Brave Judges

Every once in a while, something will happen that will make me proud of our justice system and the members of the bar. This ruling is one of them.

Happy Holidays.

Sotomayor Approved By Senate Judiciary Committee

Today, the Senate Judiciary Committee voted to approve Justice Sonia Sotomayor as the first Hispanic Supreme Court justice over nearly solid Republican opposition, paving the way for a historic confirmation vote next week. The panel voted 13-6 in favor of Sotomayor, with just one Republican, Sen. Lindsey Graham of South Carolina, joining Democrats to support her. So much for bi-partisanship.

US Supreme Court Rules That Defendants Have A Right To Cross Examine Forensic Experts

The United Supreme Court ruled today that the Sixth Amendment's Confrontation Clause gives criminal defendants the right to cross examine the scientists who issue forensics reports that are entered into evidence. The breakdown of the 5-4 ruling in Melendez-Diaz v. Massachusetts (07-591) was interesting, with Justice Scalia's majority opinion joined by Justices Thomas, Ginsberg, Souter and Stevens. Alito, Roberts, Kennedy, and Breyer dissented.

The ruling will provide for an added layer of challenge by defense lawyers to such criminal evidence as illegal drugs, fingerprints, blood spatter patterns and blood chemistry, guns and bullets, and other forms of physical evidence subjected to lab analyses, at least when the resulting reports are prepared for use as evidence in criminal trials.

Now, if prosecutors want to offer a crime lab report as evidence, and the report was prepared with the aim that it would be used at trial, the prosecution has to bring along the author or scientist and make them available for questioining by the defense — if the defense insists on the right to confront the analyst. It is not up to defense lawyers to summon them to the stand, but they must assert the right to confront the analyst, the Court indicated. A copy of the opinion can be found at http://www.supremecourtus.gov/opinions/08pdf/07-591.pdf.

Supreme Court Rules That There Is No Constitutional Right To DNA Testing

Wow. In the case of District Attorney's Office for the Third Judicial District v. Osborne, our Supreme Court has held that prisoners do not have a constitutional right to DNA testing after their conviction, the Supreme Court ruled yesterday, even though the technology provides an "unparalleled ability both to exonerate the wrongly convicted and to identify the guilty." William Osborne was convicted in Alaska in 1993 for a crime that DNA testing could prove he didn't commit. Alaska has arbitrarily refused Osborne’s requests for DNA testing for years – even though the testing would be performed at no cost to the state, and the state now concedes that DNA testing could prove his innocence. On June 18, the court ruled 5-4 that his constitutional rights were not violated by the state’s denial of testing.

Peter Neufeld of the Innocence Project, who argued Osborne's case before the court, said the decision will mean that "more innocent people will languish in prison" because they lack the legal right to DNA testing. He's right.

LAPD Detective Charged 23 Years After Being Suggested As A Suspect In Slaying

After Sherri Rae Rasmussen was beaten and shot to death in 1986, her father urged Los Angeles police to investigate a fellow officer who had had confrontations with his daughter in the months leading up to her death, according to attorneys for the victim's family.

It was only this year, after LAPD cold-case detectives reopened the investigation and interviewed Rasmussen, that Det. Stephanie Lazarus became a suspect. The father's suspicions were bolstered Friday when police arrested Lazarus in connection with the slaying. On Monday, prosecutors charged Lazarus with capital murder, leaving open the possibility that they may seek the death penalty.

As part of an ongoing effort to solve thousands of old homicides, detectives revisited the case in February, testing blood or saliva samples from the crime scene thought to have been from the killer. DNA tests suggested that the attacker was a woman, contradicting the detectives' theory that she had been killed by a man. The cold-case detectives contacted Rasmussen and asked if he knew of any women with whom his daughter might have clashed. Rasmussen once again voiced his theory about Lazarus. This time detectives looked into it.

Why it took 23 years to charge this detective, I have no idea. The article is here.

California Supreme Court Upholds Gay Marraige Ban

The California Supreme Court today upheld Proposition 8, the voter-approved law restoring a ban on same-sex marriages in the state, but at the same time left intact the more than 18,000 marriages for gay and lesbian couples who wed last year before the ballot measure went into effect.

This creates an interesting connundrum in California. The Supreme Court has now established a two-tiered system of marriage across the state for same-sex couples. Under the ruling, Proposition 8 will continue to outlaw same-sex marriage in the future, but those gay and lesbian couples who got their marriage licenses before last November's election will remain on equal legal footing with heterosexual couples.

This looks like this issue is in no way over. Chief Justice Ronald George, who authored last year's ruling striking down the state's prior ban on gay marriage, wrote today's majority opinion upholding Prop 8, cautioning that the decision is not based on whether the measure "is wise or sound as a matter of policy,'' but instead "concerns the scope of the right of the people ... to change or alter the state Constitution itself.'' Stay tuned...

Crime Labs Seriously Deficient

Confirming something criminal defense attorneys have been saying for quite a while now, The National Academy of Sciences says with the single exception of DNA, no other crime scene evidence is dependable enough to allow police officers to testify in court, as they often do, that it's "a match" to a specific person.

The National Academy of Sciences was directed by Congress to assess the quality and needs of the nation's crime laboratories. Wednesday's report, "Strengthening Forensic Science in the United States: A Path Forward," is the work of a panel of 17 experts, including scientists and lawyers.

In short, the report says the nation's 389 publicly funded crime labs are underfunded, underequipped and so unconnected to scientific standards that testimony in court about their results is often vastly overstated. MSNBC wrote a good article on it.