In June, 2009, the Supreme Court decided Melendez-Diaz, (opinion here) holding that the defense had a right to live testimony of the Government's chemist in a drug trial under the 6th Amendment's right to confront witnesses.

In an unusual action, it decided to rehear oral arguments on the issue in Briscoe v. Virgina. The arguments were held two weeks ago.

Today the Supreme Court vacated the opinion in Briscoe v. Virginia and remanded the case. (Order here.)So Melendez-Diaz remains good law. The issue in Briscoe:

If a state allows a prosecutor to introduce a certificate of a forensic laboratory analysis, without presenting the testimony of the analyst who prepared the certificate, does the state avoid violating the Confrontation Clause of the Sixth Amendment by providing that the accused has a right to call the analyst as his own witness?

Open thread.

Steve Benen neatly encapsules the blinders of the Village Dems and bloggers regarding the the political toxicity of the excise tax contained in the Senate health bill:

[I]s there anything Dems can do to get the winds to blow back in the other direction? [. . . we talked earlier about David Plouffe's advice to the party, with suggestions that struck me as sound: "pass a meaningful health insurance reform package without delay"

In these two posts, Benen never mentions the political problem that is caused by the excise tax. Not once. Others have a better grasp of the problem:

It is not surprising that the Obama Administration shares the view often espoused by Village Dems and bloggers of a Presidency with little persuasive power:

White House advisers say Democrats need to understand that Obama is not all-powerful. "There is this sense on Capitol Hill that somehow the president can go out and make a speech and everything just magically becomes better," said a senior White House adviser who requested anonymity in order to speak frankly. "If there is a lesson out of the Massachusetts race, it is the people on Capitol Hill have to realize nobody can go win this for you. If you're going to cast the vote, then you have to be prepared to argue why it was the best vote."

Too soon?

Andrew Cuomo is ready to run for governor. [. . .] [A] source close to Cuomo told The News, "He will make an announcement at the end of March. And what he will say is that he intends to run for governor. ... He thinks there are a lot of problems in the state and he thinks he can help solve them."

If I were Cuomo, I would announce on the last possible day for filing. There is not a person in the state who does not know Cuomo is running. But there is no need to unnecessarily antagonize any supporters Governor Paterson may have left. The article claims Cuomo is ready to run against Paterson, but I'm sure he would prefer NOT to run against him unless he has to. The longer Cuomo waits, the more likely, Paterson will step aside. No doubt Cuomo would crush Paterson, but no need to make enemies when you do not have to.

Speaking for me only

From Sports Left -- J-E-T-S, JETS ! JETS! JETS! To listen to New York sports radio talk this week, you would think the AFC Championship Game, the Jets travel to Indianapolis to face the Colts, is a toss up. In fact, in Vegas, the Colts are 8.5 point favorites over the Jets. What explains this seeming disconnect? The Week 16 Colts-Jets game is the main reason (the Jets' wins at the Bengals and at the Chargers also has optimism for the Jets bubbling.) In that game, Colt coach Jim Caldwell rested his starters in the second half of a 15-10 game. The game went to the Jets and the Colts undefeated season went down the drain (I defended Caldwell's move at the time.)

So what about the game? It's intriguing. But ultimately a mismatch. The Colts demonstrated against the Ravens that they can handle pressure defense, that their defense can stop the run and manhandle inexperienced QBs. It may take until the 3rd quarter but I expect the Colts to get a 2 score lead and after that, the Jets will have to play catchup. If you have confidence in Mark Sanchez to get it done, then betting the Jets to make it close might make sense. I do not believe Sanchez can do it at this point in his career, on the road. I like the Colts (-8.5). I also like the Under (40).

I just received the transcript from NBC's Meet the Press today. Here's Valerie Jarrett on Scott Brown's Senate victory:

I think the question to be asked, and what we learned from the Massachusetts victory, is that people are sick and tired of Washington not delivering for them.

And so, the question is really will the Republican Party become-- be willing to come and work with us? A silver lining is Senator Brown said yes, he's looking forward to coming to Washington and working with the Democrats. And we're hoping that that provides new leadership within the party.

On yesterday's Osama bin Laden tape: [More...]

Osama bin Laden released a videotape yesterday claiming credit for AQAP and Umar Farouk Abdulmutallab's failed bomb plot on the Delta flight to Detroit on Christmas Day.

In a short recording carried by the Al-Jazeera Arabic news channel, bin Laden addressed President Barack Obama saying the attack was a message like that of Sept. 11 and more attacks against the U.S. would be forthcoming.

"The message delivered to you through the plane of the heroic warrior Umar Farouk Abdulmutallab was a confirmation of the previous messages sent by the heroes of the Sept. 11," he said.

"America will never dream of security unless we will have it in reality in Palestine," he added. "God willing, our raids on you will continue as long as your support to the Israelis will continue."

[More...]

Politico says John Aravosis of AmericaBlog makes a good catch on David Plouffe's op-ed in the Washington Post: Obama may be preparing to drop the ban on denying coverage for pre-existing conditions for all but children in the health care bill. Plouffe wrote:

Parents won't have to worry their children will be denied coverage just because they have a preexisting condition.

Aravosis says,

Their children? The original promise - even the bad Senate bill - protects everyone, of any age, from being denied coverage because of pre-existing conditions. Now it's just children?

Aravosis says it's unlikely Plouffe was just using kids as an example. But, could Plouffe have been talking about when the ban kicks in? His full paragraph reads:

If we do pass it, dozens of protections and benefits take effect this year. Parents won't have to worry their children will be denied coverage just because they have a preexisting condition. [More...]

Today may be our last day of decent weather before another big snowstorm. Which means I better get some things done that don't involve being at a computer.

Here's an open thread, all topics welcome.

Update: Brad Pitt and Angelina Jolie have split, divided their property ($300+ million)and the six kids. Maybe that's why he looked like a cross between the Hermit in the tarot deck and Osama at the Haiti telethon. I had assumed he was just having a midlife crisis. I wonder if Twitter will crash with the news.

I just received sad news that a friend of mine, Manhattan criminal defense attorney Jack Litman, died this morning following a long battle with cancer. I think the case the public would most recognize him for is the New York Preppie murder case and his defense of Robert Chambers, but he had so many others.

He had a brilliant mind, and was as knowledgeable about art, music, literature and culture as he was about the law. I will miss visiting art museums with him and listening to him read aloud from books. Whether it was the story of Ethel and Julius Rosenberg or the history behind the depression song, "One Meatball", I always learned so much from him.

R.I.P., Jack.

Update: New York Times; Law Prof Ellen Podgor at White Collar Crime Prof Blog.

Now that the Judge has refused Roman Polanski's request to be sentenced in absentia, the Swiss will act on the extradition request. Can they refuse it? Do they have to refuse it as being legally insufficient? What is Polanski's best argument?

Roman Polanski's lawyers say LA prosecutors misled the Swiss in making the request for Roman's extradition by omitting to inform them that Polanski was not facing a sentence of a year or more upon his return.

Lawyers for Mr. Polanski have argued that the judge who originally handled the case, Laurence J. Rittenband, who has since died, never intended to jail him for more than 90 days. They contend that a sentence that short would not qualify Mr. Polanski, who has been held in Switzerland since September, for extradition to the United States under a treaty between the two countries.

...Action by the Swiss is anticipated within weeks, although Mr. Polanski’s lawyers have said in court that officials in Switzerland had been waiting for more clarity about Mr. Polanski’s possible sentence.

[More...]