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June 20, 2012

Anyone figured out Williams v. Illinois or its tea leaves for the sentencing cases?

I am still making my way through the full opinion in Williams (available here, basics here); more time with this 98-page mostrosity has not yet made me any more confident that I understand it or what its real impact will be (other than still more uncertainty and circuit splits over application of the Confrontation Clause).  But perhaps readers who are more in tune with Crawford and it progeny have figured out Williams and can share there insights in the comments.

In addition, the various opinions in Williams (especially the (weird?) separate opinions of Justices Thomas and Breyer) have left me even more unsure of what we should expect in the three big sets of sentencing cases still pending.  Perhaps readers smarter than me have new and better post-Williams insights on this front, too.

June 20, 2012 at 07:37 AM | Permalink


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Williams is crap. It does not help the Bar or the Court. I cannot wait to see how this case is applied throughout the circuits. This case leaves lots of questions unanswered. I do lots of criminal defense and I cannot figure out the rule to be derived from this case. 5 Justices expressly reject the Plurality. Thomas is the fifth vote, but no one signs on to his concurrence. It seems like Thomas goes along with more of the reasoning of the dissent than he does the plurality, yet he voted with the plurality. I am going to start drinking heavily right now.

Posted by: Scott | Jun 20, 2012 9:37:21 AM

Don't waive jury

Posted by: Greg Jones | Jun 20, 2012 11:02:56 AM

The following passage from Kagan's dissent seems to adequately summarize what the various Justices concluded in the case:

"JUSTICE ALITO, joined by three other Jus- tices, advances two theories—that the expert’s summary of the Cellmark report was not offered for its truth, and that the report is not the kind of statement triggering the Confrontation Clause’s protection. In the pages that follow, I call JUSTICE ALITO’s opinion “the plurality,” because that is the conventional term for it. But in all except its disposition, his opinion is a dissent: Five Jus- tices specifically reject every aspect of its reasoning and every paragraph of its explication. See ante, at 1 (THOMAS, J., concurring in judgment) (“I share the dis- sent’s view of the plurality’s flawed analysis”). JUSTICE THOMAS, for his part, contends that the Cellmark report is nontestimonial on a different rationale. But no other Justice joins his opinion or subscribes to the test he offers.
"That creates five votes to approve the admission of the Cellmark report, but not a single good explanation. The plurality’s first rationale endorses a prosecutorial dodge; its second relies on distinguishing indistinguishable foren- sic reports. JUSTICE THOMAS’s concurrence, though posit- ing an altogether different approach, suffers in the end from similar flaws. I would choose another path—to adhere to the simple rule established in our decisions, for the good reasons we have previously given. Because de- fendants like Williams have a constitutional right to con- front the witnesses against them, I respectfully dissent from the Court’s fractured decision."

Posted by: Calif. Capital Defense Counsel | Jun 20, 2012 11:41:44 AM

Well, neither Professor Friedman nor any of the commentators here can agree on what it means either:


My gut reaction is that it's imprecise to say that Williams impact will be limited. I think its impact will be diverse. It settles nothing (other than for Williams which may be Alito's whole point). But from a theory point of view the various lower courts will make hash of it, as they always do. It's difficult enough to get them to follow the law (5th, 9th) even when the court is explicit.

In other words, that drinking part Scott, not a bad idea :-)

Posted by: Daniel | Jun 20, 2012 11:48:09 AM

@Scott: Williams is crap. It does not help the Bar or the Court.

I would like to know what Scott thinks the Court is supposed do. There is no requirement that any particular case produces a rationale that five Justices agree with. That usually happens, but a few times per Term, it does not.

I think the only clear outcome is that if you have a case with the exact fact pattern as Williams, the outcome is foreordained. If you have a case with different fact patterns, and it is not covered by one of the other Confrontation Clause cases, then it is as if Williams never happened. Lower courts will go their own way, and in a year or two (or three at the most), the issue will be back before the Justices.

This is not the first time that an issue has taken many cases, sometimes spanning many years, to be resolved. A quarter of a century passed between Justice Powell's solo opinion in Bakke and Justice O'Connor's opinions for the Court in Grutter, finally making it the law of the land.

Posted by: Marc Shepherd | Jun 20, 2012 12:22:02 PM

I think it is crap because no one knows what this Constitutional protection means. There is no controlling rationale. There is no rule that be discerned from this case. One of the reasons they take circuit splits is to provide coherence and consistency to the law. This opinion did just the opposite. We should be able to read an opinion and know what it means. I have seen commentary that says that this was a slam dunk for prosecutors. I have seen commentary that said it was a slam dunk for the Defense. How can both be true? This opinion was not SCOTUS' finest moment.

Posted by: Scott | Jun 20, 2012 12:51:24 PM

Amen Scott.

"I would like to know what Scott thinks the Court is supposed do."

It is supposed to act like mature, responsible adults and provide consistency, uniformity, and reliability to the courts which it oversees. If they can't do that and they can't agree among themselves, they should never have taken the case. or dismissed it as improvidently granted once it was clear this type of mess was going to ensue.

"This is not the first time that an issue has taken many cases"

Prior fuck-ups doesn't justify this one.

There is a reason Marc that 75% of American disapprove of the Supreme Court. This type of opinion is one of the major reason why.

Posted by: Daniel | Jun 20, 2012 1:07:31 PM

@Scott: I am still waiting to hear what you think they're supposed to have done differently. They know that their job is to provide coherence and consistency. They cannot do that without rationale that five Justices agree with. Sometimes, no such rationale exists. What are they supposed to do?

Posted by: Marc Shepherd | Jun 20, 2012 1:08:07 PM

well marc i'm gonna go out on a limb and say "They should have picked a decsion and STATED IT in clear consise language any american can understand."

This criminal stupidity of 5-6 diff opinions on each an every friggin decision is just CRIMINAL.

Sure they are entitled to their opinion just like anyone else in the public. BUT NOT in the damn decision.

They should state We have decision X" THEN give their reasons for X having 3-5 other explinations WHY NOT X in the same decision is nuts!

Posted by: rodsmith | Jun 20, 2012 2:03:25 PM

This is a big issue that will have to be worked out over time, particularly after a few of the current Justices leave the bench. I highly doubt that Justice Thomas' view of what constitutes Confrontation Clause "testimony" from hearsay statements is ever going to be the law (but only a great deal of time will tell). That leaves the other two sides even at 4-4. One side sees scientific reports as trustworthy and not needed cross examination; the other side sees them as less trustworthy and needing cross examination. A change in Court personnel is the only way to resolve the issue, and it will take some time and many cases. The process will take at least ten years, and maybe longer. Personally, I expect this issue to take over fifty years to get "settled." And even then it will never be "settled." The Confrontation Clause, like the Fourth Amendment, involves too many important conflicting principles to ever be "settled." Keep in mind, as Justice Thomas points out, that it's only been forty years since the admissibility of the facts underlying an expert report were greatly expanded. We've only just begun the process of seeing what that will mean, for purposes of the Confrontation Clause. We haven't even begun the "distinguishing -- reconsideration -- new rule" phase of the appellate process.

In the end, after many decades of work, I believe that the Court will hold that material facts underlying an expert report will have to be proven by live witnesses. There's simply too much room for human error (and shenanigans) with material collection, material storage, material testing, and material contamination, for the actual facts to not be proven at trial. I probably won't be around to see that eventual result make it into the law.

Posted by: Mark Pickrell | Jun 20, 2012 3:47:08 PM

While you can't tell it from this case, past cases show that Scalia mostly agrees with Thomas on the "rule," but not on how that rule should be applied in this case.

Based on Bullcoming, Bryant, and Williams, there appear to be 5 different definitions of testimonial -- the Alito-Robert-Kennedy definition, the Breyer definition, the Scalia-Thomas definition, the Sotomayor definition, and the Kagan-Ginsburg definition. If there is no consensus, perhaps the Supreme Court should let the lower courts work out these issues for a time period as the recent decisions have only made this area murkier for practitioners.

Posted by: TMM | Jun 20, 2012 3:56:15 PM

TMM, the Scalia definition and the Thomas definition are very different. Which is more evidence that the Thomas definition is really, really wierd. If I understand Thomas correctly, admitting a person's out-of-court statement that I murdered John Kennedy has absolutely no Confrontation Clause implications, but if that same witness states in an affidavit that I murdered President Kennedy then admitting the affidavit would be a flagrant violation of the Confrontation Clause. Scalia disagrees, partly because the unknown Jesuits whose out-of-court statements were admitted agains Sir Walter Raleigh did not sign affidavits and Sir Walter Raleigh's trial was the worst injustice Scalia has ever read about.

So I think the Supreme Court cannot reach 5 in this case partly because Thomas believes wierd things.

Posted by: Paul | Jun 20, 2012 11:28:59 PM


"So I think the Supreme Court cannot reach 5 in this case partly because Thomas believes wierd things"

As if being a black Republican wasn't weird enough. But hey, look at the bright side, at least he's consistently weird.

Posted by: Daniel | Jun 21, 2012 1:14:35 AM

personaly considering the 1,000's of labs that have had their certificaton yanked and the every increasing number of labs getting caught producting reports of tests NEVER done!

any judge who thinks like this!

"One side sees scientific reports as trustworthy and not needed cross examination;"

Has given LEGAL GROUNDS to have the criminal idiot removed from the bench and shoved into a rubber room for thier and society's protection!

Posted by: rodsmith | Jun 21, 2012 1:20:24 AM

Jeffrey Fisher has a good analysis at Scotusblog.


I think Thomas shares a lot of the blame here. As Fisher notes, Thomas joined with much of the dissent's rejection of the plurality, but found some solo reason to join the majority. Supreme Court doctrine should not be reliant on what some outlier justice decides the law is. Without his use of reasoning that no other justice supported, the case could have been a clean 5-4 ruling.

The actual ruling is something of a mess.

Posted by: Joe | Jun 21, 2012 10:10:40 AM

What it means is that almost any habeas petitioner raising a Confrontation Clause claim will be screwed because there is no clearly established Supreme Court precedent. Or I should say be screwed even more than s/he is now, with no KY to be had.

Posted by: Menrva | Jun 21, 2012 1:31:17 PM

The court itself will likely be applying the impact of Williams on Thursday. My postconviction client, Joseph Smith, at the court on a Cert. Pet. for Rehearing, has been distributed for the conferences 12-2-11; 6-21-12 and now 6-28-12. [Smith v. Fla. SC09-10755] His direct appeal PD used her 7-13-11 Rehearing argument in tying the case to Williams. Smith = [1] jury, not a bench, trial; and [2] he was a target of the DNA test. Only 2 more days before knowing whether those factors explain why his case is still there.
Robert T. Strain
Assistant CCRC
Office of the Capital Collateral Regional
Counsel - Middle Region
3801 Corporex Park Dr. - Suite 210
Tampa, FL 33619

Posted by: Robert T. Strain | Jun 26, 2012 12:06:26 PM

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