While the frenzy of gun rights diverted attention away from everything else in the world, the Supreme Court decided the California case of Giles v. California, the case where Dwayne Giles was convicted of murdering Brenda Avie based upon statements she made to police a few weeks in advance of her death, that Giles had assaulted her and threatened her with a knife. Thankfully, Howard Bashman was paying careful attention while I was blinded by shinier decisions.  Gideon was watching too, but he has yet to speak his mind.

In a 6-3 decision, the United States Supreme Court reversed the California Supreme Court.  Justice Scalia (whom I have maligned unmercifully of late, though he doesn’t seem to notice) wrote the majority opinion.  As described by the Washington Post :

“Domestic violence is an intolerable offense that legislatures may choose to combat through many means,” Justice Antonin Scalia wrote for the majority. “But for that serious crime, as for others, abridging the constitutional rights of criminal defendants is not in the State’s arsenal.”

Scalia added that the lower courts were free to consider whether in shooting Avie, Giles may have intended to dissuade her from notifying authorities about the abuse, a factor that should be considered as part of the Sixth Amendment analysis.

The decision is a return to the basic rule that a defendant who intentionally causes the unavailability of a witness against him forfeits his 6th Amendment right of confrontation.  The California court, proving that the slope can be slippery at times, sought to contract the right to confrontation by eliminating the intent requirement.

The dissent, and partial dissenters, apparently bowed to the current trend of treating domestic violence different from all other crimes by throwing the rules out the window.

In a toughly worded dissent, Justice Stephen G. Breyer, said the majority was overanalyzing the thin historical record and overcomplicating the analysis.

“The defendant here knew that murdering his ex-girlfriend would keep her from testifying; and that knowledge is sufficient to show the intent that law ordinarily demands,” Breyer wrote. He was joined by Justice John Paul Stevens and Anthony M. Kennedy.

Refusing to join in a portion of the Scalia opinion, Justices Souter and Ginsburg gave confrontation half a loaf:

Justice David H. Souter, joined by Justice Ruth Bader Ginsburg, agreed with Scalia’s historical analysis but said prosecutors could introduce evidence that defendants had engaged in a pattern of domestic violence as a substitute for their intent, perhaps opening the door to a finding that the alleged abuser had forfeited his right to confront a missing witness.

In other words, concession to the “psychology of abuse” popularized by domestic abuse advocates who are less concerned that guilt be proven than they are of creating an independent jurisprudence applicable solely to cases where women are harmed in claims of domestic violence, has gotten traction from the justices who would otherwise be expected to demonstrate some concern for the rights of the accused.

Having had the pleasure of trying cases where this nouveau version of evidence, considered wholly unreliable otherwise but somehow transformed into perfectly accepting and overwhelming damning evidence when applied to claims of domestic violence, it is a painful reminder of how transitory whims as to popular victims undermine reasoned jurisprudence. 

Activists who decry more than 1,500 deaths and 2 million injuries each year stemming from domestic violence expressed disappointment in the opinion. Officials at the Family Violence Prevention Fund warned the decision could make it less likely that victims will reach out to authorities for help. In many such cases, they said, the victim is the lone witness to a crime.

It’s not the wrongfulness of the crime, but the proof of the commission, that’s at issue.  Yet again, Justice Scalia turns out to be the hero of the defense, demanding that the constitutional right of confrontation be respected even when the underlying crime is a flavor of the month.