Forfeiture by wrongdoing – Another method the state uses to violate your right to confront witnesses against you. Also, how many times does your attorney have to actually meet you before the state can put you to death following trial?

While doing some research the other day for a current case, I read the most recent Ohio Supreme Court case on the ages-old doctrine of forfeiture by wrongdoing and boy did it have some, shall we say, interesting “takes” by our esteemed elected justices.  I’ll start with the basics:  every criminal defendant is entitled to confront the witnesses against him at trial.  In other words, if someone provides testimony at your criminal trial, you have the absolute right to cross examine that person.  This is an inviolate right under the 6th Amendment.  Did I say inviolate?  What I should say is that like all constitutional rights, when it gets too much in the way of convictions, courts are going to chip away at it until it barely resembles what the founders envisioned.  Seem harsh?  Well, judges don’t get elected for being soft on crime. Moreover, who would ever believe that the police got the wrong guy?

Anyway, one way to get around the right to confront the witnesses against you is under the common doctrine of forfeiture by wrongdoing.  Under this doctrine, a defendant does not get to cross examine an unavailable witness at trial if that witness’ unavailability is due to the wrongdoing of the defendant.  The classic example is that of a witness who provided out of court hearsay statements to the police, is subsequently threatened by the defendant, and refuses to testify at the trial for fear of reprisal.  In this instance, the state can introduce the hearsay statements from the “unavailable witness,” and the defendant has no means to test the veracity of the statements through the crucible of cross examination.  The theory is that the defendant forfeited his right to confront the witness when he made him or her unavailable through his wrongdoing (i.e. threats).

On its face, this seems fair.  How can you complain that the person is not there to cross examine when it was you that made them unavailable?  The problem, as evidenced by State v.  Mckelton, 148 Ohio St. 3d 261 (2016), is that courts will stretch to make the doctrine applicable.  In McKelton, the defendant was accused of killing his girlfriend (and former defense attorney – same person), and the state convinced the trial judge that her previous out of court statements to nieces, social workers and others regarding the defendant’s violent behavior towards her should be allowed to come at his capital trial because he made her unavailable to testify by killing her.  No, this was not a dying declaration, which is another exception to the hearsay rule.  Rather, the trial court believed that by having killed her, she is now unavailable and her out of court statements are fair game under the forfeiture by wrongdoing doctrine.  Put the cart before the horse much?  Well, the Supreme Court rightly rejected that reasoning, as would any fifth grader struggling to understand basic logic.

So all is good in evidence land?  Not so much.  The Supremes went on to invoke the doctrine for an entirely different reason and ultimately allowed the statements to come in anyway.  According to our high court, the history of domestic violence between the two, along with the defendant’s propensity to try to prohibit the victim from reporting the abuse to authorities, means that he forfeited his right to confront the victim at trial.  Of course, one cannot confront a dead person absent the use of a medium.  So the proper decision would have been to exclude her statements. But that did not happen here.  The money quote in the decision is as follows: “Thus, although Allen (the victim) had not formally contacted police, her nieces testimony indicates that Mckelton was trying to isolate Allen and prevent her from talking to authorities.”  But not about her murder, or any other pending criminal case.  And this is where the court’s analysis fails.

Strangely, the Court seems aware that U.S. Supreme Court precedent “makes clear that the exception will not apply ‘in the typical murder case involving accusatorial statements by the victim’ when the defendant has ’caused a person to be absent’ but did not do[] so to prevent the person from testifying.”   Moreover, the court describes the test for proving this doctrine as requiring (1) the defendant engaged in wrongdoing that caused the witness to be unavailable and (2) one purpose for the wrongdoing was to make the witness unavailable to testify.  None of this was proved by a preponderance of the evidence.

The defendant did not kill the victim in order to prevent her from testifying in any case at any time, period.  He killed her because he was a bad guy and liked to beat up women. Simply put, the test for invocation of the forfeiture by wrongdoing was not met and the supreme court goofed this one.  Had there been a pending DV case and she was killed to prevent her testimony, we have a different result.  However, the court essentially claimed here that “well, you know, he tried to prevent her from reporting domestic violence to the police previously, so we find that he more likely than not killed her to prevent her from testifying” …. at some imaginary proceeding that the justices believed was surely going to come about one day.  This is wrong, wrong, wrong.

And although the court cites other cases in which courts have found that a pattern of domestic violence is relevant to the purpose prong of the forfeiture doctrine analysis, they do not explain with any more clarity just what testimony Mckelton was seeking to prevent, as is the law.  Of course a history of DV would be relevant in determining whether a particular victim is afraid to testify at a trial.  But how can DV be relevant when the victim was never going to testify at any proceeding.  There was no pending case for her to testify at.

Unfortunately, the complete butchering of logic is not the only thing we see in McKelton.  We also learn that your capital defense attorneys need only meet with you twice in order to be considered effective.  They also need not hire a mitigation expert even though the court allocated money to do so.  It is undisputed that Mckelton’s two trial attorneys only met his twice … ever!  We don’t know how long those meetings were, but two seems pretty insufficient to prepare for a death penalty case.  In the end a majority of the court shrugs this off and finds no ineffectiveness of counsel.   The Court doesn’t say that two is the minimum, so perhaps one is okay?  Maybe zero would be alright as long as the attorney shows up for trial and is wearing a suit.  I wonder if the test shouldn’t be whether your attorney can pick you out of a lineup.  My guess after reading Mckelton is that if the underlying facts of the homicide were bad enough, the court wouldn’t make that a requirement.  They might still require you to wear a suit, however.

Reading Mckelton is all types of sadness.  The man comes across as a cold-blooded killer and he probably was.  You feel sorry for those that encountered him. As I was not his attorney, I can say that.  But also saddening is the high court’s complete lack of understanding that stretching the rules to ensure this particular bad guy gets a date with the gurney causes problems for other defendants down the line.  Perhaps some of them will actually be innocent.  Police do make mistakes.  And to sign off on a death sentence where his attorneys unsuccessfully tried to withdraw from the case only to be “forced” to continue to represent him, only met with his two times in preparation of his death trial, and failed to even hire a mitigation expert, is pretty cold-blooded too.