An age old question in the State of New York is who is really the most powerful guy around.  For a long time, it was tacitly conceded that Bob Morgenthau had the juice.  But Morgy’s gone now, and Cy Vance sits in his chair.  Does that mean the Cy is now the most powerful guy?  Does Cy Vance think he’s got the juice to extort the Supreme Court?

Apparently, Cy thinks so.  From Jeffrey Fisher’s op-ed in the New York Times :

A friend-of-the-court brief by the Manhattan district attorney’s office pushes the state’s argument one step further, warning that a ruling in the defendant’s favor would prove so costly that it would “force prosecutors to forgo forensic DNA analysis” in future cases. Consequently, the brief continues, defendants in rape and murder cases “might well be prosecuted solely on the basis of eyewitness testimony,” which is notoriously unreliable and could lead to convictions of many “innocent individuals.”

You read that right.  The District Attorney of New York County, Cyrus Vance, Jr., has conceded that every conviction ever obtained by that office on the basis of eyewitness testimony is notoriously unreliable.  Now this is what I call a friend of the court.

The  amicus brief was filed in Williams v. Illinois, on for argument before the Supremes next Tuesday. again challenging the Crawford rule that the prosecution has to produce the actual lab tech who produced the damning lab report rather than mailing it in.  So what if there is a laundry list of things that go very, very wrong in forensic labs, from contamination to bias to outright lies. It costs money to produce witnesses, and the constitutional exception for things that cost money weighs heavy on the court.

It is far more efficient, these justices contend, to let analysts simply mail their reports to court. Having to appear at trials pulls them away from their labs, and only occasionally proves more revealing than their written testimony. Hence, these justices maintain, “scarce state resources” are better committed elsewhere.

But Cy isn’t just relying on the high-brow “waste of money” argument that has captured four of nine votes. Rather, he’s prepared to take the fight to its nadir.

But the assertion in the Manhattan district attorney’s brief reflects — in a particularly dramatic way — some prosecutors’ belief that they can bully the court into refusing to enforce a constitutional guarantee simply by arguing that such enforcement would be an administrative and financial burden.

You want us to test the DNA to get actual, viable evidence?  Ha!  Then you’re gonna have to give up live testimony. Take it or leave it, baby.  From page 10 of the brief, here’s the actual language:

In the absence of DNA testing, defendants might well be prosecuted solely on the basis of eyewitness testimony, the reliability of which is often questioned. See United States v. Wade, 388 U.S. 218, 229 (1967)(“the infl uence of improper suggestion upon identifying witnesses probably accounts for more miscarriages of justice than another other single factor” (internal quotation and citation omitted))… No one concerned for innocent individuals suspected of serious crimes should prefer a world in which DNA testing is needlessly curtailed.

The financial piece of prosecution is always a concern for any governmental entity. They’ve got a budget and if they squander it on bells and whistles, like producing witnesses at trial, how will they ever afford new carts to wheel in the piles of files for quickie pleas?

As Fisher notes, Justice Scalia has called this argument a “bogeyman,” and has been the strongest voice on the Court when it comes to confrontation.  I know, it pains you to have Nino as the voice of reason, but haters gonna hate.  The fact remains that he’s been steadfast in his position that the constitutional mandate of confrontation isn’t trumped by cash and carry jurisprudence.

There’s nothing new here. In the 1963 case of Gideon v. Wainwright, Alabama and several other states filed a brief urging the court to refrain from interpreting the Sixth Amendment’s guarantee of the “assistance of counsel” to require states to provide lawyers to poor defendants accused of felonies. The brief said such a rule would impose on states “an unbearably onerous financial burden to pay the fees of attorneys.”

The court, of course, was not moved. States have adapted. And the Gideon case has become a cornerstone of American jurisprudence. It’s almost impossible now to imagine how a trial could be considered fair without that basic procedural guarantee.

Without question, it can be expensive to maintain a legal system that comports with some, if not most, of the Constitution’s commands.  It would be far cheaper to rush the bums to prison so long as the cops say he’s guilty, or put on a trial without witnesses, cutting down significantly on all that lost forensic time and getting rid of all those annoying cross-examination questions.  With a few tweaks here and there, we could make this system work without a hitch, provided no one gets too caught up with the old “convicting the innocent” saw.

But now that Cy’s put his cards on the table, it would be impolite not to play them.  If it happens that the case against you consists of an eyewitness who takes the stand to identify the defendant as the perpetrator of a crime, no summation should fail to recall the District Attorney’s very thoughtful concession. At the very least, say it as an homage to the most powerful man in New York.