Joel Jacobsen

Wouldn't you think people in Hawai'i would have better ways to spend their time than this?

On the night of April 13, 2002, Fields was home with his then-girlfriend, Melinda Staggs (“Staggs”) and a friend, Dave Richards (“Richards”). Fields and Richards were eating dinner when Fields received a phone call from Staggs' mother, Patsy Pepper (“Pepper”), who threatened to “com[e] over to the house to kick his ass and kill him.” Pepper and several men thereafter arrived, and a fight ensued. Staggs was struck multiple times while attempting to protect Fields, who was wearing a colostomy bag and recovering from an operation.

All things considered, I think I'd rather listen to some slack-key guitar under the palm trees as the soft onshore breeze ruffles my aloha shirt and the lava glows gently in the tropical twilight.  But that's just me.

The landlord calls the cops and Pepper leaves.  More than that, she (ill-advisedly) leaves Fields alive.  Shortly afterward (according to what Staggs told the cops) Fields sneaks up behind Staggs as she's lying on the couch, holds her down by her throat and punches her in the face.  The landlord calls the cops again and Fields is charged with domestic violence.

Comes the trial and surprise!  the victim doesn't care to cooperate.  On direct examination by the prosecutor, she claims to have no memory of the evening.  But on cross-examination by her boyfriend's attorney - it's an amazing thing, memory - she remembers all kinds of things, among them the following:

Q. Do you-do you under-do you recall, perhaps, any incident involving Mr. Fields' surfboards-surfboard?

A. Um-hmm.

Q. And might that involve a threat to Mr. Fields that if he left that you were going to break his surfboard?

A. I think that may have occurred.

Q. Okay. Do you recall laying on his board in such a way, I guess maybe it was between the table and the chair, and then threatening to sit on it that-something like that?

A. Yeah, I do remember that.

Now, I went to a college that had something of a reputation for attracting surfers (here's a shot from Campus Point explaining why), and yet I cannot recall a single conversation in which the terms "colostomy bag" and "surfboard" were used in connection with the same person.   But then, how's that old Beach Boys' song go?  "Co - co - co, colostomy ..."

Anyway, the jury didn't buy the surfboard-defense claim and Fields was convicted.  On appeal, his attorney did a wonderful job of getting Hawai'i's justices all tied up in ridiculous knots.  The trial judge had allowed the police officer to repeat what Staggs had told him when she was still in pain from the attack, and which she claimed to have forgotten all about by the time of trial.  This, the defense claimed, violated the defendant's sixth amendment right to confront the person he beat.

The problem the justices encountered was, perhaps predictably, Justice Scalia, who in his infamous Crawford opinion said both of the following things about letting the jury learn what a crime victim said to police officers at the scene:

1.  Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.

2. Finally, we reiterate that, when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements.

Translated into plain English, statement # 1 establishes a clear-cut rule: the crime victim's words must be concealed from the jury unless the victim is "unavailable" to testify at the time of trial.   Statement # 2 is equally categorical: the crime victim's words may be freely  admitted into evidence so long as she testifies, as Staggs did.  

So the lesson is plain: a jury may be permitted to learn certain truthful information about the incident if, and only if, the speaker is both (1) unavailable and (2) available. 

Most judges, being well-used to dealing with cognitive dissonance, have managed to accommodate Justice Scalia's two clear-cut rules pretty well.  Not the justices of the Hawai'i Supreme Court, I'm sorry to say.  This is from the majority opinion:

However, Crawford does not state that a declarant is constitutionally “unavailable” only if the declarant is not present at trial. ...  Thus, the appropriate principle gleaned is ...  not that a hearsay declarant's presence at trial mandates the conclusion that the declarant is constitutionally “available” ( i.e., not “unavailable”).

The dissent's misapprehension of Crawford again demonstrates its improper equation of the constitutional “unavailability” paradigm with the inquiry whether the hearsay declarant is physically present and available for cross-examination. ... [The dissent] concludes that the hearsay declarant's physical presence at trial establishes the declarant's “availability” ( i.e., lack of “unavailability”). ...

As previously mentioned, the dissent takes the federal courts' use of the phrase “available for cross-examination” to mean constitutionally “available” ( i.e., not “unavailable”). Thus, the dissent believes that an application of Crawford here mandates the conclusion that Staggs was constitutionally “available” despite the fact that her memory loss would render her constitutionally “unavailable” ...

To the contrary, we read the federal courts' use of the phrase “available for cross-examination” as taking an intermediate step ... not as establishing the declarant's constitutional “availability” ( i.e., lack of “unavailability”) as a witness for the prosecution.

The really disturbing thing is that that mass of words, even as it descends into gibberish (i.e., lack of "sensicality"), still makes more sense than the dissent, which is 86 pages long and consists of XXXVI sections, and builds on the assumption that the judge and jury had no choice but to believe that Staggs really had no memory of the incident.  A constitutional right to foolish factfinders, I guess, or at least a foolish Hawai'i Supreme Court.

If only the landlord hadn't called the cops the first time.  Pepper could have finished this thing before it got out of hand.