Friday, September 30, 2011

A nice decision in a Williams-like case

Yesterday, the Court of Appeals of Maryland issued its decision in Derr v. State, 2011 WL 4483937, a case very similar to Williams. This is a very useful opinion, rejecting numerous theories offered by the State that we may see once again in Williams. The court rejects the theories that

-- the reports on which the in-court expert based her opinion were not statements because they were machine products;

-- they were not testimonial statements;

-- there was no Confrontation Clause violation because the reports were not admitted (see the discussion in footnote 14, endorsing an argument made in this blog in a post titled Initial thoughts on Williams);

-- there was no Confrontation Clause violation because the in-court expert offered her own independent opinion; and

-- this result poses a serious problem with respect to old cases.

Two judges dissented in part, relying heavily on the state supreme court decision in Williams.

Thursday, September 15, 2011

Top-side amicus briefs in Williams

I've been slow to post the amicus briefs favoring the petitioner in Williams v. Illinois, but here they are:
1. One by the Innocence Network, which you can see by clicking here.

2. One by the Public Defender Service for the District of Columbia and the National Association of Criminal Defense Lawyers, which you can read by clicking here. [I had the wrong link on this one before -- it should be corrected now.]

3. One by the California Public Defenders Association, the California DUI Lawyers Association, and the Mexican American Bar Association (of Los Angles County), which you can read by clicking here.

4. And one by me, which you can read by clicking here.

I haven't responded to recent comments on the blog regarding the case; I am my brief explains my position fully. There are a couple of passages that I would amend if I could, in which I refer to the "primary purpose" test and appear to assume that it governs a case like this. I believe a "reasonable anticipation" test is far preferable, and I am hoping that the "primary purpose" test will eventually recede, perhaps first by being confined to interrogations. The recent decision of the Michigan Supreme Court in People v. Fackelman,, which I expect to discuss in a post in the very near future, raises my hopes that this may turn out to be true.