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Zaal v. State 326 Md. 54b

Zaal v. State 326 Md. 54b

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Published by Thalia Sanders

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Published by: Thalia Sanders on May 24, 2012
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For Opinion See107 S.Ct. 989Supreme Court of the United States.COMMONWEALTH OF PENNSYLVANIA, Peti-tioner,v.George F. RITCHIE, Respondent.No. 85-1347.October Term, 1985.November 24, 1986.ON WRIT OF CERTIORARI TO THE SUPREMECOURT OF PENNSYLVANIA.Reply Brief for PetitionerRobert E. Colville, District Attorney, Robert L.Eberhardt, Deputy District Attorney, Edward Mar-cus Clark [FN*], Assistant District Attorney, Officeof the District Attorney, 401 Allegheny CountyCourthouse, Pittsburgh, Pennsylvania 15219, (412)355-4534, Counsel for Petitioner.FN*
Counsel of Record 
*i
TABLE OF CONTENTS.Argument ... 1The judgment and order of the Supreme Court of Pennsylvania is, for purposes of 28 U.S.C.§1257(3), a final judgment, conferring jurisdictionon this Court to review the claim of constitutionalerror presented by your petitioner ... 1A. The Sixth Amendment issue has been finally de-termined by the highest court of Pennsylvania;there is sufficient justification for immediate reviewby this Court of the substantial federal questionpresented ... 3B. Postponement of review would serve none of thepolicy considerations militating against inter-locutory appeals; the very nature of the confidenti-ality claim demands pre-hearing review to avoid ir-reparable injury ... 4C. Postponement of review because of the inter-locutory nature of the judgment below will ulti-mately moot the question presented or render laterreview impossible ... 6Conclusion ... 9
*ii
TABLE OF CITATIONS.
420 U.S. 469(1975)... 3,4,5,6
458 U.S. 858(1982)... 71986 WL 728028 (U.S.) Page 1© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
 
412 U.S. 470 (1973)... 5RULES AND STATUTES.28 U.S.C. §1257... 1,3,9Act 1975, November 26, P.L. 438, No. 124, §15; 11P.S. §2215 (Purdon) ... 1OTHER AUTHORITIES.Note,
*1
ARGUMENTThe judgment and order of the Supreme Court of Pennsylvania is, for purposes of 28 U.S.C. §1257(3), a final judgment, conferring jurisdiction on thisCourt to review the claim of constitutional errorpresented by your petitioner.The Supreme Court of Pennsylvania has effectivelyinvalidated the confidentiality provisions of thestate Child Protective Services Law,[FN1]relyingexclusively on its
*2
interpretation of the scope of the privileges afforded a state criminal defendantby the Confrontation and Compulsory ProcessClauses of the Sixth Amendment.
509 Pa. 357, 502 A.2d 148 (1985); (Pet.for Cert. App. A). In vacating respondent's judg-ment of sentence, the Court concluded that the trialcourt's refusal to grant respondent pretrial access topresumptively confidential child protective servicesfiles concerning the child-victim and her family im-permissibly fettered respondent's ability to defendhimself.FN1. Act 1975, November 26, P.L. 438,No. 124, §15; 11 P.S. §2215 (Purdon).When materials gathered become an arrow of in-culpation, the person inculpated has a fundamentalconstitutional right to examine the provenance of the arrow and he who aims it. Otherwise, the SixthAmendment can be diluted to mean that one mayface his accusers or the substance of the accusation,except when one is shielded by legislative enact-ment.
502 A.2d at 153; (Pet. for Cert. 11a).The Supreme Court of Pennsylvania ordered anevidentiary hearing. The trial court has been direc-ted to permit defense counsel to review, without re-striction, the entire child protective service file forthe purpose of arguing “to the trial court what use,if any, could have been made of the files in cross-examining the complainant or in presenting otherevidence.”
502 A.2d at 153-54; (Pet. for Cert.12a-13a). The Commonwealth may then attempt toestablish, if indeed arguably material and relevantmatter is disclosed, that the asserted error was con-stitutionally harmless.
502 A.2d at 154; (Pet.for Cert. 13a). “Unless the trial court is convincedthat any error was necessarily harmless, it shall va-cate the judgment of sentence and grant[[respondent] a new trial.”
Ibid.
*3
A. The Sixth Amendment issue has been finallydetermined by the highest court of Pennsylvania;there is sufficient justification for immediate reviewby this Court of the substantial federal questionpresented.Respondent does not dispute that the highest courtof Pennsylvania has finally determined the federalconstitutional issue present in this case, and of course, the issue is not susceptible of further reviewin the courts of the Commonwealth. Respondent ar-gues, nevertheless, that the decision is not a final judgment--as that term is understood inTitle 28U.S.C. § 1257--because there are further state pro-ceedings to come. Hence, the judgment below is in-terlocutory (Brief for Respondent 6).Respondent acknowledges, however, that this Courthas “amplified” its orthodox definition of finality[FN2]over the past 100 years and, in certain cases,1986 WL 728028 (U.S.) Page 2© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
 
has exercised its jurisdiction even where furtherproceedings in the lower state courts are contem-plated.
Id.
at 8. This Court has explained that incertain categories of such cases review has been un-dertaken despite the apparent jurisdictional barrier.FN2. Citing
114 U.S.127 (1885).In most, if not all, of these cases ... additional pro-ceedings would not require the decision of otherfederal questions that might also require review bythe Court at a later date, and immediate rather thandelayed review would be the best way to avoid ‘themischief of economic waste and of delayed justice[.] ...’
420 U.S. 469,477-78 (1975)(footnote omitted),
326 U.S. 120, 124 (1945). However, respondent contends that the presentcase fits within none of the four exceptions dis-cussed in
420 U.S. at479-483.Specifically, he argues that this Court iswithout authority to review the judgment below be-fore the evidentiary hearing has concluded because,he speculates, the trial court's harmless error de-termination could raise additional federal issues orrender the issue moot. Respondent reasons that thesalutary policies served by avoiding piecemeal lit-igation would be undermined by this Court's prema-ture assumption of jurisdiction (Brief for Respond-ent 7-8). In view of the nature of the state proceed-ing ordered by the Supreme Court of Pennsylvania,and considering that the federal constitutional issue,however decided, will necessarily control the dis-position of the evidentiary hearing, respondent's ar-gument, if accepted, would insure judicial ineffi-ciency and piecemeal litigation.B. Postponement of review would serve none of thepolicy considerations militating against inter-locutory appeals; the very nature of the confidenti-ality claim demands pre-hearing review to avoid ir-reparable injury.The Commonwealth submits that the present con-troversy is precisely the kind of case in which final-ity ought to be given a “practical rather than a tech-nical construction.”
337 U.S. 541, 546 (1949). The uniquefacts of this case provide, in the Commonwealth'sview, sufficient justification for immediate review.1) The scope and application of the Confrontationand Compulsory Process Clauses have been author-itatively construed by the Supreme Court of Pennsylvania, incorrectly in the Commonwealth'sview. 2) The Sixth Amendment issues, had theybeen decided the other way, would have been de-terminative of the only aspect of the decision belowwhich has been contested by the Commonwealth. 3)The mere convening of the state evidentiary hear-ing, under
*5
the conditions imposed by the stateSupreme Court, requires
ab initio
complete disclos-ure to respondent's counsel of the contents of theconfidential file, an irretrievable loss in terms of theinterests asserted by the Commonwealth. 4) Thereis literally nothing left to be decided, and inter-locutory review would permit this Court to correctwhat the Commonwealth believes to be a highlyprejudicial legal error. The very nature of the con-fidentiality claim, as Pennsylvania and
amici
haveargued in briefs on the merits, demands immediateprotection.
See,
Note,
431 U.S. 651, 662 (1977), (double jeopardy protection would be lost if petitioner'sclaim were not reviewable before subsequent ex-posure occurs);
412 U.S. 470,478 (1973), (even if petitioner prevailed statewould still have benefit of non-reciprocal rights, thevery harm which petitioner wishes to avoid by chal-lenging the rule).Respondent is disposed to concede that under
Cox Broadcasting Corp.,
the issue before this Courtwould be appropriate for interlocutory review werea new trial to be awarded after the evidentiary hear-ing (Brief for Respondent 9, 11, 13). Nonetheless,he urges that the Commonwealth must first capitu-1986 WL 728028 (U.S.) Page 3© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

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