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In his maiden opinion for the Supreme Court, new Justice Samuel Alito Jr. said on Monday that states may not prevent criminal defendants from introducing evidence at trial that another person committed the crime. The unanimous, pro-defendant decision in Holmes v. South Carolina was an unusual debut for Alito, a former U.S. attorney not known for ruling in favor of the defense when he was a judge on the U.S. Court of Appeals for the 3rd Circuit. Alito joined the high court Jan. 31, replacing Sandra Day O’Connor. But Alito said that South Carolina had gone too far in barring evidence of third-party guilt in cases in which the prosecution has presented forensic evidence that strongly supports a guilty verdict for the defendant. “By evaluating the strength of only one party’s evidence, no logical conclusion can be reached regarding the strength of contrary evidence offered by the other side to rebut or cast doubt,” Alito wrote. Also on Monday, the Court ruled in the high-profile case of Marshall v. Marshall that Vickie Lynn Marshall, better known as the model Anna Nicole Smith, could resume her battle for part of her late husband’s estate in federal court. Justice Ruth Bader Ginsburg, writing for a unanimous Court, said the U.S. Court of Appeals for the 9th Circuit had interpreted the “probate exception” to federal court jurisdiction too broadly. Though probate is mainly a state matter, Ginsburg said that Smith’s claim of tortious interference with a gift could be pursued in federal court. In the South Carolina criminal case, Bobby Lee Holmes was convicted in the 1989 murder of an 89-year-old woman based on evidence that Holmes’ palm print, DNA, and fibers from his clothing were found at the crime scene. Lawyers for Holmes said the evidence had been contaminated, and they also claimed that another man had committed the crime. But the trial court excluded all evidence suggesting third-party guilt. South Carolina, like many states, has a rule that allows judges to exclude such evidence when it is speculative or remote and might confuse or prejudice the jury. Alito explicitly said those rules of evidence were not at issue in the Holmes case. Rather, Alito said the South Carolina Supreme Court had “radically changed and extended the rule” by stating in two cases that if the prosecution’s forensic evidence was strong enough, then the defense evidence of third-party guilt is to be excluded automatically. Alito said that South Carolina’s exclusive focus on the strength of the prosecution’s evidence, without any assessment of the probative value of the defense evidence, violates the Constitution’s guarantee of a “meaningful opportunity to present a complete defense.” Barry Scheck, a former president of the National Association of Criminal Defense Lawyers, called Monday’s decision a “profoundly significant ruling.” Scheck, co-director of the Innocence Project, said the decision will help future defendants challenge forensic evidence. “The mere fact that forensic evidence helped secure a conviction can’t prevent people from trying to prove their innocence,” he said. “Today’s ruling is a strong signal that the Supreme Court is taking the right of defendants to prove their innocence very seriously and is taking a critical look at forensic evidence.” A member of Holmes’ legal team, Edward Lazarus of Akin Gump Strauss Hauer & Feld, said the case “hit the Court at a very opportune spot.” It was a case in which actual innocence was claimed, coming from a state whose handling of capital cases has troubled the Court in the past. One sign South Carolina was in trouble came during oral argument in February, when conservative Justice Clarence Thomas asked a question-almost unheard of for him-and it was hostile to the state. Holmes was represented by Akin Gump as well as by Cornell Law School professor John Blume, director of the school’s death penalty project. Calls seeking comment from the office of South Carolina Attorney General Henry McMaster were not returned. Alito’s maiden opinion for the Court fit the tradition that new justices are usually given cases in which the Court is unanimous. But it was also notable for the fact that it featured only one footnote, an asterisk, as did Chief Justice John Roberts Jr.’s first ruling, last December. Seton Hall Law School professor Charles Sullivan, author of a tongue-in-cheek 2005 Georgetown Law Journal article on the use of asterisked footnotes, laughed when he heard that Alito had used one. As with Roberts’ footnote, Sullivan said it was likely that Alito used an asterisk rather than a number because “some people think it odd if you use a ‘one’ and there is no ‘two.’ “ Alito used to teach at Seton Hall, but Sullivan said the two never discussed footnotes. “If there is any subtext about today’s development, it is that the new justices are going to be chary about using footnotes,” no matter which variety. Tony Mauro can be contacted at [email protected]

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