The photographs of a scratched and bruised Nicole Holder released online this month resurrected a debate that had laid dormant around Charlotte for months:
How could Greg Hardy have walked?
He walked because District Attorney Andrew Murray dropped the assault charges against the former Carolina Panther in February. He did so after Holder disappeared.
Hardy was convicted by a District Court judge based on photos, police statements and testimony from Holder and others. When Hardy asked for a jury trial, all those elements of the prosecution’s case remained in place – except for Holder.
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So why didn’t the DA push ahead? He could still count on the testimony of partiers in Hardy’s condo that night who could describe Holder’s screams. He could show jurors the graphic photos – of Holder’s battered back and the bruising along her neck where she said Hardy choked her until she thought she would die. Why did prosecutors need Holder when they had so much else?
The answer lies with a Supreme Court ruling that ushered in a new era for domestic abuse trials.
Two decades ago, North Carolina and other states made it easier to arrest and prosecute abusers. Before, the outcome of each case depended heavily on the cooperation and testimony of the abused. Under the new laws, if victims dropped charges or disappeared, prosecutors could fill the void at trial with their earlier statements to police.
That changed a decade ago with the high court’s ruling in Crawford v. Washington. Basically, the judges ruled that the widespread reliance on hearsay statements violated the Sixth Amendment right of defendants to face and cross-examine their accusers. While the court left some exceptions to the “Confrontation Clause” in place, the ruling basically boiled down to this: No accuser, no case.
In dismissing the charges against Hardy, Murray said he did not believe he had “the legal basis” to proceed without Holder in the witness stand. This week he explained why.
In theory, the fact that Hardy’s lawyer had cross-examined Holder during the first trial would have allowed prosecutors to present her earlier testimony and police statements to the jury, even in her absence. Except, Murray said there were “major inconsistencies” between the two, increasing the likelihood that a judge would find them inadmissible without Holder on hand to explain. Missing Holder and her statements, Murray said he could not have used the photos of her injuries, without the accompanying evidence of how she got them.
Murray says he understands that the public wants someone held accountable in the Hardy case, “as I did.” But he says his hands were tied.
One thing to remember: Because the charges were dropped when they were, “double jeopardy” does not apply. In other words, the case against Hardy can still be refiled.