The First Thing We Do, We Kill All The Witnesses Part II

Folks in our little corner of the world will remember when we blogged State v. Bentley, (9-28-07) in which we here discussed the confrontation clause jurisprudence of one Antonin Scalia who seems to be in love with the bare language of the clause and blind to the horrifying outcomes of their jurisprudence.

That story was the case of the Bentley brothers, both of whom serially sexually assaulted the same child here in Iowa. One Bentley murdered the child and was sent to prison for life. The other was tried for sexually abusing her. As it happened, the statement the child gave to child protection workers could not be used against Roger Bentley because....surprise surprise! his brother murdered her, and poor Roger couldn't confront the 'witness'. It was awfully convenient that she was murdered, but that didn't seem to cause our supremes any heartburn.

Mr. Miller says he's bringing the Bentley case to the Supremes in Washington.

And thereby hangs a tale.

There's a parallel case out of the great state of California, Giles v. California in which the same issue of Scalia's confrontation clause jurisprudence will be front and center.

Giles had had a problematic romantic relationship with the victim Brenda Avie. Giles killed her in his garage but he claimed he was defending himself. An officer testified at trial that he had gone to Avie's house to intervene in a fight the two were having a couple weeks prior to the murder and Avie said at the time that Giles had threatened to kill her. Giles now says the officer should not have testified to what Avie said to him because it was hearsay and that it violated Scalia's precious confrontation clause. He was convicted and his state appeal failed.

The State's position is that Giles killed Avie, and should therefore not profit from his criminal act. It doesn't take a lot of imagination to infer that Roger Bentley benefited equally, if by proxy.

But on a more fundamental level, it brings into question the entire nature of the confrontation clause and what the drafters of the Constitution meant by it, and whether that should continue to operate as a powerful incentive to do away with witnesses or to frighten and intimidate them into silence. It also brings into question the notion that hearsay evidence pertaining to the statements of victims who are then erased from this world, should always be inadmissible per se on the same basis. Scalia's on record here, as you recall we also blogged earlier in an article about the Supreme Court declaring war on victims of domestic violence.

As it stands in the present day, the confrontation clause/hearsay tag team serves primarily the interests of violent criminals. On that basis the entire structure needs a good solid kick to send it into the trashcan of history. This man's either to wake up to the world outside his chamber door, or get out of the way.