As the right wing nuts prepare their battle plan against Second Circuit Judge Sonia Sotomayor's confirmation to the Supreme Court, one trenchant fact should be deployed in her defense: She has never, ever released any of my clients. That should mollify the right (and a good chunk of the center, as well).
Oh, I have given her many chances. Last December, I gave her a chance to release a defendant who was convicted of murdering a government witness (car bomb) to prevent the witness from testifying against him in a cocaine prosecution. The government used the dead witness's testimony against my client. I argued that the Confrontation Clause of the Sixth Amendment prohibited such use because my client could not confront the (dead) witness against him.
I lost. Judge Sotomayor dug back into the history of English and early American Confrontation Clause jurisprudence (which is what judges are supposed to do), and wrote a lengthy and scholarly footnote which basically said, "Nice try, Kuby." Just the latest in a line of cases where she told me, "No." Still love ya, Judge.
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