Justice Scalia will never be remembered as a champion of the little guy, but as a criminal defense attorney he was my best friend. For Scalia the Constitution was not alive, rather it was set in stone. Fortunately, that included the Bill of Rights wherein the protection of citizens accused by their government of a crime are specifically stated. Law enforcement has often found it difficult to live by these rules, often trying to chip away at them in the interest of what they call “public safety.”
Scalia’s opinions in this area consistently harkened back to the concerns of the Founding Fathers, who had lived under the oppression of a colonial government. A staunch advocate for the right to a jury trial, Scalia railed against the notion that judges alone could double a convicted defendant’s sentence by making factual findings that certain “sentencing factors” were presented at trial. In Apprendi v. New Jersey, he wrote for the majority that a jury – not a judge – must find “any fact that increases the penalty for a crime beyond the prescribed statutory maximum.”
His greatest contribution, however, came in the right to confront one’s accuser. In Navarette v. California in a dissent he criticized the majority opinion allowing an anonymous claim to form the probable cause for detaining a motorist. He referred to the court’s opinion as a “freedom-destroying cocktail.”
But it was in Crawford v. Washington that, in this trial lawyer’s opinion, Scalia truly shined. The state court allowed the playing of a tape-recorded statement of an alleged victim of a stabbing to be heard by the jury because, in the judge’s opinion, it was “reliable.” This hearsay evidence denied the accused his right to confrontation, as there had been no opportunity to cross-examine the witness. For Scalia, the Sixth Amendment meant what it clearly said, “… the accused shall enjoy the right… to be confronted with the witness against him.”
The Crawford decision was a criminal justice game changer. No longer could the one sided answers to leading questions of law enforcement be the only evidence needed. The accuser must appear in court and publicly make his accusations, and thereafter be cross-examined about the truth and accuracy of his statements. Countless false allegations, whether they be motivated by fear, vindictiveness or just plain faulty memory could now be exposed in front of a jury. As a purveyor of justice motivated by an honest search for the truth, I will be forever grateful to Justice Scalia for this principled decision.
Not too long ago I had the opportunity to hear Justice Scalia speak in person. On that occasion, I recall nothing in his remarks on the state of jurisprudence in the United States that I agreed with. It didn’t matter; I had to shake his hand anyway. Whether a man is right or wrong in the moment is rarely the measure of him, it is rather his character for integrity that matters. In that regard, Scalia had no equal.