Saturday, November 20, 2010

Retaliatory killing and forfeiture

A couple of people have pointed out to me the decision of the Sixth Circuit yesterday in United States v. Hendrickson. There are numerous interesting features of the case, but I'll focus on just one: The defendant was charged with killing two people in retaliation for providing information against him in a prior case. In trying to gain admission of the victims' statements in this case, the Government apparently did not even make a serious attempt to contend that forfeiture doctrine does not apply -- because the killings could not have been designed to prevent testimony in that prior case. I suppose that's right as a strict matter of reading the Giles case, and perhaps that's the conclusion that the Supreme Court would come to if it were to look at this issue. But to me, it's just one more case highlighting the misfortune of Giles. The insult to the integrity of the judicial system -- on which Giles, unfortunately in my view, places great weight -- does not seem significantly less when a person kills in retaliation for testimony than when he kills to prevent it.

1 comment:

Anonymous said...

Well, doesn't the "...integrity of the judicial system..." have to take a back seat to the 6th Amendment confrontation right? Your current view seems to be somewhat more relativistic vis-a-vis that right than your previous writings/arguments. You seem surprised that real litigation has real consequences, and uncomfortable with those consequences. I find it difficult to believe that you did not see this kind of result coming a mile away.