Federal Judiciary

Justice Scalia issues strong dissent in favor of criminal defendant

Today?s tale?a story of five officers conducting successive examinations of a dying man with the primary purpose, not of obtaining and preserving his testimony regarding his killer, but of protecting him, them, and others from a murderer somewhere on the loose?is so transparently false that professing to believe it demeans this institution. But reaching a patently incorrect conclusion on the facts is a relatively benign judicial mischief; it affects, after all, only the case at hand. In its vain attempt to make the incredible plausible, however?or perhaps as an intended second goal?today?s opinion distorts our Confrontation Clause jurisprudence and leaves it in shambles. Instead of clarifying the law, the Court makes itself the obfuscator of last resort. Because I continue to adhere to the Confrontation Clause that the Peoplea dopted, as described in Crawford v. Washington, 541
U. S. 36 (2004), I dissent.

The conclusion is strong too:

Judicial decisions, like the Constitution itself, are nothing more than ?parchment barriers,? 5 Writings of James Madison 269, 272 (G. Hunt ed. 1901). Both depend on a judicial culture that understands its constitutionally assigned role, has the courage to persist in that role when it means announcing unpopular decisions, and has the modesty to persist when it produces results that go against the judges? policy preferences. Today?s opinion falls far short of living up to that obligation?short on the facts, and short on the law. For all I know, Bryant has received his just deserts. But he surely has not received them pursuant to the procedures that our Constitution requires. And what has been taken away from him has been taken away from us all.

Justice Ginsburg also dissented in a short opinion.

Justice Sotomayor, a former prosecutor, wrote the majority opinion, which held:

[The witness] Covington?s identification and description of the shooter and the location of the shooting were not testimonial statements because they had a ?primary purpose . . . to enable police assistance to meet an on-going emergency.? Davis, 547 U. S., at 822. Therefore, their admission at Bryant?s trial did not violate the Confrontation Clause.

Yikes. I stick to what I have said before that Justice Scalia is the criminal defendant's best friend on this Court. I know that's not saying much, but it's true.

Full post as published by Southern District of Florida on February 28, 2011 (boomark / email).