Please reverse me, let me go

With apologies to Engelbert Humperdinck.*

Yesterday morning I mentioned Justice Louis Butler's dissent in State v. Jensen, the Wisconsin Supreme Court decision that allowed into evidence at Mark Jensen's trial certain out-of-court statements of the victim (Jensen was convicted in Elkhorn, WI last week for the first-degree intentional homicide of his wife).

An appeal of a nearly identical case from California, People v. Giles, was accepted by the U.S. Supreme Court in January, and retitled Giles v. California. Factually, Giles is different from Jensen, but the question of constitutional doctrine the Court will be engaging is exactly that which Justice Butler argued in his dissent.

First of all, commenter Atty. Bill Tyroler of the State Public Defender's Appellate Division (one of the most important and admirable positions in the country) is absolutely correct in pointing out that Jensen's attorney, Stephen Glynn, wasn't predicting a victory for Giles. Mr. Glynn was saying that if Giles prevails, then Mark Jensen would get a new trial, because a Giles victory would affirm Justice Butler's dissent, which argued that the aforementioned out-of-court statements were inadmissible.

In any event, the question the U.S. Supreme Court will be addressing (oral argument is set for Tuesday, April 22) arises from the Sixth Amendment to the U.S. Constitution:

In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him[.]

Mark Jensen was unable to enjoy this right for the obvious reason that he caused the death of the particular witness.

Furthermore, out-of-court statements generally are hearsay and hearsay generally is not allowed as evidence where it is offered to prove certain matters. There are, however, a number of exceptions to the hearsay rule, as well as some out-of-court statements that are not hearsay (hearsay exemptions).

According to Sixth Amendment doctrine (that is, interpretations developed by the caselaw), there exists a "forfeiture by wrongdoing" rule, according to which the accused effectively waives his right to confront witnesses against him where he caused the witness to be unavailable to testify in court.

The question before SCOTUS is whether, in order to overcome the Sixth Amendment, the government needs only to prove that the accused caused the unavailability of the witness or does it need to prove, in addition to mere causation, that he caused it for the purpose of preventing the witness from testifying in court.

Butler's position in Jensen was that the government needs to prove both. John Marshall Law School's Colin Miller of the EvidenceProf Blog describes the majority's — that is, not Butler's — as "the liberal view."

And, as I noted previously, Butler's reasoning employed what might be fairly characterized as a "strict construction" of the Sixth Amendment, in particular the phrase "all criminal prosecutions." One of the reasons I say this is because I'm reminded of a dissenting opinion by Justice Clarence Thomas in a 2005 decision called Small v. United States.

Small was charged under a federal statute that prohibits firearm ownership to those "convicted in any court" of a felony. In Small's case, the prior felony conviction occurred in Japan. The majority concluded that the Japanese conviction didn't count, because, for one thing, U.S. courts couldn't be certain that foreign due process of law comported with American legal requirements.

Thomas (along with Justice Scalia) didn't even go there, insisting that 'any means any,' even, presumably, courts in Iran or North Korea. By the same token, Justice Butler's Jensen dissent treats "all criminal prosecutions" as does Thomas treat "any court":

The operative word in each of these [federal and State] constitutional provisions is the word "all." Neither provision creates a homicide exception to the constitutional guarantee of confrontation. Yet, the majority's misconception of the doctrine of forfeiture by wrongdoing does precisely that, defeating the confrontation guarantee contained within the state and federal constitutions.

The consonance between Butler's and Thomas's dissents is uncanny! Yet Butler is denounced as an "activist" by political conservatives while Thomas is held out as the very model of "traditionalism."

A number of observations I've seen embody the expectation that the U.S. Supreme Court will rule in favor of the California defendant/appellant, Dwayne Giles. That result would vindicate Justice Butler's dissenting view in Jensen, and is the reason why Mark Jensen may get a new trial, since the evidence in question was "extremely important," according to at least one juror.

The other significant aspect to all this, of course, is that Burnett County Judge Michael Gableman has used Butler's Jensen dissent in support of his "stark contrast" campaign message, the "stark contrast" in this instance being, in effect, 'My opponent stands a good chance of being affirmed by the U.S. Supreme Court, whereas my own position openly invites reversal.'

That position, incidentally, puts Gableman into alignment with Chief Justice Shirley Abrahamson, who Wisconsin Manufacturers & Commerce "rates" as even more of an "activist" than Louis Butler. (Cue Drama Badger, or whatever that mammal is.)

While Giles won't be decided until well after Butler retains his seat on the Wisconsin Supreme Court, perhaps Gableman might consider removing Jensen from his parade of horribles in the meantime.

* Release Me — Engelbert (Moab-y [Utah] Remix).

[Please visit the iT Engelbert Humperdinck archive.]