion. Justice Breyer was particularly concerned about a statement in a Dutch euthanasia report that indicated that the barbiturate alone might not bring about death in every case (pp.7-8). He and Justice Souter seem to be leaning toward remanding the case for further evidence on this question. When the deputy solicitor general noted that the petitioners had failed to create the record, Justice Souter responded that if they dispose of the case on that basis the issue will simply come up in another case.

On the other hand, Justice Scalia, and probably Chief Justice Roberts and Justice Alito, appear to believe that the Kentucky decision can be affirmed and the matter resolved on the present record. If risk of error is not a constitutional consideration or if a person challenging a method of execution must establish some threshold of risk that has not been met in this case, then consideration of alternatives is not necessary.

Justices Stevens and Souter questioned the attorney for the state, Roy Englert, on why the second drug, the paralyzing agent, was used. He responded that it provided a more dignified death by preventing the involuntary muscle movements that may occur otherwise. This second drug has been the focus of attacks because it can make the inmate incapable of expressing pain even though he is fully awake and in agony when a third drug is administered. Englert expressed concern that if the states eliminated use of this drug, the next challenge would be that the method of execution is unconstitutional without it because it robs the condemned inmate of his dignity.

Justice Stevens responded that if the Court held that its use was unjustified, that would prevent any serious constitutional challenge to its omission. However, the history of capital litigation is that contradictory constitutional arguments are made all the time and sometimes succeed. We have seen statutes attacked for providing too much discretion and not enough. State death penalties are attacked for having "geographic disparity" while USDoJ is attacked for not forgoing the death penalty in states where it is not available for state-law offenses. Supreme Court precedent is no guarantee, as multiple states saw when they relied on Walton v. Arizona's rejection of a Sixth Amendment attack on judges finding the qualifying circumstances, only to see that exact argument accepted to strike down the same statute 12 years later in Ring v. Arizona.

The decision in this case may once again turn on the position taken by Justice Kennedy, who said relatively little during the argument. It is encouraging that, at pages 48-49, he questions whether the SG's standard would produce "endless litigation." That is, indeed, the main problem here.

If the Kentucky Supreme Court’s decision is affirmed outright, executions may resume shortly afterward. If the case is remanded for more fact-finding, the de facto moratorium could extend throughout 2008. Cases argued at this time last year were decided in March, April, or May, so we should have an answer in a few months.

Posted by Kent Scheidegger at 01:27 PM | Permalink | Comments (1)