KUDOS TO JEFF FISHER-ANOTHER WIN (Melendez-Diaz)

If you needed someone to pitch the 7th game of the World Series, who would you have pitch? Sandy Koufax, Bob Gibson, someone else? If you have a sixth amendment confrontation issue on its way to the Supreme Court, who would you have represent you and argue the case? There is no question but the answer would be Jeffrey Fisher from the Stanford Law School. Jeff first burst on the scene with two huge wins in the Supreme Court in 2004 on behalf of criminal defendants grounded in 6th Amendment jurisprudence. See Blakely v. Washington, 542 US. 296 (2004) (6th Amendment right to trial by jury was violated where facts supporting the sentence were not admitted by the defendant or proven beyond a reasonable doubt to a jury) and Crawford v. Washington, 541 U.S. 36 (2004) (6th Amendment requires that the defendant be provided an opportunity to confront at trial, the declarant of testimonial statements). While he has handled other cases before the Supremes, it is his track record in the 6th Amendment arena which stands out.

Last week provided another case in the win column for Jeff (in the interest of full disclosure I do serve on NACDL's amicus curiae committee of which he is the chair). The Supreme Court in the case of Melendez-Diaz v. Massachusettes, in a 5-4 decision, held that the case involved "little more than the application of our holding in Crawford v. Washington, 541 U.S. 36. The Sixth Amendment does not permit the prosecution to prove its case via ex parte out of court affidavits, and the admission of such evidence...was error." I will leave it to others to analyze the nuances or the significance of the decision being only 5-4 (technically 4-1-4). See The Confrontation Blog.

For immediate practice purposes two points must, however, be made. Justice Scalia, in pointing out the fallacies of the dissent and the state, emphasized that the ability to subpoena a witness is no substitute for the right of confrontation. He further noted that the burden is on the prosecution to present its witnesses and not on the defendant to bring in adverse witnesses. Second, in a serendipitous sort of way, the majority addressed the general overall failings of forensic evidence. The commonwealth had argued that the forensic science affidavits at issue in the case should be treated differently because they were the result of neutral scientific testing in contrast to testimony recounting historical events. All anyone had to do was to have read some portion of the report issued in February of 2009 by the National Academy of Science. With the exception of nuclear DNA analysis, the forensic evidence and its supporting methodology being introduced in criminal cases has failed to meet the necessary standards of certification, peer review, and effective oversight.

Sidenote: Local lawyers still wait for the Governor to make his selections for the Dane County bench. With a number of new judges (including the impending selections) on the criminal rotation there is a fair amount of concern as to who will be making future decisions. And, oh yeah, Brent Favre will never be forgotten.