People across the country continue to mourn the death of U.S. Supreme Court Justice Ruth Bader Ginsburg, with special emphasis on her pioneering work on gender equality. GBH News host Henry Santoro spoke with Northeastern University law professor and GBH News legal analyst Daniel Medwed about Justice Ginsburg's legacy and her influence on criminal law. The transcript below has been edited for clarity.
Henry Santoro: First of all, Daniel, what a tragedy. Here we are discussing the passing of SJC Chief Justice Ralph Gants last week and now Justice Ginsburg this week. Did you ever have the opportunity to meet her in person?
Daniel Medwed: I did, Henry. I had the pleasure of encountering her at an event in New York maybe 20 years or so ago. And like so many people, I was mesmerized by her brilliance, and I found it so interesting coming from this tiny frame with her quiet affect. In fact, there was a little bit of a delay as I absorbed the full power of her words coming from this very, very soft spoken person. I'm not surprised that she's become this iconic figure for younger generations, given that she really is an American original — one of our greatest legal minds.
Santoro: She's obviously associated with a number of civil rights issues and her decisions in the realm of employment discrimination, abortion, health care and so on and so forth. Was she also renowned for her criminal law opinions?
Medwed: Well, I think so. I must admit, I'm a bit biased because that's my field, but I think that her contributions to criminal law are very meaningful and compelling, even if they are less well-known than her monumental contributions to gender equality, from her work as an ACLU lawyer and her opinions on the court, that essentially paved the way for the 2009 passage of the Lilly Ledbetter Fair Pay Act, a very prominent piece of legislation.
Perhaps my favorite part of Justice Ginsburg's criminal law work concerns the confrontation clause. That's the provision in the Constitution that gives defendants the right to confront or cross-examine the witnesses against them. And starting in about 2004, Justice Ginsburg, along with her friend and occasionally odd ideological bedfellow, Antonin Scalia, started to chart this very robust and brave course of confrontation clause law that made it very protective of criminal defendants and made it very difficult for prosecutors to introduce out-of-court statements, so-called hearsay evidence, in those cases.
Santoro: Have you discussed her passing with your students?
Medwed: Yes, quite a bit. We've talked about this in class. Many of the students are absolutely bereft about her loss. So I've taken the opportunity in class yesterday, at least, to talk about it to some level of depth.
Santoro: Is there a particular Ginsburg confrontation clause opinion that stands out in your mind?
Medwed: Yeah, so the one that jumps to mind is a 2011 case called Bullcoming v. New Mexico. Here's what happened: A man was charged with drunk driving, and the key evidence against him consisted of a forensic lab report that certified that his blood alcohol concentration exceeded the legal limit in New Mexico. The problem was that the analyst who compiled that report was unavailable to testify at trial; he'd been placed on administrative leave for an undisclosed reason. So the government sent a surrogate instead — someone else from the lab who could testify about general procedures at the facility. The defense cried confrontation clause [and that they] should have a right to actually cross-examine the analyst who did the report. Prosecutors said hogwash. Forensic analysts are just mere scrivners. All they do is mechanistically record data from a test; you don't need to cross-examine them.
Justice Ginsburg absolutely eviscerated the prosecution argument, highlighting how forensic analysts are vital cogs in the criminal justice machine and defendants should have the chance to cross-examine them. It was such an important opinion, especially in Massachusetts, because it came really on the eve of a couple of our crime lab scandals in Jamaica Plain and Amherst.
