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.

There is an exception if a defendant has prevented a witness from testifying in an upcoming trial. But Giles was not arrested for assaulting Avie in that incident at their house, so there was no charge pending when he killed her.

As Burkhardt put it in her brief to the court: "When a defendant invokes his confrontation right with respect to a potential witness whom he killed for purely personal reasons, he does not benefit from the wrongful killing of that witness in the same way as a defendant who has caused the absence of a witness for the purpose of preventing testimony at trial."

Scalia was Giles's most aggressive advocate during oral arguments, and he advanced Burkhardt's argument.

"It would be very unusual that someone would kill a victim in order to prevent her testifying at a murder trial which is not yet in prospect because you haven't murdered her," Scalia said.

But Roberts and Justice Ruth Bader Ginsburg were not so sure. Maybe Giles thought, " 'I'm not just going to beat her up this time; I'm actually going to kill her because otherwise I'm going up the river' " for assault, Roberts speculated.

Taking a different tack, Ginsburg also wondered why Avie's statement would not be admissible, since Giles had taken the stand to say some "very nasty things" about her.

"Isn't there a legitimate rebuttal when he is painting her as the aggressor, and she has given a statement that suggests that he is the one who was aggressive?" Ginsburg asked.

Scalia, not satisfied with Burkhardt's answer to Ginsburg, said the difference was that Giles's comments were subject to cross-examination. And he said the situation in the case was "very rare."

Again, Roberts questioned that. He noted that most murderers are known to their victims, and said that threats are probably commonly made in domestic abuse disputes or gang confrontations, where someone ends up dead.

Groups that combat domestic abuse urged the court to uphold the California court's decision, as did 37 other states.

The decision has "monumental implications for the conduct of state criminal trials," the states' brief said. "Prosecutions for crimes including murder, domestic violence, and child abuse often depend on statements from victims and other witnesses who are unavailable to testify as a result of a defendant's intentional misconduct. In many cases, however, the prosecution will be unable to demonstrate that the defendant acted with the specific aim of preventing future testimony."

The case is Giles v. California.

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