Tuesday, March 1, 2011

The Supreme Court Giveth, and the Supreme Court Taketh Away

Really, what did you expect?
You thought they meant it in Crawford v. Washington when they said that the Confrontation Clause requires confrontation?  You thought that just maybe the Sixth Amendment, which is pretty much as clear as a bell on the point once you realize that "witnesses" means anyone whose statements might get used in court, means what it says.
In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.
Oh, grasshopper.  You have so much to learn.
Crawford was a wonderful decision.  Along with Melendez-Diaz v. Massachusetts (which is itself hanging by a judicial thread) it gave real life to those words.  The point was simple.  It doesn't matter how seemingly reliable a statement is.  If it's to be part of the government's case, the defendant has an absolute right to challenge it by cross-examination.  Here's how Scalia put it in Crawford.
Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty. This is not what the Sixth Amendment prescribes.
Of course, our prosecutors and our judges too often think just that way.  I've alluded before to the federal judge who turned down my request for an arson investigator because the state's arson investigator determined there was arson.  What need for another who'll simply agree?  The possibility that the state's expert might have been honestly (or dishonestly) wrong, or that there was even any point to trying to determine whether the state's expert was right simply didn't exist.
The test, you see, is precisely what Crawford rejected:
Are out-of-court statements reliable?
The following people's statements are always reliable:
  • Children who accuse adults of sexually molesting them.
  • Adults who say that children claimed to have been sexually molested.
  • All people who accuse others of wrongdoing.
  • Jailhouse snitches.
  • Cops.
  • Investigators.
  • All people who work for the government and are not criminal defendants.
  • All scientists except those hired by criminal defendants.
OK, I'm not really being fair.  There are exceptions.  I should have said that statements by those folks "are almost always reliable." And I should have added that reliablility is deemed indistinguishable from accuracy.  Which is really the problem.
Start by assuming that the Confrontation Clause is about testing reliability.
Can we trust that the report of what was said is accurate?  Can we believe that the speaker wanted to tell the truth?
Please, ignore for the moment the fatuousness of that trust and belief.  Just pretend.  If those things, then there's really no point in confrontation or cross-examination except to satisfy some technical requirement of the Constitution.  But the Constitution is a messy document with all those technical rules.  You know, government of limited powers.  Equal Protection of the laws.  Congress shall make no law.  The rights of the criminally accused.
Really, what matters isn't the Constitution's rules.  It's the Constitution's purpose.  And the purpose of the Confrontation Clause is to ensure that juries get to hear testimony deemed reliable, not to ensure that the defendant gets to challenge that testimony.
Or so, at least much of the time, the majority of SCOTUS thinks.
Hence, Michigan v. Bryant, as disingenuous a decision as the Supreme Court has produced in recent years.  And cowardly, did I mention cowardly?
Because when you're going to overrule precedent that's all of six years old, you probably ought to own up to it.  But in overruling Crawford (or at least a very significant portion of it), Bryant does no such thing.  
Here's the very short version of the facts.  Police are called to a gas station where Anthony Covington is lying on the ground by his car, a gunshot wound to the abdomen, and seemingly (here's a surprise) "in great pain."  Police questioned him for 5-10 minutes.  Covington told them that "Rick" shot him.  Covington died within an hour or so after EMTs arrived and took him to the hospital.  Richard Bryant was arrested, tried, convicted.  Covington's statements were admitted at the trial.
In an opinion by Sotomayor (for herself, Roberts, Kennedy, Breyer, and Alito), the Court explains that Covington's statements weren't testimonial because there was this ongoing emergency the police were concerned about and that was the "primary purpose" of the questioning.  And that's to be determined by - here's Sotomayor.
In making the primary purpose determination,standard rules of hearsay, designed to identify some statements as reliable, will be relevant. Where no such pri-mary purpose exists, the admissibility of a statement is the concern of state and federal rules of evidence, not the Confrontation Clause.
Got that.  It's about the primary purpose of the questioning (the Court decided that a couple of years ago) and the way you figure out the purpose is by determining reliability.  Which is precisely (not approximately, precisely) one of the things Crawford said is improper.
And the statements, too, are not about actually prosecuting the guy.  After all, they come from a victim, who surely isn't just concerned with that.
Victims are also likely to have mixed motives when they make statements to the police. During an ongoing emergency, a victim is most likely to want the threat to her and to other potential victims to end, but that does not necessarily mean that the victim wants or envisions prosecution of the assailant. A victim may want the attacker to be incapacitated temporarily or rehabilitated. Alternatively, a severely injured victim may have no purpose at all in answering questions posed; the answers may be simply reflexive. The victim’s injuries could be so debilitating as to prevent her from thinking sufficiently clearly to understand whether her statements are for the purpose of addressing an ongoing emergency or for the purpose of future prosecution.12 Taking into account a victim’s injuries does not transform this objective inquiry into a subjective one. The inquiry is still objective because it focuses on the understanding and purpose of a reasonable victim in the circumstances of the actual victim—circumstances that prominently include the victim’s physical state.
And, of course (though she doesn't mention it because it's simply not possible in a world where alleged victims and other government witnesses are always both truthful and accurate), that really covers it.
And yet, she says, we're following Crawford.  The linguistic legerdemain (a phrase I don't think I've had occasion to use since my days as a graduate student in English lit) is simple.  
We (that is, those who signed off on the opinion) agree that testimonial statements are covered by the Confrontation Clause.  That's what Crawford said.  We're just explaining another way of identifying statements that aren't testimonial.  
That Crawford  specifically rejected that other way?  
Pish tosh.  Don't bother us with details.
Except they ain't just .
Greenfield lays out the history and the problem clearly.  Sarah gets apoplectic.  And Orin Kerr just quotes chunks of Scalia's dissent.  Kerr sees that as a first step.  In fact, it's all that's necessary.  Here's the beginning and end.
Today’s tale—a story of five officers conducting suc-cessive 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 demeansthis institution. But reaching a patently incorrect conclu-sion on the facts is a relatively benign judicial mischief; itaffects, after all, only the case at hand. In its vain attempt to make the incredible plausible, however—or perhaps asan intended second goal—today’s opinion distorts our Confrontation Clause jurisprudence and leaves it in ashambles. 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 Peopleadopted, as described in Crawford v. Washington, 541
U. S. 36 (2004), I dissent.
. . .
For all I know, Bryant has received his just deserts. But he surely has not received them pursuant to the proce-dures that our Constitution requires. And what has been taken away from him has been taken away from us all.
None of this should really be a surprise.  Frankly, the only odd thing is that Ginsburg dissented, too (though her position was that Covington's statements were dying declarations and, therefore, probably admissible but since that wasn't argued the court couldn't go there).
Thomas agreed with the result, but then he's always said that only statements formally made under oath are testimonial, and Covington wasn't under oath.  And Kagan sat it out.
For the rest?  The only question is whether they really believe the shit Sotomayor spouted.
My guess?  They do.  They want to, but they honestly do.
I'm not suggesting that they can't and won't lie when it suits them.  I'm saying that they're so divorced from the real world, where real people live and act from real motives, that they believe their own foolishness.
As Sarah repeated a couple of times in her apoplectic rant.  What fool would think that one likely reason a  gunshot victim would identify his assailant to the cops is so that the shooter could get rehabilitated?
That dimwit can only exist on a high court.

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