Supreme Court Report

A Sixth Sense About Criminal Trials


Stanford University law professor Jeffrey L. Fisher says he occasionally muses about Crawford v. Washington, 541 U.S. 36, the 2004 case he argued–and won–before the U.S. Supreme Court that changed how courts regard testimonial statements.

“I sometimes joke that I made Crawford a full employment act for myself,” says Fisher, who joined Stanford last year to help direct the school’s Supreme Court litigation clinic. He was referring to speaking about and briefing cases involving the rights of criminal defendants, as courts grapple with a revised notion of the admissibility of out of court statements.

The 36-year-old Fisher could easily have been talking about his own burgeoning career as a high court litigator and leading criminal defense advocate. Over the last four years, Fisher has argued and won four key cases that have continued an ongoing transformation in the way the Supreme Court looks at the Sixth Amendment, which spells out the rights of criminal defendants.

In the same term as Crawford–which altered more than two decades of Supreme Court decisions regarding the right of defendants to confront witnesses at trial–Fisher also successfully argued Blakely v. Washington, 542 U.S. 296. Blakely held that, under the Sixth Amendment, juries–not judges–must determine whether the defendant is guilty of the factors that would add time to a sentence.

An Unambiguous Interpretation

Fisher has urged a hard and fast adherence to the Sixth Amendment’s precise wording, which says in part: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury; … to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defense.”

Those rights amount to fixed “categorical rules,” Fisher wrote in a recent article in the Georgetown Law Journal. Judges, he argued, should not short circuit those rights by weighing them against their own sense of when, for example, to allow out of court statements.

That argument captured the attention–and the judicial philosophy–of Justice Antonin Scalia, the court’s conservative leading light. The result was a series of rulings that upheld the rights of criminal defendants–an outcome usually associated with more liberal justices.

“Someone said to me, ‘Isn’t it crazy that Scalia writes all your opinions?’ But that’s the way I wrote the arguments,” says Fisher, who co chairs the amicus committee for the National Association of Criminal Defense Lawyers. A former clerk to Justice John Paul Stevens, Fisher worked at Seattle based Davis Wright Tremaine, where he still is a partner.

Besides Crawford and Blakely, Fisher went before the justices last term in United States v. Gonzalez Lopez, 126 S. Ct. 2557, in which the criminal defendant won a reversal of his conviction because the trial court had deprived him of his Sixth Amendment right to choose his lawyer.

Also last term, in a follow up to Crawford, Fisher successfully argued Davis v. Washington, 126 S. Ct. 2266, which was combined with Hammon v. Indiana, to limit the use of 911 calls in place of live witness testimony. (Last November, Fisher went before the court in Burton v. Stewart, No. 05 9222, arguing that Blakely should apply retroactively in criminal habeas cases. In January, the justices ordered the case dismissed for lack of jurisdiction.)

The decisions have effected a sea change in thinking about the Sixth Amendment rights of defendants. In doing so, the justices assembled a rather unusual team. While the conservative Scalia wrote for the court, he was joined each time by Justices Stevens, David H. Souter and Ruth Bader Ginsburg–three of the court’s liberal wing. Justice Stephen G. Breyer, generally acknowledged as the fourth in the quartet, joined in all but Blakely. In the 5 4 Gonzalez Lopez ruling, Scalia led the four piece liberal band. Explaining the lineup, Fisher says that labeling won’t garner a majority. “You have to think about issues that cut across the divide,” he says. “You have to look at it not so much in terms of politics, but jurisprudentially.”

Indeed, Fisher aimed his pitch right at Scalia’s jurisprudential wheelhouse: an originalist theory of constitutional law, a duty to the Constitution’s text, and an adherence to bright line rules. Add for good measure a reverence of 18th century colonial history.

For Scalia, originalism says that the Constitution’s founders meant what they said and said what they meant. So the court must be faithful 100 percent.

“The text of the Sixth Amendment does not suggest any open ended exceptions from the confrontation requirement to be developed by the courts,” Scalia wrote in Crawford, except, of course, those “established at the time of the founding.” He issued similar warnings in Blakely and Gonzalez Lopez.

“When it comes to having a jury or witness confrontation or lawyer you pick, it’s all or nothing,” says University of Pennsylvania law professor Stephanos Bibas, who writes frequently about criminal procedure issues.

That meant that in Crawford the court scuttled its long held test for admitting out of court statements, a balancing formula that measured a statement’s reliability. Ohio v. Roberts, 448 U.S. 56 (1980).

Out of Balance with the Constitution

For Scalia, few things grate more abrasively than balancing tests. In a 1990 dissent regarding the confrontation clause, Scalia scolded the court for applying an “ ‘interest balancing’ analysis where the text of the Constitution simply does not permit it.” Maryland v. Craig, 497 U.S. 836.

“Balancing tests are great if the judiciary shares your values,” Fisher says. “As soon as the judiciary doesn’t share your values, you need hard and fast rules.” Courts, including the Supreme Court, increasingly have favored the prosecution through the 1980s and ’90s, says Fisher. “Most federal judges come from the prosecution side,” he says.

The consequence has been a series of setbacks for the criminal defense bar and for those judges and justices who favor defendants’ rights. As if to presage the latest Sixth Amendment alliance, Scalia was joined in Craig by Stevens and by Justices William J. Brennan Jr. and Thurgood Marshall–perhaps the most liberal duo the court has known in the last half century.

That case and others “peek under the rug at the way the court could be reshuffled,” says Fisher. “Liberals need not run from constitutional text. They can embrace it.” Scalia’s originalism also speaks to his faith in juries, according to Bibas, and for that the justice relies on colonial history. “The founding generation trusted juries, and not judges, in part because King George III had pressured judges and used them to oppress the colonies,” Bibas says.

For Scalia, the jury is nothing short of democracy itself–“the spinal column of American democracy,” he wrote in a 1999 case, Neder v. United States, 527 U.S. 1.

Originalism, Bibas wrote in a recent article, “seeks to protect the jury’s role as a check on all three branches of government.” It’s “a bright line way of resolving cases with a minimum of judicial discretion and unpredictability.”

Of course, any such shift in the prevailing legal winds leaves many questioning the debris left in its wake. Blakely kicked off a rethinking of federal and state sentencing guidelines, culminating in United States v. Booker, 543 U.S. 220 (2005), which made federal guidelines advisory.

And prosecutors and defense lawyers alike have struggled with what exactly constitutes a testimonial statement. Such statements trigger the defendant’s right to confront the speaker in court and cross examine that person. However, especially in cases of domestic violence, in which battered spouses often fear appearing, out of court statements should be given deference, critics have said.

Justice Scalia left that undefined in Crawford. But many have found perplexing Scalia’s attempt to elucidate in Davis. In considering when emergency 911 calls may be admitted, the court ruled that statements are not testimonial when given to police to meet an ongoing emergency that is, when the individual wasn’t acting as a witness.

Fisher acknowledges the criticism but holds fast. “We all understand the difference between talking to a police officer and chatting with a friend down the street,” he says. “We all have a general understanding of what being a witness means.”

Fisher adds, “We did have 20 to 30 years of doing things the wrong way. So we have prosecutors who have the wrong idea about what the confrontation clause means.” n

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