Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
Lyle Denniston at ScotusBlog has a provocative post about the possibility that last week's important decision allowing defendants to cross examine forensic experts could already be at risk if Sotomayor is confirmed. And it's not terribly farfetched. The Supreme Court has already granted cert on a very similar case for next term, which means it could overturn its own ruling with the switch of a single vote. And there is some evidence to indicate that Sotomayor may be considerably more pro-prosecution and anti-defendants' rights than Souter.
The ruling, made under the Constitution's Confrontation Clause, requires the prosecution, if it plans to present a lab report as evidence in a criminal trial, to make the analyst who prepared it available for on-demand cross-examination by defense counsel. The decision came on a 5-4 vote.If it were possible to pick up a fifth vote, could the dissenters from that case then lead the Court to reconsider -- or least narrow considerably - the decision in Melendez-Diaz? Perhaps; one of the five in the majority was Justice David H. Souter, who retired on Monday. There is, it would seem, at least a chance that his designated successor, Judge Sotomayor, would not be prepared to embrace Melendez-Diaz, at least without some restriction on its scope; she has a record on criminal law issues that appears to be somewhat more prosecution-oriented than Justice Souter's has been.
This is speculation, of course, but there is little else to suggest why the Court announced Monday that, next Term, it will review the case of Briscoe, et al., v. Virginia (07-11191). Here is the question raised in the Briscoe petition, filed in May of last year by University of Michigan law professor Richard D. Friedman:
"If a state allows a prosecutor to introduce a certificate of a forensic laboratory analysis, without presenting the testimony of the analyst who prepared the certificate, does the state avoid violating the Confrontation Clause of the Sixth Amendment by providing that the accused has a right to call the analyst as his own witness?"
If one reads the majority opinion in Melendez-Diaz, the Court appears to have decided that issue already: it is not enough, the Court said last week, to allow the accused to call the lab technician as a defense witness; the prosecution must have the technician available for cross-examination, if the accused wishes to invoke that right under the Sixth Amendment.
The Court clearly had been holding the Briscoe case until it decided Melendez-Diaz, and then, according to the electronic docket, scheduled it for consideration at the final Conference Monday, in the wake of Melendez-Diaz. If normal procedures had been followed, Justice Antonin Scalia, the author of the Melendez-Diaz, would have prepared a memo on what to do with Briscoe -- ordinarily, recommending that it simply be denied, or that it be vacated and sent back for reconsideration. Indeed, the reconsideration alternative was ordered by the Court in five other cases that the Court had been holding for Melendez-Diaz.
Instead, the Court -- or at least four Justices -- voted to grant review in Briscoe, and set the Court on the path to full review next Term. It would be no surprise whatsoever if the state of Virginia -- or some of the amici in support -- would use Justice Anthony M. Kennedy's rhetoric from the dissent last Thursday to assail Melendez-Diaz, and to suggest that, if it is not to be overruled outright, it should be made easier to get around -- as in requiring the accused's lawyer to summon the technician to the stand as his own witness.
John Tabin makes a similar point at the American Spectator. If Sotomayor turns out to be relatively conservative on criminal justice issues, as I suggested a few weeks ago, last week's 5-4 decision could easily reverse itself into a 5-4 decision the other say.
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