Though Martha Stewart's case is not a "run-of-the-mill assault prosecution" like Michael Crawford's, it may not be what Justice Scalia had in mind in Crawford when he referred to "politically charged cases like Raleigh's--great state trials where the impartiality of even those at the highest levels of the judiciary might not be so clear." In any event, a large part of Stewart's appeal is based on Crawford. As I understand it, the situation is this: The Government introduced against Stewart statements made by Bacanovic, her stock-broker, to the SEC. Under the Government's theory, Bacanovic and Stewart were conspirators, and the statements were made in support of the conspiracy, because Bacanovic was trying to cover it up. But the statements were certainly made in a testionial setting, and the challenged ones were offered to prove the truth of what they asserted. The case thus appears to be one of the "rare instances" to which Deputy Solicitor General Michael Dreeben referred in the argument of Crawford before the Supreme Court "in which the co-conspirators are continuing the conspiracy and speaking to law enforcement" and "those statements were coming in for the truth of the matter asserted"; in that setting, Dreeben said, the statements would be testimonial.
Stewart filed her reply brief yesterday. Walter Dellinger is her lead counsel on appeal. Oral argument, and the Second Circuit's decision, should be interesting.
5 comments:
Well, evidently I misunderstood that it was agreed thatthe statements were admitted for their truth. If it is determined that they weren't, then there is no Crawford issue. But if it is determined that they were, then the issue on which Dreeben conceded comes into play.
I'm going to have to reserve for later posts a response to the broader issues raised by Paul's comments; I think his standard would go a great way to eviscerating the confrontation right. Just a few comments here.
I'm not sure how significant it will be if the court rules that the statements here weren't testimonial (of course, there is not telling what the court's dicta would be; in a decision earlier this week, Mungo, the court already pronounced some narrowing dicta). This is, as the defense contends, a rather rare case, in which the statements were made knowingly to investigating officers, and (by hypthesis) it is true both that they were made pursuant to a conspiracy and that they are offered for their truth at trial. I think the best argument for the prosecution is that even if the statements were testimonial the witness was not testifying against Stewart when they were made. To my mind, that argument poses a close issue. I would be inclined to say that Baconovic was clearly testifying when he made the statement, and that the use of the statement against Stewart at trial renders him a witness against her for confrontaiton purposes; perhaps this is the viewpoint that led Dreeben to concede the point at the argument of Crawford. But one could reject this argument without doing broad damage to the confrontation right.
Speaking of the oral argument, it is true that Jeff FIsher spoke in terms of the functional equivalent of in-court testimony. But Justice Breyer noted that this was vague and asked Jeff if he thought that the definition offered in the amicus brief that I submitted, based on the reasonable anticipation of the declarant, was a good one ,and Jeff said that it was. Essentially that definition, as articulated in the NACDL-ACLU amicus brief, was one of the three recited by the Crawford opinion as possibilities.
Well, evidently I misunderstood that it was agreed thatthe statements were admitted for their truth. If it is determined that they weren't, then there is no Crawford issue. But if it is determined that they were, then the issue on which Dreeben conceded comes into play.
I'm going to have to reserve for later posts a response to the broader issues raised by Paul's comments; I think his standard would go a great way to eviscerating the confrontation right. Just a few comments here.
I'm not sure how significant it will be if the court rules that the statements here weren't testimonial (of course, there is not telling what the court's dicta would be; in a decision earlier this week, Mungo, the court already pronounced some narrowing dicta). This is, as the defense contends, a rather rare case, in which the statements were made knowingly to investigating officers, and (by hypthesis) it is true both that they were made pursuant to a conspiracy and that they are offered for their truth at trial. I think the best argument for the prosecution is that even if the statements were testimonial the witness was not testifying against Stewart when they were made. To my mind, that argument poses a close issue. I would be inclined to say that Baconovic was clearly testifying when he made the statement, and that the use of the statement against Stewart at trial renders him a witness against her for confrontaiton purposes; perhaps this is the viewpoint that led Dreeben to concede the point at the argument of Crawford. But one could reject this argument without doing broad damage to the confrontation right.
Speaking of the oral argument, it is true that Jeff FIsher spoke in terms of the functional equivalent of in-court testimony. But Justice Breyer noted that this was vague and asked Jeff if he thought that the definition offered in the amicus brief that I submitted, based on the reasonable anticipation of the declarant, was a good one ,and Jeff said that it was. Essentially that definition, as articulated in the NACDL-ACLU amicus brief, was one of the three recited by the Crawford opinion as possibilities.
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