"“I WOULD HAVE EXPECTED HER TO HAVE VOTED AGAINST SUBJECTING SCIENTIFIC EXPERTS TO CROSS-EXAMINATION,” SAID CRAIG M. BRADLEY, A LAW PROFESSOR AT INDIANA UNIVERSITY, REFERRING TO A 5-TO-4 DECISION FROM THE COURT IN JUNE. THE DECISION, WITH JUSTICE SOUTER IN THE MAJORITY, RULED THAT CRIME LABORATORY REPORTS MAY NOT BE USED AGAINST CRIMINAL DEFENDANTS AT TRIAL UNLESS THE ANALYSTS RESPONSIBLE FOR CREATING THEM GIVE TESTIMONY AND SUBJECT THEMSELVES TO CROSS-EXAMINATION.
THE COURT HAS AGREED TO HEAR A FOLLOW-UP CASE, AND THE NEW JUSTICE WILL HAVE TO CONSIDER WHETHER TO NARROW THE SCOPE OF THE DECISION FROM JUNE, MELENDEZ-DIAZ V. MASSACHUSETTS."
REPORTER ADAM LIPTAK; THE NEW YORK TIMES;
PHOTO: JUSTICE ANTONIN SCALIA;
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Background: It's not every day that an issue involving the work of forensic scientists in the criminal courts comes under scrutiny in the Supreme Court of the United States; Nor is it every day that the Supreme Court issues a searing indictment of the forensic science system in the country and faces head-on the abuses such as manipulation, prosecutorial pressure, outright fraud, bias, error and incompetence. Canadians are well aware of this through the many miscarriages of justice caused in Ontario by Dr. Charles Smith. Americans, who haven't received this message yet, will learn it from the blunt words of Justice Antonin Scalia for the majority. The Supreme Court ruled that a state forensic analyst’s laboratory report prepared for use in a criminal prosecution is “testimonial” evidence and therefore subject to "confrontation" through cross-examination of the analyst - but not before Justice Scalia told Americans how vulnerable they are to wrongful convictions as a result of American forensic science as it is practiced today. They need all of the protection of the law that they can get.
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"Now comes the hard part," the story by reporter Adam Liptak, published on August 6, 2009, under the heading "Sotomayer faces heavy workload of complex cases" begins;
"With the Senate’s approval of Judge Sonia Sotomayor’s nomination to the Supreme Court on Thursday, the new justice will soon take on one of the most demanding jobs in the land," the story continues;
"Just over a month from now, Justice Sotomayor will hear her first case, one that may transform how elections are financed, at a special summer session of the court. A few weeks later, she will join her eight new colleagues to decide which of the hundreds of appeals that have piled up over the summer the court should hear.
The volume and difficulty of the work, and the task of fitting into a storied institution populated by strong and idiosyncratic personalities, has unnerved even judges with distinguished records on lower courts, fancy credentials and ample self-confidence.
“I was frightened to death for the first three years,” Justice Stephen G. Breyer, who joined the court in 1994, said in a 2006 interview. Justice David H. Souter once described coming to the court in 1990 as like “walking through a tidal wave.”
The new justice’s presence will unsettle and reshuffle the court, sometimes literally. When she takes the seat reserved for the junior justice — the one on the spectators’ far right side — four other justices will move to new places on the bench. When there is a knock at the door during the justices’ private conferences, it will be Justice Sotomayor’s job to answer it.
In addition to the blockbuster election-law case, the new term is frontloaded with important First Amendment, business, criminal and patent cases. Justice Sotomayor’s early votes and opinions, along with alliances she forges, will provide answers to at least some of the questions she avoided in confirmation hearings.
But Supreme Court specialists said they do not expect her to take a fundamentally different approach from Justice Souter, whom she is succeeding, in most kinds of cases. They also cautioned that a justice’s first few years are often a poor indicator of a long-term philosophy.
“Few justices write broadly or stake out new terrain in their first terms,” said Richard H. Pildes, a law professor at New York University who served as a law clerk to Justice Thurgood Marshall.
“The Supreme Court is an intimate group of equals who will live together for years,” Professor Pildes added. “Most newcomers tread gently as they come to terms with the dynamics of the group and a daunting array of new issues, including questions lower court judges never face, such as how bound to be by prior Supreme Court decisions. The cases are harder, the ramifications of decisions far more consequential.”
For Justice Sotomayor, the new job will start with hearing the election-law case Citizens United v. Federal Election Commission. It concerns whether the government may limit the showing of a negative documentary about Hillary Rodham Clinton under the campaign finance laws, and it attracted only limited attention when it was first argued in March.
In an unusual move in June, though, the court set the case down for re-argument on Sept. 9, asking the parties to address the question of whether it should overrule a foundational decision about the regulation of corporate speech and part of a decision upholding the McCain-Feingold campaign finance law.
Erwin Chemerinsky, the dean of the law school at the University of California, Irvine, said Citizens United is “one of the most important First Amendment cases in years.”
“It has,” Mr. Chemerinsky added, “the potential for dramatically changing all federal, state and local elections if the court holds that corporations have a First Amendment right to contribute money to candidates.”
The docket is also studded with business cases, and the decisions in them will provide hints about how the court will treat disputes arising from economic legislation pushed through Congress by the Obama administration.
“The Supreme Court,” said Joseph A. Grundfest, a law professor at Stanford, “will likely issue important decisions defining the permissible level of punitive damages, the validity of business method patents, whether and when parallel conduct among competitors violates the antitrust laws, and statutes of limitations in securities fraud action. But who the heck knows how Justice Sotomayor will vote in any of these cases?”
A former prosecutor, district and appellate court judge, she has a more fully developed record on criminal issues. Her views are in some ways more conservative than those of Justice Souter, meaning that this is an area where her vote may make a difference.
“I would have expected her to have voted against subjecting scientific experts to cross-examination,” said Craig M. Bradley, a law professor at Indiana University, referring to a 5-to-4 decision from the court in June. The decision, with Justice Souter in the majority, ruled that crime laboratory reports may not be used against criminal defendants at trial unless the analysts responsible for creating them give testimony and subject themselves to cross-examination.
The court has agreed to hear a follow-up case, and the new justice will have to consider whether to narrow the scope of the decision from June, Melendez-Diaz v. Massachusetts.
A pair of cases concerning whether the Constitution allows juvenile offenders to be sentenced to life without parole for crimes in which no one was killed will also illuminate Justice Sotomayor’s views on harsh punishments. They may also answer a question not fully resolved at her confirmation hearings, that of whether she will look to the decision of foreign courts in considering the issue, as the court did in barring the execution of juvenile offenders in 2005.
The lower courts in the two new cases, both from Florida, had no difficulty ruling against the inmates who brought them. The courts said they were bound by Supreme Court precedent. But the Supreme Court itself is free to alter or reinterpret its precedent.
Justice William J. Brennan Jr., who served for more than 30 years and who wielded his charm and intellect to forge sometimes unlikely liberal majorities, said there was no way to get ready for such a task.
“I say categorically that no prior experience, including prior judicial experience, prepares one for the work of the Supreme Court,” Justice Brennan wrote in 1973. “The initial confrontation on the United States Supreme Court with the astounding differences in function and character of role, and the necessity for learning entirely new criteria for decisions, can be a traumatic experience for the neophyte.”"
The article can be found at:
http://www.nytimes.com/2009/08/07/us/politics/07scotus.html?_r=1
Harold Levy...hlevy15@gmail.com;
