One dissent came on a hot-button criminal law issue that has splintered the U.S. Supreme Court: whether the confrontation clause of the Sixth Amendment is violated when a routine forensic report is admitted into evidence without testimony from the technician who prepared it. Reed Smith partner Fogel, a former superior court judge, says the issue comes up constantly in everyday criminal cases such as DUIs and red-light violations.
For Justice Chin, the task was determining whether the set of facts would give rise to a confrontation clause violation under the U.S. Supreme Court's most recent precedent, Williams v. Illinois, 132 S.Ct. 2221. The problem is that only four justices signed the plurality opinion in that case, with Justice Clarence Thomas' concurrence expressly rejecting their reasoning.
Liu disagreed with Chin's approach. "It is easy enough to count noses and determine what the outcome would be if we were to apply the various opinions in Williams to alternative fact patterns," he wrote in People v. Lopez. "But such nose-counting is a job for litigators, not jurists. As a court tasked with applying an evolving line of jurisprudence, our role is not simply to determine what outcome will likely garner five votes on the high court. Our job is to render the best interpretation of the law in light of the legal text and authorities binding on us."
In an interview he expands on the idea. "How could a predictive judgment really be the operative rule?" he asks. "What if one justice were to retire tomorrow, and a new one replace him or her? Does the rule of law then change simply because personnel changes on the Supreme Court? That can't be the way people are supposed to behave."
Liu concluded in Lopez that the court should focus on the process and purpose underlying the report, not the formality of the report itself, as the California Supreme Court majority concluded.
Liu's dissent "resonated with me," said Fogel, who taught the case in a class last year at Berkeley Law. "It reminded me of how difficult it was to rule on these issues."
It appeared to resonate with a panel of the Second District Court of Appeal, too. Retired Justice Paul Coffee cited Liu's dissent with approval Dec. 24. "But," he added, "the majority's opinion is controlling authority in this state and we are compelled to follow it."
Lawyers who watch the court say Liu could be a powerful intellectual force there for many years.
Gary Strankman, a former presiding justice of the First District who is now a JAMS neutral, says Liu's youth, academic background and willingness to assert himself could propel him into a role such as former Supreme Court Justice Matthew Tobriner played. "He could have a larger shaping voice on the court than as one of seven votes," Strankman says.
Others wonder privately if Liu will be content to spend the rest of his career on the state's highest court, and whether he might be tapped again for the Ninth Circuit or even the U.S. Supreme Court.