In Alabama Case, Gorsuch and Sotomayor Champion a Scalia Cause
"I still have two relatively new colleagues, one very new colleague, Brett Kavanaugh and Neil Gorsuch. And we've agreed in quite a few cases, we've disagreed in a bunch," Sotomayor said in a recent interview.
November 19, 2018 at 02:47 PM
5 minute read
The original version of this story was published on National Law Journal
The late Justice Antonin Scalia led a revolution in how to interpret the constitutional right to confront your accuser. Justice Neil Gorsuch on Monday seemed ready to carry the flag.
As a judge on the U.S. Court of Appeals for the Tenth Circuit, Gorsuch, who took Scalia's seat after his death in 2016, had not written on the scope of the Sixth Amendment's confrontation clause. But in a dissent Monday in an Alabama drunk-driving case, Gorsuch offered a hint of where he may be headed. Gorsuch, joined by Justice Sonia Sotomayor, had urged the court to take up the case.
“Because cross-examination may be 'the greatest legal engine ever invented for the discovery of truth,' the Constitution promises every person accused of a crime the right to confront his accusers. That promise was broken here,” wrote Gorsuch, citing a 1970 Supreme Court decision.
Scalia launched a rigorous interpretation of the confrontation right in his 2004 majority opinion in Crawford v. Washington. That decision held that out-of-court statements that are “testimonial” can't be admitted into evidence unless the accused has an opportunity to confront the declarant.
In the Alabama case—Stuart v. Alabama from the Alabama Court of Criminal Appeals—the state introduced in evidence the results of Vanessa Stuart's blood-alcohol test taken hours after her arrest. She was charged with negligent homicide and driving under the influence of alcohol. The state did not bring to the witness stand the analyst who performed the test, but a different analyst who, using the results of the test, tried to estimate what Stuart's blood alcohol level was when she was driving.
“Through these steps, the state effectively denied Ms. Stuart the chance to confront the witness who supplied a foundational piece of evidence in her conviction,” Gorsuch wrote. “The engine of cross-examination was left unengaged, and the Sixth Amendment was violated.”
Gorsuch noted that “to be fair,” the court's opinions in this area “have sown confusion in the courts across the country.” Alabama argued that it didn't offer the test for the truth of what it said, only to provide the analyst-witness a basis for estimating Stuart's blood alcohol level when she was driving. The state contended it was free to do so under a 2012 fractured Supreme Court decision. The state also claimed the confrontation right did not attach because the test report was not “testimonial.”
But Gorsuch wasn't buying the state's arguments.
First, he wrote, “Why would any prosecutor bother to offer in evidence the nontestifying analyst's report in this case except to prove the truth of its assertions about the level of alcohol in Ms. Stuart's blood at the time of the test? The whole point of the exercise was to establish—because of the report's truth—a basis for the jury to credit the testifying expert's estimation of Ms. Stuart's blood-alcohol level hours earlier.”
And as for the nontestimonial argument, he said, “But however you slice it, a routine post-arrest forensic report like the one here must qualify as testimonial. There's no question that Ms. Stuart was in custody when the government conducted its forensic test or that the report was prepared for the primary purpose of securing her conviction.”
Gorsuch and Sotomayor would have granted review to offer lower courts “more clarity” in this area of the law.
Scalia used to say that he was one of the most pro-criminal defendant justices because of his interpretations of the confrontation clause and the jury's fact-finding role. And although Gorsuch's dissent seems to signal a similar concern with the confrontation clause, he is not generally on the side of criminal defendants and instead, often finds himself more comfortably aligned with Justices Clarence Thomas and Samuel Alito Jr.
What to make of Sotomayor's joining of Gorsuch's dissent? Sotomayor recently offered some thinking about her new colleagues.
“Conservative, liberal, those are political terms,” Sotomayor said in an interview with CNN's David Axelrod. “Do I suspect that I might be dissenting a bit more? Possibly, but I still have two relatively new colleagues, one very new colleague, Brett Kavanaugh and Neil Gorsuch. And we've agreed in quite a few cases, we've disagreed in a bunch. But you know, let's see.”
Read more:
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
NOT FOR REPRINT
© 2024 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.
You Might Like
View AllFowler White Burnett Opens Jacksonville Office Focused on Transportation Practice
3 minute readOn The Move: Polsinelli Adds Health Care Litigator in Nashville, Ex-SEC Enforcer Joins BCLP in Atlanta
6 minute readWoman's Suit Alleging Negligence to Sex Trafficking by Hotel Tossed by Federal Judge
Trending Stories
- 1Gibson Dunn Sued By Crypto Client After Lateral Hire Causes Conflict of Interest
- 2Trump's Solicitor General Expected to 'Flip' Prelogar's Positions at Supreme Court
- 3Pharmacy Lawyers See Promise in NY Regulator's Curbs on PBM Industry
- 4Outgoing USPTO Director Kathi Vidal: ‘We All Want the Country to Be in a Better Place’
- 5Supreme Court Will Review Constitutionality Of FCC's Universal Service Fund
Who Got The Work
Michael G. Bongiorno, Andrew Scott Dulberg and Elizabeth E. Driscoll from Wilmer Cutler Pickering Hale and Dorr have stepped in to represent Symbotic Inc., an A.I.-enabled technology platform that focuses on increasing supply chain efficiency, and other defendants in a pending shareholder derivative lawsuit. The case, filed Oct. 2 in Massachusetts District Court by the Brown Law Firm on behalf of Stephen Austen, accuses certain officers and directors of misleading investors in regard to Symbotic's potential for margin growth by failing to disclose that the company was not equipped to timely deploy its systems or manage expenses through project delays. The case, assigned to U.S. District Judge Nathaniel M. Gorton, is 1:24-cv-12522, Austen v. Cohen et al.
Who Got The Work
Edmund Polubinski and Marie Killmond of Davis Polk & Wardwell have entered appearances for data platform software development company MongoDB and other defendants in a pending shareholder derivative lawsuit. The action, filed Oct. 7 in New York Southern District Court by the Brown Law Firm, accuses the company's directors and/or officers of falsely expressing confidence in the company’s restructuring of its sales incentive plan and downplaying the severity of decreases in its upfront commitments. The case is 1:24-cv-07594, Roy v. Ittycheria et al.
Who Got The Work
Amy O. Bruchs and Kurt F. Ellison of Michael Best & Friedrich have entered appearances for Epic Systems Corp. in a pending employment discrimination lawsuit. The suit was filed Sept. 7 in Wisconsin Western District Court by Levine Eisberner LLC and Siri & Glimstad on behalf of a project manager who claims that he was wrongfully terminated after applying for a religious exemption to the defendant's COVID-19 vaccine mandate. The case, assigned to U.S. Magistrate Judge Anita Marie Boor, is 3:24-cv-00630, Secker, Nathan v. Epic Systems Corporation.
Who Got The Work
David X. Sullivan, Thomas J. Finn and Gregory A. Hall from McCarter & English have entered appearances for Sunrun Installation Services in a pending civil rights lawsuit. The complaint was filed Sept. 4 in Connecticut District Court by attorney Robert M. Berke on behalf of former employee George Edward Steins, who was arrested and charged with employing an unregistered home improvement salesperson. The complaint alleges that had Sunrun informed the Connecticut Department of Consumer Protection that the plaintiff's employment had ended in 2017 and that he no longer held Sunrun's home improvement contractor license, he would not have been hit with charges, which were dismissed in May 2024. The case, assigned to U.S. District Judge Jeffrey A. Meyer, is 3:24-cv-01423, Steins v. Sunrun, Inc. et al.
Who Got The Work
Greenberg Traurig shareholder Joshua L. Raskin has entered an appearance for boohoo.com UK Ltd. in a pending patent infringement lawsuit. The suit, filed Sept. 3 in Texas Eastern District Court by Rozier Hardt McDonough on behalf of Alto Dynamics, asserts five patents related to an online shopping platform. The case, assigned to U.S. District Judge Rodney Gilstrap, is 2:24-cv-00719, Alto Dynamics, LLC v. boohoo.com UK Limited.
Featured Firms
Law Offices of Gary Martin Hays & Associates, P.C.
(470) 294-1674
Law Offices of Mark E. Salomone
(857) 444-6468
Smith & Hassler
(713) 739-1250