- The Washington Times - Monday, February 28, 2011

Lying in a gas station parking lot and suffering a deadly gunshot wound to the stomach, one of the final things Anthony Covington did was to identify his attacker.

Covington told five Detroit police officers who responded to the scene early April 29, 2001, that “Rick” had shot him and told them where “Rick” lived.

Covington died hours later, but police used his statements to identify “Rick” as Richard Bryant. Bryant subsequently was convicted of murder based in part on the statements Covington made to police.

The Supreme Court ruled in a 6-2 decision Monday that using the statements at trial did not deny Bryant his constitutional right to confront and cross-examine his accuser.

In an opinion written by Justice Sonia Sotomayor, the court ruled that the officers’ testimonies did not amount to impermissible hearsay because police had questioned Covington as part of a response to an “ongoing emergency” posed by a gunman who had not been apprehended.

But Justice Antonin Scalia, in a blistering dissent, called the court’s ruling a “distortion” of the facts and the law, saying it left the constitutional right to face one’s accuser in “shambles.”

“For all I know, Bryant has received his just deserts,” Justice Scalia wrote. “But he surely has not received them pursuant to the procedures that our Constitution requires. And what has been taken away from him has been taken away from us all.”

Justice Scalia, known for a taking a robust view of the constitutional rights of criminal defendants, wrote that the majority’s notion that the primary purpose of questioning Covington was to protect “him, them, and others from a murderer somewhere on the loose is so transparently false that professing to believe it demeans this institution.”

“Instead of clarifying the law,” Justice Scalia wrote, “the court makes itself the obfuscator of last resort.”

Justice Ruth Bader Ginsburg also dissented.

Justice Elena Kagan took no part in the case because she had some involvement in it during her previous job as the Justice Department’s solicitor general. The solicitor general’s office filed a brief in the case arguing that Covington’s statements to police should be allowed into evidence.

The Supreme Court heard the case in October on an appeal from a Michigan Supreme Court ruling that overturned Bryant’s conviction on the basis that the statements from Covington used against him violated hearsay rules.

The Michigan court ruled that the statements were not admissible at trial because the primary purpose of the police in questioning Covington had been to gather evidence of a crime, not to respond to an ongoing emergency.

The high court took the opposite view and overturned the Michigan court.

Justice Sotomayor, a former prosecutor, wrote that the police’s primary purpose for questioning Covington was to address the ongoing public safety threat created by an unidentified gunman on the loose. She wrote that the informality of the questions police asked Covington helps to prove that.

“An emergency does not last only for the time between when the assailant pulls the trigger and the bullet hits the victim,” Justice Sotomayor wrote. “If an out-of-sight sniper pauses between shots, no one would say that the emergency ceases during the pause.”

According to the court records, Covington’s conversation with the police ended within 5 to 10 minutes when emergency medical services arrived. Covington was transported to a hospital and died within hours.

The records show police left the gas station after speaking with Covington, called for backup and went to Bryant’s house. They did not find Bryant, but the records said they did find blood and Covington’s wallet and identification outside the house.

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