SCALIA, J., DISSENTING
MICHIGAN V. BRYANT
562 U. S. ____ (2011)
SUPREME COURT OF THE UNITED STATES
NO. 09-150
MICHIGAN, PETITIONER
v. RICHARD PERRY
BRYANT
on writ of certiorari to the supreme court of
michigan
[February 28, 2011]
Justice Scalia, dissenting.
Today’s tale—a story of five
officers conducting suc-cessive examinations of a dying man with
the primary purpose, not of obtaining and preserving his testimony
regarding his killer, but of protecting him, them, and others from
a murderer somewhere on the loose—is so transparently false that
professing to believe it demeans this institution. But reaching a
patently incorrect conclusion on the facts is a relatively benign
judicial mischief; it affects, after all, only the case at hand. In
its vain attempt to make the incredible plausible, however—or
perhaps as an intended second goal—today’s opinion distorts our
Confrontation Clause jurisprudence and leaves it in a shambles.
Instead of clarifying the law, the Court makes itself the
obfuscator of last resort. Because I continue to adhere to the
Confrontation Clause that the People adopted, as described in
Crawford v.
Washington,
541 U. S. 36 (2004), I
dissent.
I
A
The Confrontation Clause of the
Sixth Amendment, made binding on the States by the Fourteenth
Amendment,
Pointer v.
Texas,
380 U. S. 400, 403
(1965), provides that “[i]n all criminal prosecutions, the accused
shall enjoy the right … to be confronted with the witnesses against
him.” In
Crawford, we held that this provision guarantees
a defendant his common-law right to confront those “who ‘bear
testimony’ ” against him. 541 U. S., at 51. A witness must
deliver his testimony against the defendant in person, or the
prosecution must prove that the witness is unavailable to appear at
trial and that the defendant has had a prior opportunity for
cross-examination.
Id., at 53–54.
Not all hearsay falls within the
Confrontation Clause’s grasp. At trial a witness “bears testimony”
by providing “ ‘[a] solemn declaration or affirmation . . .
for the purpose of establishing or proving some fact.’ ”
Id., at 51 (quoting 2 N. Webster, An American Dictionary
of the English Language (1828)). The Confrontation Clause protects
defendants only from hearsay statements that do the same.
Davis v.
Washington,
547 U. S. 813, 823–824 (2006). In
Davis, we explained how to identify testimonial hearsay
prompted by police questioning in the field. A statement is
testimonial “when the circumstances objectively indicate … that the
primary purpose of the interrogation is to establish or prove past
events potentially relevant to later criminal prosecution.”
Id., at 822
. When, however, the circumstances
objectively indicate that the declarant’s statements were “a cry
for help [o]r the provision of information enabling officers
immediately to end a threatening situation,”
id., at 832,
they bear little resemblance to in-court testimony. “No ‘witness’
goes into court to proclaim an emergency and seek help.”
Id., at 828.
Crawford and
Davis did not
address whose perspective matters—the declarant’s, the
interrogator’s, or both—when assessing “the primary purpose of [an]
interrogation.” In those cases the statements were testimonial from
any perspective. I think the same is true here, but because the
Court picks a perspective so will I: The declarant’s intent is what
counts. In-court testimony is more than a narrative of past events;
it is a solemn declaration made in the course of a criminal trial.
For an out-of-court statement to qualify as testimonial, the
declarant must intend the statement to be a solemn declaration
rather than an unconsidered or offhand remark; and he must make the
statement with the understanding that it may be used to invoke the
coercive machinery of the State against the accused.[
Footnote 1] See Friedman, Grappling with the
Meaning of “Testimonial,” 71 Brooklyn L. Rev. 241, 259 (2005).
That is what distinguishes a narrative told to a friend over dinner
from a statement to the police. See
Crawford,
supra, at 51. The hidden purpose of an interrogator cannot
substitute for the declarant’s intentional solemnity or his
understanding of how his words may be used.
A declarant-focused inquiry is also the only
inquiry that would work in every fact pattern implicating the
Confrontation Clause. The Clause applies to volunteered testimony
as well as statements solicited through police interrogation. See
Davis,
supra, at 822–823, n. 1. An inquiry
into an officer’s purposes would make no sense when a declarant
blurts out “Rick shot me” as soon as the officer arrives on the
scene. I see no reason to adopt a different test—one that accounts
for an officer’s intent—when the officer asks “what happened”
before the declarant makes his accusation. (This does not mean the
interrogator is irrelevant. The identity of an interrogator, and
the content and tenor of his questions, can bear upon whether a
declarant intends to make a solemn statement, and envisions its use
at a criminal trial. But none of this means that the interrogator’s
purpose matters.)
In an unsuccessful attempt to make its finding
of emergency plausible, the Court instead adopts a test that looks
to the purposes of both the police and the declarant. It claims
that this is demanded by necessity, fretting that a
domestic-violence victim may want her abuser briefly
arrested—presumably to teach him a lesson—but not desire
prosecution. See
ante, at 22. I do not need to probe the
purposes of the police to solve that problem. Even if a victim
speaks to the police “to establish or prove past events” solely for
the purpose of getting her abuser arrested, she surely knows her
account is “potentially rel-evant to later criminal prosecution”
should one ensue.
Davis,
supra, at 822.
The Court also wrings its hands over the
possibility that “a severely injured victim” may lack the capacity
to form a purpose, and instead answer questions “reflexive[ly].”
Ante, at 22. How to assess whether a declarant with
diminished capacity bore testimony is a difficult question, and one
I do not need to answer today. But the Court’s proposed answer—to
substitute the intentions of the police for the missing intentions
of the declarant—cannot be the correct one. When the declarant has
diminished capacity, focusing on the interrogators make less sense,
not more. The inquiry under
Crawford turns in part on the
actions and statements of a declarant’s audience only because they
shape the declarant’s perception of why his audience is listening
and therefore influence
his purpose in making the
declaration. See 541 U. S., at 51. But a person who cannot perceive
his own purposes certainly cannot perceive why a listener might be
interested in what he has to say. As far as I can tell, the Court’s
substituted-intent theory “has nothing to be said for it except
that it can sometimes make our job easier,”
Jerman v.
Carlisle, McNellie, Rini, Kramer & Ulrich,
L. P. A., 559 U. S. ___, ___ (2010) (Scalia, J.,
concurring in part and concurring in judgment) (slip op., at
2).
The Court claims one affirmative virtue for
its focus on the purposes of both the declarant and the police: It
“ameliorates problems that … arise” when declarants have “mixed
motives.”
Ante, at 21. I am at a loss to know how. Sorting
out the primary purpose of a declarant with mixed motives is
sometimes difficult. But adding in the mixed motives of the police
only compounds the problem. Now courts will have to sort through
two sets of mixed motives to determine the primary purpose of an
interrogation. And the Court’s solution creates a mixed-motive
problem where (under the proper theory) it does not exist—viz.,
where the police and the declarant each have one motive, but those
motives conflict. The Court does not provide an answer to this
glaringly obvious problem, probably because it does not have
one.
The only virtue of the Court’s approach (if it
can be misnamned a virtue) is that it leaves judges free to reach
the “fairest” result under the totality of the circumstances. If
the dastardly police trick a declarant into giving an incriminating
statement against a sympathetic defendant, a court can focus on the
police’s intent and declare the statement testimonial. If the
defendant “deserves” to go to jail, then a court can focus on
whatever perspective is necessary to declare damning hearsay
nontestimonial. And when all else fails, a court can mix-and-match
perspectives to reach its desired outcome. Unfortunately, under
this malleable approach “the guarantee of confrontation is no
guarantee at all.”
Giles v.
California,
554 U. S. 353, 375
(2008) (plurality).
B
Looking to the declarant’s
purpose (as we should), this is an absurdly easy case. Roughly 25
minutes after Anthony Covington had been shot, Detroit police
responded to a 911 call reporting that a gunshot victim had
appeared at a neighborhood gas station. They quickly arrived at the
scene, and in less than 10 minutes five different Detroit police
officers questioned Covington about the shooting. Each asked him a
similar battery of questions: “what happened” and when, App. 39,
126, “who shot” the victim,”
id., at 22, and “where” did
the shooting take place,
id., at 132. See also
id., at 113. After Covington would answer, they would ask
follow-up questions, such as “how tall is” the shooter,
id., at 134, “[h]ow much does he weigh,”
ibid.
what is the exact address or physical description of the house
where the shooting took place, and what chain of events led to the
shooting. The battery relented when the paramedics arrived and
began tending to Covington’s wounds.
From Covington’s perspective, his
statements had little value except to ensure the arrest and
eventual prosecution of Richard Bryant. He knew the “threatening
situation,”
Davis, 547 U. S., at 832, had ended six blocks
away and 25 minutes earlier when he fled from Bryant’s back porch.
See 483 Mich. 132, 135–136, 768 N.W. 2d 65, 67 (2009); App. 105.
Bryant had not confronted him face-to-face before he was mortally
wounded, instead shooting him through a door. See 483
Mich.
, at 136–137, 768 N.W. 2d, at 67. Even if Bryant had
pursued him (unlikely), and after seeing that Covington had ended
up at the gas station was unable to confront him there before the
police arrived (doubly unlikely), it was entirely beyond
imagination that Bryant would again open fire while Covington was
surrounded by five armed police officers. And Covington knew the
shooting was the work of a drug dealer, not a spree killer who
might randomly threaten others.
Id., at 135, 137, 768 N.W.
2d, at 67.
Covington’s knowledge that he had nothing to
fear differs significantly from Michelle McCottry’s state of mind
during her “frantic” statements to a 911 operator at issue in
Davis, 547 U. S., at 827. Her “call was plainly a call for
help against a bona fide physical threat” describing “events
as
they were actually happening.”
Ibid. She did not have
the luxuries of police protection and of time and space separating
her from immediate danger that Covington enjoyed when he made his
statements. See
id., at 831.
Covington’s pressing medical needs do not
suggest that he was responding to an emergency, but to the contrary
reinforce the testimonial character of his statements. He
understood the police were focused on investigating a past crime,
not his medical needs. None of the officers asked Covington how he
was doing, attempted more than superficially to assess the severity
of his wounds, or attempted to administer first aid.[
Footnote 2] They instead primarily asked
questions with little, if any, relevance to Covington’s dire
situation. Police, paramedics, and doctors do not need to know the
address where a shooting took place, the name of the shooter, or
the shooter’s height and weight to provide proper medical care.
Underscoring that Covington understood the officers’ investigative
role, he interrupted their interrogation to ask “when is EMS
coming?” App. 57. When, in other words, would the focus shift to
his medical needs rather than Bryant’s crime?
Neither Covington’s statements nor the
colloquy between him and the officers would have been out of place
at a trial; it would have been a routine direct examination. See
Davis, 547 U. S., at 830. Like a witness, Covington
recounted in detail how a past criminal event began and progressed,
and like a prosecutor, the police elicited that account through
structured questioning. Preventing the admission of “weaker
substitute[s] for live testimony at trial” such as this,
id., at 828 (internal quotation marks omitted), is
precisely what motivated the Framers to adopt the Confrontation
Clause and what motivated our decisions in
Crawford and in
Hammon v.
Indiana, decided with
Davis.
Ex parte examinations raise the same constitutional
concerns whether they take place in a gas-station parking lot or in
a police interrogation room.
C
Worse still for the repute of
today’s opinion, this is an absurdly easy case even if one
(erroneously) takes the interrogating officers’ purpose into
account. The five officers interrogated Covington primarily to
investigate past criminal events. None—absolutely none—of their
actions indicated that they perceived an imminent threat. They did
not draw their weapons, and indeed did not immediately search the
gas station for potential shooters.[
Footnote 3] To the contrary, all five testified that they
questioned Covington
before conducting any investigation at the
scene. Would this have made any sense if they feared the
presence of a shooter? Most tellingly, none of the officers started
his interrogation by asking what would have been the obvious first
question if any hint of such a fear existed: Where is the
shooter?
But do not rely solely on my word
about the officers’ primary purpose. Listen to Sergeant Wenturine,
who candidly admitted that he interrogated Covington because he
“ha[d] a man here that [he] believe[d] [was] dying [so he was]
gonna find out who did this, period.” App. 112. In short, he needed
to interrogate Covington to solve a crime. Wenturine never
mentioned an interest in ending an ongoing emergency.
At the very least, the officers’ intentions
turned investigative during their 10-minute encounter with
Covington, and the conversation “evolve[d] into testimonial
statements.”
Davis, 547 U. S., at 828 (internal quotation
marks omitted). The fifth officer to arrive at the scene did not
need to run straight to Covington and ask a battery of questions
“to determine the need for emergency assistance,”
Ibid. He
could have asked his fellow officers, who presumably had a better
sense of that than Covington—and a better sense of what he could do
to assist. No, the value of asking the same battery of questions a
fifth time was to ensure that Covington told a consistent story and
to see if any new details helpful to the investigation and eventual
prosecution would emerge. Having the testimony of five officers to
recount Covington’s consistent story undoubtedly helped obtain
Bryant’s conviction. (Which came, I may note, after the first jury
could not reach a verdict. See 483 Mich., at 137, 768 N.W. 2d, at
67.)
D
A final word about the Court’s
active imagination. The Court invents a world where an ongoing
emergency exists whenever “an armed shooter, whose motive for and
lo-cation after the shooting [are] unknown, … mortally wound[s]”
one individual “within a few blocks and [25] minutes of the
location where the police” ultimately find that victim.
Ante, at 27. Breathlessly, it worries that a shooter could
leave the scene armed and ready to pull the trigger again. See
ante, at 17–18, 27, 30
. Nothing suggests the five
officers in this case shared the Court’s dystopian[
Footnote 4] view of Detroit, where drug
dealers hunt their shooting victim down and fire into a crowd of
police officers to finish him off, see
ante, at 30, or
where spree killers shoot through a door and then roam the streets
leaving a trail of bodies behind. Because almost 90 percent of
murders involve a single victim,[
Footnote 5] it is much more likely—indeed, I think it
certain—that the officers viewed their encounter with Covington for
what it was: an investi-gation into a past crime with no ongoing or
immediate consequences.
The Court’s distorted view
creates an expansive exception to the Confrontation Clause for
violent crimes. Because Bryant posed a continuing threat to public
safety in the Court’s imagination, the emergency persisted for
confrontation purposes at least until the police learned his
“motive for and location after the shooting.”
Ante, at 27.
It may have persisted in this case until the police “secured the
scene of the shooting” two-and-a-half hours later.
Ante,
at 28. (The relevance of securing the scene is unclear so long as
the killer is still at large—especially if, as the Court
speculates, he may be a spree-killer.) This is a dangerous
definition of emergency. Many individuals who testify against a
defendant at trial first offer their accounts to police in the
hours after a violent act. If the police can plausibly claim that a
“potential threat to … the public” persisted through those first
few hours,
ante, at 12 (and if the claim is plausible here
it is always plausible) a defendant will have no constitutionally
protected right to exclude the uncross-examined testimony of such
witnesses. His conviction could rest (as perhaps it did here)
solely on the officers’ recollection at trial of the witnesses’
accusations.
The Framers could not have envisioned such a
hollow constitutional guarantee. No framing-era confrontation case
that I know of, neither here nor in England, took such an enfeebled
view of the right to confrontation. For example,
King v.
Brasier, 1 Leach 199, 200, 168 Eng. Rep. 202, 202–203
(K. B. 1779), held inadmissible a mother’s account of her
young daughter’s statements “immediately on her coming home” after
being sexually assaulted. The daughter needed to testify herself.
But today’s majority presumably would hold the daughter’s account
to her mother a nontestimonial statement made during an ongoing
emergency. She could not have known whether her attacker might
reappear to attack again or attempt to silence the lone witness
against him. Her mother likely listened to the account to assess
the threat to her own safety and to decide whether the rapist posed
a threat to the community that required the immediate intervention
of the local authorities. Cf.
ante, at 29–30. Utter
nonsense.
The 16th- and 17th-century English treason
trials that helped inspire the Confrontation Clause show that
today’s decision is a mistake. The Court’s expansive definition of
an “ongoing emergency” and its willingness to consider the
perspective of the interrogator and the declarant cast a more
favorable light on those trials than history or our past decisions
suggest they deserve. Royal officials conducted many of the
ex
parte examinations introduced against Sir Walter Raleigh and
Sir John Fenwick while investigating alleged treasonous
conspiracies of unknown scope, aimed at killing or overthrowing the
King. See Brief for National Association of Criminal Defense
Lawyers as
Amicus Curiae 21–22, and n. 11. Social
stability in 16th- and 17th-century England depended mainly on the
continuity of the ruling monarch, cf. 1 J. Stephen, A History of
the Criminal Law of England 354 (1883), so such a conspiracy posed
the most pressing emergency imaginable. Presumably, the royal
officials investigating it would have understood the gravity of the
situation and would have focused their interrogations primarily on
ending the threat, not on generating testimony for trial. I
therefore doubt that under the Court’s test English officials acted
improperly by denying Raleigh and Fenwick the opportunity to
confront their accusers “face to face,”
id., at 326.
Under my approach, in contrast, those English
trials remain unquestionably infamous. Lord Cobham did not speak
with royal officials to end an ongoing emergency. He was a traitor!
He spoke, as Raleigh correctly observed, to establish Raleigh’s
guilt and to save his own life. See 1 D. Jardine, Criminal Trials
435 (1832). Cobham’s statements, when assessed from his
perspective, had only a testimonial purpose. The same is true of
Covington’s statements here.
II
A
But today’s decision is not only
a gross distortion of the facts. It is a gross distortion of the
law—a revisionist narrative in which reliability continues to guide
our Confrontation Clause jurisprudence, at least where emergencies
and faux emergencies are concerned.
According to today’s opinion, the
Davis inquiry into whether a declarant spoke to end an
ongoing emergency or rather to “prove past events potentially
relevant to later criminal prosecution,” 547 U. S., at 822, is
not aimed at answering whether the declarant acted as a
witness. Instead, the
Davis inquiry probes the
reliability of a declarant’s statements, “[i]mplicit[ly]”
importing the excited-utterances hearsay exception into the
Constitution.
Ante, at 14–15. A statement during an
ongoing emergency is sufficiently reliable, the Court says,
“because the prospect of fabrication … is presumably significantly
diminished,” so it “does not [need] to be subject to the crucible
of cross-examination.”
Id., at 14
.
Compare that with the holding of
Crawford: “Where testimonial statements are at issue, the
only indicium of reliability sufficient to satisfy constitutional
demands is the one the Constitution actually prescribes:
confrontation.” 541 U. S., at 68–69. Today’s opinion adopts, for
emergencies and faux emergencies at least, the discredited logic of
White v.
Illinois,
502 U. S. 346, 355–356,
and n. 8 (1992), and
Idaho v.
Wright,
497 U. S. 805,
819–820 (1990).
White is, of course, the decision that
both
Crawford and
Davis found most incompatible
with the text and history of the Confrontation Clause. See
Davis,
supra, at 825;
Crawford,
supra, at 58, n. 8. (This is not to say that that
“reliability” logic can actually justify today’s result:
Twenty-five minutes is plenty of time for a shooting victim to
reflect and fabricate a false story.)
The Court announces that in future cases it
will look to “standard rules of hearsay, designed to identify some
statements as reliable,” when deciding whether a statement is
testimonial.
Ante, at 11–12.
Ohio v.
Roberts,
448
U. S. 56 (1980) said something remarkably similar: An
out-of-court statement is admissible if it “falls within a firmly
rooted hearsay exception” or otherwise “bears adequate ‘indicia of
reliability.’ ”
Id., at 66. We tried that approach to
the Confrontation Clause for nearly 25 years before
Crawford
rejected it as an unworkable standard unmoored from the text
and the historical roots of the Confrontation Clause. See 541 U.
S., at 54, 60, 63–65, 67–68. The arguments in Raleigh’s infamous
17th-century treason trial contained full debate about the
reliability of Lord Cobham’s
ex parte accusations, see
Raleigh’s Case, 2 How. St. Tr. 1, 14, 17, 19–20, 22–23, 29
(1603); that case remains the canonical example of a Confrontation
Clause violation, not because Raleigh should have won the debate
but because he should have been allowed cross-examination.
The Court attempts to fit its resurrected
interest in reliability into the
Crawford framework, but
the result is incoherent. Reliability, the Court tells us, is a
good indicator of whether “a statement is … an out-of-court
substitute for trial testimony.”
Ante, at 11. That is
patently false. Reliability tells us
nothing about whether
a statement is testimonial. Testimonial and nontestimonial
statements alike come in varying degrees of reliability. An
eyewitness’s statements to the police after a fender-bender, for
example, are both reliable and testimonial. Statements to the
police from one driver attempting to blame the other would be
similarly testimonial but rarely reliable.
The Court suggests otherwise because it
“misunderstands the relationship” between qualification for one of
the standard hearsay exceptions and exemption from the
confrontation requirement.
Melendez-Diaz v.
Massachusetts, 557 U. S. ___, ___ (2009) (slip op., at
18). That relationship is not a causal one. Hearsay law exempts
business records, for example, because businesses have a financial
incentive to keep reliable records. See Fed. Rule Evid. 803(6). The
Sixth Amendment also generally admits business records into
evidence, but not because the records are reliable or because
hearsay law says so. It admits them “because—having been created
for the administration of an entity’s affairs and not for the
purpose of establishing or proving some fact at trial—they are not”
weaker substitutes for live testimony.
Melendez-Diaz, 557
U. S., at ___ (slip op., at 18). Moreover, the scope of the
exemption from confrontation and that of the hearsay exceptions
also are not always coextensive. The reliability logic of the
business-record exception would extend to records maintained by
neutral parties providing litigation-support services, such as
evidence testing. The Confrontation Clause is not so forgiving.
Business records prepared specifically for use at a criminal trial
are testimonial and require confrontation. See
ibid.
Is it possible that the Court does not
recognize the contradiction between its focus on reliable
statements and
Crawford’s focus on testimonial ones? Does
it not realize that the two cannot coexist? Or does it intend, by
following today’s illogical roadmap, to resurrect
Roberts
by a thousand unprincipled distinctions without ever explicitly
overruling
Crawford? After all, honestly overruling
Crawford would destroy the illusion of judicial minimalism
and restraint. And it would force the Court to explain how the
Justices’ preference comports with the meaning of the Confrontation
Clause that the People adopted—or to confess that only the
Justices’ preference really matters.
B
The Court recedes from
Crawford in a second significant way. It requires judges
to conduct “open-ended balancing tests” and “amorphous, if not
entirely subjective,” inquiries into the totality of the
circumstances bearing upon reliability. 541 U. S., at 63, 68. Where
the prosecution cries “emergency,” the admissibility of a statement
now turns on “a highly context-dependent inquiry,”
ante,
at 16, into the type of weapon the defendant wielded, see
ante, at 17
; the type of crime the defendant
committed, see
ante, at 12, 16–17; the medical condition
of the declarant, see
ante, at 17–18; if the declarant is
injured, whether paramedics have arrived on the scene, see
ante, at 20; whether the encounter takes place in an
“exposed public area,”
ibid.; whether the encounter
appears disorganized, see
ibid.; whether the declarant is
capable of forming a purpose, see
ante, at 22; whether the
police have secured the scene of the crime, see
ante, at
28; the formality of the statement, see
ante, at 19; and
finally, whether the statement strikes us as reliable, see
ante, at 11–12, 14–15. This is no better than the
nine-factor balancing test we rejected in
Crawford, 541 U.
S., at 63. I do not look forward to resolving conflicts in the
future over whether knives and poison are more like guns or fists
for Confrontation Clause purposes, or whether rape and armed
robbery are more like murder or domestic violence.
It can be said, of course, that
under
Crawford analysis of whether a statement is
testimonial requires consideration of all the circumstances, and so
is also something of a multifactor balancing test. But the
“reliability” test does not replace that analysis; it supplements
it. As I understand the Court’s opinion, even when it is determined
that no emergency exists (or perhaps before that determination is
made) the statement would be found admissible as far as the
Confrontation Clause is concerned if it is not testimonial.
In any case, we did not disavow multifactor
balancing for reliability in
Crawford out of a preference
for rules over standards. We did so because it “d[id] violence to”
the Framers’ design.
Id., at 68. It was judges’ open-ended
determination of what was reliable that violated the trial rights
of Englishmen in the political trials of the 16th and 17th
centuries. See,
e.g., Throckmorton’s Case, 1 How.
St. Tr. 869, 875–876 (1554);
Raleigh’s Case, 2 How. St.
Tr., at 15–16, 24. The Framers placed the Confrontation Clause in
the Bill of Rights to ensure that those abuses (and the abuses by
the Admiralty courts in colonial America) would not be repeated in
this country. Not even the least dangerous branch can be trusted to
assess the reliability of uncross-examined testimony in politically
charged trials or trials implicating threats to national security.
See
Crawford,
supra, at 67–68; cf.
Hamdi
v.
Rumsfeld,
542 U. S. 507, 576–578
(2004) (Scalia, J., dissenting).
* * *
Judicial decisions,
like the Constitution itself, are nothing more than “parchment
barriers,” 5 Writings of James Madison 269, 272 (G. Hunt ed. 1901).
Both depend on a judicial culture that understands its
constitutionally assigned role, has the courage to persist in that
role when it means announcing unpopular decisions, and has the
modesty to persist when it produces results that go against the
judges’ policy preferences. Today’s opinion falls far short of
living up to that obligation—short on the facts, and short on the
law.
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.
Footnote 1
I remain agnostic about whether
and when statements to nonstate actors are testimonial. See
Davis v. Washington, 547 U. S. 813, 823, n. 2
(2006).
Footnote 2
Officer Stuglin’s testimony does
not undermine my assessment of the officers’ behavior, although the
Court suggests otherwise. See ante, at 28, n. 18.
Officer Stuglin first testified that he “asked something like what
happened or are you okay, something to that line.” App., 131. When
pressed on whether he asked “how are you doing?,” he responded,
“Well, basically … what’s wrong.” Ibid. Other officers
were not so equivocal: They admitted they had no need to “ask him
how he was doing. … It was very obvious how he was doing.”
Id., at 110; see also id., at 19.
Footnote 3
The Court cites Officer Stuglin’s
testimony that “I think [Brown and Pellerito] did a little bit of
both” joining the interrogation and helping to secure the scene.
Id., at 135–136. But the point is not whether they did
both; it is whether they moved to secure the area first.
No officer’s testimony suggests this. Pellerito testified that he,
Stuglin, and Brown arrived at the scene at roughly the same time
and all three immediately went to Covington. See id., at
17–18. The testimony of Brown and McCallister corroborate that
account. See id., at 34–36, 79–82.
Footnote 4
The opposite of utopian. The word
was coined by John Stuart Mill as a caustic description of British
policy. See 190 Hansard’s Parliamentary Debates, Third Series 1517
(3d Ser. 1868); 5 Oxford English Dictionary 13 (2d ed.
1989).
Footnote 5
See Federal Bureau of
Investigation, Crime in the United States, 2009: Expanded Homicide
Data Table 4, Murder by Victim/Offender Situations, 2009 (Sept.
2010), online at http://www2.fbi.gov/ucr/
cius2009/offenses/expanded_information/data/shrtable_04.html (as
visited Feb. 25, 2011, and available in Clerk of Court’s case
file).
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