Tuesday, January 12, 2010

Rothstein racked up 20 Million AMEX points


In other news, Melendez-Diaz v. Massachusetts -- the confrontation case from last term that said lab reports were subject to Crawford and the Confrontation Clause -- may be on the chopping block. From Tony Mauro at Law.com:

Justice Sonia Sotomayor, who was not on the Court for the Melendez-Diaz case, sent out mixed signals on whether she would provide the vote needed for reversal. (Her predecessor David Souter was in the majority.) As has become her custom, Sotomayor actively questioned both sides during Monday's argument in Briscoe v. Virginia.
Meanwhile Justice Antonin Scalia, who authored last year's ruling, fought vociferously to save it during the hourlong hearing, and he strongly implied that the four dissenters in Melendez-Diaz had voted to review Briscoe just to overturn the precedent. "Why is this case here except as an opportunity to upset Melendez-Diaz?" Scalia asked, later adding, "I'm criticizing us for taking the case."
In the case before the Court, Mark Briscoe and Sheldon Cypress were prosecuted in Virginia courts on drug charges based in part on "certificates of analysis" from the state laboratory attesting to the amount and type of drugs found during their arrests. They both invoked the confrontation clause of the Sixth Amendment, which gives defendants the right to be confronted with the witnesses against them. They argued that the drug evidence needed to be presented in person so it could be subjected to cross-examination. The Virginia Supreme Court upheld use of the written certificates because state law allows defendants to call the forensic analysts as witnesses, and Briscoe and Cypress had not done so.
The Court in Melendez-Diaz indicated that an approach like Virginia's, shifting the burden of calling the witness to the defendant, would not satisfy the Sixth Amendment.
Upholding the Virginia approach, said the defendants' lawyer Richard Friedman, would "severely impair the confrontation right and threaten a fundamental transformation in the way Anglo-American trials have been conducted for hundreds of years."
a brief (pdf) filed by state attorneys general asking that Melendez-Diaz be overturned was on the mind of several justices. The brief said the decision has already had an "overwhelming negative impact" on drug prosecutions by requiring short-staffed and underfunded state labs to spend too much time in courtrooms.
When Friedman said that, in fact, "the expense is not inordinate," Justice Samuel Alito Jr. snapped, "How can you say that? We have an amicus brief from 26 states and the District of Columbia arguing exactly the contrary."
Virginia Solicitor General Stephen McCullough, joined by Leondra Kruger, an assistant to the U.S. solicitor general, argued that a system in which the defendant has the burden of calling the forensic witness satisfies the Constitution.
McCullough said that, since the Melendez-Diaz ruling was handed down, Virginia has seen "extensive gamesmanship" by criminal defense lawyers using the requirement of in-person testimony to their advantage.
Sitting at the defendants' counsel table with Friedman was Stanford Law School professor Jeffrey Fisher. Either Fisher or Friedman has argued the defense side in a series of cases that, since 2004, have revived the confrontation clause as a tool for defendants.

UPDATE -- at the argument, there was some talk about the word orthogonal:

University of Michigan law professor Richard Friedman was trying to define the scope of the confrontation clause in oral arguments yesterday when he was called on to define another term: orthogonal.
Friedman used the word when he indicated that a justice’s question was not pertinent to the present case, according to
The BLT: The Blog of Legal Times and the Washington Post. "I think that issue is entirely orthogonal to the issue here," he said. The word is a math term meaning things are perpendicular or at right angles, but Friedman used it to mean that two propositions are irrelevant, the BLT says.
That got the attention of Chief Justice John G. Roberts Jr. "I'm sorry. Entirely what?" he said.
"Orthogonal,” Friedman replied. “Right angle. Unrelated. Irrelevant."
Friedman tried to continue, but Justice Antonin Scalia jumped in. "What was that adjective? I liked that," he said.
"I think we should use that in the opinion," Scalia later added. “Or the dissent,” said Roberts.


Anonymous said...

How obtuse!

word of the day guyz said...

David! Twice in one week!!!

In mathematics, two vectors are orthogonal if they are perpendicular, i.e., they form a right angle. The word comes from the Greek ὀρθός (orthos), meaning "straight", and γωνία (gonia), meaning "angle".

Pronunciation: \ȯr-ˈthä-gə-nəl\
Function: adjective
Etymology: Middle French, from Latin orthogonius, from Greek orthogōnios, from orth- + gōnia angle — more at -gon
Date: 1612
1 : intersecting or lying at right angles b : having perpendicular slopes or tangents at the point of intersection.
2 : having a sum of products or an integral that is zero or sometimes one under specified conditions: as a of real-valued functions :with which the product equals the identity matrix.
3 of a linear transformation : having a matrix that is orthogonal : preserving length and distance