Criminal Law & Process – Page 138 – Marquette University Law School Faculty Blog

MULS 2009 Works-In-Progress Workshop (June Session)

Post author:Irene Calboli
Post published:June 5, 2009
Post category:Corporate Law Criminal Law & Process Education & Law Health Care Human Rights Intellectual Property Law International Law & Diplomacy Judges & Judicial Process Legal Education Legal Practice Legal Scholarship Wisconsin Law & Legal System

champ To open my month as faculty blogger, I would first like to thank my colleague Michael O’Hear, whose dedication to, and work for, the Marquette Faculty Blog since its creation last summer have been incredible. This is very much one of the major reasons why this project has been so successful and brought so many wonderful contributions to so many aspects of the law so far.

Another fundamental area where the Marquette Law School faculty is also showing important contributions to the law is the production of scholarship that results in law review articles, book chapters, textbooks, etc. We often present and discuss these works when they are still in progress in conferences around the country with our colleagues in our areas at other schools. Still, to facilitate even further these very important discussions, the MULS Academic Programs Committee, led by Professor Chad Oldfather, has organized two sessions of an in-house Works-in-Progress Workshop for June and July.

The June session was a great success. A group of eight of us met this past Wednesday and presented our works-in-progress, from very rough to more completed drafts of scholarship, to our colleagues participating in the program.

Confrontation Avoidance? Part I: A Good Article to Read While Waiting

Post author:Daniel D. Blinka
Post published:June 5, 2009
Post category:Criminal Law & Process Evidence Federal Law & Legal System U.S. Supreme Court

Like nearly every criminal lawyer, I eagerly await – and wait and wait – for the Supreme Court’s long overdue decision in Melendez-Diaz v. Massachusetts (07-591), the only case outstanding from the Court’s November sitting (per SCOTUSBLOG). The case addresses the prosecution’s use of crime laboratory reports against the accused without testimony by the person who performed the analysis and wrote the report. We need not get bogged down in the constitutional niceties at present, if only because its delayed appearance renders the case’s auguries especially hard to read.

So while we wait for a case that is certain to affect a staggering percentage of criminal cases, both pending appeal and awaiting trial, I highly recommend J. Thomas Sullivan’s timely article, Crawford, Retroactivity, and the Importance of Being Earnest, 92 Marq. L. Rev. 231 (Winter 2008). To grossly oversimplify things, in 2004 the Supreme Court held its nose and unceremoniously dropped 25 years of case law (and countless law review articles) into law’s dumpster. The discarded doctrine loosely regulated the prosecution’s use of hearsay under the Sixth Amendment’s confrontation clause; its flaccid “reliability” approach had green lighted nearly all forms of hearsay imaginable (and then some).

Supreme Court Weighs in on Issue Preclusion in Criminal Cases

Post author:Michael M. O'Hear
Post published:June 1, 2009
Post category:Criminal Law & Process U.S. Supreme Court

supreme_court_building The Supreme Court managed to reach a unanimous decision today in a death penalty case, Bobby v. Bies. Back in 1996, while reviewing Bies’ sentence, the Ohio Supreme Court noted that the defendant’s “mild to borderline mental retardation merit[s] some weight in mitigation,” but affirmed his sentence anyway. Six years later, of course, the United States Supreme Court ruled in Atkins v. Virginia that the Eighth Amendment bars execution of the mentally retarded. The Ohio courts sensibly responded to Atkins by ordering a hearing to determine whether Bies was indeed retarded for Eighth Amendment purposes. But Bies preempted the hearing by persuading a federal court that the issue had already been decided in his favor by the Ohio Supreme Court and that relitigation was precluded by the Double Jeopardy Clause. After this decision was affirmed by the Sixth Circuit, the Supreme Court today reversed, holding there was no Double Jeopardy bar to the proposed Atkins hearing.

A couple of reactions. First, as a unanimous decision in such a politically charged area as the death penalty, Bies is a nice reminder — amidst the high emotions and free-flowing hyperbole surrounding the Sotomayor nomination — that justices from across the ideological spectrum can and (at least at times) do set aside policy preferences to reach consensus right answers.

Second, although I’m pretty well convinced the Court got the right answer with respect to Bies, the opinion swept more broadly than it had to, perhaps unnecessarily limiting the Double Jeopardy issue preclusion doctrine. Is this one of those instances of “easy cases make bad law”?