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Argument recap: Scalia for the defense


Two days after winding up, quite angrily, on the losing end of a major criminal law ruling, Justice Antonin Scalia moved energetically on Wednesday to try to make sure it does not happen again — at least not in the next case up on the same issue.  The Court’s most determined protector of criminal suspects’ rights to confront their accusers, Scalia spent a good deal of time trying to bolster the argument of a defense lawyer for a New Mexico man convicted of drunk driving based, in part, on a crime lab report.  As it turned out, the lawyer did not seem to need all that much help.

The case of Bullcoming v. New Mexico (09-10876), heard Wednesday, is not a direct sequel to the Court’s decision, handed down Monday in Michigan v. Bryant (09-150), but each of the two cases provides an important test of where the current Court is going with its interpretation of the Sixth Amendment’s Confrontation Clause. For the past five years, the Court has been moving, more or less steadily, to expand the right of confrontation.

Bryant, however, created — over Scalia’s strenuous dissent — what may turn out to be a sizable loophole in the right of confrontation, by widening an exception to the Clause’s requirement that an out-of-court statement cannot be used if the source of the statement does not show up to be challenged at trial.  A statement making an accusation, the Court ruled, may be used as evidence if police got it while trying to deal with an emergency, even if the source of that statement had died before the trial.

Bullcoming gives Scalia — and defense lawyers — a chance to shore up confrontation, if the Court were to hold that a crime lab report cannot be used unless prosecutors bring to court for cross-examination the lab technician who actually did the test and signed the report.   Stanford law professor Jeffrey L. Fisher, representing convicted drunk driver Donald Bullcoming, found in his argument — early and throughout — that the Justices were mainly interested only in the details of how such a requirement would work.  The notion that the lab expert most acquainted with the report could be replaced by a substitute witness seemed to draw no noticeable support from the bench.

Still, each time Fisher gave an answer to a question that suggested to Scalia that a concession might be in the making, the Justice pounced, seeking to solidify Fisher’s basic point that the Confrontation Clause demands the presence at trial of the person whose statement is to be used against the accused — the “default rule” of actual confrontation.  Indeed, when Justice Ruth Bader Ginsburg opened with a question about letting a lab expert testify by video rather than in person, and Fisher resisted but left an opening for some future case, Scalia moved in rapidly to scotch the idea.

If a cop were out on a beat, and not available for trial, Scalia asked, could he appear via video to back up an accusing statement he had made?  That has never been the rule, Fisher said, cautiously.  So, Scalia said, why should a lab technician be any different?

When Chief Justice John G. Roberts, Jr., and Justice Anthony M. Kennedy explored variations on who from a lab had to be called to back up a lab report being used as evidence, Scalia was paying close attention, and stepped in to keep the argument on what he clearly deemed was an important path of consistency.

Justice Samuel A. Alito, Jr., sort of took over the argument, and began pressing Fisher to further justify the summoning of a particular witness to vouch for what lab machines might have determined about a piece of evidence.   Scalia let Fisher handle most of those exchanges without assistance, and moved in only when Justice Ginsburg wondered what value a defense lawyer could get out of cross-examining a lab technician who, on the stand, could not remember what he did while processing the evidence.   Scalia intervened to supply an answer that might be helpful to the defense’s cause in that situation.

Justice Scalia, though, rose to the peak of his defense of confrontation when the state of New Mexico’s lawyer, state Attorney General Gary K. King, came to the lectern with an argument keyed in significant part to Monday’s ruling in Michigan v. Bryant. King sought to compare a lab report — a “public record,” he called it — with the kind of out-of-court statement the Court had said in Bryant would be allowed in evidence.  A lab technician, like police investigating an emergency, King said, is not engaged in the effort to build evidence for prosecution.

Oh, Scalia suggested, does a lab technician prepare a crime lab report “just for fun?”  He went on to suggest that what crime labs do is to prepare evidence for use at criminal trials, and so technicians were no different from police officers gathering evidence for use in prosecution.

King got some help from Justice Alito, who suggested that, since the lab workers were civil service workers, they probably would be insulated from pressure by prosecutors to produce reports to help in the prosecution.  After King agreed, Scalia wondered why the analyst who was not called in Bullcoming’s case but who had prepared the blood-alcohol report used against Bullcoming, did not appear.  Was he fired? Scalia asked.

King replied that the analyst was on leave without pay, but Scalia pressed on, wondering why Bullcoming’s lawyers should not have had the opportunity to find out whether that analyst was incompetent, and whether prosecutors had deliberately set up a situation to assure he did not appear.   There is, Scalia said darkly, “the possibility of skulduggery.”

Later, when the state attorney general suggested that, since Bryant would allow a statement because it was not the product of police interrogation seeking evidence, a lab report should also be allowed because it was not the product of interrogation.  Scalia argued, in response, that the Confrontation Clause did not deal only with interrogations (a point he had made aggressively in dissent in Bryant).   Somewhat weakly, King answered that “Bryant is new to all of us.”

As King’s argument went on, and other Justices seemed to be expressing concern that labs might be overburdened if too many of their technicians were having to appear at trials to justify their reports, Scalia said such fears were “a bogeyman.”    The Justice did not relent until King had finished and sat down.

Recommended Citation: Lyle Denniston, Argument recap: Scalia for the defense, SCOTUSblog (Mar. 2, 2011, 4:40 PM),