By Sherry F. Colb
In my column for this week, I analyze the "forfeiture by wrongdoing" exception to the Sixth Amendment Confrontation Clause, as this exception arises in a Wisconsin murder case. The Confrontation Clause, among other things, protects a right of criminal defendants to cross-examine the witnesses against them, a right that results in the exclusion from evidence of testimonial out of court statements not subject to cross-examination. The forfeiture by wrongdoing exception to this right provides that under a particular set of circumstances, a criminal defendant loses his Sixth Amendment right to exclude testimonial out-of-court statements -- in the murder case, a letter and statements to police by the victim, accusing her husband (the defendant) of plotting her demise.
The circumstances required for the exception involve the criminal defendant committing wrongdoing that was aimed at making a potential witness (the author of the out of court statements) unavailable to testify at the proceedings. For example, if a criminal defendant were to kill a witness to prevent her from testifying against him in a drug prosecution, then he would thereby have forfeited his right to object to the admission of the witness's out of court statements at his trial for her murder (or at the drug prosecution).
In the Wisconsin murder case at issue, the defendant Michael Jensen was alleged to have killed the victim, his wife Julie Jensen, but the alleged killing was not apparently motivated by the desire to keep her from testifying and therefore did not trigger application of the forfeiture by wrongdoing exception to the Sixth Amendment right of confrontation. In the column, I discuss the particular scope of the forfeiture by wrongdoing exception and suggest that it might be both too narrow and too broad, given its purpose and given competing considerations.
In this post, I want to apply the concept of "forfeiture by wrongdoing" to a different context: the context of murder convicts arguing against the death penalty, specifically in the case of Dzhokhar Tsarnaev, the accused Boston Marathon Bomber. Federal prosecutors recently announced that they would be seeking the death penalty in prosecuting Tsarnaev for the murders committed at the Boston Marathon. Attorney General Eric Holder explained that he generally opposes capital punishment (because of the risk of executing an innocent) but that he felt compelled here, given the facts. Not only Mr. Holder but the citizens of Massachusetts also oppose the death penalty, which is why the state abolished the punishment in 1984, after having refrained from imposing the penalty since 1947. Still, because Tsarnaev committed federal crimes, the people of Massachusetts do not have a veto over the punishment to be sought.
One philosophical question that has arisen in some of the debates about whether it would be right or wrong to execute Tsarnaev is whether a person who commits murder, as he allegedly (and apparently) did, has essentially forfeited the ability to argue that it is wrong for the government to take his life. That is, is it inconsistent for a murderer to turn around and invoke the wrongfulness of killing as a reason for sparing his life?
As in the case of the murderer who complains about not being able to cross-examine his victim in court (in potential conflict with the forfeiture by wrongdoing doctrine), the murderer who complains about being killed is only in the situation about which he complains because he himself committed wrongdoing that placed him in that situation. Indeed, unlike the defendant who complains about the unfairness of offering evidence that he cannot cross-examine, the defendant in a capital case who condemns the death penalty is condemning the government for planning to do to him exactly the same thing that he did to others, with the addition of his culpability and a more humane method of execution than he reserved for his own victims. Talk about chutzpah and hypocrisy!
Let us consider the nature of the hypocrisy. It would arise most plainly if the defendant were to premise his argument on his own worthiness -- if he were to argue, for instance, that he does not deserve to be killed, because no human being ever deserves to be killed. Because he himself committed murder, it would seem logical and sensible to respond that first of all, he obviously does not believe what he says, because he killed people far less deserving of death than himself, and second, that if there is such a thing as just deserts, it is when someone who commits a particular atrocity ultimately suffers the same atrocity directed at him. That is arguably the very definition of desert, so he certainly does deserve to be killed.
But let us forget about what the defendant deserves for a moment and think instead about the sorts of behavior in which civilized people ought to be engaged. Some (though by no means all) people take the view that killing someone who threatens no harm is wrong. On this approach to right and wrong, Tsarnaev unquestionably acted wrongfully (a proposition with which few would disagree). On this same proposition, however, it would be wrong as well for the State to kill Tsarnaev, once he is rendered harmless, as he (perhaps) is once confined to a maximum security or even a super-maximum-security (essentially solitary confinement) facility, as he likely would be upon conviction.
If it is wrong to kill someone who does not threaten to kill or substantially injure you or anyone else, then the only time it would have been acceptable to kill Tsarnaev was at a point when he actually posed a threat to others, before he was apprehended. The fact that he may deserve to be killed means only that if a lightning strike or a fire (or some other murderer) were to kill him, we would not regard his loss an undeserved one. We might even call it poetic justice.
To condemn a penalty thus need not entail making a statement about either the worthiness of the recipient of the penalty or the prior actions of that recipient. The condemnation can instead consist simply of an assertion about right and wrong and a demand that government officials who represent the population refrain from acting wrongfully, even when those at the receiving end of that wrongful conduct might be richly deserving of it. Acknowledging that Tsarnaev, if convicted, might very well deserve to die could be a useful part of nonetheless arguing against his execution, by clarifying the nature of the anti-death-penalty argument.
In many settings, we demand that the State behave in a civilized fashion, even when the State is confronting people who have behaved in the most uncivilized and atrocious fashion, perhaps especially on those occasions, when departing from civilized norms (including, for example, the norm against torture) may be most tempting and understandable. This is why, for example, we sometimes suppress evidence of crime that was obtained through the violation of the Fourth Amendment right against unreasonable searches and seizures. It would be fair to say that if a murderer concealed his bloody weapons in his basement, and the police searched his basement without a warrant and without probable cause -- but they got lucky in his case -- he would have been, at the time of the illegal search, almost completely undeserving of the privacy that the police violated. He deserved to be caught, as he was.
The reason we nonetheless suppress the evidence (on those occasions when we do) is that we want the government to behave in a civilized and constitutionally constrained fashion, regardless of what a murderer might or might not deserve. When we demand of the government that it be civilized (and I hasten to add that some folks consider the death penalty civilized, so I am making a more general point about putatively uncivilized behavior and not attacking the death penalty in particular), we are demanding of ourselves that we be civilized. Tsarnaev might deserve not only to die but to die in pain, as his victims did. Yet the U.S. Attorney will not seek to impose an excruciating death on Tsarnaev. This is not because he deserves better -- it is not, in other words, because of who he is. It is because we are better. It is because of who we are.