Reflections on the Fourth (and Fifth) of July, thank you Justices Ginsburg, Sotomayor, Kagan, Kennedy, and yes Justice Scalia


In this blog, I want to weave a couple of strands of thought together here on the Fourth and Fifth of July, as I complete the 2015 update for the 8th edition of my Maryland DUI Law.

As defense lawyers, we are trained to look for the good facts in our cases, and the good traits of our clients, so that we may use the good to persuade judges and juries at trial, and judges at sentencing. What we find is that there are very few people that are all good or all bad. At the same time many of us, through one path or another, end up advocating on particular issues. The issues we may end up being most involved with are not necessarily the most noble, but with so many issues and so little time, we must pick and choose.

Two issues that I am particularly proud of having had the opportunity to argue for are Fourth Amendment issues, the constitutional right to be free from unreasonable and/or illegal searches and seizures, and the Sixth Amendment right of confrontation, guaranteeing that witnesses testifying against our clients be present in the courtroom to be cross-examined. I helped to write amicus briefs in both the Fourth Amendment case of Missouri v. McNeely, and the Sixth Amendment case of Bullcoming v. New Mexico. In McNeely, the Supreme Court held that dispensing with a warrant to obtain a blood sample in a DUI case should never be the norm. In Bullcoming, the Supreme Court held that the actual chemist who tested the defendant’s blood must be present in court for cross-examination. These are important cases, and the government and many lower court judges are doing everything they can to work around them.

Back to Justice Scalia. Justice Scalia has earned the enmity of reporters and commentators for his backward stance on many social issues. He has been the bane of liberals for many years. See Bush v. Gore. I don’t disagree with those sentiments. But two issues he has been remarkably good on, the Fourth Amendment and the Sixth Amendment. While he is no “Notorious RBG” (Ruth Bader Ginsburg) he has been a strong and consistent advocate for limiting the government’s power to invade our privacy and search, and for allowing maximum confrontation of government witnesses. He has joined and on occasion actually led the liberal wing of the court, currently the three female justices, in many cases on these issues, to name a few, the majority in Melendez-Diaz v. Massachusetts, Bullcoming v. New Mexico, and Missouri v. McNeely, and the dissenting justices in Williams v. Illinois. (Justice Breyer has deserted us on some of these).  So while Justice Scalia may not be an angel, neither is he the devil. On Fourth Amendment search and seizure issues and Sixth Amendment Confrontation Clause issues, he is one of our best friends.

If you are facing criminal or traffic charges in Maryland state or federal court, call Leonard R. Stamm of Goldstein & Stamm, P.A. at 301-345-0122 for a free consultation.

Leonard R. Stamm
Goldstein & Stamm, P.A.
6301 Ivy Lane, Suite 504
Greenbelt, MD 20770
(fax) 301-441-4652

Author: West’s Maryland DUI Law



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