Next week this time SCOTUS will be having its "long conference." I know, it sounds like something from Last of the Mohicans, with the tribal elders sitting in a wigwam smoking a hookah pipe and trying to figure out how to stem the influx of the pale faces and their firesticks. Hell, maybe it is that.
Probably not. From what I gather, the justices meet to go over the petitions for certiorari that have piled up during the summer recess, figuring out who's been naughty and who's been nice -- oops, sorry, that's something different, too -- figuring out which cases will round out their docket for the year. And it's just two weeks until oral argument opens, with two cases discussing the racial aspect of the criminal justice system. We'll talk about them next Monday.
Last Friday I talked about the Supreme Court's decision last week affirming a conviction and death sentence in State v. McKelton. My focus was on the opinion's handling of discovery, but there's a couple of other issues that merit mention.
One is forfeiture by wrongdoing, an exception to the hearsay rule based on the reasoning that you can't complain you didn't get an opportunity to confront a witness when you're the reason they didn't show up in court. McKelton was accused of killing his girlfriend, and the state sought to introduce statements she'd made about abuse she'd suffered at his hands. To avail themselves of that exception, though, the state couldn't just rely on the fact that McKelton killed his girlfriend. They had to show that he killed his girlfriend for the purpose of keeping her from testifying.
The court acknowledges that there's no evidence that McKelton did that, but then concludes that the history of McKelton's domestic violence "supports an inference of purpose in this case." It draws extensively from the Supreme Court's 2007 decision in Giles v. California, where the Court threw out hearsay statements because the State couldn't show that defendant killed the victim with the purpose of making her unavailable at trial.
While Giles did find evidence of domestic abuse "highly relevant," that was in the context of determining purpose; as Scalia put it,
the evidence may support a finding that the crime expressed the intent to isolate the victim and to stop her from reporting abuse to the authorities or cooperating with a criminal prosecution -- rendering her prior statements admissible under the forfeiture doctrine.
McKelton goes far beyond that. The court notes a couple of pieces of evidence -- that McKelton took a phone away from the victim's niece when the victim asked her to call 911, and that McKelton was "enraged" that the niece later call 911 -- and concludes the testimony "indicates that McKelton was trying to isolate Allen and prevent her from talking to authorities." That may be true, but what that has to do with determining McKelton's purpose in killing her -- which the court has already indicated was not to make the victim unavailable -- isn't clear. It's hard to read McKelton on this point as anything other than a blank check for the prosecution to introduce any evidence of domestic abuse if the victim doesn't show up at trial because of something the defendant did, even if there's no claim that he did it to make the victim unavailable.
Don't be surprised if McKelton comes back on post-conviction relief or, more likely, habeas. There are some problems with his representation. He originally had retained counsel, who admitted he had no experience with capital cases, so the judge appointed two other lawyers, but kept the retained lawyer on board as well. The three attorneys tried to withdraw just before trial; the judge let the retained lawyer go, but kept the other two. Jury selection took only a day; there's a death penalty case here in Cuyahoga County where voir dire is entering its second week. The questionnaire given to the jurors didn't include anything about their attitudes toward the death penalty. The lawyers didn't hire a mitigation expert; no expert testimony on that subject was presented in the penalty phase.
None of that's fatal, pardon the pun: there's no per se rule requiring that a mitigation expert be employed in a death penalty case. And it may be that McKelton's such a bad guy that nothing could have been presented to save his life.
But somebody's going to come up with a lot of evidence on that point in post-conviction, and combined with the rest, is going to give a court pause about giving McKelton the needle. As the courts have long pointed out, the death penalty is qualitatively different from every other punishment, and one gets the distinct feeling from reading McKelton that when we decide to impose that penalty, this wasn't how we should go about doing it.