Tuesday, February 15, 2011

The Rae Carruth Case Six Years Later

Nearly six years ago, I wrote a long post, Forfeiture, the Prosecutorial Duty to Mitigate, and Rae Carruth. Carruth is the former NFL player who has been convicted of conspiring to kill his pregnant girlfriend, Cherica Adams; the prosecution's theory was that he stopped or slowed down his SUV in front of Adams's car while, by prearrangement, someone from another car pulled up alongside Adams and shot her. Adams survived for nearly a month. Immediately after the attack, she made a 911 call, describing the incident in considerable detail, including an assertion that Carruth had made a cell call shortly before leaving his house and that he had blocked her car. Over the next several hours, she made additional statements, including one at the scene and one at the hospital to a responding officer, and hand-wrote notes to a nurse at the hospital, describing the incident and preceding events. Some time after writing those notes – just how long I am not sure – she sank into a coma from which she did not recover.

Today, the U.S. Court of Appeals for the Sixth Circuit issued a decision affirming the denial of a petition for habeas made by Carruth (whose legal name is Wiggins). Notably, Carruth did not contest before the Sixth Circuit that the 911 call was admissible and the state did not contest that the subsequent statements were inadmissible under the Confrontation Clause; the only issue for the court, so far as the latter statements were concerned, was whether the error in admitting them was harmless, and the court held that it was.

The case therefore becomes something of a measure of the development of Confrontation Clause doctrine. Presumably Carruth assumed that the court would hold that the 911 call did not violate the Confrontation Clause because of the emergency doctrine of Davis v. Alaska, and presumably the state assumed that the court would hold the later statements to be testimonial, under the other part of Davis (the part governing Hammon v. Indiana) and that under Giles v. California it would not prevail on an argument that Carruth forfeited the confrontation right. Accepting these assumptions as accurate for present purposes, I think they show how the doctrine has gone wrong in a couple of respects.

True, Adams called 911 in dire circumstances, and in that sense the call was one for help (which the statements in the pending Bryant case were not, given that the police were already on the scene when the victim made them). But it is clear that much of what she had to say -- most notably, identifying Carruth and telling about his behavior before and after the shooting – had little or nothing to do with getting help and was instead a communication of how the grievous assault had been committed and who had played a central role in it. I believe it should be regarded as testimonial, and to the extent Davis persuades a court otherwise that is unfortunate.

The later statements clearly were testimonial. But were they subject to forfeiture? After Giles, presumably not, because, while there was ample evidence that Carruth conspired to kill Adams, there is no showing that he did so with the design of preventing her from testifying in any proceeding. As I've often said, on this blog and elsewhere, I think Giles was a very unfortunate development. In my view, whether forfeiture should be applied in this case should depend in large part on how long Adams remained able to communicate. I analyze the issue at some length in the prior post, though when I wrote that I did not know that Adams had become comatose some time before her death. Adams had no hesitation making accusatorial statements, and the police, among others, had no hesitation in soliciting them. It is conceivable – I cannot say it is certain – that there was a window during which it would have been practicable and not inhumane to hold a deposition. There are many examples of this being done, even with victims who eventually died, during the founding era; the Forbes case, discussed in the prior post, is one example.


Steven said...

Professor Friedman

I am involved in a case where the victim has no memory of the event or her hearsay statement about the event (a slight factual difference from Owens). Do you think that factual difference changes the analysis of Owens?

Also, if a witness has no memory regarding the event or the hearsay statement, how does that differ from a situation where the witness asserts his Fifth Amendment right of silence? In other words, why does one violate the right of confrontation but not the other?

Richard D. Friedman said...

The theory of Green and Owens seems to be that if the witness has a deficient memory that in itself becomes a ground of impeachment. So the accused can argue in effect, "How can you put any weight on this, when she doesn't even remember the event?" And in the case posed by Steven, one might add "or even making the statement?" If the witness takes the Fifth, though, he accused can't make an argument like that; the witness has declined to answer having nothing to do with her ability to remember. I think Green and Owens are very flawed, but they remain the law post-Crawford.

Anonymous said...

Professor, this decision came out of the fourth, not the, sixth circuit.

Richard D. Friedman said...

Oops! I knew that. Must have been thinking of my home circuit. I'll correct the post.