Legal Commentary

Cross-Examining Frank Easterbrook

By Orin Kerr

Something to be avoided in the best of circumstances, and a particularly bad idea here. Judge Easterbrook testified yesterday as a witness, as did Judges Posner and Bauer, in the threat prosecution of Hal Turner. Turner had written a blog post saying that Easterbrook, Posner, and Bauer should be killed for their panel decision holding that the Second Amendment does not apply to the states ? the case that the Supreme Court reviewed yesterday. Law.com has the story, via ATL, on the attempted cross-examination of Judge Easterbook by defense counsel Michael Orozco:

The turning point came when Orozco challenged Easterbrook, 61, on the merits of the decision in National Rifle Association v. Chicago, the opinion that spurred Turner?s alleged threats and which was written by Easterbrook.

After suggesting that the U.S. Supreme Court had heard the National Rifle Association?s appeal of the case Tuesday morning, Orozco asked the judge, ?If it?s overturned, doesn?t that mean Hal Turner is correct?? At that point, laughter was heard through the courtroom.

Judge Easterbrook said no, for two reasons. First, the central issue ? whether the Second Amendment applies to the states ? is one for the Supreme Court, the judge said. Therefore, a reversal would in fact confirm that the case had been rightly decided.

?Secondly,? Easterbrook, now piqued, said, ?What Mr. Turner?s blog post says is that anybody who decides a case incorrectly should be assassinated. That is not the way the system is supposed to work.? When Orozco complained to the presiding judge ? visiting Judge Donald Walter, from the U.S. District Court for the Western District of Louisiana ? about the extended answer, Walter replied, ?You?re the one that asked the ?why? question.?

Orozco then followed up with another argument regarding the merits of National Rifle Association v. Chicago, citing the supremacy clause. ?No, you simply are not grasping the case,? Easterbrook said, a line he repeated throughout his cross-examination. The judge then went on to give an extended history of the Fourteenth Amendment and its relationship to the Second Amendment, and U.S. Supreme Court precedent regarding both amendments dating back to 1873.

I wonder what the jury was thinking.

Full post as published by The Volokh Conspiracy on March 03, 2010 (boomark / email).