Supreme Court Sides with Abusers (if they are also murderers)

PWCL's Safety In Numbers Key Note Speaker, Betty Roberts, Oregon's first woman Supreme Court Justice, alerted me to this article this morning. Anyone in for some letter to the editor writing? An editorial about the case was in the Oregonian this weekend.

From the Washington Post
The Supreme Court yesterday threw out the conviction of a man accused of murdering his ex-girlfriend because the defendant could not challenge an incriminating account she gave the police weeks before her death.

The 6 to 3 ruling drew howls from domestic violence opponents who said the decision could lead to perverse situations in which criminals would reap a legal "windfall" after killing their victims.

The case revolved around the Sixth Amendment, which affords people the bedrock right to confront and cross-examine witnesses who give testimony against them. At issue is whether defendants forfeit their confrontation rights by doing harm to people whose statements are introduced in judicial proceedings.

Typically, courts have carved out few Sixth Amendment exceptions, giving leeway only to deathbed statements and to accounts by witnesses who are kept away from the courthouse by defendants seeking to thwart the judicial process.

The facts before the court were stark. Dwayne Giles shot his ex-girlfriend Brenda Avie six times in September 2002, killing her and then fleeing the scene. At trial, Giles argued that he fired the weapon out of fear, in self-defense and with his eyes closed. Avie's wounds indicated that she was turned to her side and lying on the ground during at least part of the attack, according to the court record.

Three weeks before her death, Avie tearfully told a police officer responding to a domestic violence call that Giles had choked her and threatened to slash her with a knife. The trial court allowed the statements to be introduced at Giles's murder trial under a California law that allows juries to hear such threats when a witness is unavailable to testify in person.

The California Supreme Court later upheld Giles's conviction, reasoning that he had forfeited his Sixth Amendment right to confront witnesses by killing his ex-girlfriend and rendering her unable to appear in court.

But a majority of justices at the Supreme Court yesterday wiped away the conviction and sent the case back to lower courts.

"Domestic violence is an intolerable offense that legislatures may choose to combat through many means," Justice Antonin Scalia wrote for the majority. "But for that serious crime, as for others, abridging the constitutional rights of criminal defendants is not in the State's arsenal."

Scalia added that the lower courts were free to consider whether in shooting Avie, Giles may have intended to dissuade her from notifying authorities about the abuse, a factor that should be considered as part of the Sixth Amendment analysis.


Activists who decry more than 1,500 deaths and 2 million injuries each year stemming from domestic violence expressed disappointment in the opinion. Officials at the Family Violence Prevention Fund warned the decision could make it less likely that victims will reach out to authorities for help. In many such cases, they said, the victim is the lone witness to a crime.

Justice David H. Souter, joined by Justice Ruth Bader Ginsburg, agreed with Scalia's historical analysis but said prosecutors could introduce evidence that defendants had engaged in a pattern of domestic violence as a substitute for their intent, perhaps opening the door to a finding that the alleged abuser had forfeited his right to confront a missing witness.

In a toughly worded dissent, Justice Stephen G. Breyer said the majority was overanalyzing the thin historical record and overcomplicating the analysis.

"The defendant here knew that murdering his ex-girlfriend would keep her from testifying; and that knowledge is sufficient to show the intent that law ordinarily demands," Breyer wrote. He was joined by Justice John Paul Stevens and Anthony M. Kennedy.

Richard D. Friedman, a law professor at the University of Michigan who filed a court brief supporting the conviction, said yesterday's ruling was "very unfortunate." Friedman predicted that the decision would usher in a wave of litigation over the "psychology of the abuser," the extent of domestic abuse and whether the abuser attempted to isolate the victim from police, a factor that could erode the Sixth Amendment protection.