Sixth Amendment - Witness Confrontation - Fourth Circuit Holds That Co-Conspirator Misconduct Can Forfeit Defendant's Confrontation Right and Hearsay Objection

Harvard Law Review, April 2013 | Go to article overview

Sixth Amendment - Witness Confrontation - Fourth Circuit Holds That Co-Conspirator Misconduct Can Forfeit Defendant's Confrontation Right and Hearsay Objection


The forfeiture-by-wrongdoing doctrine, adopted as an exception to the Sixth Amendment's Confrontation Clause and the rule against hearsay, dates back to 1666, when the House of Lords declared that if a witness was kept away "by the means or procurement of [a] prisoner," his prior sworn statement could be read at trial. (1) In Giles v. California, (2) the Supreme Court's latest clarification of the Confrontation Clause exception's scope, the Court held that a defendant forfeits his confrontation right only by acting with the intent to prevent testimony. (3) Recently, in United States v. Dinkins, (4) the Fourth Circuit held that a co-conspirator's foreseeable misconduct performed after a defendant's arrest can forfeit that defendant's confrontation right and hearsay objection if the act is within the scope and in furtherance of the conspiracy. (5) The ruling, which utilized the agency theory of conspiracy in an effort to satisfy Giles, circumvents the requirements for waiver of a fundamental right and defies Supreme Court precedent that the Confrontation Clause does not tolerate subjective, unpredictable tests. While Dinkins will not meaningfully deter witness silencing, it will significantly hamper the truth-seeking function of many trials.

In October 2004, James Wise was murdered on a street corner after robbing a member of Special, a large drug-distribution organization in the Bartlett neighborhood of Baltimore. (6) John Dowery, a drug dealer for Special who witnessed the murder, informed police about it and about Special in an effort to lessen his sentence for an unrelated crime. (7) His information led to the arrest and prosecution of Tamall Parker and Tracy Love, two Special "lieutenants," for Wise's murder. (8)

On October 19, 2005, after being selected for the task, James Dinkins, an "enforcer" for Special, and Damien West, a drug dealer for the organization, shot Dowery over a dozen times outside his home. (9) Upon learning that Dowery had survived, Dinkins suggested to West that they "go to the hospital to finish him off," though they never did so. (10) Dowery later identified Dinkins as his shooter from a photo array, (11) and detectives relocated Dowery out of Bartlett for his safety. (12)

Dowery out of Bartlett for his safety. Dowery was not Dinkins's only target. In September 2005, Dinkins shot Shannon Jemmison, a government informant who had been residing in the neighborhood of a drug ring with which Special regularly transacted. (13) Two months later, Dinkins murdered Special member Michael Bryant after "problems arose" during a gun deal. (14)

Dinkins was arrested on December 9, 2005. (15) Six months later, Dowery reported that Melvin Gilbert, Special's leader, had warned him not to return to Bartlett. (16) When Dowery came back for Thanksgiving, Gilbert and Darron Goods, a Special dealer, murdered him. (17)

A federal grand jury in the District of Maryland indicted Dinkins, Gilbert, and Goods in July 2009 on twelve counts, including conspiracy to distribute narcotics and charges related to the Jemmison, Dowery, and Bryant shootings. (18) At trial, Dinkins and Gilbert objected to the government's submission, via Detectives Michael Baier and Gary Niedermeier, of Dowery's statements identifying Dinkins as one of Dowery's shooters in the 2005 incident and describing Special's members and Gilbert's threat. (19) The prosecution replied that the forfeiture-bywrongdoing hearsay exception covered co-conspirator acts. (20) Under that exception, codified in Rule 804(b)(6) of the Federal Rules of Evidence (FRE), "[a] statement offered against a party that wrongfully caused--or acquiesced in wrongfully causing--the declarant's unavailability as a witness, and did so intending that result," is not excluded by the hearsay rule. (21) Judge Motz agreed with the prosecution and allowed the testimony. (22) A jury convicted the defendants on all but one count, and each received multiple life sentences. …

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