Never Mind - Supreme Court sends back confrontation case
Last year the Supreme Court decided Melendez-Diaz v. Massachussetts, which held the State had to use a live witness to admit lab reports. The prosecutors immediately starting screaming about how much of a burden that was going to be - they were actually going to have to bring in witnesses to testify. There was some evidence that the decision was having an impact on the trial of criminal cases.
So when the Supreme Court decided to hear Briscoe v. Virgina, most assumed the court wanted to back off the holding, or do away with it entirely. There certainly was no other reason to grant review, since the decision was so new there was nothing that needed to be clarified. The only thing that happened since Melendez-Diaz was decided was that a new justice had been added to the court. Like most defense lawyers I thought the decision was going to be short lived.
You don't need a majority vote to grant review in the Supreme Court. Since Melendez-Diaz was a 5-4 decision, there were already 4 votes to overturn it. If Justice Sotomayor came on board, that would be enough to flip the case the other way.
Briscoe was argued only a view weeks ago. During the argument, justice Scalia wondered why there was any need to review the case. The court answered the question today, holding there was no reason to review the case. They summarily vacted the decision of the Virginia court, and send it back to review in light of the decision in Melendez-Diaz.
So what happened? Did Justice Sotomayor indicate she wasn't voting to overturn such a recent decsion? Did the Court second guess itself and decide it shouldn't overturn a case for no reason other than a change in membership. I'm sure we will never know. What we do know is that least for now Melendez-Diaz is still good law, and the confrontation clause is still alive.
