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Court: Victim's dying words may be used at trial

By Robert Barnes
Washington Post Staff Writer
Monday, February 28, 2011; 7:44 PM

Prosecutors may use victim statements given at the crime scene even if the victim dies before testifying at trial, the Supreme Court ruled Monday.

The decision is a step back from the court's recent decisions that the Constitution demands that the witness be present and available for cross-examination. A majority of the court drew a distinction between statements made during an emergency created by a crime event and statements made when police are investigating the crime.

The ruling could reinstate murder charges against a Detroit man who in 2001 was identified by his victim shortly before the victim died of his wounds.

The 6-to-2 ruling drew a withering dissent from Justice Antonin Scalia, the court's most outspoken advocate for the Sixth Amendment's requirement that the accused "be confronted with the witnesses against him."

The majority's reasoning, Scalia wrote, "is so transparently false that professing to believe it demeans this institution."

Justice Sonia Sotomayor, who wrote for the majority, shot back, accusing Scalia of "misreading" the rules the court set for when statements could be admitted as evidence.

"The dissent criticizes the complexity of our approach, but we, at least, are unwilling to sacrifice accuracy for simplicity," Sotomayor wrote for her colleagues.

Justice Ruth Bader Ginsburg sided with Scalia but declined to join his caustic comments. Justice Elena Kagan was recused from the case because she had worked on it as President Obama's solicitor general.

The court's "Confrontation Clause" jurisprudence is one of the areas in which its usual ideological divisions don't apply. Starting with a decision in 2004, Scalia has been the most outspoken about the absolute requirements of the clause, even when it might undermine criminal prosecutions and set the accused free.

The Michigan Supreme Court relied on those decisions in the case of Richard Bryant, who had been convicted of second-degree murder in the death of Anthony Covington.

In 2001, Detroit police were called to a gas station where Covington lay bleeding with a gunshot wound to the stomach. Asked what had happened, Covington replied, "I was shot" or "Rick shot me," depending on the recollections of the five police officers on the scene.

In the five to 10 minutes before medical personnel arrived, police pieced together the story that Bryant had shot Covington through Bryant's back door and that Covington had driven himself to the gas station. Covington died a few hours later.

The judge at Bryant's trial allowed police to relate Covington's statement about Bryant. But the Michigan Supreme Court threw out the conviction, citing the justices' recent decisions that seemed to mandate that the witness be available for cross-examination.

But Sotomayor announced a different rule for statements made while police are involved in an "ongoing emergency" in which there is a "potential threat to the responding police and the public at large."

Covington's statements were made to police while their "primary objective" was looking for a gunman, not trying to solve Covington's shooting, Sotomayor explained. A judge may rule that such statements can be used at trial, she said. Statements that amount to "testimony" about the accused are not allowed.

Sotomayor and Ginsburg noted that the case might have turned on whether "dying declarations" are admissible at trial. But the Michigan case did not arrive at the court with that argument.

Scalia's dissent, for those who follow the court, was a model of the ferocious approach he sometimes employs. He charged that the majority had left the court's Confrontation Clause jurisprudence "in shambles" and that instead of clarifying the law, the court "makes itself the obfuscator of last resort."

He said the complicated rules the majority sets down "leaves judges free to reach the 'fairest' result under the totality of the circumstances," regardless of the Constitution's requirements.

Under such a "malleable approach," Scalia said, "the guarantee of confrontation is no guarantee at all."

Scalia even seemed to accuse his colleagues - or the reader - of having a limited vocabulary. When he referred to the majority's "dystopian" view of Detroit, he added a footnote:

"The opposite of utopian. The word was coined by John Stuart Mill as a caustic description of British policy," Scalia added.

The case is Michigan v. Bryant .

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