Posted on January 25, 2010 by Walter Reaves

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.

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Posted on April 22, 2009 by Walter Reaves

What does Gant really mean?

I have been recovering from several trials, so I'm weighing in a little late (as in 1 day - you gotta love the blawgosphere). Others have already discussed what the decision in Arizona v. Gant really means, and its implications. I join those who suggest that you have to look at the specific facts, especially the fact the car was parked on private property. What I want to address are what I think are the broader implications of the decision.

The court has been engaged in a steady attack on the Fourth Amendment for several years. Every time they have taken up a Fourth Amendment case, they have used it to chip away at its protections. It was only a few months ago that they decided it didn't matter if the warrant you were being arrested on had been withdrawn, and not removed from the computer system. So to me the decision here was a welcome surprise; the Court took the opportunity to hold that the Fourth Amendment still means something. For those who have suggested its ultimate demise, this is a welcome sign.

This was far from a cut and dried case; in fact, the vast majority of courts that have have addressed the issue (i.e. searches of vehicles incident to arrest) held contrary to the court's ultimate decision. I don't think I was the only one that predicted the Court would take this opportunity to affirm that interpretation, and broaden the authority to search. I'm happy to be wrong!

The other thing I take from this case is the acknowledgement that police officers do not always act as they should. The court acknowledged it's prior holdings had been used to trample on individual rights, to the extent that anyone stopped for a minor traffic violation was subject to a full vehicle search. They also recognized that police are not above manipulating the situation to do what they want. In fact, Justice Scalla argued for a different rule because he suspects police will now manipulate the arrest to ensure they can still search the car. Perhaps this is a broader trend in society as a whole. Personally, I think it is because it is because efforts to bring to light those situations where officers abuse their power. Many people - including now the court - now believe those are no longer isolated incidents.

I don't expect great changes, and don't believe we we are going back to the era of the Warran court. However, I do think it is a positive development. Citizens still have rights, and the court has recognized that those rights sometimes trump the interests of law enforcement. It's a good start.

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