Thomas Shows Signs of Being a Hard-Liner : Law: Opinion by new justice takes a decidedly conservative stand on use of witnesses. The high court did not go along with his idea.

New Supreme Court Justice Clarence Thomas may be showing the first signs of being a conservative hard-liner ready to sharply restrict the protections of the Constitution.

In a little noticed concurring opinion filed this week, Thomas joined the Bush Administration and Justice Antonin Scalia in urging a new approach to limiting a defendant’s ability to confront his accusers in court, a traditional right set forth in the Constitution.

“In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him,” the Sixth Amendment says.

In the past, this has been understood to mean that a defendant has the right to challenge in court anyone who speaks against him, except for what is recognized in law as “hearsay.” For example, the dying words of a murder victim can be used in court against the accused, even though the victim cannot testify.

But in a 10-page statement filed in a child abuse case, Thomas suggests that the Sixth Amendment should be read to apply only to witnesses who actually testify against the defendant. By this standard, statements made outside of court could be used against the defendant as long as the person making the statements did not actually testify in court.

These people are not actually “witnesses against” the accused, and are not covered by the Sixth Amendment, Thomas wrote.

Criminal law experts who have examined Thomas’ opinion say it would mark a sharp change in how the high court views the so-called confrontation clause. They disagreed, however, on its practical effect because the key accuser testifies in most criminal prosecutions.

Georgetown University law professor Paul Rothstein said Thomas’ approach, if adopted by the justices, would amount to “an extreme abdication of their constitutional responsibility. It is a radical departure from what the Supreme Court has said throughout this century.”

He said he was surprised that Thomas was not “more sensitive about the right to confront your accusers” because the newest justice has recently been dramatically accused of sexual harassment.

By Thomas’ standards--if applied to his Senate Judiciary Committee nomination hearings--Anita Faye Hill’s statements to friends about alleged sexual harassment in 1982 could have been used against the high court nominee even if she had refused to testify against him.

Natman Schaye, a criminal defense lawyer from Tucson, Ariz., said Thomas’ approach “gives prosecutors an incentive to call secondary witnesses who can offer hearsay. That contradicts what I thought was a fundamental notion of American justice and the right to confront your accusers.”

On Nov. 4, Thomas’ second day on the court, the justices heard arguments in the case of Randall White vs. Illinois. A convicted child molester, White challenged his conviction on the grounds that his 4-year-old victim did not testify in court even though she was “available” to appear. Instead, a parent, a baby-sitter, police officers and medical personnel who spoke to the little girl testified.

In a unanimous ruling on Wednesday, the Supreme Court upheld White’s conviction. A crime victim’s “spontaneous” declarations or statements to medical personnel are well understood exceptions to the “hearsay rule,” and therefore may serve as the basis of a conviction, Chief Justice William H. Rehnquist said.

But Rehnquist refused to go further and adopt the more sweeping rule suggested by Thomas, Scalia and the Bush Administration. By their standard, the defendant would not be entitled to directly confront accusations by an accuser who did not take the witness stand.

During his years as an official of the Ronald Reagan Administration, Thomas often praised Scalia’s strict constitutional views.

However, during his Senate hearings, Thomas distanced himself from many of those statements and said he had no “ideology” to bring to the court. But one of Scalia’s law clerks went to work for Thomas when he joined the high court, court officials noted.