The hand down lists from the Mississippi Supreme Court and Court of Appeals are often noted in the blogosphere for what they contain, not what they lack. But quite a bit of intrigue is currently swirling around what the MSSC's recent hand downs have been lacking.
First, here's what a hand down contained back in February, 2009: Birkhead's conviction for capital murder was affirmed. The main issue (as far as the dissenting justices and I see it, at least) was whether or not the admission of the death certificate at trial was proper. Justice Randolph wrote the 6-vote majority opinion, which held that the death certificate (with its attendant declarations concerning the timing of the injury and death) was admissible under MRE 902(4). The majority opinion relies on what I believe to be problematic logic. On one hand, the majority says the defense had (and capably exercised) ample opportunity to discredit the veracity of the death certificate's allegations concerning the times of injury and death. On the other, the majority relies on 902(4), which is founded upon the belief that certain official documents, such as the death certificate in this case, have a reasonable degree of trustworthiness. (Which in this case is an exhibition of the ipse dixit fallacy, from which this blog gets its name. Funny how that worked out.)
Justice Dickinson hit the nail on the head when he called the times in the death certificate "pure, rank, unadulterated hearsay provided by a police officer who was neither identified nor produced for cross-examination" which "emasculated Birkhead’s theory of the case." Justice Kitchens drives it home with authority when he reminds the majority that Rule 902(4) deals with authentication, not admissibility, and that the two are very distinct things.
Now, here's what's not on the hand down lists: A decision on Birkhead's Motion for Rehearing, which was filed on March 5, 2009. That's 1 year and 4 months ago. (Here's a copy of the docket in Birkhead.)
Why the 16 month delay? Well, my guess is that Melendez-Diaz v. Massachusetts and Briscoe v. Virginia being decided in the interregnum had at least some effect on the MSSC. Melendez-Diaz was decided on June 25, 2009, and may well have given some majority justices doubt about their vote in Birkhead. As those justices pondered their vote on the rehearing, Briscoe loomed. Briscoe was to be the opportunity for the Court to limit its holding in Melendez-Diaz, and I'd bet that the MSSC justices were waiting on that decision. Briscoe dropped on January 25, 2010, and in it the USSC reaffirmed its reliance on the reasoning in Melendez-Diaz.
Well, now that Briscoe's answered any questions about whether Justice Sotomayor would look to disturb the Melendez-Diaz reasoning, one has to wonder how much longer it will be until we see Birkhead back on the hand down.
(For more blogging on Birkhead, see Will Bardwell's posts here and here.)