The Supreme Court rejects an assertion of a right under the Confrontation Clause — and the 2 dissenters are Ginsburg... and Scalia.

This was a case about the "excited utterances" exception to the hearsay rule of evidence. Richard Bryant, convicted of second degree murder, was identified in a statement made to the police. Justice Scalia writes:

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....

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.

Birthers aren't like Truthers.

There's a new poll showing that a majority of Republicans doubt that President Obama was born in the United States. Are they paranoid-type thinkers, like the 9/11 Truthers, looking for things to connect up and suspecting that conspiracies lie underneath things that other people think are as they've been presented in the media?

I think we need to see that they are not. They have one issue. One question. They have suspicion about one thing, and that suspicion notably hasn't led them into other theories. There's one factual issue — the immensely important matter of the President's qualification — that hasn't been nailed down to their satisfaction.

It's perfectly rational to take as your working theory that evidence that isn't produced would run counter to the interest of the party who could produce it and does not. In legal cases, if a party fails to produce a document requested in discovery, the judge can deem that the fact is established to be what the party seeking discovery is trying to prove. (See Federal Rules of Civil Procedure 37(b)2)(A)(i)).

All I'm saying is that it's not paranoid to answer the question the way the majority did in that poll. I haven't followed the so-called "birthers" that much. Presumably, some of them branch out into other theories and cross over into conspiracy thinking and paranoia. But it's absurd to read the poll results as a sign that the GOP is full of folks like that. If you really wanted to gauge the nuttiness of Republicans, you could do a much more fine-grained poll about what Republicans believe and how strongly the birther issue correlates to other beliefs.

"Ahmed Ghailani's trial shows that courts should admit all reliable evidence."

Writes lawprof Akhil Reed Amar:

For more than a century after the Declaration of Independence, no court in America excluded evidence in a case like Ghailani's. Indeed, the very point of a public trial was to enable the members of the public to bring forth their evidence and have it heard by the jury and the gallery: "That's the man! And here's my proof." In 1783, an English court famously confronted a situation in which a suspect had in effect been coerced into leading the government to find a cache of stolen goods. The idea that evidence about the cache should be suppressed at trial was dismissed by the court as "novel in theory," "dangerous in practice," and "repugnant to the general principles of criminal law." A later court tartly summarized the traditional Anglo-American rule about procuring evidence: "It matters not how you get it; if you steal it, even, it would be admissible in evidence." In 1822, early America's most learned jurist, Supreme Court Justice Joseph Story, wrote emphatically: "In the ordinary administration of municipal law the right of using evidence does not depend … upon the lawfulness or unlawfulness of the mode, by which it is obtained. … The evidence is admissible on charges for the highest crimes, even though it may have been obtained by a trespass upon the person, or by any other forcible and illegal means."

The Founders' Fifth Amendment did operate as a rule of exclusion: It excluded the government from introducing the defendant's own involuntary testimony. But it did so precisely because such testimony was viewed as unreliable.

Amar isn't saying Judge Kaplan misunderstood the existing case law on the subject. He wants the Supreme Court to change it:

[T]he high court could categorically hold that even if physical evidence must sometimes be suppressed, live witnesses, who, after all, speak based on their own free will, should never be muzzled....

In addition, the Court could expand an important limitation on the exclusionary rule known as "inevitable discovery." This standard allows the government to use evidence that would have eventually surfaced regardless of any coerced confession or improper search. Courts thus should strongly—perhaps irrefutably—presume that a witness's conscience would have impelled him to come forward on his own.

ADDED: A key fact: The government chose not appeal Judge Kaplan's decision to suppress the evidence.

The Arkansas Supreme Court orders a new hearing in the case depicted in the documentary "Paradise Lost: The Child Murders at Robin Hood Hills."

"While there is a significant dispute in this case as to the legal effects of the DNA test results, it is undisputed that the results conclusively excluded Echols, Baldwin and Misskelley as the source of the DNA evidence tested," wrote the court.

Here's the trailer for the (excellent) film:

"Lawsuit exposes royal prince's bizarre sex statues — of HIMSELF."

That Daily News front-page teaser got me to click, and it was well worth it. The pictures of the statues are absolutely hilarious. (No nudity revealed in the cropped photos.)

Photographs of the pieces obtained by the Daily News show an endowed, muscular prince in a series of sexual positions with the woman, one of many at his beck and call. [Prince Jefri] Bolkiah has multiple wives and a harem of lovelies.

The prince is suing over the price his ex-advisers took for selling an estate — where he stored the statues. They only got $11 million for it. The prince's lawsuit and his efforts to exclude the statues as evidence at trial led to this complete exposure of the embarrassing statues.

People, think before you sue!

We had no thoughts at all about about Prince Bolkiah before he sued, and now his name is associated only with this one thing. And by "thing," I don't mean his cock. But he is well-endowed. In the statues!

Blagojevich juror: "It was like, ‘Here’s a manual, go fly the space shuttle."

The work was too complicated!

Jurors said it took them several days just to figure out how to begin to break down their assignment into manageable tasks — not to mention how to understand the legal terminology (what exactly is conspiracy to commit extortion?). These were early hints of the multiple stumbling blocks they would find as they struggled, but failed, over 14 days of deliberations, to reach a verdict on any of the counts but one.

It also became clear early on that some jurors believed that much of Mr. Blagojevich’s crass political talk — captured in hours of secretly recorded phone calls — amounted to dreamy thoughts of what he might gain, not criminal demands.

You know, when someone is blabbing a lot dreamy thoughts, it might add up to a whole bunch of nothing. Wait. I got distracted. We're still talking about Blagojevich, right?

“A lot of it came down to, ‘What was his intent?’ ” [Steve] Wlodek said. “You could infer something if you looked at it one way, or not if you looked another.”

That's reasonable doubt. Didn't you at least get the memo that when there's reasonable doubt, you're supposed to find the defendant not guilty?

After initial frustration and confusion upon arriving in the deliberation room with little sense of what to do next, the jurors laid out a plan.

On large sheets of paper, they wrote down crimes Mr. Blagojevich was accused of committing, and taped each one on the walls around the room. On the sheets: a claim that he had sought political contributions in exchange for legislation to help a local pediatric hospital; another that he had sought a political fund-raising event in exchange for state financing for a school; another that he had sought payments for a law that would benefit the horse racing industry; and so on.

Good for them.  There must have a been a temptation to look at the whole big tangle and make an intuitive guess that he's a crook, then try to see where the actual crimes are.  Ah, but that's sort of what they did. Read the linked article. The votes kept splitting over all the crimes except the charge Blagojevich tried to sell the Senate seat. On that one, there was a lone holdout. None of the jurors will reveal who this person was, except to say that she was one of the women.

Mr. Wlodek described her stance as “very noble,” adding: “She did not see it as a violation of any laws. It was politics. It was more of conversations of what-ifs.”

If it were a play, she'd gradually win the rest of them over.

The linked NYT article seems to be written around the theme that if only the prosecutor had simplified the case and concentrated on the charge of selling the Senate seat, Blagojevich would have been convicted on a corruption charge. If that's the case, then, on retrial, the prosecutors know what to do. Won't they win?

Consider what the defense has learned. Even though only one juror held out, she held out for a long time, under great pressure. The other jurors clearly respect her. She was "very noble." On retrial, the defense will, I presume, try to make all the jurors feel the doubt she did. Was it not reasonable doubt?

"[A] female juror ... was the lone holdout on convicting Blagojevich of attempting to sell the Senate seat 'wanted clear-cut evidence, and not everything was clear-cut.'"

According to one juror.

Over at Media Matters, Eric Boehlert is writing about me.

Eric Boehlert. Eric Boehlert? Oh, I know where I read his name recently. He's a character in Iowahawk's brilliant "I'll Take a Cashier's Check, Mr. Breitbart." He's the one handing out the assignments:

EZRA KLEIN: hey boehlert whats the assignment

ERIC BOEHLERT: 3 part essay

ERIC BOEHLERT: 1. Explain why unemployment report shows stimulus is working

ERIC BOEHLERT: 2. link BP oil spill to teabaggers

ERIC BOEHLERT: 3. spin latest Gallups

JOSH MARSHALL: crap crap crap and I have a lab assignment for global warming due

ERIC ALTERMAN: o fack me looks like an all niter...

Ha. But why is he on my case? "Ann Althouse continues to blog about Journolist; appears to have no idea what it was," he says. Well, then, release the archive so I can cure my terrible ignorance. That's all I want.

Althouse continues to post item after item about Journolist, despite the fact that... Althouse has no idea what Journolist was.

Stop me before I blog ignorantly again, Eric. Send me the archive. Or send it to Breitbart and collect $100,000 and I'll get to it that way.

Boehlert goes on to quote me saying that if I were to sue a Journolist member for defamation — something I'm not inkleined to do — I would be able to get discovery into the archive. Eric B. says:

Althouse, a law school prof and very public blogger, was thinking out loud about suing the owner of Journolist to find out if any of the 400 journalists on the listserv ever wrote anything nasty about her in their private emails. (Ego much?)

Eric Boehlert continues to write about me like that even though he has no idea what the thing I wrote that he just quoted says.  I cited a specific item of defamation against me that was published on the web and that remains there. If I were to sue based on that remark, I would be able to get discovery into relevant evidence about that claim. Moreover, I know that there are specific, related remarks about me in the Journolist archive, because that remark was tweeted, in Ezra Klein's own words, "after I was alerted to her thread on Journolist."

Boehlert imagines that one of my commenters nails his argument for him. Here's that comment:

I would think a law professor might have a better grasp of this. But on what grounds would you seek the archives? To borrow a popular argument of the right, where in the Constitution does it say you have the right to know what others are saying about you, especially when you have no proof they are saying anything defamatory about you.

Clue to Boehlert: Not all law is in the Constitution. The tort of defamation is a matter of state law. The extent of discovery is a matter of procedural law. I don't need a constitutional right. (Conceivably, there is a right that would bar my access to the archive, but I don't need a constitutional right to discovery if I bring a defamation claim.)

So, Boehlert, your post is incredibly lame, but, as a law professor, I'll give you a rewrite. I think Media Matters portrays itself as a champion of truth, so... see if you can get a little closer to something that feels a little more truth-y.

***

On a related note: Yesterday, James Taranto, in Best of the Web, opined that a journalist's shield law would prevent discovery into the Journolist archive in a defamation suit:

Seems to us it would depend on the venue. Most states have some sort of shield law protecting reporters from having to disclose confidential sources, but the specifics vary from state to state. In federal court, however, there is no such privilege.

The privilege is about shielding confidential news sources — informants. The Journolist archive contains the statements of journalists talking to each other. I don't see how the privilege could apply.

[Journalists] should, of course, have all the legal protections of the First Amendment, which among other things mean that Althouse almost certainly would not win her defamation suit against Klein. His offending tweet, it seems to us, is a constitutionally protected opinion rather than a false statement of fact.

One reason I have no interest in suing is that I want the broadest First Amendment rights here. I would not want to have to argue that the statement in question — "Ann Althouse sure has a lot of anti-semitic commenters" — is not an opinion but a false statement of fact. But I'm afraid it is, quite plainly, a false statement of fact.

"She said she was meeting with a rape crisis unit, stuff like that. She said it was a high authority person who has a lot of power. She was scared of him."

The Gore accuser made a contemporaneous statement to her friend, according to the friend.

What is the evidentiary weight of a contemporaneous statement like this? It was taken very seriously when aimed at a notable conservative.

Limbaugh cites a BarackObama.com sponsored link on Google as evidence of collusion between the White House and the SEC.

On Wednesday's show, Rush Limbaugh was talking to a former Google employee — "John Doe" — about the way sponsored links on Google work. Rush was unusually thick trying to understand, and I found that pretty annoying considering that he'd been riffing this week about how a sponsored link to BarackObama.com — Obama's campaign site — comes up on a Google search for: goldman sachs sec. (It still does. Try it. You get "Help Change Wall Street/www.BarackObama.com/It's Time for Financial Reform that Protects Main Street. Act Now!")

Rush has been saying things like:

So this is pure Alinsky on steroids. This guy is incompetent to run the private sector but, boy, does he know how to agitate and community organize. They had no advance knowledge this was happening, but they happened to get hold of Google and they said, "Look, we want to buy the search terms 'Goldman Sachs SEC,' we want you to direct the first hit to our website where we are going to raise campaign funds and awareness of the effort to demonize Wall Street." Meanwhile, the White House continues to deny that there's any link between the timing of the SEC suit and its push for regulatory reform.

Okay. Interesting conspiracy theory — collusion between the White House and the SEC. That's something to consider. It was pretty convenient that the SEC moved against Goldman Sachs just as Obama was presenting his finance reform bill. But what kind of evidence is the Google ad?

Back to the colloquy with John Doe:

CALLER: The way it works is that, for instance, with the Goldman Sachs SEC key word, a company or a political campaign can put in a bid on that key word or that phrase so that when someone does a Google search for that phrase an online auction is conducted instantaneously, and the highest bidding organization has its advertisement displayed there. So if you were the Obama campaign, you would bid enough so that the very top result would be the one that you want people to see, namely the anti-Goldman Sachs advertising campaign.... [I]t can cost anywhere from five to ten cents a click or it can cost upwards of two to five or ten dollars a click depending on how popular and how much in demand those key words are. And so, for instance, every time you click on that ad, the campaign is charged anywhere from 25 to 50 cents....

I'm editing out the parts where Rush struggles to understand this description. You can read the whole dialogue at the first link in this post. It's possible that Rush pretends to have trouble understanding to help radio listeners keep up with something that might be a little challenging.

Now, the funny thing is that John Doe didn't call in to help us weigh the evidence of collusion. (What would motivate the Obama campaign to bid for the "goldman sachs sec" search term? How likely is that bid to a result of advance knowledge that the SEC was going to charge Goldman Sachs with fraud?) Instead, John Doe has an idea that will waste the Obama campaign's money:

CALLER: [W]hat your audience might be interested to know, sir, is that each time somebody clicks on that link, the campaign is charged anywhere from 25 to 50 cents or greater. And so I don't want to tell anybody what to do, but again, your audience of millions of people might be interested to know that each time they click on that link, the campaign is charged a small fractional amount, but with millions of listeners, sir, that can end up having --

RUSH: Snerdley, do you know what he's talking about? I have no idea what he's talking about here?

Ha. Is Rush pretending not to understand?

CALLER: Sir --

RUSH: John Doe from somewhere in the country, uhhh, sometimes I'm pretty thick.... So if the 20 million people in this audience all entered "Goldman Sachs SEC" and then clicked on the first result that came up at the top of the list, the person responsible behind that link -- in this case the campaign -- would be charged 25 to 50 cents.

CALLER: That's correct, sir.

RUSH: That can add up to a lot of money if I'm hearing you right.

CALLER: It can, sir, and in many cases the organization will establish a daily budget of maybe $50 or $100 or $10,000 or $100,000 dollars. But in any case, each time there is a click, there is a charge against that organization, and when they reach their maximum budget for the day, their ad disappears.

RUSH: Oh, is that right?

CALLER: Yes, sir.

RUSH: Oh! Oh! So the White House -- I'm sorry -- the campaign here has agreed to a maximum daily financial exposure, and whenever that limit is reached per day, that link then disappears from any further searches?

Oh, too bad! Because 20 million clicks at 50¢ each... talk about pure Alinsky on steroids! But it's still pretty good Alinsky stuff to get people who don't like Obama to go max out the clicks, use up the campaign's allotted money for that sponsored link, and make it go away so it can't reach anyone the campaign was hoping to reach.

After the break, Rush goes into a related riff that is horribly ignorant about Google. Rush either doesn't know or pretends he doesn't know the difference between a sponsored link and a "Google bomb":

RUSH: You remember late in the second term of George W. Bush, if you entered the search term "miserable failure" in the Google search field you would come up with stories on George W. Bush. And Google said, "There's nothing we can do about that, that's just the way it happens." But then when it began to hurt Obama -- 'cause after Obama was elected you put in "miserable failure" or whatever the algorithm was, it defaulted to whoever the president was. That was a way of hiding it being a direct default to George W. Bush. There was a time you could enter "miserable failure" in a Google search field and you would end up with Obama. They found a way to fix it then.

But it's incredibly easy to find out that Google fixed the Google bomb problem by January 29, 2007 — before Obama had even announced his candidacy for President. I Googled "Google bomb" and got the Wikipedia article on the subject. It has a section on the "miserable failure" incident, and that got me to the NYT article, dated January 29, 2007, which makes it obvious that Google responded to the problem Bush had:

It has been a bad month for anti-Bush snarkiness.... 

[A] favored online tactic to mock the president — altering the Google search engine so the words “miserable failure” lead to President Bush’s home page at the White House — has been neutralized.

Google announced on Thursday on its official blog that “by improving our analysis of the link structure of the Web” such mischief would instead “typically return commentary, discussions, and articles” about the tactic itself.

Indeed, a search on Saturday of “miserable failure” on Google leads to a now-outdated BBC News article from 2003 about the “miserable failure” search, rather than the previous first result, President Bush’s portal at whitehouse.gov/president.

Such gamesmanship has been termed “Google bombing,” and is not unique to President Bush, or even politics. John F. Kerry, the Democratic presidential candidate in 2004, was linked to the search “waffles,” while other Google bombs have been elaborate jokes or personal vendettas.

So, note: Google didn't respond to the problem when it affected Kerry. So Rush's they're-all-against-us pose is ridiculous. Yet it's unlikely his millions of listeners will notice. It happened to jump out at me. I think Rush Limbaugh reads my blog, by the way — I have my evidence — so Rush, I'm talking to you.

Back to Rush's Wednesday show:

"Miserable failure" at Google was linked to the White House page, the official WhiteHouse.gov page. And so when Bush was president, "miserable failure," took you there. But when Obama assumed office it still took you there, and then Google found a way to change it. They said they didn't know how it was happening. So when Obama was elected, it went to him, and Google said, "Oh, no, no, we can't have that," so they changed it. So now "miserable failure" does not take you to the White House website ever since Obama has been immaculated.

That's just plain not true. And even if it were true, it wouldn't have anything to do with the suspicions about the sponsored link and the question whether there was collusion between the White House and the SEC.

"Why Do You Believe What You Do? Do our beliefs form the basis of our partisan and ideological affiliations?"

Here is Josh Marshall asking what, for me, have always been the most interesting questions about politics. I've taken a lot of flak for it too. I've found it really annoys people to take a political or philosophical discussion in this direction. But Josh Marshall isn't really going where I hoped he would with this. He's going where I'd expect Josh Marshall to go, toward showing why Republicans are bad:

There's been a lot of recent evidence not only that Republicans disproportionately disbelieve the evidence for man-made global warming but that their skepticism is growing.

Yeah, but isn't there skepticism growing because there is a whole load of new evidence that the scientists were not being too scientific? Is that "disbeliev[ing] the evidence" or paying attention to evidence?

I think that trend is fairly classed under the general heading of Republican/conservative hostility to science.

Aw, come on now! Why do you, Josh Marshall, believe what you do? Why do you believe that skepticism is hostility to science as opposed to the methodology of science? Why do you believe that the evidence for man-made global warming is real evidence and the evidence of misbehavior by scientists is not real? Is it because you are committed to the policy choices that of your partisan and ideological affiliations?

Marshall makes absolutely no attempt to look into the structure of his own mind. He's a politico using interesting questions not because he's curious about the truth but because he seems to think they work well to attack the people he already wants to attack.

There's more to Marshall's post, and it may get a little better, but it's also vague and meandering. Please read it and let me know if you think I'm being unfair to Marshall, but I think he wanted to take a shot at those bad anti-science Republicans and the rest is vague gesturing at the fact that he went to college and could write a coherent essay on the theme he wanted to take the trouble to do it.

Campaigning, Obama said Bush's military commissions were "an enormous failure" and promised to "reject the Military Commissions Act."

But — I've said it before, and I'll be saying it many more times — Obama is like Bush. He's keeping the commissions. Oh, yes, he's making a show of tossing in a little more process.... Must make it seem that he's not exactly like Bush...

The new system would limit the use of hearsay, ban evidence gained from cruel treatment, give defendants more latitude to pick their own lawyers and provide more protection if they do not testify....

Even with the additional rights Mr. Obama is proposing, defendants would still not enjoy the same protections as in civilian courts. Hearsay, for example, is generally not allowed in American courts. In Mr. Bush’s military commission system, it was allowed unless the defendant could prove it was unreliable. Mr. Obama’s plan would shift the burden, allowing its use only if the prosecution can prove its reliability.

Hearsay can be used if it's reliable, but of course, you see the difference.

Jeffrey Rosen on the two important race cases that will be argued in the Supreme Court in the next few days.

Northwest Austin Utility District v. Holder and Ricci v. DeStefano:

[Northwest Austin Utility District v. Holder] challenges Congress's reauthorization of the Voting Rights Act in 2006... But... Congress didn't engage in a serious empirical comparison of voting patterns in the areas of the country that are and aren't covered by the Voting Rights Act. The civil rights establishment was intent on preserving the status quo, which has led to the election of some African Americans in the South at the expense of the Democratic party as a whole; and ... neither Republicans nor Democrats were willing to acknowledge the evidence suggesting that discriminatory barriers to ballot access today, unlike the '60s, seem to be very rare....

[Ricci v. DeStefano is] the most controversial affirmative action case of the term, involving the promotion of firefighters in New Haven. In 2003, the city administered a promotion test. The test was validated by independent experts, as federal law requires, to ensure that it focused on job-related skills rather than purely cognitive ones. But, after the test was administered, none of the top-scoring candidates for 15 positions turned out to be African American. (Fourteen were white, and one was Hispanic.) ... [T]he city refused to certify the exam and promoted no one. The city was then sued by 19 white firefighters (and one Hispanic) led by Frank Ricci, a sympathetic 34-year-old white man. Ricci, who is dyslexic, spent more than $1,000 buying the study guides recommended by the city and paying an acquaintance to record them as audiotapes, which he listened to as he drove to and from work.

The Ricci case is a nightmare for moderate liberal supporters of affirmative action, because it presents the least sympathetic facts imaginable. The Supreme Court has said repeatedly that affirmative action is most troubling when its burdens are concentrated on a few innocent white people rather than being widely dispersed among a large group of white and black applicants....

If the Supreme Court strikes down part of the Voting Rights Act and the New Haven affirmative action program, [it] would force Obama to articulate a moderate, middle-of-the-road position on race that is rooted in empirical evidence rather than ideology....

With all the other problems facing the country--from the economy to the war on terrorism--Obama has no incentive to take on liberal racialists who believe we've made little progress on race since the 1960s or conservative color-blind partisans who insist that anti-discrimination laws are no longer necessary. But everything in Obama's background suggests that he has the inclination and ability to help the country transcend the extremes that have defined our racial politics for too long.

I added the boldface.

"If you are a female about 5 feet 8 inches tall, 140 pounds and willing to stick your head in a toilet..."

"... a northern Wisconsin prosecutor wants your help in proving a high-profile homicide case."

[Douglas] Plude, 42, was convicted of first-degree intentional homicide in 2002. But the Wisconsin Supreme Court threw out the conviction last year after learning that an expert witness who conducted the first round of toilet tests exaggerated his credentials....

Prosecutors... say he poisoned her with a migraine drug and pushed her face into the toilet to drown her while she vomited.

Plude says his wife was depressed, committed suicide by taking the pills on her own and then drowned. He claims he found his wife slumped over the vomit-filled toilet and tried to perform CPR to keep her alive.

Prosecutors called on expert witness Saami Shaibani to shoot down Plude's story at the first trial.

Shaibani said that, based on his tests involving volunteers he positioned at a toilet, Plude had to be lying about the positions he claimed to have found his wife in. Genell Plude also could not have inhaled toilet water on her own and someone must have forced her head into the water, he testified.

Defense lawyers from across the country have derided the tests and call them an example of unfair expert testimony. One of them, North Carolina lawyer David Rudolf, who clashed with Shaibani in another case, laughed about the tests in an interview last year.

"He had women sticking their heads in toilets!" he said. "That's just not science. How do you peer review that? How do you test his conclusions?"

Is it impossible to drown in a toilet? How would you prove it?