Opinion: Dead ex-girlfriend tells no tales

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The Supreme Court’s reversal of Dwayne Giles’ murder conviction goes against the judgment of advocates for victims of domestic violence, and also against the judgment of the editorial board, which last month made the case for allowing the testimony of Giles’ victim to be used against him.

By a 6-3 majority, the high court ruled that by allowing into the trial material from a police report in which Giles’ girlfriend said he had threatened to kill her, a California court violated Giles’ Sixth Amendment right to confront witnesses and testimony. California’s theory was that the murder constituted ‘forfeiture by wrongdoing,’ or forcibly preventing a witness from testifying. Justice Antonin Scalia in his ruling says that theory ‘is not an exception to the Sixth Amendment’s confrontation requirement because it was not an exception established at the founding.’ In concurrences, Justices Samuel Alito and Clarence Thomas question whether the Confrontation Clause even applies here, since the late Brenda Avie’s statements were not related to the crime at issue in the trial (a hard bar to meet given that she hadn’t been murdered yet when she made the statements). Read the ruling, concurrences and dissents [pdf].

Eugene Volokh notes that Scalia has been hitting a theme lately: The courts should not be waiving rights in order to uphold the purposes for which those rights were intended.

Is there a conservative or liberal position on this case? Can you tell by who’s doing the writing?

And since the LAT server likes to treat old articles the way Dwayne Giles treats his old girlfriends, here’s our editorial in its entirety:

The victim’s voice
Statements by a woman murdered by her boyfriend should be allowed to stand in his conviction.
May 2, 2008

In a case reminiscent of the story of the boy who killed his parents and then asked for mercy because he was an orphan, the U.S. Supreme Court has been asked to overturn a California man’s murder conviction because the victim’s statements about his violent nature were read in court. The case is legally more complex than the apocryphal story about the orphan, but the principle is the same: A defendant shouldn’t benefit from silencing his accuser.

Dwayne Giles was convicted in Superior Court in Los Angeles of murdering his former girlfriend, Brenda Avie. Giles didn’t deny shooting Avie, but claimed he acted in self-defense. To establish that Giles was prone to violence, prosecutors introduced a statement Avie made to police several weeks before she was killed, complaining that Giles had assaulted her and threatened her with a knife. Giles’ conviction was upheld by the California Supreme Court.

In appealing to the U.S. Supreme Court last month, Giles offered several arguments. One is that Avie’s allegations of brutality were hearsay that should not have been admitted into evidence at the trial. Giles also says he was denied his right under the 6th Amendment to confront witnesses against him. The Constitution’s confrontation clause has acquired new importance since the Supreme Court in 2004 overturned a murder conviction because it was based on tape-recorded statements from the defendant’s wife, who didn’t testify because her husband had invoked spousal privilege.

Protections like the rule against hearsay evidence are sometimes dismissed as ‘technicalities,’ but they serve the vital purpose of protecting defendants’ rights. But even in its 2004 decision reaffirming the importance of the confrontation clause, the Supreme Court noted the existence of an exception called ‘forfeiture by wrongdoing,’ which, Justice Antonin Scalia noted, ‘extinguishes confrontation claims on essentially equitable grounds’ -- that is, because too strict an adherence to the rule would not be in the interests of justice.

The interests of justice were served when the judge in Giles’ trial allowed the jury to hear from Avie, even though she couldn’t testify in person about the night she died. And although she wasn’t cross-examined, Giles was able -- as Justice Ruth Bader Ginsburg pointed out -- to impugn her version of events at his trial. ‘Isn’t there a legitimate rebuttal,’ Ginsburg asked at oral arguments, ‘when he is painting her as the aggressor, and she has given a statement that suggests that he is the one who was aggressive?’ We hope the Supreme Court answers yes to that question.