Matthew T. Mangino: Will woman’s testimony be used to prosecute her alleged killer?
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Judy Malinowski may testify at the trial of her alleged killer. Her murder resulted from an attack outside a gas station near Columbus, Ohio, in 2015.
Police said they received multiple reports that a woman was on fire in a parking lot. Witnesses say Malinowski and her boyfriend, Michael Slager, were arguing. Slager appeared to douse Malinowski with gasoline and then lit a cigarette causing Malinowski to burst into flames.
Upon arrival, police found Malinowski unable to speak, suffering from severe burns. Her body was covered in powdered chemical residue from a fire extinguisher.
Malinowski did not immediately succumb to her injuries. Instead, she survived about 700 days with third and fourth degree burns over 80 percent of her body. She endured 52 surgeries and nearly two years in a hospital. She died in January 2017 leaving behind two young daughters.
She left something else behind as well. She left behind her testimony, under oath and subject to cross-examination to be used at Slager’s trial for murder.
Although Malinowski was preparing to testify by video during Slager’s trial for assault and arson, Slager short-circuited that plan when he entered a no-contest plea to felonious assault and aggravated arson. A judge sentenced Slager to a maximum 11 years in prison.
Malinowski wasn’t through and neither was Franklin County prosecutor Ron O’Brien. O’Brien sought permission to perpetuate Malinowski’s testimony. Her condition was not improving and her death was imminent.
The Sixth Amendment to the United State Constitution requires that an individual charged with a crime have the opportunity to confront the witnesses against him.
Confrontation means the opportunity to cross-examine witnesses. In our adversarial system cases are decided by juries or judges who have to make decisions about the credibility or believability of witnesses. The best way to make that evaluation is to test the memory and veracity of witnesses.
In Malinowski’s case there was no charge of murder because she was still alive. However, when she died the state could go back and charge Slager with murder even though he already pleaded guilty to a crime involving the same conduct.
The Double Jeopardy clause of the Fifth Amendment only protects defendants from twice being tired for the same offense. Although the conduct that brought about her injuries was the same conduct that brought about her death, the elements of each crime are different.
In 2004, the United States Supreme Court decided Crawford v. Washington which has had a significant impact on the admissibility of victim statements in court proceedings when the victim is unavailable or unwilling to testify. In Crawford, the suspect was arrested and tried for assault and attempted murder of his wife.
The victim refused to testify. The prosecution attempted to use statements that she made to officers after her husband was arrested. The Supreme Court held that the Confrontation Clause bars the government from introducing statements at trial against a person without calling the maker of the statement, and providing the defendant the opportunity to cross examine the that person.
Here is where Slager’s case is different. Slager’s attorney had the opportunity to cross-examine Malinowski while Slager watched the deposition on close-circuit television. Slager had the opportunity to confront his accuser.
An Ohio judge will soon decide if Malinowski’s testimony can be used at the trial of the man accused of murdering her. The stakes are high. Prosecutor O’Brien is seeking the death penalty. Although Malinowski’s testimony meets the standards of the Confrontation Clause, there were no charges pending against Slager when the deposition was taken.
Regardless of the outcome, Malinowski's legacy of courage is clear. Her tenacity to stand-up to her killer is unprecedented. The Ohio legislature has acknowledged as much, her ordeal is the impetus for Ohio's "Judy's Law,” which increases penalties for those who maim and disfigure their victims.
— Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.