The rights of accused after killing accuser

Times Staff Writer

Can a man who admitted killing his girlfriend, but who claims he did so in self-defense, prevent a jury from hearing her prior reports to the police that she feared for her life?

The Supreme Court is due to decide that question in a Los Angeles case that has alarmed advocates for victims of domestic violence. They fear that the justices, determined to protect the fair-trial rights of defendants, are in danger of creating an incentive to kill.

The case of Giles vs. California began six years ago when Dwayne Giles shot and killed Brenda Avie after a brief quarrel at his house in South Central Los Angeles. He testified in his own defense and “portrayed her as a violent, aggressive, foul-mouthed, jealous and volatile person,” according to the state court. The jury convicted him of first-degree murder.


In his appeal, he says the trial violated his right to confront his accuser in court: Because she was dead, she was not available to testify. According to testimony from a police officer who had responded to a domestic disturbance four weeks before Avie’s death, Avie told the police officer Giles had threatened to kill her.

The Giles case is the third in four years before the Supreme Court that tests whether out-of-court statements such as a police officer’s report can be used as evidence in a trial when the witness does not testify and is not available for cross-examination.

In two rulings, Justice Antonin Scalia set down a firm rule barring use of such evidence from absent witnesses. He cited the 6th Amendment, which says in part, “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.”

Two years ago, Scalia spoke for an 8-1 majority that overturned an Indiana man’s conviction on charges of battering his wife because prosecutors had relied on her statement to the police on the night of the incident. She had refused to testify at his trial. Enforcing the confrontation rule may “give the criminal a windfall,” Scalia acknowledged, and “have the effect of allowing the guilty to go free.”

Now the court must decide whether a killer may go free in a case where the witness is not just missing, but dead. During the oral argument in April in the Giles case, several justices, including Scalia, said they were reluctant to relax the confrontation rule unless it could be shown that the defendant killed the witness specifically to silence her.

Rarely is such proof available, prosecutors say.

“If Giles wins, it will be devastating. Victims’ past statements are often critical because, especially in homicide cases, they may prove the defendant’s intent to kill, his malice, and disprove his claims of self-defense,” said Joan S. Meier, a George Washington University law professor who filed a brief for the university’s Domestic Violence Legal Empowerment and Appeals Project. “It would basically hand abusers the power to cripple the state’s ability to protect them.”

“This is a terrifying moment for domestic violence prosecutors,” said Eve Sheedy, director of domestic violence policy for the Los Angeles city attorney’s office. “Violence between intimate partners is different from violence between strangers.”

Often, there are no witnesses to a domestic crime -- whether an assault, battery or murder -- other than the victim, she said.

Before 2004 and the court’s revival of the confrontation right, prosecutors often used testimony from police officers and nurses -- as well as victims’ tape-recorded accounts -- to win convictions in domestic violence cases.

Often, battered spouses or girlfriends are too afraid to testify against their abusers, prosecutors say.

Although domestic violence prosecutors say their work has been hampered by the high court’s rulings, other legal experts praise the justices for restoring a basic rule for fair trials.

“This is a bedrock principle. The Constitution says if you are going to make an allegation, the person you are accusing has a right to look you in the face and challenge what are saying,” said David Feige, a law professor at Seton Hall in New Jersey. “We should not erode something as basic as that.”

The California Supreme Court rejected Giles’ appeal and ruled that because he caused the witness’ absence, he could not object to her prior statements being used against him at the trial.

The New Mexico Supreme Court took the opposite view in the case of Anthony Romero. He is a free man now that the state judges -- citing the U.S. Supreme Court -- ruled that his deceased wife’s reports of battering and abuse should not have been used against him at his trial.

In 2003, Romero was facing more than 30 years in prison on charges of assaulting, kidnapping and killing his wife, Jessica.

Police had responded to an emergency call from their house in October 2001. Jessica was outside the house when an officer arrived.

“I found Ms. Romero with no shoes on her feet and crying for help,” the officer later told the court. She said she had been beaten and her husband had held a knife to her. The officer also said she was battered and red, and her neck had cut marks.

A judge released Romero on bail pending the trial.

On Dec. 28, 2001, police returned to their house and found Jessica dead. Romero said they had fought.

Romero was tried separately on charges of domestic violence and murder. He pleaded self-defense, but he was convicted in both cases.

But in a 4-1 decision, the state high court said Romero’s confrontation right was violated when prosecutors used Jessica’s statements to the police and to a nurse. Police had also tape-recorded her account of the beating.

The appeals court was correct in its ruling “that evidence was admitted erroneously,” the state justices said last year. Those out-of-court statements may not be used against Romero without proof that he intended to prevent a witness from testifying.

The lone dissenter, Justice Richard C. Bosson, said, “The witness cannot speak for herself because she is dead at Romero’s hands. It seems a perversion of the Constitution and the Confrontation Clause to allow any defendant to profit so from his own misdeeds.”

Romero was retried, convicted on a lesser count and freed because he had already served several years in prison.

Now Romero says he recently remarried and is working as a school janitor.

“Life’s been good to me,” he said in a phone interview.

In the Supreme Court, lawyers cited the Giles case in California and the Romero case in New Mexico to highlight the contrasting approaches to the confrontation right.

The justices are due to decide the Giles case by the end of this month.