Justices side with accused

WASHINGTON -- —  The Supreme Court dealt a setback to prosecutors in domestic violence cases Wednesday, ruling that a slain woman’s earlier reports to the police of her boyfriend’s threats may not be used against him at his trial unless it can be shown he killed her in order to silence her as a witness.

Often, when spouses or partners are found dead at home, the strongest evidence to show the victim was murdered comes from their earlier statements to police. But the high court, led by Justice Antonin Scalia, said the use of such statements at trial violates the defendant’s right to “confront” the accuser.

The 6-3 decision overturned the murder conviction of a Los Angeles man who shot and killed his girlfriend. Dwayne Giles, the convicted killer, admitted he shot Brenda Avie six times when she came to his house in South Los Angeles on Sept. 29, 2002, but he said he acted in self-defense.

Giles was convicted after the jury heard a police officer’s report quoting Avie. Three weeks before the slaying, the officer had responded to a domestic disturbance call and encountered the couple. The officer said he took the woman aside, and she said Giles had pulled a knife on her and had “threatened to kill her.”

The California Supreme Court upheld the conviction for first-degree murder and rejected Giles’ claim that his rights were violated. The state justices said the defendant had no right to benefit from his own wrongdoing. After all, Giles’ girlfriend could not testify at the trial, because he had shot her.

Nonetheless, Scalia said the fact that the defendant caused the witness to be absent did not call for waiving his right to keep her statements out of court. The 6th Amendment says, “In criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him,” Scalia noted. “We decline to approve an exception to the Confrontation Clause unheard of at the time of the founding or for 200 years thereafter,” he said in Giles vs. California.

The three dissenters -- Justices Stephen G. Breyer, John Paul Stevens and Anthony M. Kennedy -- said the court’s rigid rule would cause “great practical difficulties,” particularly in domestic violence cases.

In response, Scalia questioned their focus on domestic violence. “Is the suggestion that we should have one Confrontation Clause for all other crimes, but a special, improvised Confrontation Clause for those crimes that are frequently directed at women?” he wrote. “Domestic violence is an intolerable offense. . . . But for that serious crime, as for others, abridging the constitutional rights of criminal defendants is not in the state’s arsenal.”

Scalia added two qualifications. Prosecutors may seek to use “statements to friends and neighbors about abuse and intimidation,” he said. Only statements to authorities are barred if the witness does not or cannot testify. And when it appears “an abusive relationship culminates in murder,” prosecutors can try to show that the defendant intended to prevent the victim from testifying, Scalia said.

Chief Justice John G. Roberts Jr. and Justices Clarence Thomas and Samuel A. Alito Jr. agreed with Scalia in full, and Justices David H. Souter and Ruth Bader Ginsburg agreed to all but one passage of his opinion.

The court sent the case back to the California Supreme Court to decide what to do next. The state court is likely to call for a new trial for Giles, although prosecutors could argue that there was ample evidence to convict him of murder even without the officer’s testimony.

Marilyn Burkhardt, a Los Angeles lawyer who represented Giles in his appeal, said she was pleased with the ruling. “They have upheld the right to confrontation, and that is central to a fair trial,” she said. “You can’t just assume her claim to the police was true. People lie to the police all the time.”

Advocates against domestic violence closely followed the Giles case. They feared that in many instances, it would be hard, even impossible, to prove that a dead partner was killed in order to prevent testimony.

They also they feared this rule could create an “incentive to kill,” since an abusive partner could not only prevent the victim from testifying, but also prevent prosecutors from using the victim’s earlier reports to police.

Joan S. Meier, a George Washington University law professor, said the decision was puzzling because a majority of the justices -- in different opinions -- said a “history of abuse” is relevant to deciding whether a victim’s prior statements could be used at trial.

“So there is good reason to hope that on remand, this [defendant] will remain convicted,” she said, “and that many future batterers and abusers will still be capable of being convicted.”

Before 2004, judges nationwide generally allowed prosecutors to use a crime victim’s statements to police, even when the victim did not testify. Those statements were often crucial in child abuse and domestic violence cases.

But in 2004, Scalia led the court in saying the practice, though increasingly common, violated the defendant’s right to confront the accuser in court. From now on, such evidence may not be used unless the defendant can confront and cross-examine the witness, he said.

It had remained unclear until Wednesday whether this rule also applied in cases where the defendant caused the witness to be absent.

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david.savage@latimes.com