Just when we think we have the US Supreme Court Justices figured out, they pull us into Bizarro World… where everything and everyone behaves exactly the opposite. I am referring, of course, to the ruling of the US Supreme Court, and the dissent of Justice Antonin Scalia in the Michigan v Bryant case.
In civil cases, Justice Scalia routinely rules against the victims of Corporations and Government, often inventing Constitutional provisions that he routinely denies exists for individuals; the same Justice Scalia who recently opined that there are no Constitutional protections for women against discrimination. In criminal cases, however, he has routinely sided with white collar criminals and the unrestricted abuse of power by the Government. Maybe its the case that Justice Scalia has no sympathy or tolerance for victims of any sort. Until now.
The Supreme Court recently ruled on a case brought by a Michigan petitioner in a criminal trial. The issue in the case was that the police, on arriving at the scene of a shooting, come across a person dying. Five officers in succession question the dying man and ask him who shot him. The man identifies one Richard Bryant as the shooter and then died.
During the criminal trial the judge allowed the statement of the dying man into evidence and the man was convicted primarily on the basis of that statement. The Sixth Amendment to the US Constitution guarantees the right of anyone accused of a crime to confront their accuser(s). The accusers MUST be put under oath and be subject to examination. Until now.
In another startling denial of a Constitutional Right that has existed for hundreds of years, the Court ruled the statement could be allowed into evidence even though the accused could never be allowed the opportunity to question the accuser. What if the man who was shot was guessing? What if he was mistaken? What if he was delirious or confused? There are dozens of common sense reasons (and one former Constitutional right) why the statement should never be allowed in a trial. If Mr. Bryant was to be convicted it should have been on the basis of evidence he could try to refute.
However, the Supreme Court ruled that because the police claimed that they were worried that a murderer was loose, they wanted the information and acquired it “innocently”. Fair enough, but they should be required to gather other evidence and the trial should only include evidence that can be admitted under the rules. In virtually every murder there is a murderer loose and in virtually every crime there is a criminal loose. If the Government is allowed to use evidence in a trial that can never be subject to cross exams then they will be able to arrest and convict anyone they wish. All the Government has to say is “the person is dead… we can’t find the accuser… etc.”
What is less important, but just as remarkable, is the fact that some of the more reasonable Justices ruled to undermine a long established right and Justice Scalia was one of the dissenters on this travesty (Justice Ginsberg was the other). Bizarro. One portion of Scalia’s dissent is worth repeating: “For all I know, Bryant has received his just deserts. But he surely has not received them pursuant to the procedures that our Constitution requires. And what has been taken away from him has been taken away from us all.”