Despite this week's Westword cover story detailing Sonia Sotomayor's clear judicial bias against "numchuck sticks," the Senate still voted to confirm the wise-Latina-loving nominee to the U.S. Supreme Court on August 6. (Apparently the powerful pro-nunchaku lobby was too busy watching ass-kicking Bruce Lee clips on YouTube to mount serious protest.) So does this now mean Thornton cop Kevin Orcutt could get a chance to demonstrate his version of the martial arts weapon to Sotomayor in testimony before the Supreme Court?
Short answer: No. The long answer: It's kind of complicated.
The case in question is a lawsuit brought by New York attorney James Maloney, who argues that the state's total ban on nunchaku violates his Second Amendment right to bear arms. After Sotomayor and other Second Circuit judges ruled in favor of the ban earlier this year, Maloney submitted a petition requesting his case be heard before the high court. If the court accepts, the Orcutt Police Nunchaku could be used as an example for why nunchaku doesn't meet the "dangerous and unusual weapon" criteria on which such bans are based. If evidence is needed, Maloney says he would call upon Orcutt to give testimony.
But Maloney has pointed out that the final paragraphs of "Enter the Nunchaku" give the impression Orcutt might be giving his testimony from the Supreme Court witness stand, which is erroneous since "there is no witness stand" at the Supreme Court.
Ah! Really? So then, uh, how would live testimony be used in a Supreme Court case when the judges don't actually hear live testimony?
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Maloney explains that testimony is taken only in lower courts. "When a case is ready to go before the Supreme Court, the record is already established from the proceedings below, which are closed," he writes. But the Supreme Court could determine that that "additional fact-finding" is needed and remand a case back to District Court to gather evidence. The new information is built into the record, the big dogs on the bench review it, and the attorneys on each side present their arguments.
This is how Orcutt's testimony could be factored into a Supreme Court decision on nunchaku without actually testifying before the justices. But even if he was permitted to bust out a kata in Supreme Court chambers, Sotomayor, who was sworn in Saturday, wouldn't see it. Since federal law says judges aren't allowed to "hear or determine an appeal from the decision of a case or issue tried by him" -- or, ahem, her -- Sotomayor has stated that she would likely recuse herself from Maloney's case if it is accepted into the fall session. Of course, the Supreme Court could decline to put nunchaku on the docket, in which case Maloney intends to continue his litigation through lower courts, where Orcutt could be asked how police use the martial arts weapon.
How's that for a skull-cracker?