As the nation waits for the Supreme Court to rule on the President’s Health Care Program, I expect the decision will be a greatly splintered and divided one which will most likely add to the run of 5-4 decisions that will be the Roberts Court’s legacy. Without a doubt, this is the most polarized and politicized Supreme Court in this nation’s history.
Just last week, the division among the court became evident in a decision that was really only examined by criminal defense practitioners as it dealt with an important but very unsexy issue – The Confrontation Clause. The case, Williams v. Illinois, generated four separate opinions, provided no clear or useful majority ruling, weakened a recent Supreme Court decision on the same issue called Bullcoming v. New Mexico and provided another opportunity for a sharp plain-spoken dissent from Justice Elena Kagan, who called out her colleagues for “endorsing a prosecutorial dodge.”
Here’s the case in a nutshell: At Sandy Williams’ Illinois rape trial in 2006, a trial held without a jury, prosecutors got an expert witness to testify that there was, indeed, a DNA “match” between samples from Williams and from the victim. However, the witness against Williams that day was not the laboratory analyst who had compiled the scientific information upon which the testimony was based. The incriminating trial testimony came instead from a “state-employed scientist” who had no relationship whatsoever with the contents of the report other than the fact that she had read it. She neither worked for the lab, nor was familiar with the lab’s procedures. Williams’ attorneys properly objected to this at trial, arguing that her testimony had deprived Williams of his Sixth Amendment right to confront the accusers against him. The trial judge didn’t buy his argument. And neither did a state appellate court. But Bullcoming had not yet been decided.
The Supreme Court in Bullcoming considered the issue whether a defendant’s Confrontation Clause rights extend to a non-testifying laboratory analyst whose supervisor testifies as to test results that the analyst transcribed from a machine. In a 5-4 (of course) decision authored by Justice Ginsburg, the Court held that the second surrogate analyst could not testify about the testimonial statements in the forensic report of the certifying analyst under the Confrontation Clause. So if a fellow lab employee, in fact, the lab analyst’s supervisor was not allowed to testify, then certainly some stranger to the lab should also not be allowed – the lab analyst himself must be called, right? Wrong!
Justice Samuel Alito ruled that Williams did not have a right to confront the report’s creator because the trial judge would have been able to understand just how limited the scope of the witness’s testimony had been. The testimony was not introduced to prove “the truth of the matter asserted” (that is , the DNA link) so it wasn’t inadmissible “hearsay evidence,” Justice Alito wrote, nor could the trial judge have believed the testimony was designed to prove a link of the “chain of custody” common in DNA cases. What? If the test was not admitted to prove the truth of the test result – that the DNA found on the victim matched the DNA of the defendant – then what value does it have at all? The witness eventually linked the DNA report to other expert evidence about DNA to establish that the defendant was the perpetrator and the provider of the DNA.
By not calling anyone from the lab who did the test or at the very least who could testify about the lab’s procedures, etc., the defendant was deprived of his right to cross-examine the lab tech about possible errors or flaws in the the lab’s methodology. There have been so many recent cases where lab results have been proven to be untrustworthy due to sloppy procedures and outright falsification of testimony for expediency.
The 5-4 division is unusual here because Judge Alito’s opinion was joined in by Roberts, Kennedy, and Breyer. The four against the decision were Kagan, Ginsburg, Sotomayor and Scalia. The fifth tie breaking vote was Clarence Thomas who issued a bizarre concurring opinion. Thomas wrote that he disagreed that the report was not admitted for its truth because,”There was no plausible reason for the introduction of [the lab’s] statements other than to establish their truth.” You know something in law is really simple if Thomas gets it. He called the majority opinion (which he essentially joined by his decision) a “flawed analysis.” However, he added, since the report “lacks the solemnity of an affidavit or deposition, for it is neither a sworn nor a certified declaration of fact.” Two BIG problems with this argument: (1) Bullcoming decided just last year, dealt with a very similar issue and went the other way and (2) If it is not “solemn” or “testimonial” of what value is it? How can something be admitted into evidence for the truth of the results listed in it but at the same time , not be testimonial? Ridiculous. It’s a twisting of words to get at a result.
Judge Kagan in her dissent points out that by totally disagreeing with the Alito decision, Thomas should have voted to reverse the conviction. She said the dual reasoning “creates five votes to approve the admission of the [lab] report, but not a single good explanation.” She instead provides a very clear reason for its reversal.
She starts by pointing out that the very lab involved in this case, Cellmark, was the key witness in a rape prosecution in California a few years ago. At the preliminary hearing, the prosecution called the actual lab analyst. On direct she testified about the lab’s procedures and declared her findings – that the DNA sample from the defendant matched the DNA sample taken from blood found on the victim’s sweatshirt. But under cross-examination, the defense lawyer pointed out errors in the report that showed she had mistakenly switched the defendant’s DNA sample with the victim’s DNA sample. She actually testified as follows on cross: “I’m a little hysterical right now, but I think . . . the two names should be switched So the blood on the sweatshirt was the victim’s not the defendant’s! Justice Kagan pointed out that this is the whole purpose behind the Confrontation Clause. Our founding fathers were tired of the Crown prosecuting colonists without a human being taking the stand against the accused and relying instead on hearsay and unchallenged opinion. They insisted that in criminal prosecutions, the accused have the right to cross examine all those who were providing crucial testimony against the defendant.
Kagan did not mince words about her view of the case:
Under our Confrontation Clause precedents, this is an open-and-shut case. The State of Illinois prosecutedSandy Williams for rape based in part on a DNA profile created in Cellmark’s laboratory. Yet the State did not give Williams a chance to question the analyst who produced that evidence. Instead, the prosecution introducedthe results of Cellmark’s testing through an expert witness who had no idea how they were generated. That approach—no less (perhaps more) than the confrontationfree methods of presenting forensic evidence we haveformerly banned—deprived Williams of his Sixth Amendment right to “confron[t] . . . the witnesses against him.”
Seems basic to me to Judge Kagan. But just to make it perfectly clear, she then took a quick tour of recent Confrontation Clause cases to show how this case was “open and shut.” In 2004 Crawford v. Washington held that the Confrontation Clause applied only to out-of-court statements that are “testimonial.” Second, where the Clause applies, it guarantees to a defendant “just what its name suggests—the opportunity to cross-examine the person who made the statement.” OK that’s step one. Step Two: A few years later, the Court “made clear that Crawford’s rule reaches forensic reports in Melendez-Diaz v. Massachusetts” which ruled that the defendant had a right to cross-examine the analysts who had authored certificates of analysis found in drug lab results. And finally Step Three: Just two years after Melendez-Diaz and just one year before this case, the court decided Bullcoming which held that a supervisor could not testify in place of the actual analyst, unless he is unavailable and the accused “had an opportunity, pretrial, to cross-examine” him. She remarked that the lab reports in Bullcoming were nearly identical to the lab reports in this Williams case. She went further to then remark that the testimony of the surrogate expert in Williams was nearly identical to the testimony of the surrogate lab analyst in Bullcoming. She points out that Judge Breyer (judge four on the main decision) does not dispute that these cases say these things but states that he chooses to still agree with the dissent in those cases. So he is basically saying he will not follow precedent.
After going through this three step approach she asks a simple question:
Have we not already decided this case?
She points out that four judges of the plurality rely on the fact that the expert testified not to the truth of the matter in the reports but merely that she relied on those reports to make her opinion and that the fifth Thomas, said that was hogwash but that the Clause is limited to “solemn testimony” (despite all the cases to the contrary). She then sums up the “not for truth” argument for what it is – a way around the Constitution:
If the Confrontation Clause prevents the State from getting its evidence in through the front door, then the State could sneak it in through the back. What a neat trick—but really, what a way to run a criminal justice system. No wonder five Justices reject it.
She wraps it up by saying the Court only confused an important area of law that was very specifically decided in recent cases. There was no need to stray from the path of Crawford and Bullcoming. But this Court is ready willing and able to whatever it wants and then find ways around prior decisional law while at the same time claiming to be blindly respectful to the Founding Fathers. At least Scalia was held back by precedent and the plain language of the prior case law. It’s one of the few times I felt regret that he didn’t write his own opinion.
Judge Kagan wrote a lengthy conclusion, but I copy it in full below because as a law professor, I admire its frankness, plain language and simplicity. It also makes me worry about the future of this volatile, political Court:
Before today’s decision, a prosecutor wishing to admit the results of forensic testing had to produce the technician responsible for the analysis. That was the result of not one, but two decisions this Court issued in the last three years. But that clear rule is clear no longer. The five Justices who control the outcome of today’s case agree on very little. Among them, though, they can boast of two accomplishments. First, they have approved the introduction of testimony at Williams’s trial that the Confrontation Clause, rightly understood, clearly prohibits. Second, they have left significant confusion in their wake. What comes out of four Justices’ desire to limit Melendez-Diaz and Bullcoming in whatever way possible, combined with one Justice’s one-justice view of those holdings, is—to be frank—who knows what. Those decisions apparently no longer mean all that they say. Yet no one can tell in what way or to what extent they are altered because no proposed limitation commands the support of a majority.
The better course in this case would have been simply to follow Melendez-Diaz and Bullcoming. Precedent-based decision-making provides guidance to lower court judges and predictability to litigating parties. Today’s plurality and concurring opinions, and the uncertainty they sow,bring into relief that judicial method’s virtues. I would decide this case consistently with, and for the reasons stated by, Melendez-Diaz and Bullcoming. And until a majority of this Court reverses or confines those decisions,I would understand them as continuing to govern, in every particular, the admission of forensic evidence.
I respectfully dissent.
You go, girl!