An "ordinary" death
Susan Yates had a hard life, and she died bad. She was homeless when Philip Jones met her in early 2007. A couple months later, a jogger found her body lying on a path in a cemetery. She'd been raped and strangled. A month ago, in State v. Jones, the Supreme Court affirmed Jones' conviction and death sentence for her murder.
I don't usually do posts about death penalty cases, because they're extraordinarily depressing. There are at least two deaths involved, one actual and one anticipated, and the legal issues are usually recycled or of little moment. Not so with Jones. It raises some interesting legal issues, and also some discomfiting questions about the death penalty.
The big issue revolved around the statements made by Jones' wife Delores. Yates' body was discovered in the morning; that afternoon, Delores burst into the home of her friend, screaming "He did it! He did it!" and told the friend that her husband had murdered "the woman that they found in the cemetery." Delores then called the police. A detective arrived shortly thereafter, and Delores repeated to him what she'd told the friend. He asked her how he knew that her husband had done it, and she told him, "because he told me her name was Susan." All this came out at trial.
Not from Delores, mind you. There are two issues here: spousal competency, which prevents one spouse from being a witness against the other, and spousal privilege, which prevents disclosure of communications between the spouses. (A fuller explanation of the distinctions between the two is given in this post. ) In Ohio, either spouse can waive the competency issue; Delores chose to testify, and that was that. But the judge correctly concluded that the privilege prevented Delores from testifying as to anything her husband told her.
So shouldn't the detective and friend have been precluded from testifying as to what the wife told them? No, says the court, taking a very narrow view of the privilege: the statute says that "a husband or wife shall not testify concerning a communication made by one to the other," so the only thing it prohibits is the spouse's actual testimony; it doesn't prevent third parties from testifying as to what the spouse told them.
It's tempting to quibble with that. After all, if the purpose of the spousal privilege is to preserve the sanctity of communications between the spouses, it doesn't seem to make much sense to allow third parties to testify about those communications just because one of the spouses blabbed. Apply that concept to the attorney-client privilege: If I tell a friend over drinks something that my client told me, does that mean he can testify about what I told him? I doubt the result would have been the same under that set of facts. Still, there's ample case law to support the court's conclusion, and the public policy rules in favor of the spousal privilege aren't the same. If you tell your attorney or your priest in confession that you killed someone, you have every right to expect that to remain secret. If you tell your wife that you killed someone, with the same expectation, you're an idiot.
That brings up the second issue, though: can the third parties testify as to what Delores told them? As the court recognizes, the Supreme Court's 2004 decision in Crawford v. Washington requires a two-step analysis here. Were the statements "testimonial" within the meaning of Crawford, and if they were not, do they fit into one of the hearsay exceptions?
The court easily concludes that the statements to the detective were testimonial. The issue turns on the purpose of the detective's interrogation of Delores: if it was to meet an ongoing emergency, her statements aren't testimonial, but they are if the purpose is "to establish past events for later criminal prosecution." There was no emergency, other than the fact that Jones hadn't been apprehended yet, and that's not enough. The detective's questions were clearly intended to elicit information about the crime which could be used in its prosecution, so his testimony about what she told him is barred.
What about the friend? In two cases five or so years ago - State v. Stahl and State v. Siler - the court essentially adopted two tests for determining whether a statement was testimonial. If the statement was made to the police, the "ongoing emergency/events for criminal prosecution" test was employed; if they were made to someone else, the test was whether the person making the statement - Delores - would "have reasonably believed that the statement would have been available for use at a later trial." The court concludes that Delores, in her highly agitated state when she told the friend, wouldn't have reasonably believed that, and so her statement isn't testimonial.
Problems abound with this analysis. First, the "objective witness" test is based on dicta in Crawford, and there's serious question as to whether it still applies: the Court has never addressed the "test" since Crawford. Secondly, as shown here, the application of the "objective" test is wholly subjective. Who's going to go around telling people that John Doe killed somebody without contemplating the possibility, "Gee, I might be called to testify about this"? Third, the use of any test to determine whether a statement given to a lay person is testimonial is probably wrong; it's quite arguable that Crawford applies only to statements given to law enforcement officers or similar state agents, because those are the kinds of statements that were within the "core values" Crawford recognized the right of confrontation was intended to protect. As explained in detail in Scalia's exegesis of the Amendment in Crawford, the key concern of the Framers was protecting against ex parte statements made to government officials, and then introduced at trial without opportunity for cross-examination. There's nothing to indicate that statements to friends or family fell within that sphere; there, the normal evidentiary rules concerning hearsay apply.
And those rules allow the introduction of the friend's testimony; Delores' statements easily meet the qualifications for an excited utterance. Of course, that still leaves the problem of the detective's testimony, the admission of which is constitutional error. That heads out of town, too, on the Harmless Error bus.
There's some other stuff in Jones; a 404(B) issue, and a lengthy discourse on whether the State's use of a "live exhibit" - asking Jones, on cross-examination, to demonstrate with a life-sized doll how he had sex with Yates and "accidentally" strangled her, as he claimed, then having a doctor testify on rebuttal how that was impossible - was prejudicial.
But what I was left with was the banality of the case. Yes, Jones took a life, but there was nothing about the crime, or about the baggage Jones brought to the table - the crappy childhood, the mental issues - that differentiated it from any other rape/murder I've come across, the vast majority of which don't result in a death penalty. Part of the reason for that is the test the court uses to determine whether the sentence is disproportionate: only similar cases in which the death penalty was imposed, not similar cases in which it wasn't, are considered. That's an understandable approach, if only for logistical reasons; how could you marshal all the rape/murder cases, and then sort through the results? But the application of the test inevitably produces a lowest-common-denominator result: the court points to three cases from the late 1990's where somebody else got sentenced to death for a rape/murder, and calls it a day.