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Supreme Court Creates Detour Around the Sixth Amendment


The good news from today’s blockbuster-free day at the Supreme Court is that despite my concerns Justices Kagan and Sotomayor strongly upheld the requirement that the state follow the requirements of the Sixth Amendment and make experts who generate forensic evidence available. The bad news is that Justice Thomas filed a risible, hairsplitting concurrence in the judgement that 1)provided a fifth vote for rejecting the Sixth Amendment claim, and 2)allows states to evade the requirement in the future so long as the language they use to discuss third-party forensic studies is sufficiently “informal.” As the liberal blogosphere’s preeminent Thomas quasi-apologist, I should emphasize that the second term in a row in which Thomas has found a feeble excuse for not applying Sixth Amendment rights he’s theoretically committed to, while Scalia has been steadfast in both cases.

In addition to what I discuss in my piece, a couple more points from Kagan’s excellent dissent are worth excerpting:

Under our Confrontation Clause precedents, this is an open-and-shut case. The State of Illinois prosecuted Sandy Williams for rape based in part on a DNA profile created in Cellmark’s laboratory. Yet the State did not give Williams a chance to question the analyst who produced that evidence. Instead, the prosecution introduced the results of Cellmark’s testing through an expert witness who had no idea how they were generated. That approach—no less (perhaps more) than the confrontation-free methods of presenting forensic evidence we have formerly banned—deprived Williams of his Sixth Amendment right to “confron[t] . . . the witnesses against him.”


In the pages that follow, I call Justice Alito’s opinion “the plurality,” because that is the conventional term for it. But in all except its disposition, his opinion is a dissent: Five Justices specifically reject every aspect of its reasoning and every paragraph of its explication. Justice Thomas, for his part, contends that the Cellmark report is nontestimonial on a different rationale. But no other Justice joins his opinion or subscribes to the test he offers.

That creates five votes to approve the admission of the Cellmark report, but not a single good explanation. The plurality’s first rationale endorses a prosecutorial dodge; its second relies on distinguishing indistinguishable forensic reports. Justice Thomas’s concurrence, though positing an altogether different approach, suffers in the end from similar flaws. I would choose another path—to adhere to the simple rule established in our decisions, for the good reasons we have previously given. Because defendants like Williams have a constitutional right to confront the witnesses against them, I respectfully dissent from the Court’s fractured decision.

Thanks to Thomas, the Court today failed in the most basic tasks of an appellate court; it diluted the protections offered by the Bill of Rights, and did so in a way that makes the applicable law less clear for no coherent reason.

…see also Adam Bonin, who provides even more Kagany goodness.

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