Waco Criminal Law Blog : Waco Criminal Lawyer & Attorney : Walter Reaves Law Firm : DWI, DUI, Drug Crimes, Appeals : Waco, McLennan County, Texas

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.

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Recently there has been a lot of discussion concerning President Obama’s pick for the Supreme Court. Not surprisingly, there are those who support the nomination, and those who don’t. Both sides try to frame their argument in terms of what a good Supreme Court Justice should be. Those arguments have descended to the point of ridiculousness.

The focus has become on the proper influence a judge’s background should have. Those opposing the nomination argue that it should have no effect; they view the comment that she sees herself as a Latina judge as offensive.

It is hard to come up with a more ridiculous argument. Everything about any person, from what you put on in the morning to what you eat for breakfast is determined by your upbringing and experience. We are all a product of our life experiences. Hopefully we have learned things along the way, but you cannot divorce yourself from who you are and more than you can change your physical make up.

The proper focus should be on what sort of person we want to be a Supreme Court judge. In the past it has been almost entirely federal court judges. Basically, it has been a promotion from one court to another. While there is some logic to appointing someone with judicial experience, there is also a drawback. More than any other court, the Supreme Court has an impact on every person in America. It specifically has an impact on those involved in the court system, especially the trial courts. Unfortunately, very few Supreme Court judges have ever served as trial court judges. To me, that is significant because they are telling those judges what to do, without any understanding of its impact. There simply is no similarity between a Court of Appeals judge and a trial court judge in terms of what they do on a daily basis. Courts of Appeals review cases on paper, while trial judges see cases as they are happening.

I’m all for diversity, and believe it will be a good thing to bring a different perspective. However, I question how different the perspective of Judge Sotomayor is really going to be. While she may come from a different background, her work experience is no different than the other judges. She has basically been a federal court of appeals judge; as such she has no more insight into the daily workings of the justice system than your average citizen.

Personally, I would like to see at least one judges who has worked “in the trenches”, whether it be a trial judge, or a trial lawyer. They see up close real people, and real problems, and see the effects those problems have on them. No one who has watched a mother sob uncontrollably as her son is led away to prison, or seen the effects of crime on a victim as they testify can say that has not effected them. They see good police officers, and they see those who they wouldn't trust to tell them the correct time. They know there is always more than one side to a story. They are in touch - as much as an outsider can be - with life on the streets. Unfortunately, I don’t think we will ever have a Supreme Court justice who can bring us that perspective.

Despite the rhetoric, I seriously doubt that Judge Sotemayor's nomination is in jeopardy. I hope she will bring a diferent insight to the court. I for one hope she is influenced by her background and upbringing. I don't see how that can be a bad thing.

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For most lawyers, the ultimate achievement is to argue before the United States Supreme Court. Lawyers spend hundreds of hours working on the briefs, and preparing for the argument. You expect the justices to pepper you with questions, and try to anticipate what they are going to ask. Most lawyers will even set up mock arguments to find out the best way to handle questions. Few lawyers expect to actually get into their argument, and try to advance the arguments through their answers. Not having appeared before the Court, I assumed all the Justices got involved. As a result, I was surprised to learn that Justice Clarence Thomas is the exception. According to a recent article, he has gone two years and more than 142 cases without asking a question. According to Justice Thomas, he believes he can do the job without asking a question.

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