Justices hear case on right to face victims

Dwayne Giles, who shot and killed his ex-girlfriend in Los Angeles, asked the Supreme Court on Tuesday to overturn his murder conviction because he was denied the right to “confront” her in court.

“He never had a chance to cross-examine” the victim, said Marilyn G. Burkardt, a Los Angeles lawyer representing Giles. Burkardt called the prosecution’s use of his ex’s reports of his threats “highly prejudicial.”

Though it sounds far-fetched, Giles’ claim could prevail in the high court.

The Supreme Court took up of the case of Giles vs. California to test the outer limits of the so-called confrontation right in the 6th Amendment. It says, “In all criminal prosecutions, the accused shall enjoy the right. . . . to be confronted with the witnesses against him.”

Until 2004, judges usually allowed jurors to hear “reliable” secondhand accounts of what witnesses said if the witness was not available. A police officer could report on what a missing witness had said.

But in a case that year, Justice Antonin Scalia insisted this “hearsay” violated the defendant’s rights under the 6th Amendment. “Where testimonial statements are at issue, the only [test] of reliability . . . is the one the Constitution actually prescribes: confrontation,” Scalia said at the time in Crawford vs. Washington.

Now, the court has to decide how strictly to apply that rule.

During Tuesday’s argument, Scalia said the court should stick to a no-exceptions rule. He said Giles’ rights were violated because a police officer had testified at his trial that the murder victim, Brenda Avie, had said Giles threatened to kill her.

On Sept. 5, 2002, two police officers were called to a house where Giles and Avie had been arguing. She had a bump on her forehead, and she told one officer Giles had pulled a knife on her and said he would kill her if he saw her with another man.

Four weeks later, Giles shot Avie six times at his grandmother’s house, left her for dead and fled the scene. He was arrested, and when his case went to trial, he pleaded self-defense. He testified that Avie was aggressive and violent.

However, the officer’s testimony helped seal his conviction for first-degree murder.

Burkardt argued that the use of the officer’s testimony violated Giles’ rights, and called for a new trial. “We are asking for a fair trial, which we did not get,” she said. “California has eviscerated my client’s right to a fair trial.”

Justice Ruth Bader Ginsburg questioned whether the trial was unfair, considering the accused murderer testified and portrayed the dead woman as the perpetrator of the crime. “He got on the stand, and he said some very nasty things about her. He painted her as aggressive and vengeful,” Ginsburg said.

Defending the conviction, Deputy State Solicitor Donald E. DeNicola said Giles had forfeited his right by killing the witness. He said the state relied on the “principle that no one may profit from wrongdoing.”

At one point, Chief Justice John G. Roberts Jr. appeared to agree with the state’s lawyer. He said Giles’ argument meant “he gets a great benefit from murdering her. . . . Her testimony is not available. We usually, under our system, don’t try to give benefits for murderers.”

But Scalia and Justice Anthony M. Kennedy suggested they would vote to reverse the conviction.

“I think it’s an astonishingly broad exception you’re asking for,” Kennedy told the state’s lawyer. It would allow the kind of secondhand “hearsay” testimony the court had barred in the 2004 ruling, he said.

California has the support of 37 other states as well as advocates against domestic violence and child abuse.

The court will hand down a decision by late June.

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david.savage@latimes.com