The Supreme Court heard argument yesterday in Briscoe v. Virginia. You can read the transcript by clicking here. I will hold substantive comments -- including about the exchange on the word "orthogonal" -- until after the decision.
Here are a couple of corrections, though, as to case names. On page 8, line 21, the case I referred to was Learn, not Warren.
On page 50, lines10-11 the cases to which Ms. Kruger referred were Inadi and White v. Illinois.
9 comments:
Scalia doesn't seem too happy about the Court taking the case. What's the chance it's dismissed as improvidently granted, or remanded on state law ground? Perhaps more importantly, is there a possibility that the Court (with Sotomayor replacing Souter) will revisit Melendez, or even Crawford?
Perhaps more importantly, is there a possibility that the Court (with Sotomayor replacing Souter) will revisit Melendez, or even Crawford?
Justice Scalia was staking out a position that the only reason the Court took the case was the original four dissenters hoping that the Sotomayor for Souter substitution would enable them to revisit and overrule Melendez-Diaz. I don't really see how Virginia wins without nullifying M-D.
They need not necessarily overrule Melendez-Diaz in order to severely weaken its effect. If the 4 dissenters get Sotomoyor on board, they may rule that the Va statute suffices by allowing/requiring the defendant to call the analyst as a "cold witness" without the prosecution first putting him on and having him endorse the certificate. This is what justices do when they don't like a decision--they chip at it rather than overrule it. In this case that is the obvious answer Alito et al would like and it would let Sotomayor feel like the important swing vote.
Leaving aside whether the 6th Amendedment requires the prosecution to call the technician, does having the defendant subpoena the witness really "chip-away" at Melendez to a great extent? If the technician is MIA, the report doesn't come in, and presumably the defendant wins. Regardless of who calls the tech., the defendant still has an incentive to force them to show up.
@Anonymous. That's a real open question. I think the biggest issue is just a practical one. If the defense has to call the witness, that just one more burden for the attorney. It's not such a big deal in isolation but when you are dealing with overworked public defenders, what the odds they will want to do it.
I've really struggled with this case because my inclination is like yours. Finding for VA without overturning MD is not *such* a big deal. But I think the people who will be worst off under that situation are the one that honestly can least afford it. And that bugs me.
I think Scalia was just shooting off at the mouth when he critiqued the grant due to the statutory change. There are still cases pending that came into being under the old statutory scheme -- the Court of Appeals of Virginia just handed down a terrible decision in one -- Farmer v. Commonwealth.
The Court wouldn't grant cert. to fix a small number of wrongly decided cases. Given that the Va. statute has been amended, there must be something else at play other than the question of whether State or the Defendant must call the lab technician. Right?
Oh, certainly there are broader issues. I think it is widely known that the Virginia General Assembly enacted the notice and demand scheme as a stopgap solution and will likely be revisiting the issue based on what happens. There are also other states caught up on this mess.
Congratulations on the per curiam!
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