Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty. This is not what the Sixth Amendment prescribes.

Love him or hate him, you have to admit Scalia is one hell of a writer. I think he really shines when it comes to analogies, with the above analogy definitely counting as one of his best. However, it isn’t my favorite. By far, my favorite comes from his dissent in Roper v. Simmons. Here it is:

Consulting States that bar the death penalty concerning the necessity of making an exception to the penalty for offenders under 18 is rather like including old-order Amishmen in a consumer-preference poll on the electric car. Of course they don’t like it, but that sheds no light whatever on the point at issue.

I didn’t agree with much of anything he wrote in that dissent, but it sure was well-written. That analogy may not have been as eloquent as the one above it, but I think its stretch gives it more character. The snark really jumps off the page, and I can respect that.

Anyone else have any favorite Scalia analogies?*

* – Yes, I know I am a dork.

The Supreme Court’s rationale is based on their interpretation of the source of Indian governments’ powers and how they interact with the U.S. Constitution. The Supreme Court was also understandably concerned that an Indian could quickly plead out in an Indian jurisdiction to avoid federal prosecution.

This often leads to confusing and frustrating problems for a criminal defense attorney practicing Indian law. A guilty plea for your client can be used against him in federal court. Although technically criminal convictions on Indian reservations are misdemeanors punishable by no more than one year per offense, it is not uncommon for an Indian to get many years due to the fact Community prosecutors like throwing as many chargeable offenses as possible at each defendant. If your client pleads guilty, you may have gotten a fair result, but he or she could then face a federal charges. You may have just handed your client to the federal prosecutor with a confession under oath.

This occasionally leads to a dance between jurisdictions regarding who is going to charge the case. It also leads to the questionable practice of the tribe charging a person and keeping them in jail on a high bond even though the prosecutor has no intention of proceeding with the case. Instead, the prosecutor has been told that the feds are going to charge it eventually, so they just hold on to the guy. I’ve seen this happen several times. It gives the feds as much time as they need to investigate while knowing that person they want to charge isn’t going anywhere.

I’ve also had cases were theclient was charged and convicted of the same act by both jurisdictions. Something about that doesn’t sit right with me at all. To make it even worse, I’ve had cases were the client was convicted, served time, and then was put on probation by the Indian community. Then the feds decide to charge him. The client learns of the charges and stops reporting to Indian probation because he knows the feds will be waiting for him. Honestly, I can’t blame him. He did a lot of time and feels he paid the price for his crime. The feds find him a few months later and he does more time and is put on federal probation. Then the Indian community files a petition to violate him for missing his probation appointments. The Indian probation department wants to put him in jail for two more years. If that happens it is entirely possible that the feds would then violate him because he violated his federal probation by either missing appointments (because he is in tribal jail) or for not following through with tribal probation. The end result is a person being put in a cage four times for one offense.

The case history for how and why this can exist is confusing. Here is a starting point for anyone interested in reading some case law. Something needs to be done to stop this injustice.

If you agree, it probably means you haven’t had the good fortune of spending three years in law school. Those three years are essential if you want to learn the super-important lawyer skill of looking at something really clear and interpreting it to mean something different from what it obviously means. The most important lesson lawyers-to-be learn in law school is that constitutions, statutes, and rules don’t always mean what they say. Sometimes, they don’t even mean what they mean.

Nowhere are those important law school lessons more impressively put to use than when US and Arizona courts interpret our constitutional rights to a jury trial. According to the US Supreme Court, the US Constitution’s right to a jury trial “in all criminal prosecutions” guarantees you a jury trial only in those criminal prosecutions where you can be incarcerated for more than six months. Misdemeanors in Arizona are punishable by a maximum of six months in jail, so the federal right doesn’t apply. However, Arizona courts have generously decided that you can get a jury trial for some misdemeanors. According to the Arizona Supreme Court, the Arizona Constitution’s right to a jury trial “in criminal prosecutions” gives you a jury trial in misdemeanor prosecutions where the crime either 1) has a common law antecedent that guaranteed a right to trial by jury at the time of Arizona statehood or 2) is sufficiently serious. Makes sense, right?

When it comes to our jury trial rights, the courts really take essential law school lessons to heart.

Two weeks ago, the Supreme Court of the United States decided Boumediene v. Bush, where it held that aliens designated as enemy combatants and detained at Guantanamo Bay have the constitutional privilege of habeas corpus. Justice Kennedy delivered the opinion, in which Justices Stevens, Souter, Ginsburg, and Breyer joined. The dissenting Justices were Scalia, Roberts, Thomas, and Alito.

My understanding of these two cases is limited to having followed them in the news and read the opinions. What strikes me about them, like with many cases, is that I could have guessed who would fall on which side based solely on what I have heard about the Justices’ political leanings. I think it isn’t too far off for me to say that Scalia, Roberts, Thomas, and Alito would probably vote for a president who was pro-gun and anti-habeas for enemy combatants. I’d also say the opposite is probably true of Stevens, Souter, Ginsburg, and Breyer.

I imagine this doesn’t seem like a problem to most people, but it bothers me. Although my legal education and experience as a lawyer has to some extent eroded my idealistic view of courts, I’d like to think that for the most part a judge looks at what the existing law requires and holds accordingly. In most cases, I feel like there is a superior legal argument for each issue, and about half of the time that superior argument achieves the result I want. A lot of times I win legal arguments I would not agree with if I was the judge, and sometimes I lose legal arguments where the law couldn’t be more clearly in my favor. I’ve lost count of how many times I’ve seen a pro-prosecutor judge rule in favor of the state with absolutely no legal grounds for doing so, but I’d like to think this country’s highest court is different.

Unfortunately, there are times when I seriously doubt that, politics aside, the Justices really believe the side they take has the best legal argument. It’s just too much of a coincidence for me to believe that the Justices happen to think the constitution requires exactly what their political leanings are on almost every issue. Sure, they usually look at issues with good arguments on both sides, but a smart enough lawyer can make pretty much any argument convincing enough to accept. I often worry that the Supreme Court of the United States might end up being nothing more than nine really smart advocates whose job is to find the most convincing legal theory to support their political agenda.