Wednesday, March 22, 2006

"Maybe we should just suspend the Confrontation Clause in spousal abuse cases."

That's what Justice Scalia wittily said during Davis v Washington, a case about whether or not a 911 transcript can be used against a defendant even if the caller later changes her mind. This often happens when women who are being beaten are later so childish as to change their minds about their original complaint in a domestic abuse case.
Two years ago, however, the Supreme Court issued an unmistakable warning that these efforts were likely to collide with the Sixth Amendment's Confrontation Clause, which guarantees to a criminal defendant the right "to be confronted with the witnesses against him."

In Crawford v. Washington, the court laid down a new rule: a "testimonial" statement made out of court cannot be used at trial unless the person who made the statement is available for cross-examination....

[Adrian M.] Davis's lawyers argued on appeal that the admission of the 911 tape violated his right to confrontation, but the Washington Supreme Court said the call was not testimonial. It was, the court said, a request for "help to be rescued from peril."...

Mr. Fisher, a Seattle lawyer who successfully argued the Crawford case, said the purpose of the Confrontation Clause was "to bring the accuser and accused face to face and require the accuser to deliver the accusation in court."

But the 911 call was "not just a call," Justice Ruth Bader Ginsburg objected. It was also "a cry for help." Was it not a "practical reality," she asked Mr. Fisher, "that many women in this situation are scared to death?" She added, "Your neat legal categories don't conform to real lives."

Mr. Fisher responded carefully. "I don't mean to be insensitive," he said. He offered a solution: under a rule known as the "forfeiture doctrine," he observed, a defendant who intimidated a witness lost the right to object to the use of that witness's out-of-court statements.

Justice Antonin Scalia interjected: "Maybe we should just suspend the Confrontation Clause in spousal abuse cases."

The other justices undoubtedly took his point, a reminder that he was the author of the Crawford decision, and that he had persuaded six of his colleagues in that case, including Justice Ginsburg, that the Confrontation Clause should be interpreted literally.
Interpreted literally! What a textualist! Are we to be literal about the interpretation in that interesting, sensitive decision, or are we to consider the realities of spousal abuse? What a puzzler!

UPDATE: Have you noticed how indecisive Barry Manilow is when he talks to the contestants on American Idol?

40 Comments:

Blogger K. Ron Silkwood said...

A strict constructionist would make mincemeat of their literal interpretations. But, if one needs to interpret, is that not ignoring what is literal?

9:54 PM  
Anonymous Anonymous said...

Anna Otra-Ratona...

joo have no commented on thees wankerrr, thees how-joo-say Bendomenech-kchchh! (ack) theengy.

Thees lack of rrresponse to an obviously partisano issue, she ees muy curioso coming from joo, no?


so.

¡El Gato Negro!

2:00 PM  
Blogger flory said...

I would dearly love to know what our non-partisan blogmadame has to say about the whole Bendover kerfluffle......

6:29 PM  
Blogger jeremy said...

As a friend of Ann's, I've never been able to find this blog exactly funny, but I could see where somebody who knew her only/mainly through her blog would be amused. But here I look back a few months later and you're still doing it. It's beyond tedious and into creepy. Sort of like the adult who shows up at a teenage kegger and it's all cool-and-funny at first and then the teacher just stays and stays until everyone is totally weirded out.

3:01 PM  
Blogger K. Ron Silkwood said...

"jeremy" pretends to know you, Dear Blogress, and then makes such partisan remarks. Obviously, he only "knows" you in the sense that I know Jennifer Aniston. Anyone who had been in your aura even briefly could not be so unenlightened. I don't like liars, in the same way that I don't like lead-based paint.

9:45 AM  
Blogger jeremy said...

Ann hasn't used any form of the word "partisan" in a post (excepting instances of quoting other people using the word) since February 1st. That's how stale the joke here is.

11:32 AM  
Blogger Ann Altmouse said...

Jeremy, I do not know you! You are not my friend. I think you are a stalker. If you do not cease, I will be forced to call Blogger security.

3:34 PM  
Blogger Thersites said...

Jeremy, is your point that this parody blog has made Ann Althouse a better writer because she's stopped saying something very silly?

I don't know who's running this site, but Althouse certainly is eminently ripe for parody. As a friend you're probably not the person to go to on this, as you say. It is her online persona that is being mocked. And her online persona can be pretty damn pompous, condescending, vacuous, and nasty.

No accounting for taste, though. Maybe if you'd ever been on the receiving end of one of her passive-agressive and wilfully inaccurate rants, you'd have a different attitude. Maybe not. No matter.

Anyway, the parodist here is clearly operating within the precincts of fair public comment, as are you. Are you sure counting the number of times Althouse uses the word "partisan" isn't itself kind of creepy?

6:17 PM  
Blogger jeremy said...

I used the "Find" feature in Firefox. It took like 10 seconds. It could be that having such mad web browser skillz is itself creepy, at least to the technologically backward.

I think the part of this I sincerely do not get (really, truly) is why people who find Ann's online persona "damn pompous, condescending, vacuous, and nasty" keep reading day after day. She must be doing something right. I mean, it's plain y'all expend a lot more energy reading Althouse than I do, and I'm personally fond of Ann even if we are politically parsecs apart.

But, to be plain, I was not claiming that Ms. Altmouse is operating outside of "fair public comment" or whatever. I'm just surprised that a parody blog would go on this long, but perhaps I'm not familiar enough with the genre.

6:16 AM  
Blogger K. Ron Silkwood said...

Dear Blogress, I encourage you to appear on Fox News and expose "jeremy" as a liar and a stalker. On second thought, Bill O'Reilly would be a better venue. He could preach a crusade against these partisan trolls and their vicious attacks. I truly suspect that "jeremy" is really Keith Olberman. While I don't have any proof, feel free to quote me anyway.

9:43 AM  
Blogger Thersites said...

Oooh, "technologically backward." Cold. I suppose a ten second count is not creepy at all, somehow. Of course, I may not be familiar with the genre of comments on a parody blog that take the time and energy to complain about how much time and energy the parody blog takes parodying.

I will concede that Althouse does do something right -- she is condescending and nasty perhaps without realizing it, as she is spectacularly lacking in self awareness, which is what makes the joke of this blog funny. The personality is outsized and fascinating in its preposterousness.

It's also curious that you say you're "parsecs away from her politically," for instance, considering that online she denies having any politics at all, despite the fact that she very obviously does. On her blog, anyway. Maybe she doesn't pull that nonsense with a colleague because she doesn't think she can get away with it? Interesting, anyway.

Her blog persona is anyhow completely ludicrous. I don't read Althouse very much myself, frankly, though I do come by here to see what she's up to, as the parodist does an excellent job of distilling the silliness out of the self-absorbtion. It saves time and provides a laugh.

11:26 AM  
Blogger INMA30 said...

Ann--

I am confused by all of these references to parodies and other blogs. I have often found it helpful when reading other blogs if the administrators delete those comments that discuss such topics.

2:24 PM  
Blogger roy said...

Was Jeremy being chivalrous toward Ann Althouse, or unchivalrous toward Ann Altmouse? The internet is a fascinating place.

12:05 PM  
Blogger K. Ron Silkwood said...

In either case, "jeremy" was a stalker and sexist and should suffer severe self-reflection. In bastinado.

12:26 AM  
Anonymous Anonymous said...

" I'm just surprised that a parody blog would go on this long, but perhaps I'm not familiar enough with the genre. "

This blog is funny, funny, funny, like Donald Trump is funny, and one day y'all will get the joke. I go to her blog often to laugh at her "deep thoughts". remember Jack Handey? Hits for her; cheap amusement for me.

Jeremy had one of his commenters create a Wikipedia entry for him. Now that is pretty funny! lolol

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