Previewing OT 2009:

In this NRO column I preview the coming Supreme Court term (and say a tiny bit about that little case left over from last term). In short, even without a new justice, this term could be particularly significant and revealing due to the cases on the Court's docket.

Mike& (mail):
Pottawattamie County v. McGhee (prosecutorial immunity; substantive due process right to not have fabricated evidence admitted against you) is potential sleeper. Sotomayor is a former prosecutor, but also has a strong civil liberties bent.
9.14.2009 12:07pm
PaulMcKaskle (mail):
An issue in connection with Briscoe v. Virginia, but one which may not be addressed is the problem of lab tests conducted years before a person is accused of the crime--such as when DNA is obtained in a murder case but the source is unknown until years later when someone is arrested with matching DNA. There is no statute of limitations on murder, but the lab tester may be dead (or has quit and cannot be found). Under Melendez presumably the DNA can't be admitted and the original sample may not be susceptible to re-testing.

A more prosaic case would be a lab test of a chemical (again one which degrades over time or is destroyed in the process) and the lab tester dies before the trial. Does a strict reading of Melendez (or Briscoe if it comes out the same way) put lab testers safety at risk?

It might be a much bigger problem for a number of years at least in cases where a conviction is reversed on habeas corpus review several years later on grounds unrelated to the lab tests (e.g., incompetent counsel). Lab tests may have been used in the original case and not have been subject to confrontation (because the trial occurred years before Melendez was decided) but the lab tester is no longer available and a re-test is no longer possible because of the substance being degreded over time or being destroyed in the lab process.
9.14.2009 1:42pm
Dilan Esper (mail) (www):
In short, even without a new justice, this term could be particularly significant and revealing due to the cases on the Court's docket.

Doesn't some analyst say that every year?

And then, at the end of the term, some analyst will state how the Court is being moved to the right, or to the left, or to the center, or up, or down, or something.
9.14.2009 5:39pm

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