Thursday, May 05, 2005

A funnier transcript

Here is the transcript from Johnson v. California, which includes these exchanges:

5 MR. SCHALIT: Well, Your Honor, I believe the
6 phrasing was that it's explained the operation of prima
7 facie burden of proof rules, and that's the footnote on
8 page 94, sort of the operation of the burden of proof
9 rules that is at issue here. And the burden of proof and
10 burden of production rules --
11 JUSTICE SCALIA: A lot of people don't read
12 footnotes.


4 MR. SCHALIT: Well, the challenge does cease
5 being peremptory because the Equal Protection Clause has
6 overturned the State statute that provides that challenges
7 -- peremptory challenges are challenges for which no
8 reason need be given.
9 JUSTICE SCALIA: But Batson overruled that. I
10 mean, those days are gone. Tell California to stop
11 worrying about that.


7 JUSTICE STEVENS: Of course, in avoiding that
8 chill, you're in effect saying the prosecutor is entitled
9 to one or two free discriminatory challenges.
10 MR. SCHALIT: Well, certainly there -- there is
11 a somewhat different consequence in -- in the standard as
12 articulated by petitioner in that the striking party does
13 get perhaps a freebie. And California doesn't accept
14 that. We've recognized that in State supreme court cases
15 there are no substantial free challenges.
16 JUSTICE SOUTER: The dog is entitled to one
17 bite.
18 MR. SCHALIT: I'm sorry, Your Honor?
19 JUSTICE SOUTER: I say, the dog is entitled to
20 one bite.
22 (Laughter.)
23 MR. SCHALIT: Hopefully not --
24 JUSTICE SCALIA: It's a New Hampshire rule.

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