Yesterday, I had oral argument at the Arkansas Supreme Court in Van Kirk v. State. The only issue addressed was whether the confrontation clause applies at sentencing. The case can be summed up briefly. Van Kirk pled guilty to 3 counts of rape. The State and Van Kirk agreed to a jury sentencing. The State played a video of the victim’s interview with the investigator on the case. Van Kirk objected that the video violates his confrontation clause rights. The trial judge ruled that the rules of evidence do not apply to sentencing proceedings nor do they apply to victim impact testimony. Van Kirk was given 3 consecutive life sentences.
The most notable event occurred when Justice Corbin asked if there was harmless error and I retorted that the State did not make that argument in the brief and I would hope this Court would hold to its case law and not make arguments for either party. Justice Corbin and a few of the other Justices had a good chuckle at that one. Generally, the Justices seemed very interested and it certainly made for a hot bench. It was clear that several of the Justices had a preconceived notion of how to avoid addressing the issue and ruling on harmless error, waiver, failure to preserve, etc.
I’ll give a Justice by Justice recap of the argument.
Justice Baker – Asked one question, “Why didn’t Van Kirk just subpoena the victim?” It was a good one that certainly took me by surprise in rebuttal. I answered that he shouldn’t have to subpoena a State’s witness because he should be allowed to cross-examine her. However, I admitted all prejudice would be lost if he had subpoened her. As the saying goes, “There’s the speech I planned to give, the one I gave, and the one I think of driving home.” I certainly should have remarked that he hardly could have anticipated not being able to cross-examine the victim at sentencing since every trial court in Arkansas allows for it.
Justice Gunter – Asked only one memorable question to the State, “Doesn’t Mr. Short make a logical policy argument for the application of the confrontation clause?” I not only appreciated this question but the State found it to be a difficult one to answer. To be honest I think it was difficult to answer because the policy reasons do support its application.
Justice Corbin – Easily the most active member of the bench. He questioned me repeatedly on whether Van Kirk waived his right to confrontation (b/c Van Kirk said he would not object if the interview were read to the jury but would object to it being played as a video) and about whether it was harmless error. He equally found the State’s position that the confrontation clause only applies in cases where the jury is fact-finding at sentencing to increase the possible range of punishment to be meritless absent a policy reason to support it. Justice Corbin seemed to greatly appreciate policy reasons to support argument and not meaningless case citations. Also, I must note, Justice Corbin gratiously complimented the quality of the oral argument before the Court.
Chief Justice Hannah – Asked a moderate amount of questions. The highlight with Justice Hannah was his question of whether Van Kirk preserved his objection under the Arkansas Constitution. Justice Hannah surely wanted me to concede that he did not. At trial the objection was simply that it violated the confrontation clause. There was admittedly no specification of whether it was the state or federal confrontation clause nor were there two separate rulings. However, my argument was that it was unfair for the State to get to pick which one he was objecting under; instead, it should be preserved under each. It wasn’t my strongest answer but it simply wasn’t a concession I was willing to make and it was a decision I made well in advance.
Justice Brown – Seemed very concerned with federal law on the issue and wanted to find out if there was a case directly on point. Unfortunately, there is not. Justice Brown did ask where the line should be drawn and if I was only asking that the confrontation clause applies to testimony or to documents as well. I not only said that it applied to it all but that I was advocating that the confrontation clause should be applied to judge sentencing hearings as well. I wasn’t going to leave the Court with an arbitrarily drawn line. Instead, I argued that if it would violate the confrontation clause at trial then it should violate the confrontation clause at sentencing.
Justice Danielson – Very concerned about one issue: whether Van Kirk should have just objected to improper victim impact testimony. I wasn’t positive how it was improper nor was I certain why it was so important but I could tell it was very important to him. I told him that certainly a hearsay objection would have been the best objection but it wasn’t made. I said that we are fortunate that it wasn’t because now this Court has the opportunity to address the confrontation clause issue. I have a feeling he is going to find a way to find the confrontation clause inapplicable at sentencing because he believes there will always be a “better” objection out there.
Justice Henry – She was more active than times in the past. She pointed out that the right of confrontation is only given to “accused” and after a guilty plea one is no longer “accused.” My argument in response was that he is still being accused of some things he didn’t plead to, and more importantly, the other Sixth Amendment rights still apply.
All in all it wasn’t the greatest performance by myself but the Justices were as informed, active, and interested as one could possibly hope for. Their level of interest and probing questioning created a very intense and exciting oral argument. I could not thank them more for the respect they showed me and my argument throughout. I do not think they will rule in my favor because to do so would be to break new ground but I do feel like my client has fully had his day in court.