Bullcoming Arrives, But Where’s the Path?

The Supreme Court continues to refurnish the modern courtroom with eighteenth-century antiques. Without the slightest glint of irony, or even humor, the Court assessed the admissibility of twenty-first century scientific evidence using legal doctrine crafted on parchment with quill pens in an age when mirrors were placed to direct sunlight into the face of the accused at trial. (Why the mirrors at a time when the accused could not testify in his defense anyway? That’s another story.)    

In its June 23, 2011 decision in Bullcoming v. New Mexico http://www.supremecourt.gov/opinions/10pdf/09-10876.pdf the Supreme Court once again addressed the admissibility against the accused of lab reports prepared by analysts who do not testify at trial. The report was offered through a “surrogate witness.” Bullcoming was charged with drunken driving. A blood test pegged his BAC at 0.21, “an inordinately high level,” as the Court helpfully observed. At trial, however, the State did not call as a witness “Caylor,” the lab analyst who measured the BAC. Caylor, it seems, was enjoying an “unpaid leave for a reason not revealed” – always an intriguing “uh oh” when assessing credibility. Instead, the State called another lab “scientist” who had not observed Caylor’s testing of Bullcoming’s sample but who could talk about lab procedures and the reliability of the report in general. The Court tells us that a “startled defense counsel” objected. (N.B. How the Court knew she was “startled” is unclear, but it is abundantly clear that the confrontation right requires only a timely objection by counsel, startled or unstartled.)

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Child Support, Contempt of Court, and (Maybe) Lawyers

This week, the US Supreme Court handed down a decision in Turner v. Rogers, a case involving a non-custodial parent who was jailed for nonpayment of child support.  Failure to pay child support is a violation of a court order to pay, and is thus handled as a civil contempt of court case.  A finding of civil contempt in these cases is predicated on nonpayment when the defendant is financially capable of paying, and a defendant can always avoid jail time by either paying the amount owed, or by showing that he is incapable of paying.  Turner had been ordered to pay $51.73 per week for the support of his child and had been sentenced to jail time on several previous occasions for failure to pay.  He was not represented by counsel at the hearing where he received a 12-month sentence, which he served in its entirety.  At the hearing in question, the judge sentenced Turner without making an express finding that Turner was financially capable of paying the support owed.  On appeal, Turner argued that the US Constitution entitled him to counsel at his hearing because, although the contempt proceeding is civil in nature, the potential for incarceration triggered a Due Process Clause-based right to be represented.  Although Supreme Court cases have consistently found that the Sixth Amendment right to counsel in criminal cases does not apply to civil cases (not even civil contempt cases), there was a split in the circuits over whether a defendant has a right to counsel under the Due Process clause in civil contempt proceedings enforcing child support orders.

Here, the Court held that “where as here the custodial parent (entitled to receive the support) is unrepresented by counsel, the State need not provide counsel to the noncustodial parent (required to provide the support).”  However, the Court added the caveat that “the State must nonetheless have in place alternative procedures that assure a fundamentally fair determination of the critical incarceration-related question, whether the supporting parent is able to comply with the support order.”  Since Turner did not receive clear notice that his ability to pay – or not – was crucial in deciding whether he would be jailed, and since the court did not make an express finding that Turner was able to pay, his incarceration was found to have violated the Due Process Clause, and his case was remanded.  The dissent agreed that there should be no right to counsel in civil contempt cases for nonpayment of child support, but would not have vacated the state court judgment on the grounds that there were not sufficient procedural safeguards to protect Turner.

My colleagues who specialize in constitutional law, criminal law and sentencing will doubtless have other insights about this case.  Here, I would like to offer just a few observations from a family law perspective.

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Ail to the Chief

The dark underside of life tenure for Supreme Court Justices is the difficulty of removing an obviously ailing Justice even after his or her capacity to serve has seriously deteriorated.  However, despite the absence of effective formal removal mechanisms, Chief Justices have sometimes been successful in nudging declining Associate Justices off the bench, as in the cases of Justices Holmes and Douglas.  But what is to be done if it is the Chief who can no longer serve?

That is the question explored in a new paper on SSRN by Chad Oldfather and Todd Peppers.  Although other scholars have grappled with the general problem of disability on the Supreme Court, Oldfather and Peppers identify two reasons why the problem is especially acute when it comes to the Chief.  First, it is much more common for Chief Justices than Associate Justices to serve until the time of death or a major disability.  Only four of the past sixteen Chief Justices have retired while in good health.  (Oldfather and Peppers use the decline and passing of the late William Rehnquist as a case study of the more typical pattern for Chief Justices.)  Second, the Chief is not merely one of nine adjudicators on the Court, but also serves as the administrative head of the entire federal judiciary.  For that reason, the incapacitation of the Chief Justice may do much more damage than the incapacitation of an Associate.

Oldfather and Peppers do not advocate for a particular solution, but they do urge consideration of various potential reforms, such as the imposition of a term limit on the Chief Justice.

Entitled “Till Death Do Us Part: Chief Justices and the United States Supreme Court,” their paper will be published in the Marquette Law Review.

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