Justices Scrutinize Killer's Right to Cross-Examine

By Robert Barnes
Washington Post Staff Writer
Sunday, April 27, 2008

There is no dispute about why Brenda Avie was unavailable to testify against former boyfriend Dwayne Giles at his trial.

He killed her.

But a lawyer told the Supreme Court this past week it was unfair that the jury that convicted Giles of murder heard Avie's statement that he had threatened to do just that.

Because Avie was dead, Los Angeles lawyer Marilyn G. Burkhardt told the court, Giles's Sixth Amendment right to confront his accuser had been violated.

It might seem to be a case that pits common sense against common law, and it seemed to divide -- and intrigue -- the court. Justice Anthony M. Kennedy said he had never heard of anything like it. Justice Stephen G. Breyer wondered how to unravel the "logical contradictions."

In understated fashion, Chief Justice John G. Roberts Jr. said: "He gets a great benefit from murdering her, which is that her testimony is not available. We usually under our system don't try to give benefits to murderers."

The case is a conflict between two ancient legal concepts: one, that a defendant in a criminal trial cannot benefit from his own wrongdoing; and two, the Sixth Amendment's guarantee that "the accused shall enjoy the right . . . to be confronted with the witnesses against him."

The case started with a volatile relationship. L.A. police in early September 2002 answered a call to a home where Giles and Avie had been living. Avie said Giles choked her and threatened her with a knife, saying he would kill her if she was unfaithful.

But by the end of the month, Giles had a new girlfriend, and he testified later that Avie had threatened to kill them both. She came to his grandmother's house, and he shot her -- six times, once when she was lying on the ground.

Giles claimed self-defense, though Avie had no weapon. The police officer who took Avie's statement from their earlier dispute related it to the jury, and Giles was convicted of first-degree murder.

The state of California contended, and its Supreme Court agreed, that Giles had forfeited his confrontation right by killing Avie without justification.

But while the case was ongoing, the Supreme Court decided Crawford v. Washington. That unanimous decision, written by Justice Antonin Scalia in 2004, made it much harder for prosecutors to introduce "testimonial" statements by unavailable witnesses if there was no chance for cross-examination.

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