Supreme Court Weighs 6th Amendment Issue

WASHINGTON — Dwayne Giles, who shot and killed his ex-girlfriend in south Los Angeles, asked the Supreme Court yesterday to overturn his murder conviction because he was denied the right to "confront" her in court.

"He never had a chance to cross-examine" the victim, said Marilyn G. Burkardt, a Los Angeles lawyer representing Giles, and the prosecution's use of her reports of his threats was "highly prejudicial," she said.

Although it sounds far-fetched, Giles's claim could prevail in the Supreme Court.

The court took up of the case of Giles v. California to test the outer limits to the so-called confrontation right in the Sixth Amendment. It says, "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him."

Until 2004, judges usually allowed jurors to hear "reliable" second-hand accounts of what witnesses said if the witness was not available. For example, a police officer could report on what a missing witness had said. But in a case that year, Justice Antonin Scalia insisted this "hearsay" violated the defendant's rights under the Sixth Amendment. "Where testimonial statements are at issue, the only [test] of reliability ... is the one the Constitution actually prescribes: confrontation," Justice Scalia said at the time in Crawford v. Washington.

Now, the court has to decide how strictly to apply that rule.

During yesterday's argument, Justice Scalia said the court should stick to a no-exceptions rule. He said Giles's rights were violated because a police officer had testified at his trial that the murder victim, Brenda Avie, had said Giles threatened to kill her.

On September 5, 2002, two police officers were called to a house where Giles and Avie had been arguing. She had a bump on her forehead, and she told one officer Giles had pulled a knife on her and said, "I'll kill you" if he saw her with another man.

Four weeks later, Giles shot Avie six times at his grandmother's house, left her for dead, and fled the scene. He was arrested and when his case went to trial, he pleaded self-defense. He testified that Avie was aggressive and violent.

The officer's testimony, however, helped seal his conviction for first-degree murder. Ms. Burkardt argued that the use of the officer's testimony violated Giles's rights and called for a new trial.