U.S. Supreme Court update

2008

Questions

1

Michael Watson needed a gun and, unfortunately for him, he told a government informant of his desire. When negotiating the price, no dollar amount was set, but the informant cleverly suggested a barter: Watson could pay with narcotics. After trading 24 doses of OxyContin for a .50 caliber semiautomatic pistol, Watson was arrested. Federal law sets a mandatory minimum sentence for defendants who use a firearm during and in relation to any drug trafficking crime. “Use” is undefined, and here, the defendant challenged whether receiving a gun in barter for narcotics constituted use. Is he correct?

    Yes ______ No ______

2

In 1996, a Minnesota jury convicted Stephen Danforth of sexual conduct with a 6-year-old boy. Although the child did not testify, the jury heard a videotaped interview of his accusation. On appeal, Danforth argued that the tape’s admission violated his constitutional confrontation rights. Applying existing caselaw, Danforth’s claim lost.

After his conviction became final, Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354 (2004) announced a “new rule” for evaluating the reliability of testimonial statements in criminal cases and required confrontation as the constitutional indicium of reliability. Danforth filed a state postconviction writ seeking to rely upon Crawford, but the state court held that Crawford did not apply to Danforth’s state habeas petition under Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060 (1989). The Minnesota Supreme Court held that, under Teague, state courts are not free to apply a broader retroactivity standard than that of Teague to Supreme Court decisions announcing new constitutional rules of criminal procedure. Are states prohibited from fashioning their own retroactivity standard?

    Yes ______ No ______

3

Allen and Mary Snyder separated, but in August 1995, they discussed the possibility of reconciliation and agreed to meet with each other. Mary had a date with another man on the evening before the planned get-together with Allen. When Mary’s date drove her home to her mother’s house that evening, Allen was stealthily waiting for their return. He opened the man’s car door and repeatedly stabbed Mary and her escort, killing him.

Allen Snyder was charged with capital murder. Voir dire started with a panel of 85 prospective jurors, more than 50 of whom initially claimed that sequestration would create extreme hardship for them. In each instance, the nature of the scheduling commitments was explored and a number of veniremen were dismissed. As jury selection progressed, 36 people survived challenges for cause; five were black. The Louisiana prosecutor eliminated each of these five with strikes, and an all-white jury sentenced Snyder, a black man, to death.

Of the five blacks peremptorily struck, one was a black college student named Jeffrey Brooks. The prosecution stated two reasons for striking Brooks during the Batson hearing: his nervousness and concern that the young man’s student-teaching obligations might lead him to compromise his verdict in favor of a lesser-offense to end his jury service quickly. The trial court and successive Louisiana appellate courts overruled Snyder’s Batson complaint. Was this correct?

    Yes ______ No ______

4

Mexican national Jose Ernesto Medellin had lived in the United States since preschool. As a Houston gang member, he participated in the gang rape and brutal murder of two teenage girls who were simply walking home one day when they encountered Medellin and his fellow gang members. After raping the girls for over an hour, the gang discarded their bodies in a wooded area after Medellin personally strangled at least one of the girls with her own shoelace. Arrested a few days later, Medellin received Miranda warnings, waived his rights, and confessed in writing. Law enforcement officers did not inform him of his Vienna Convention right to notify the Mexican consulate of his detention.

Later, a jury convicted Medellin of capital murder and imposed a death sentence. Following an unsuccessful direct appeal, Medellin raised his Vienna Convention claim in his first application for state postconviction relief. The Court of Criminal Appeals rejected the argument based upon Medellin’s procedural default, as well as on the merits. Similarly, a federal court rejected the claim for Medellin’s failure to show prejudice arising from the Vienna Convention violation. Pending Fifth Circuit appealability, the International Court of Justice (known as the World Court) handed down its Avena decision in a suit brought against the United States by Mexico. In Avena, the court ruled that 51 named Mexican nationals were entitled to review and reconsideration of their state-court convictions regardless of any forfeiture of their right to raise this claim; the ruling included Medellin. Nevertheless, the Fifth Circuit denied a certificate of appealability and concluded that the Vienna Convention did not confer individually enforceable rights. The Supreme Court granted certiorari and, in the meantime, President George W. Bush issued a Memorandum to the U.S. Attorney General stating that the United States would discharge its international obligations under the World Court’s Avena decision.

Does the ICJ ruling, along with the Bush memo, constitute binding authority in federal and state courts?

    Yes ______ No ______

5

After exhausting their state and federal appellate remedies, two double-homicide capital murderers sued three Kentucky officials seeking to have the State’s lethal injection protocol declared unconstitutional under the Eighth Amendment. The two prisoners claimed that the risk of officials botching the protocol could lead to cruel punishment, although they conceded that the procedure was constitutional if properly performed. They sought to have a painless procedure guaranteed, suggesting that numerous aspects of the protocol created opportunities for error and, therefore, the entire procedure was “cruelly inhumane.” The men’s lawsuit led to a seven-day bench trial where the trial court heard 20 witnesses and many experts and ultimately upheld the protocol after finding there was minimal risk of improper administration of the lethal injection protocol. The Kentucky Supreme Court affirmed and held that a method of execution runs afoul of the Eighth Amendment only when it creates a “substantial risk” of wanton and unnecessary infliction of pain, torture, or lingering death.

Most states use the same three-drug combination in their lethal injection protocol. The first drug, sodium pentothal, is a fast-acting barbiturate sedative that induces a deep, coma-like unconsciousness when given in the amounts used for lethal injection. Next, pancuronium bromide is a paralytic agent that inhibits all muscular-skeletal movement and, by paralyzing the diaphragm, stops respiration. The third drug, potassium chloride, interferes with the electrical signals that stimulate heart contractions, inducing arrest. Proper administration of the first drug ensures that the prisoner does not experience pain associated with paralysis or cardiac arrest caused by the last two drugs.

The two Kentuckians proposed an alternative protocol that had never been adapted or tried in any other state. The Supreme Court granted certiorari to determine whether Kentucky’s lethal injection protocol satisfied the Eighth Amendment. Does it pass constitutional muster?

    Yes ______ No ______

6

The court’s foundational self-representation case, Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525 (1975), held that the Sixth and Fourteenth Amendments include a constitutional right to proceed without counsel when a criminal defendant voluntarily and intelligently elects to do so. Forcing an attorney on an unwilling defendant is contrary to the basic right to defend oneself as one truly desires.

In this case, Ahmad Edwards tried to shoot a store security officer while Edwards stole a pair of shoes. Prosecuted for various crimes arising from this episode, Edwards urged the trial judge to allow him to represent himself. Yet Edwards had already twice been found incompetent to stand trial and regained competency after hospitalization. Edwards’ first self-representation request came on the eve of trial and was coupled with a continuance so that he could proceed pro se. After the trial judge rejected the continuance, Edwards proceeded to trial with counsel and was convicted of two of the lesser charges. The two more serious crimes resulted in mistrial. When the State sought retrial on the unresolved crimes, Edwards again requested self-representation. The trial judge noted Edwards’ lengthy psychiatric history and that he still suffered schizophrenia. The court concluded that Edwards was competent to stand trial but not competent to defend himself. Appointed counsel represented Edwards at his second trial.

Did the trial judge’s refusal to permit him to represent himself at retrial deprive him of his constitutional right of self-representation?

    Yes ______ No ______

7

Central Texas officers found Walter Rothgery with a weapon. Relying on a mistaken background check showing Rothgery as a felon, they arrested him for felon firearm possession.

Texas Code of Criminal Procedure Article 15.17 mandates a hearing following a warrantless arrest; the proceeding combines a Fourth Amendment probable-cause determination with formally apprising an arrestee of the accusation and with setting bail. At Rothgery’s hearing, the magistrate found PC existed based upon the arresting officer’s affidavit. Rothgery requested counsel but was told that counsel appointment would delay setting bail, so he opted for quick release over representation. He promptly made the $5,000 bail but lacked additional funds for an attorney. Rothgery repeatedly sought appointment of counsel (including in writing), but his petitions went unheeded. Six months later, an indictment issued, and his re-arrest led to an increased bond which he could not make. After sitting in jail for three weeks, he received an appointed attorney and also a reduced bond. The attorney promptly assembled paperwork confirming Rothgery’s nonfelonious past that led to the indictment’s dismissal.

Rothgery brought a §1983 action against Gillespie County and argued that had he received counsel within a reasonable time after the article 15.17 hearing, he would not have been indicted, rearrested, or jailed for three weeks. Lower courts poured out the claim. When did Rothgery’s Sixth Amendment right to counsel attach?

    Yes ______ No ______

8

Louisiana’s 1995 legislature defined capital aggravated rape as any anal, vaginal, or oral intercourse with a child under 12. Three years later, Patrick Kennedy raped his 8-year-old stepdaughter and received the death penalty for his crime. While all child-sexual assaults are repulsive, these facts reach a horrific pinnacle. After Kennedy called 911 to report that his stepdaughter had been raped by neighborhood boys, he told officers that he had run to aid the child after hearing her screams. He also claimed to have seen one of the boys escaping on his 10-speed bike. Authorities found the girl in a bloody blanket in her bedroom, bleeding profusely from her vaginal area. Kennedy said he had carried her in from the yard, washed her (which ultimately thwarted DNA sample collection), and deposited her on the bed.

Medical testimony revealed her vagina had been ripped and her cervix separated from the back of her vagina, leaving her rectum protruding into the vaginal structure. Her entire perineum was ripped from stem to stern. Inconsistencies in the stories and with the physical evidence caused officers to question Kennedy’s story. Strong controverting evidence included the discovery of blood on the underside of the child’s mattress, Kennedy’s early-morning phone inquiry to a coworker to learn how to remove blood from white carpet because his daughter had “just become a young lady,” and his call (over an hour before calling 911) to B & B Carpet Cleaning about urgently removing bloodstains. Relying also on the victim’s testimony about waking up with Kennedy on top of her and his telling her to blame the neighborhood boys instead of him, a jury found Kennedy guilty of aggravated rape. During punishment they learned that he had abused his wife’s goddaughter three times, including having sexual intercourse with her when she was 8. The jury returned a unanimous capital sentence.

In Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861 (1977), the Supreme Court barred the use of the death penalty as punishment for the rape of an adult, albeit a 16-year-old woman, but it left open whether the Eighth Amendment permitted capital punishment for other nonhomicide crimes. Distinguishing Coker, the Louisiana Supreme Court upheld this capital sentence under an Eighth Amendment analysis because children are a class that requires special protection.

Does the Eighth Amendment’s “cruel and unusual punishment” prohibition bar the death penalty for the rape of a child where the crime did not result, nor was it intended to result, in the victim’s death?

    Yes ______ No ______

9

Dwayne Giles shot his ex-girlfriend, Brenda, near his grandmother’s garage. No one witnessed the murder, but Giles’ niece heard the commotion from inside and, after hearing six gunshots, she and the grandmother ran out to find Dwayne with his gun standing over bullet-ridden Brenda.

At trial, Giles claimed self-defense in spite of Brenda’s unarmed body having entry wounds from behind. Giles claimed that Brenda had a vicious history and came that day to his grandma’s, threatening him and the latest love of his life. Prosecutors sought to introduce statements Brenda had made to officers after a domestic-violence episode three weeks before her death. Crying, Brenda had told of Giles’ physical and verbal threats, spawned by his belief that she was cheating on him. She described him punching and choking her, threatening to kill her, and wielding a knife.

California law authorizes the admission of hearsay statements describing the infliction or threat of physical injury without a declarant’s availability if the statements are deemed trustworthy. Brenda’s out-of-court assertions were admitted under this provision.

After Giles’ murder conviction but during his appeal’s pendency, the Supreme Court handed down Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354 (2004). A California appellate court held that Crawford recognized the doctrine of forfeiture by wrongdoing and found that Giles forfeited his right to complain of the statements’ admission because his intentional criminal act made Brenda unavailable. Is the forfeiture-by-wrongdoing doctrine valid under Crawford?

    Yes ______ No ______

10

The District of Columbia generally prohibits handgun possession. The D.C. Code criminalizes carrying an unregistered firearm and prohibits the registration of handguns. A separate D.C. provision authorizes the police chief to issue a one-year handgun license. Also, residents must keep their lawfully owned firearms, such as registered long guns, unloaded and dissembled or bound by a trigger locking device, unless kept in a place of business or used for lawful recreation.

Dick Heller, a special police officer who carried a handgun while on duty at his federal position, applied for a certificate to keep a handgun at his home, but his request was refused. His subsequent lawsuit sought to enjoin the city from enforcing its bar on handgun registration. Although his claim was dismissed at the district court level, his argument found purchase with the D.C. Court of Appeals, which held that the Second Amendment protects an individual’s right to possess firearms and that the city’s total ban on handguns, as well as the requirement that guns in the home be kept nonfunctional, violated that right. Was the D.C. court correct?

    Yes ______ No ______

Answers

1

Yes. Receiving a firearm in a barter transaction does not fall within the term “use.” Watson v. United States, 553 U.S. ___, 128 S.Ct. 579 (December 10, 2007) (Souter) (8:1:0). Justice Souter writes that the meaning of an undefined term must turn on the language as we normally speak it. A seller does not “use” a buyer’s consideration. For instance, when a person purchases a cup of coffee at a courthouse cafeteria, the customer has not “used” the coffee, only the dollar bill. Receipt in trade cannot be transformed into use of a firearm.

Souter points out a statutory alternative for this drug trafficking mandatory minimum, albeit untested in appellate courts. The alternative requires evidence of firearm possession “in furtherance of” such trafficking crime without any underwhelming, policy-driven contest with the English language.

2

No. Danforth v. Minnesota, 553 U.S. ___, 128 S.Ct. 1029 (February 20, 2008) (Stevens) (7:2). Teague’s retroactivity rule involves “redressability” when it defines whether a violation that occurred prior to the new rule’s announcement will be entitled to retroactive relief. Teague sets out a general rule of nonretroactivity for cases on collateral review unless the new rule falls within stated exceptions (substantive rules and watershed rules).

Recently, Whorton v. Bockting, 549 U.S. ___, 127 S.Ct. 1173 (2007) held that federal law does not require state courts to apply Crawford to cases that were already final. Danforth instead decides that neither Teague, nor any other federal rule of law, prohibits states from applying such “new rules” retroactively to state prisoners even if the Supreme Court itself has found the case nonretroactive under federal law. Teague itself was tailored to the unique context of federal habeas and had no bearing on whether states could provide broader relief in the comfort of their own postconviction backyards. While Teague fashioned its nonretroactivity rule to limit federal authority for overturning state convictions, it did not circumscribe a state court’s ability to grant relief for violations of new constitutional law rules when reviewing its own state convictions. Accordingly, Danforth’s case is remanded, leaving the Minnesota court free to decide whether to apply Crawford to this conviction.

Several unaddressed questions include whether states are required to apply “watershed” rules in state postconviction proceedings and whether Congress can alter the rules of retroactivity by statute.

3

No. Snyder v. Louisiana, 553 U.S. ___, 128 S.Ct. 1203 (March 19, 2008) (Alito) (7:2). While the record lacked any judicial factual determination about the nervousness excuse, the Supreme Court found that the second proffered reason for striking Brooks—the student-teaching obligation—failed even under the applicable highly deferential standard of review. Although Brooks initially worried about serving on this jury, after a clerk contacted his professor, who indicated that the student’s brief absence would not undermine his spring graduation, Brooks expressed no further concern. In contrast, a white juror named Laws actually served, yet he offered strong reasons why being empaneled would cause him hardship. As a building contractor, Laws’ jury service would delay two families from moving into their new homes; also, Laws’ wife was recovering from a hysterectomy and, with no nearby family, he was responsible for shuttling his children to school. Nevertheless, the prosecutor quizzed Laws and obtained assurances from him that, if called to serve, he would do his best to make alternative arrangements for his responsibilities.

The seven-member majority doubted the Louisiana prosecutor’s sincerity based upon the disparate treatment of the panel members. The prosecutor’s worries that Brooks would favor a lesser verdict to shorten the trial (which made little sense, in and of itself) should have applied even more so to Laws’ demanding work and family obligations. Also, because the prosecutor readily acknowledged and anticipated an extremely brief trial, serving would not have seriously interfered with Brooks’ ability to complete his student teaching requirement.

Because neither excuse held water, the prosecutor’s proffered strike was deemed suspicious and led the court to declare the explanation pretextual, giving rise to an inference of discriminatory intent and shifting the burden to the State. However, the court opined that the subtle question of causation could not be profitably explored 10 years later on remand. Therefore, the court held that the trial judge committed clear error in rejecting the claim regarding the prosecution’s exercise of its racially-motivated peremptory challenge against juror Brooks, violating Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712 (1986).

Although not discussed in the Supreme Court’s opinion, this trial became notorious because of the prosecutor’s racially-charged comments that described the “O.J. Simpson case” as a black man getting away with murder.

4

No. Medellin v. Texas, 553 U.S. ___, 128 S.Ct. 1346 (March 25, 2008) (Roberts) (5:1:3). Neither the Avena decision, nor the President’s Memorandum ordering the U.S. to discharge its international obligations under Avena, constitutes directly enforceable federal law that trumps state habeas procedures.

In this significant test of presidential authority seeking to enforce treaty obligations and to override contradictory state criminal procedural rules, presidential authority lost. The Chief Justice held that Bush could not unilaterally transform an international obligation into domestic law; he quoted founding father James Madison, saying that the President “in whom the whole executive power resides cannot of himself make a law.” Thus, the Texas Court of Criminal Appeals’ decision in Medellin was affirmed.

5

Yes. In five separate opinions with three judges signing the plurality, three concurring opinions, and one dissenting opinion, the Supreme Court upheld Kentucky’s lethal injection protocol under the Eighth Amendment. Baze v. Rees, 553 U.S. ___, 128 S.Ct. 1520 (April 16, 2008) (Roberts) (3:4:2).

Over time, states with capital punishment have altered their method of execution to more humane means. While hanging was the predominant form of mid-19th century execution, by 1888 New York became the first state to authorize electrocution after finding it more humane. Later, death by firing squad and lethal gas were used by a few other states. Originally developed by the University of Oklahoma College of Medicine, lethal injection has become the most prevalent form of imposing the death penalty in the United States.

Although the Supreme Court has never invalidated a state’s chosen procedure for carrying out a death sentence under the Eighth Amendment, an 1879 opinion described English cases involving methods such as disemboweling, burning, quartering, or beheading as constitutionally violative because they deliberately inflicted pain for its own sake. So, while torture and lingering death are forbidden, cruelty, under the Eighth Amendment, implies something inhuman and barbarous, something more than the mere extinguishment of life.

After considering the extensive evidence and trial court fact-findings, the plurality concludes that these capital defendants did not carry their burden of showing that the risk of pain from maladministration of a concededly humane lethal injection protocol resulted in “sufficiently imminent dangers” constituting cruel and unusual punishment. The purportedly marginally safer one-drug, barbiturate-only alternative was not viewed as a sound option. Typically used by veterinarians, it did not significantly reduce a substantial risk of severe pain, nor was it feasible or readily subject to implementation because no other state used the method and no study supported its effectiveness.

The court cautions that no stay of execution should be granted on grounds similar to those asserted in this case unless the condemned prisoner establishes that the state’s lethal injection protocol creates a demonstrated risk of severe pain when compared to known alternatives. The Kentucky protocol ensures that capital prisoners don’t need to fear the reaper; instead, they’ll be comfortably numb as they pass over the bridge of sighs.

6

No. The right to self-representation is not absolute, and the court’s opinion recognized a mental-illness-related limitation on its scope. Indiana v. Edwards, 554 U.S. ___, 128 S.Ct. 2379 (June 19, 2008) (Breyer) (7:2). The Constitution does not forbid states from insisting upon representation by counsel for criminal defendants who suffer from severe mental illness to the point where they are not competent to conduct trials by themselves. Judges are entitled to take realistic account of a defendant’s mental capacities to determine whether he is mentally competent to try his own case. No specific measure of a defendant’s ability to conduct a trial was adopted.

7

A criminal defendant’s initial magistration—the proceeding where he learns the charge against him and his liberty is subject to restriction—marks the initiation of adversary judicial proceeding that triggers attachment of the Sixth Amendment right to counsel. Furthermore, attachment occurs even though a prosecutor may not even be aware of or involved in that initial proceeding. Rothgery v. Gillespie County, 554 U.S. ___, 128 S.Ct. (June 23, 2008) (Souter) (5:3:1). The decision is a narrow one and the court distinguishes the question of whether arraignment signals the initiation of adversary judicial proceedings versus whether the arraignment itself is a critical stage requiring presence of counsel. (Each of the four written opinions recognizes this distinction.) The court holds that an Article 15.17 proceeding plainly signals attachment even if it is not itself a critical stage. This case reaffirms prior holdings that a criminal defendant’s initial appearance before a judicial officer marks the start of adversary judicial proceedings that trigger Sixth Amendment rights attaching. The certiorari grounds did not call for a determination of whether a substantive Sixth Amendment guarantee arises during a Texas magistration.

8

Yes, a death sentence for child rape is unconstitutional. Kennedy v. Louisiana, 554 U.S. ___, 128 S.Ct. 2641 (June 25, 2008) (Kennedy) (5:4). The Eighth Amendment requires that punishment for a crime must be proportional to the offense, not by standards that prevailed when the provision was adopted in 1791, but by prevailing norms per Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242 (2002). The amendment’s meaning arises from the evolving standards of decency that mark a maturing society’s progress. While the standard itself remains the same, its applicability must change along with changes in basic societal mores. Noting the three purposes for punishment—rehabilitation, deterrence, and retribution—Justice Kennedy writes that when the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint. Hence, capital crimes must be limited to a narrow category of offenders most deserving of execution. The court delves into the history of the application of the death penalty to rape crimes; the last rapist executed was in 1964. After Louisiana’s 1995 enactment in question here, five states passed capital child-rape provisions, including Texas. (See Tex. Penal Code §12.42(c)(3) (enacted 2007); see also Tex. Penal Code §22.021(a).) Four of these, including Texas’ provision, require proof of a prior rape conviction. Neither the federal government nor 44 states imposes death for child rapists. Comparing these statistics to the ratios found in Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183 (2005) (capital punishment of juveniles), Atkins v. Virginia, 536 U.S. 304, 122 S.Ct 2242 (2002) (capital cases involving mentally retarded defendants), and Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368 (1982) (vicarious felony murderers), Justice Kennedy considered the low number of jurisdictions authorizing capital punishment for child rape and concluded that there is a national consensus against capital punishment for this crime. He also found that Coker’s language took pains to limit its holding to adult rape, and thus did not block the emergence of a consensus either.

Although granting great weight to this objective evidence of contemporary values, the court also relied upon its own judgment to discern the Eighth Amendment’s acceptability of the death penalty in child-rape cases. Recognizing the permanent psychological, emotional, and sometimes (as here) physical impact rape has on a child, the court recognized the long years of anguish endured by a child-rape victim. Yet, concerned about confining the instances for which capital punishment may be imposed involving crimes against individual persons (as opposed to treason, espionage, terrorism, and drug kingpin activity), the court concluded that the death penalty should be limited to instances where a victim’s life was taken because there is a distinction between intentional first-degree murder and nonhomicidal crimes against individual persons, even child rape.

The court also noted some serious negative consequences to making child rape a capital crime, including: during formative adolescent years, capital prosecution would require a child victim’s lengthy assistance, causing the child to make a moral choice prior to maturity; that there exist serious systemic concerns with prosecuting child rape because it relies heavily on less precise child testimony which may be unreliable, induced, or even imagined; that the death penalty threat could lead to additional underreporting in child sexual abuse cases; and that a capital sentence might remove a rapist’s incentive to not kill the victim.

9

Yes, but the forfeiture-by-wrongdoing doctrine is narrow and Brenda’s statements may not fall within that exception. Giles v. California, 554 U.S. ___, 128 S.Ct. 2678 (June 25, 2008) (Scalia) (6:3).

Crawford held that the Confrontation Clause is most naturally read as a common-law confrontation right, so only founding-era exceptions to confrontation are valid. Under common law, the forfeiture exception permits admission of unconfronted testimony only when a defendant has engaged in conduct designed to prevent a witness from testifying. A witness’s absence must be predicated on a defendant’s “means and contrivance” intended to prevent a witness from testifying. Beginning with Lord Morley’s Case in 1666, common law relied on this purpose-based forfeiture rule. Centuries of prosecutors never even sought admission of accusatorial unconfronted murder-victim statements on a simple showing of wrongful witness-procurement. Hence, no broad confrontation exception exists where the defendant only committed a wrongful act which rendered a witness unavailable. Therefore, forfeiture by wrongdoing as the State relied upon here is not a founding-era exception.

Nevertheless, Justice Scalia ends his majority opinion with a very brief paragraph noting that domestic-violence cases may fall within the common-law exception if the abusive relationship that ends in murder includes repeated acts intended to isolate or dissuade a victim from resorting to outside help. Because no one considered Giles’ intent when contemplating the admission of Brenda’s statements under the forfeiture-by-wrongdoing doctrine, Giles’ intent can be analyzed on remand to discern if the evidence actually falls within the narrow common-law forfeiture rule.

10

Yes. The Second Amendment protects an individual right to possess a firearm unconnected with militia service and allows people to use their firearms for traditionally lawful purposes such as self-defense within the home. Hence, the D.C. handgun statute violated the Second Amendment insofar as it totally banned home handgun possession and required that any firearm kept in the home be disassembled or bound by a trigger lock, thus rendering that weapon’s use problematic for self-defense, the core lawful purpose of weapon ownership. District of Columbia v. Heller, 554 U.S. ___, 128 S.Ct. 2783 (June 26, 2008) (Scalia) (5:4).

Even so, this right is not unlimited and cannot be read as the right to keep and carry any weapon in any manner for any purpose. The court specifies that its holding is not jeopardizing longstanding prohibitions on possession of firearms by felons or the mentally ill, nor does it question the authority of laws forbidding firearms in schools and government buildings. Finally, this decision does not undermine laws imposing conditions on commercial arms sales. ✤