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

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).

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

Bork Reconsidered, Part I

borkIn my third year of law school, the speaker at our law review banquet was a Boston Globe reporter who talked about a book he was writing on the Robert Bork confirmation battle.  I didn’t pay much attention to his speech, other than to complain loudly to all within hearing that a judge would have been a much more prestigious invitee than a reporter.  Ethan Bronner’s book, Battle for Justice, came out the following year and has since been recognized as a classic treatment of the modern Supreme Court nomination process.

The nomination of Judge Sonia Sotomayor provided me with a convenient excuse to reread Bronner’s treatment of the Bork confirmation debate and to consider whether the lessons learned during that experience have any application to the Obama Administration’s first Supreme Court nominee.  The first, and most obvious, conclusion is that extreme rhetoric about the nominee has become an accepted tactic by the opponents of the party in power.  Senator Edward Kennedy’s denunciation of “Robert Bork’s America” as a land where women are forced to seek back-alley abortions and lunch counters are re-segregated will rightly be remembered as the low point in a long political career.  Similarly, the former Speaker of the House, Newt Gingrich, has had his reputation irrevocably damaged by his casual labeling of Judge Sotomayor as a “racist.”  However, in both cases, the extreme rhetoric served the larger purpose of energizing the base against a nomination and simultaneously engaging the attention of the public at large by raising the stakes of the confirmation. 

Continue ReadingBork Reconsidered, Part I

Supreme Court Weighs in on Issue Preclusion in Criminal Cases

supreme_court_buildingThe 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”?

Continue ReadingSupreme Court Weighs in on Issue Preclusion in Criminal Cases
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