Tagged: US Supreme Court Jurisprudence

Today in the U.S. Supreme Court….

Today, the US Supreme Court is considering a question of

whether the constitution is violated if the chief judge on the highest court of the state refuses to disqualify himself in a death penalty appeal where he was the chief prosecutor who authorized the defendant’s death sentence, obtained the death sentence though his office’s misconduct, and campaigned for the judgeship by showing how many people he put on death row, including the defendant.

Interestingly, amici included many judges, including the late Judge Judith Kaye, who argued that the judge should have recused himself, and a group of professional responsibility law school professors on the same side.

Prof. Bennett Gershman analyzes the issues and implications of Williams v. Pennsylvania in his latest HuffPost article titled A Perfect Storm: Judicial Prosecutorial Misconduct, and a Death Sentence and outlines the various issues involved in this case.  The ultimate question is not only whether the judge should have disqualified himself when deciding the defendant’s death penalty appeal but also whether, if he didn’t, his bias on the panel decision was nothing more than a harmless error. As Prof. Gershman concludes that

…without Justice Scalia, a 4-4 split on the Supreme Court is possible. And if that is the result, then under the Supreme Court’s rules the decision of the Pennsylvania supreme Court would be affirmed – and Terrence Williams will be executed.

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In Memoriam: “Justice Scalia’s Faux Originalism”

The passing of Justice Scalia last week shook the Nation. As many share memories, review his work, and analyze his jurisprudence, we present our third in a series of observations on Justice Scalia’s tenure as a Supreme Court Justice.  This one, by Prof. Bennett L. Gershman of Pace Law School, is a link to his most recent HuffPost piece entitled “Justice Scalia’s Faux Originalism.”

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Justice Antonin Scalia and His Legacy in Criminal Law

WRITTEN BY: Anjelica Cappellino, Esq. & Prof. John Meringolo, Esq.

Justice Antonin Scalia’s recent passing has shocked the public, to say the least. The 79-year old Supreme Court Justice died in his sleep on February 13, 2016, while staying at a Texas resort during a hunting trip. The first Italian-American to serve on the Supreme Court, Scalia leaves behind his wife of fifty-five years and nine children.

Scalia’s death has already caused political chaos and derision as to who will appoint his successor and whether said appointment can be postponed until next year when the succeeding United States president takes office, even though President Obama is constitutionally beholden to choose the appointment and

[t]he historical record does not reveal any instances since at least 1900 of the president failing to nominate and/or the Senate failing to confirm a nominee in a presidential election year because of the impending election.  In that period, there were several nominations and confirmations of Justices during presidential election years.

It is no secret that Justice Scalia’s passing immediately furthered the divide between political parties, as Scalia was considered a staunchly conservative linchpin for many right-leaning opinions and his successor could tilt the direction of the Supreme Court. Interestingly, however, Scalia’s record on criminal law issues is quite diversified and does not prescribe to the values of only one political side.

Scalia was oftentimes a protector of Fourth Amendment rights, as evinced in several different opinions. In Kyllo v. United States, 533 U.S. 27 (2001), Scalia wrote the majority opinion which held that a thermal-imaging device used to detect amounts of heat emanating from a private home – which uncovered the defendant’s homegrown marijuana operation – constituted a search within the meaning of the Fourth Amendment. As Scalia writes,

in the case of the search of the interior of homes – the prototypical and hence most commonly litigated area of protected privacy – there is ready criterion, with roots deep in the common law, of the minimal expectation of privacy that exists, and that is acknowledged to be reasonable. To withdraw protection of this minimum expectation would be to permit police technology to erode the privacy guaranteed by the Fourth Amendment.

In other majority opinions penned by Scalia, he has evoked similar rhetoric, holding that GPS tracking in vehicles, United States v. Jones, 132 S.Ct. 945 (2012), as well as the use of drug sniffing dogs on a person’s front porch, Florida v. Jardines, 133 S.Ct. 1409, both constitute a search within the meaning of the Fourth Amendment.

Scalia has always stressed the manifest importance of the Sixth Amendment to all defendants. In the seminal case Blakely v. Washington, 542 U.S. 296 (2004), which held that the Sixth Amendment right to a jury trial prohibited judges from using facts that were not presented to a jury or admitted by the defendant to sentence a defendant above the maximum penalty, Scalia writes that the “right is no mere procedural formality, but a fundamental reservation of power in our constitutional structure.”

A strong proponent of the Sixth Amendment’s Confrontation Clause, Scalia wrote for the majority in Crawford v. Washington, 541 U.S. 36 (2004), which held that defendants have the right to live testimony in order to cross-examine the witnesses against them. Scalia articulates that, “the Clause’s ultimate goal is to ensure reliability of evidence, but it is a procedural rather than substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.” Similarly, in Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), which held the defendant’s Sixth Amendment rights were violated when a forensic analyst’s lab report was admitted against him without him having the opportunity to cross-examine the individual who prepared the report, Scalia states

[a] forensic analyst responding to a request from a law enforcement official may feel pressure – or have an incentive – to alter the evidence in a manner favorable to the prosecution. Confrontation is one means of assuring accurate forensic analysis.

The above cases are just a few examples of the myriad of ways Scalia has shaped criminal law throughout his three decades on the bench. While the appointment of his successor is undoubtedly a hot button, partisan issue, Scalia’s own opinions, particularly on issues of criminal law, are that of a jurist with allegiance not to one political view but to one document – the Constitution.

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