No. 13-633
In The
Supreme Court of the United States
MARIO EDUARDO ORTIZ-ZAPE,
Petitioner,
v.
STATE OF NORTH CAROLINA,
Respondent.
On Petition For A Writ Of Certiorari To The North Carolina Supreme Court
AMICUS CURIAE BRIEF OF ANTHONY MICHAEL SABINO IN SUPPORT OF PETITION FOR WRIT OF CERTIORARI
ANTHONY MICHAEL SABINO* MICHAEL A. SABINO
SABINO & SABINO, P.C.
92 Willis Avenue, 2nd Floor Mineola, New York 11501
(516) 294-3199
December 2013
*Counsel of Record for Amicus Curiae
INTEREST OF AMICUS CURIAE
This amicus curiae is a law professor with expertise in constitutional law, the federal courts, and criminal defense. This case addresses important issues vital to the preservation of the liberty interest guaranteed by the Sixth Amendment, this Court’s recent cases upholding that important freedom, and how such rulings are interpreted and applied by the Nation’s lower courts. This amicus curiae has a professional and scholarly interest in the proper application and development of the law in this domain.1
STATEMENT
This amicus curiae respectfully adopts, in relevant part, the Statement of Facts set forth in the Petition for Certiorari filed by the Petitioner herein, Mario Eduardo Ortiz-Zape (hereinafter, “Petitioner”). This amicus curiae furthermore joins in Petitioner’s Points I and III as reasons for the Court to grant review.
SUMMARY OF ARGUMENT
Granting review of the instant case will afford the Court the opportunity to resolve certain tensions within current Sixth Amendment jurisprudence, clarify the precedential effect of Williams v. Illinois, and, most importantly, affirm the vitality of the Confrontation Clause.
ARGUMENT
GRANTING REVIEW OF THE INSTANT CASE WILL RESOLVE THE TENSION BETWEEN WILLIAMS V. ILLINOIS AND THE MODERN TRILOGY OF
CONFRONTATION CLAUSE CASES.
The Confrontation Clause embodies the essential liberty of the right of cross-examination, the fundamental tool that this Court has long exalted to be the greatest legal engine ever invented for the discovery of truth. M.A. Sabino & A.M. Sabino, “Confronting the ‘Crucible of Cross-Examination’: Reconciling the Supreme Court’s Recent Edicts on the Sixth Amendment’s Confrontation Clause,” 65 Baylor Law Review 255, 256-58 (2013) (hereinafter, “Baylor“). Yet notwithstanding the emplacement of a sturdy trilogy protecting this important freedom, this Court nonetheless continues to struggle to define the contours of this precious liberty guarantee, inexorably leading us to cases such as the Petitioner’s herein.
In the early years of this century, the Court has inscribed a great arc, commencing with Crawford
- Washington, 541 U.S. 36 (2004), which exposited the historical injustices perpetrated when the right of confrontation was denied. “Purposed to stamp out the[se] infamies,” Crawford rightly concluded that the Confrontation Clause’s “paramount objective [is] to bar testimony untested by cross-examination.” Id. at 262 (footnote omitted). The Court thereby rejected, for plentiful reasons, earlier misguided modes of inquiry that tested the reliability of testimonial evidence rather than confronting the evidence itself in the crucible of cross-examination. Id. at 258-71.
The second leg of the nascent trilogy was Melendez-Diaz v. Massachusetts, 557 U.S. 305, 329 (2009), where the Court continued its insistence that the Sixth Amendment demands the confrontation of those who would provide testimonial statements against the accused, and, furthermore, established a well reasoned catalogue of what constitutes said “testimonial statements” coming within the ambit of the Sixth Amendment. See Baylor, supra, at 273. Notably, the Court correctly predicted the sky would not fall if the Confrontation Clause were to be honored in full. See Baylor, supra, at 277-78. Justice Scalia
assumed the role of “master builder” in erecting these first two components of the noble triad. Id. at 318-19.
The triad was made complete, and the promise of confrontation fulfilled, by Bullcoming v. New Mexico, 131 S. Ct. 2705, 2710 (2011). See also Baylor, supra, at 279. There Justice Ginsburg placed her own “immutable stamp” upon Sixth Amendment jurisprudence, see Baylor, supra, at 319-20, declaring, inter alia, the petitioner there had the right to confront the actual person, and not the machine nor the surrogate, that accused him. Id. at 283. Most of all, in this “masterful exposition of the essence” of the Confrontation Clause, Bullcoming declared the right of confrontation cannot be dispensed with. Id. at 286-87. Such is the trilogy, but, unfortunately, the controversy does not end there.
“[A] new interaction upon the scope of the Confrontation Clause,” id. at 292, came about with Williams v. Illinois, 132 S. Ct. 222 (2012). In addressing a multifaceted issue of expert testimony, rules of evidence, and the Sixth Amendment, a divided Court may have placed the Nation’s courts on a “road to danger” divergent from the established trilogy. See Baylor, supra, at 330-31. Among other things, we are gravely concerned that Williams is not as “entirely consistent” with its forebears as the former asserts itself to be. Id. at 333 (internal quotations and citations omitted). See also id. at 305. Can this tension be resolved by viewing Williams narrowly? Id. at 350-53. Or shall Williams “escape its bonds” and bring about a “dark day” for the Confrontation Clause? Id. at 354.
The instant case presents an opportunity for this Court to resolve the tension now existing between Williams and the trilogy, by reaffirming the preeminence of the trilogy upholding the Confrontation Clause in the manner the Founders intended. To achieve such a resolution, the Court need not discard Williams; instead, among other things, it can merely cabin Williams’ special relationship to the paramount trilogy, and thus reassure the lower courts that the pantheon of Sixth Amendment jurisprudence, most especially that concerning the Confrontation Clause, stands resolute.
II. GRANTING REVIEW WILL CLARIFY IF WILLIAMS V. ILLINOIS IS TO BE GIVEN ITS NARROWEST READING BY THE LOWER COURTS.
Is Williams “a surprising and significant divergence from the teachings of . . . the vaunted trilogy” described above? See Baylor, supra, at 350-51. Or is the former best applied by according it as narrow a reading as possible in the lower courts? Id. at 351-53. We have espoused the view that, among other things, Williams can best be reconciled to the trilogy by distinguishing the former upon its core of facts, and recognizing the “exquisite” differences between Williams and the dominant triad. Id. at 327.
Clarifying the precedential impact of Williams, when placed in counterpoise to the trilogy already promulgated by this Court, is essential to the preservation of the liberty interest guaranteed by the Confrontation Clause. See generally Baylor, supra, at 354.
CONCLUSION
Respectfully, for all the reasons set forth above, the Petition for Writ of Certiorari should be granted.
Respectfully submitted,
ANTHONY MICHAEL SABINO* MICHAEL A. SABINO
December 2013
*Counsel of Record for Amicus Curiae
1 No counsel for a party authored this brief in whole or in part, and no such counsel or party make a monetary contribution intended to fund the preparation or submission of this brief. The parties filed written consents to the submission of this amicus curiae brief. Counsel of record received timely notice of the intent to file this brief, as required by Supreme Court Rule 37.2(a).