Dispatches from the Creation Wars

The Supreme Court heard oral argument last week in Briscoe v Virginia, a legal challenge to a ruling that came down just last year, Melendez v Diaz, which established the right of defendants to cross examine forensic experts who perform tests entered into evidence against them. You can see the full transcript of the oral argument here (PDF).

The New York Times reports on the oral argument and on the nature of the case. You may be shocked to know (if you didn’t remember from my first reporting it) that the opinion in Melendez was written by Justice Scalia and was joined by Thomas, Stevens, Souter and Ginsburg; the dissent was written by Justice Kennedy on behalf of Roberts, Alito and Breyer. This is a very unusual lineup.

And Scalia was not happy that the court was revisiting the issue so soon:

Justice Antonin Scalia, who wrote the majority opinion in Melendez-Diaz, said there was only one reason to revisit the issue so quickly.

“Why is this case here except as an opportunity to upset Melendez-Diaz?” he asked. After a lawyer tried to answer what was a rhetorical question, Justice Scalia made his meaning plain: “I’m criticizing us for taking the case.”

The key here, obviously, is in Sotomayor’s vote. Souter was in the majority in this case, so if she went the other way the outcome will likely be different. The Times says Sotomayor seemed to be coming down on the same side as Souter:

But after Monday’s argument there was little reason to think that Justice Sotomayor was inclined to do anything particularly dramatic. She asked the first 10 questions, but she seemed focused on how to put the earlier decision into effect rather than whether it should be overruled.

“I trust the trial process,” she said, suggesting that the issues raised by Melendez-Diaz will largely be sorted out on the ground. Most prosecutors, she said, would rather put on live testimony from analysts because it tends to be more compelling than paper records.

This is a very important case, as was Melendez. With mounting evidence that forensic reports may well be riddled with errors and that some crime labs are so badly run that they are subverting justice for thousands of defendants, the right to cross examine those who prepare such reports is vital to making sure those reports are accurate rather than merely accepting them at face value.

And do I need to mention that the Obama administration is — yet again — on the opposite side of justice on this case? It’s getting rather tiresome having to repeat that in case after case.