Having received a positive response to an earlier post, I propose to summon the shade of Robert Banks Jenkinson, Second Earl of Liverpool, to comment on a recent Oregon criminal case that struck my “1812 Brain” as a violation of the rights of the accused under the Fifth Amendment to the United States Constitution. This case would never have made it to the United States Supreme Court. For one thing, it resulted in acquittal, albeit after two lengthy jury trials, the first of which ended in a hung jury. Secondly, the woman was represented by a public defender on state contract, with limited resources and under significant pressure to dispose of the case as cheaply as possible.
Had the case made it to the Supreme Court, it is doubtful that any consideration of what the Bill of Rights meant to its framers would have entered into the decision. Since Lord Liverpool was well versed in English constitutional law as practiced in the 1790’s, and was involved in cases in which admissibility of evidence was an issue, his perspective is worth considering.
In March of 2012, Angelica Swartout, a young unmarried woman, was brought to trial in Eugene, Oregon on a charge of aggravated murder. She allegedly gave birth to a live infant in a room at the motel where she worked alone as night clerk, smothered the child, and tossed the body in the motel dumpster. On October 18, 2010 she told her sisters that she had given birth to a stillborn child at the local hospital. When they checked the hospital and discovered no record of the birth they called the police, who questioned Angelica. She first told them that she had given birth to a stillborn infant in the motel room, but on repeated questioning said the child was born alive and that she had smothered it. They then arrested her and charged her with murder, upon which she changed her story again, claiming that the pregnancy ended on a much earlier date and that she had faked it for several months afterwards.
A search through the motel refuse failed to turn up a body. Physicians who examined Angelica were divided on whether she had recently given birth to an infant mature enough to have lived. There were no traces of blood in the motel room though another employee thought she remembered seeing some about the time the birth allegedly occurred. Angelica had not sought medical aid for the pregnancy. The sole piece of evidence for murder was the confession, which she later retracted.
At the trial, the prosecution played a videotape of the confession. This is a piece of technology we have these days, which reproduces the appearance, actions and voice of a person, exactly as they occurred. Videotaped testimony is allowed in criminal trials when the witness cannot be present – for example, if the witness is hospitalized. Doesn’t admitting such a faithful facsimile of a retracted confession into court proceedings, against the express wishes of the accused, amount to “compelling a criminal defendant to be witness against himself”?
Possibly relevant to this discussion is something called the Miranda ruling, after a 1966 Supreme Court decision, requiring police to inform persons actually in custody of their right to remain silent before interrogating them. It does not apply in this case, since Angelica Swartout was technically not under arrest when she was questioned.
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Lord Liverpool: I would say, yes, that introducing a confession, however obtained and transcribed, into the courtroom, without the express permission of the accused, constitutes compelling a criminal defendant to testify against himself. Even if subsequently accepted by the defendant, this would not have been admissible evidence in a British criminal courtroom, since it was not obtained under oath. Introducing it into the courtroom would have invalidated the whole trial and forced the court to release the defendant, even if there was other reliable evidence of guilt. I would also point out that none of the four distinct and mutually exclusive stories Miss Swartout told was obtained under oath, and that while there was a certain amount of evidence that the story she told in an attempt to exonerate herself was false, there was no evidence, other than the inadmissible confession, that she was guilty as charged.
There is another aspect of this case with which I have some direct experience – confusion among jurors as to the distinction between evidence discrediting the account a defendant gives in an attempt to exonerate himself, and positive evidence that the person is guilty as charged. This was central to the conviction and execution of Elizabeth Fenning in 1815, for attempting to poison her employer and family with arsenic. The prosecution presented convincing evidence that she alone could have introduced arsenic into their food, but overlooked the absence of a motive and the likelihood that this was a barely literate servant girl’s clumsy mistake, about which she lied to avoid losing her place and ended up paying the weighty toll for attempted murder. Unfortunately for Miss Fenning, the cabinet members most disposed toward leniency, and best able to frame a legal argument that avoided the appearance of caving in to an attack on the British judicial system from radical extremists, were on the Continent deciding the fate of Europe at the time.
Was Miss Swartout perhaps guilty of some lesser offense? In 1802 Parliament enacted a law making it a crime punishable by up to a year in prison to conceal the birth of a bastard child, to discourage young unmarried women from giving birth alone and possibly disposing of living infants. Is there anything analogous in the United States in 2013?
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Martha: There is no exact parallel – certainly no sanction against bastardy, which is becoming normative. However, a pregnant woman who uses certain illegal drugs can be charged with endangering her infant and imprisoned or forced into residential drug treatment, unless she opts for an abortion, which is completely legal and very common. Angela Swartout had a history of illegal drug use and this may well have influenced her not seeking medical assistance when she discovered she was pregnant, or, if she actually gave birth to a very premature stillborn infant, not doing so in a hospital environment where drug testing would have occurred.
Image Credit
“Lane County Courthouse” © Judicial Department, State of Oregon
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