Once upon a time, before the United States Supreme Court decided Crawford v. Washington, there was this esoteric spinsterish legal doctrine called forfeiture-by-wrongdoing.
Today she’s a big bosomy lass with her name in lights.
For the second time this term, the Minnesota Supreme Court has decided a forfeiture-by-wrongdoing case. The first time it did so was in State v. Cox, which we discussed here, involving that exception’s unavailability requirement. Now we have State v. Her (Herr II), dealing with the so-called murder exception to the confrontation clause.
Sir Walter Raleigh is watching you
Moua Her was convicted of murdering his estranged wife, Sheng Vang, while committing domestic abuse. At Her’s trial, a St. Paul police officer was permitted to testify concerning statements Vang made some weeks before her death about an earlier beating by Her.
The forfeiture-by wrongdoing doctrine states that a defendant who engages in wrongful conduct that is intended to and does in fact procure the unavailability of a witness forfeits his right to confront the witness. In the first installment of the Her series (Her I), the Minnesota Supreme Court recognized an exception to the doctrine’s intent requirement in murder cases. The Court held that the state may invoke forfeiture against a defendant without having to first prove that the motive for the murder was the defendant’s desire to prevent the decedent from testifying. Justice Gildea wrote for the majority that Minnesota’s case law recognizes an “implicit distinction” between a witness tampering case, where intent to silence is required, and a murder case, where the additional element of intent to silence is not required because the defendant is responsible for the death of the witness.
Justice Page, concurring in the result only, objected ardently to this reasoning:
“Viewed from a historical perspective, the court’s reliance on the existence of an unwritten ‘murder exception’ to the Confrontation Clause is patently absurd. If such an exception existed, it would be readily apparent. It is not as if the victim’s absence at murder trials constitutes a peculiarly modern problem of which the Framers of the Sixth Amendment were unaware and could never have anticipated, yet the court cites nothing in ancient continental law, English case law, the Federalist Papers, the Antifederalist writings, Crawford, Davis, the numerous scholarly articles discussing the Sixth Amendment, or any case decided in the 400 years leading up to Crawford to indicate that there was historically such a thing as a ‘murder exception’ to the confrontation right. Such an omission is telling. Given the sheer number of murder trials that have come through this nation’s courts, one would expect a ‘murder exception’ to be solidly established if it was anything but a modern construct designed to evade Crawford.”
Ire and ice
Shortly after Her I came down, the United States Supreme Court decided Giles v. California. On grounds very like those expressed by Justice Page in Her I, a divided Court appeared to put to rest the notion that there is a murder exception to the right of confrontation. “We decline,” wrote Justice Scalia for the majority, “to approve an exception to the Confrontation Clause unheard of at the time of the founding or for 200 years thereafter.”
SCOTUS remanded Her to our high court for re-consideration in light of Giles, and Her II was the result. Once again, Justice Gildea authored the majority opinion. Notwithstanding the vindication of Justice Page’s position in Giles, Her II managed to continue the row between Justices Gildea and Page. Justice Gildea and the majority acknowledged that Giles is controlling but held that the case must be remanded to the trial court for an evidentiary hearing on the issue of Her’s intent to prevent Vang from testifying. In Her I, the Her II majority explained cooly, the Court relied on its earlier decision in State v. Langley, which, like Her I, did not require proof that the defendant killed with victim with the specific intention to silence her. At the time Her I was litigated, said the Court, Langley was “controlling authority in Minnesota on the application of the forfeiture-by-wrongdoing doctrine in a case where the murder victim was also the unavailable witness.” Giles therefore represented a change in the law. A remand was called for because the state had not been afforded an opportunity to develop its factual record under the Giles rule.
In dissent, Justice Page insisted that no remand was warranted. “The stark reality,” he wrote, “which the court would like to ignore, is that Giles was not an announcement of a new rule or principle of law but rather the rejection of various courts’ attempts to create a murder exception, lacking any basis in common law, to the forefeiture-by-wrongdoing doctrine.” Langley was “an anomalous outlier”, a “perversion of the forfeiture doctrine crafted for unknown and unexplained reasons to make an end run around the Confrontation Clause.” The state had had its opportunity to develop its factual record, he said. It was not entitled to a remand “for a second bite at the apple.”
A Pyrrhic victory?
So which is it? Did Giles change the law in Minnesota? It seems a stretch to say that it did. The majority heaps a lot of freight on one slender case, Langley, and ignores a pile of authority that does not coincide with its analysis. There is, I think, something to Justice Page’s charge that our court (and others) are prepared to resort to sophistry, if necessary, to ward off Crawford’s blunt application in murder cases. But Giles itself demonstrates that there is less certainty about Crawford’s force in murder cases than Justice Page’s analysis admits. Giles was decided by a 6-3 majority. In a post titled “A Way Around the Giles Rule,” SCOTUSblog’s Lyle Denniston observes as follows:
“Justice Scalia, in comments that appeared to be made at least partly to hold two of the six votes (and thus majority prevailing over three dissents), said that state courts were free now to probe what Giles’ intent was in killing his former girlfriend. If there is proof of an ‘abusive relationship’ that ends in murder, Scalia said, that might support a finding that the crime represented an intent ‘to isolate the victim and to stop her’ from reporting the abuse or cooperating with a criminal investigation.
“He added: ‘Earlier abuse, or threats of abuse, intended to dissuade the victim from resorting to outside help would be highly relevant to this inquiry, as would evidence of ongoing criminal proceedings at which the victim would have been expected to testify.’ That is the kind of potential evidence of intent that state courts may now examine, the opinion said.
“Justice David H. Souter, in a separate opinion joined by Justice Ruth Bader Ginsburg, gave special emphasis to the situation that might be present if a ‘domestic abuser in the classic abusive relationship’ sought to keep the victim from seeking help from law enforcement officers. ‘If the evidence for admissibility shows a continuing relationship of this sort, it would make no sense to suggest that the oppressing defendant miraculously abandoned the dynamics of abuse the instant before he killed his victim, say in a fit of anger,’ Souter wrote.
“Since their votes were essential parts of the majority, the added emphasis on a situation of domestic abuse (an emphasis that the three dissenters embraced, incidentally) could limit the impact on prosecutions that the Court’s decision might otherwise have.”
Given the concerns they express and their own remand in Giles, it is hard to imagine that the SCOTUS justices would take issue with what the Her II majority has done. When it comes to the murder exception, it may well turn out that the reports of its death in Giles were greatly exaggerated.