Dispatches from the Creation Wars

Two years ago the Supreme Court ruled 5-4 that crime lab technicians who test evidence and issue reports used in a trial must be available for cross examination by defense attorneys, based on the Confrontation Clause of the 6th Amendment. I noted at the time that it was an unusual lineup — the majority was Scalia, Thomas, Souter, Stevens and Ginsburg, with Kennedy, Breyer, Alito and Roberts in dissent.

I also speculated, as did many others, that Justice Sotomayor might not be on board with that ruling if another case came up to challenge it. But I’m happy to report that this didn’t happen. Sotomayor voted to uphold that decision in a new case, Bullcoming v. New Mexico.


The New York Times reports on the ruling:

The case arose from the arrest of a New Mexico man, Donald Bullcoming, on suspicion of driving while intoxicated. At his trial, prosecutors presented a crime lab report showing that his blood-alcohol levels were elevated.

But prosecutors did not call the analyst who had prepared and signed the report, telling the court he was on unpaid leave for unspecified reasons. Instead, they presented a colleague who had neither observed nor reviewed the analysis.

Justice Ruth Bader Ginsburg, writing for the majority, said that was unacceptable. She said the court’s ruling followed not only from Melendez-Diaz but also from a 2004 decision, Crawford v. Washington, that breathed new life into the Sixth Amendment’s confrontation clause. The clause gives a criminal defendant the right “to be confronted with the witnesses against him.”

Two members of the court’s conservative wing, Justices Antonin Scalia and Clarence Thomas, joined the majority opinion, adhering to their view that the original meaning of the confrontation clause required the result. So did the court’s two newest members, Justices Sonia Sotomayor and Elena Kagan, dashing some prosecutors’ hopes that they would veer from their predecessors’ positions.

So Sotomayor and Kagan stick with the positions of their predecessors, Souter and Stevens, and the minority remains the same four. With Scalia and Thomas actually voting to uphold the rights of a criminal defendant. Anyone seen the weather report in hell lately?