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THE NATION

'Original intent' matter of opinions

As the Supreme Court demonstrates, even history is debatable.

July 13, 2008|David G. Savage | Times Staff Writer

"The modern Anglo-American doctrine of punitive damages dates back at least to 1763," Justice David H. Souter wrote in Exxon Shipping Co. vs. Baker. He noted that an ancient forerunner of the notion of punitive damages is found in a case under the Code of Hammurabi from Babylon, which established the principle that the penalty for stealing a goat was 10 times its value.

Even a Los Angeles murder case was decided largely on English history.

Dwayne Giles shot and killed his girlfriend Brenda Avie in 2002. He claimed self-defense, but a police officer testified to the jury that three weeks before the shooting, Avie said Giles had threatened to kill her.

In Giles vs. California, Scalia said the police officer's testimony violated the defendant's right to "confront" the witnesses against him. Avie was dead and could not testify, so the judge should not have allowed her words to be read to the jury, Scalia said, unless prosecutors could show that Giles killed her in order to silence her testimony.

According to Scalia, this "doctrine has roots in the 1666 decision in Lord Morley's case," which set the rule that statements of a missing witness may not be used unless the witness was "kept away" by the "means or procurement" of the defendant. Scalia drew the lesson that statements to the police may not be used at a trial unless the defendant intentionally "procured" the absence of the witness.

In dissent, Justice Stephen G. Breyer said it was bizarre to rely on snippets of 17th century English cases to decide the Constitution today. "Each year, domestic violence results in more than 1,500 deaths" in this country, he said, and there is no good reason for giving a defendant "a windfall" for killing the witness against him.

Scalia was appointed to the court by Reagan in 1986, a year after Meese's speech, and he advocated a historical approach. Justice Clarence Thomas, who joined the court in 1991, followed suit. Since the arrival of Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. in the last couple of years, Scalia has more often found himself in the position of speaking for the court's majority rather than firing off opinions in dissent.

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david.savage@latimes.com

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