Friday, February 15, 2019

A new and interesting case on the not-for-truth end run

Stu Dedopoulos, a blog reader who diligently keeps me informed, has told me about Orlando v. Nassau County District Attorney’s Office, an interesting Second Circuit case decided this week.  In a 2-1decision, the majority (Circuit Judge Droney, joined by Circuit Judge Jacobs), upheld a Confrontation Clause on habeas.  I think this was probably the right decision, but it’s a tough case, and there’s a very fine dissent by District Judge Shea.  The case is a good illustration of the difficulties that arise when the prosecution tries to justify what appears at first glance to be a blatant Confrontation Clause violation by citing an arguably plausible not-for-the-truth basis of admissibility.  Evidence teachers might find that it’s good fodder for an exam question.

Mark Orlando was accused of paying Herva Jeannot to murder Bobby Calabrese, allegedly to avoid paying a $17,000 gambling debt.  The police, believing that Orlando and Jeannot had been together the night of the shooting (in Island Park, NY, a few miles from where I grew up), interviewed them separately.  Orlando at first said he and Jeannot had gone together to pay Calabrese, they did so, and then left, without incident.  After some hours, one of the detectives returned repeatedly, eventually telling Orlando that Jeannot had given what they felt were “truer versions” of the events, and that Jenanot had admitted shooting Calabrese but said that Orlando had paid him to do it.  At that point, Orlando, who had said he was afraid of Jeannot, gave another statement, to the effect that after he paid Calabrese Jeannot unexpectedly shot him and took the money.

Orlando and Jeannot were both charged with murder.  The trials were severed, quite properly given Jeannot's confession, which plainly could not be introduced against Orlando for the truth of what it asserted.  But at Orlando's trial, the prosecution, over objection, presented evidence of all of the encounters between Orlando and the police described above – Orlando's first statement, the later interchange between Orlando and the detective, including the detective's summary of and apparent endorsement of Jeannot's statement admitting to the shooting and implicating Orlando, and Orlando's second statement acknowledging being present at the time Jeannot shot Calabrese.  Orlando was convicted, lost on appeals in the New York system and before the district court on his habeas petition, but won in the court of appeals.

I think the majority was right to emphasize that Jeannot was effectively a witness against Orlando; his statement was plainly testimonial.  I think it's also clear that, despite a limiting instruction that the trial judge gave, it's virtually certain that the jury would consider Jeannot's statement for the truth of its assertion that Orlando paid for the killing.  And, as the majority points out, in this case the evidence included not only the substance of the accusatory confession but also an effective endorsement by the police, a factor not present in Bruton.

But the case is not quite like Bruton.  There, the statement was admissible against the confessor, Evans, not against his co-defendant, Bruton.  The Supreme Court held that a limiting instruction would be ineffective; severance was required.  Here, there already was severance.  But the argument is that the evidence was admissible against Orlando for some reason other than to prove the truth of what it asserted.  And it is clear under Tennessee v. Street, which was reaffirmed by Crawford, that a statement does not pose a Confrontation Clause problem when it is admitted to prove some proposition other than the truth of a matter it asserted.

So what was that other proposition?  I take it as given that the prosecution had good grounds to show that Orlando gave shifting exculpatory stories; a person is more likely to shift stories if he is guilty and is adjusting to new information than if he is innocent. The explanation given by Orlando in the police station, and by counsel at trial, is that he was afraid of Jeannot, and so unwilling to say that Jeannot had shot Calabrese until he heard that Jeannot had confessed to doing so.  (Orlando had no objection to the jury hearing that Jeannot had confessed to being the triggerman.)  The fact that Orlando had also heard that Jeannot accused Orlando of having paid for the murder, and that the police were disposed to believe Jeannot, might make this account less plausible; it might suggest that Orlando changed his story only under pressure of knowing he was being credibly accused, and that he came up with an account that was exculpatory but fit the evidence that he knew the police had in hand (proof that he had the debt to Calabrese, that he was with Jeannot the night of the murder, and that Jeannot had admitted being the triggerman).

I'm willing to assume that this is a valid basis for admission.  Nevertheless, it appears to me to be a bad case of the tail wagging the dog.  The harm to the prosecution of not allowing this contextualizing evidence is nowhere near as weighty as the virtual certainty that the jury will take Jeannot's statement as proof that Orlando paid for the killing.  So I think sometimes the Confrontation Clause demands a balancing of how significant the valid evidentiary use is as compared to the probability that the jury will use the out-of-court testimonial statement, notwithstanding a limiting instruction, as proof of what it asserts.  Here, I think the majority drew the balance correctly.  It was virtually certain that the evidence would result in a Confrontation Clause violation, on the issue at the core of the case.  And the evidence, while helpful to the prosecution on the basis on which it was offered, was by no means essential.

I think this last point is especially so because, as the majority suggests, there were lesser alternatives.  For example, I believe a good solution would have been to allow the detective to testify that he had told Orlando that Jeannot had confessed to pulling the trigger but that the police had reason to believe that Orlando may have paid for the killing.  (There was some other evidence besides Jeannot's statement suggesting this that was presented to the jury, starting with the existence of the gambling debt and Orlando's friendship with Jeannot; there was also the lack of an apparent motive on the part of Jeannot.)  That, it seems to me, would have given the prosecution essentially all it needed, but without recital of the substance of an out-of-court accusation.

Two related points make the type of problem exemplified by this case both interesting and difficult.  First, I believe we are looking for second-best solutions.  That is, the ideal solution would be that the prosecution gets everything to which it is entitled and the accused's conforntation right is fully protected, but that is not always possible.  (In this case, I think we can get close.)  Second, I believe we are in an area of balancing – probability of a Confrontation Clause violation against loss of evidence used for a valid purpose – and that makes me very uneasy.  Sure, balancing is appropriate in many areas of the law, certainly including evidentiary matters, but when the Confrontation Clause is at stake hard-edged rules are more likely to provide protection, and that is one of the advantages of Crawford as compared to the old regime of Ohio v. Roberts. (I do believe there are other areas of Confrontation Clause doctrine that demand balancing.  For example, determining unavailability is often a matter of degree, and I believe so also is the question of the extent of mitigating action the state should be required to take before it can successfully contend that the accused forfeited the confrontation right by misconduct.)  It's too easy in cases of this sort, especially on habeas, just to say the prosecution had a good enough reason to justify admission, and so I give the majority credit, especially in the face of a careful and perceptive dissent, for declining to take that path.

Monday, November 19, 2018

First word from Justice Gorsuch on the Confrontation Clause

The Supreme Court today denied certiorari in Stuart v. Alabama, No. 17-1676.  I believe there is good news and bad news here. 

Stuart was charged with vehicular homicide, by drunk driving.  The State introduced a blood test through the testimony of a supervisor in the lab who had nothing to do with preparation of the report -- and who, in fact, was not even employed at the lab at the time of the report.  (See the decision of the Alabama Court of Appeals, taken from the appendix to the cert petition, at 8a, and the petition itself,  at 5-6, 10.)  Gee, that sounds an awful lot like Bullcoming v. New Mexico. This of course was a point emphasized by the petition, which frankly asked for summary reversal.  The Alabama appellate court did little more than wave at Bullcoming; it relieved on a prior decision that seems to have treated Bullcoming as inconsequential in light of an Alabama Supreme Court decision that spoke of what the U.S. Supreme Court "held, in a plurality opinion," in Williams v. Illinois.  (Note that even Oyez speaks of Justice Alito's opinion for four justices as the "opinion of the Court.")

The U.S. Supreme Court denied cert today, and as usual offered no explanation.  But Justice Gorsuch, joined by Justice Sotomayor, dissented from the denial.  And the dissent is very clear -- he rejects the reasoning of the plurality opinion in Williams, at least on the question of whether the lab report was offered for the truth of what it asserted, and also the basis underlying Justice Thomas's vote for the majority in that case.  And he cites Justice Kagan's dissent favorably.

So the biggest piece of good news is that Justice Gorsuch appears to be a tiger on the Confrontation Clause, and so it appears, from the first evidence, that the passing of Justice Scalia's seat to him will not do the doctrine any harm.  And another piece of good news is that Justice Sotomayor felt called upon to join the dissent; on this part of Confrontation Clause doctrine, at least, it appears that she is now in the right corner.

But it's unfortunate that no other justices thought the case warranted action.  I think petitioner's counsel was right that there should have been a summary reversal, and though those are rare they do happen.  But I suppose we shouldn't make too much of the Court declining to reverse summarily.  And what about the failure of others to join in Justice Gorsuch's dissent, and the decision of the Court not to take up the case?  I assume Justice Ginsburg and Kagan remain on the same side with Justices Gorsuch and Sotomayor.  That could have been four for certiorari.  If one but not the other was in favor of cert, she might have had various reasons for not wanting to join a dissent from a cert denialBut I worry that neither voted for cert because they were afraid that Justice Thomas would stand in this case where he did in Williams and Justice Kavanaugh would take Justice Kennedy's place with Justices Roberts, Alito, and Breyer.

Ultimately, I choose to look at the glass half full.   Justice Gorsuch appears to be on the right side, and we didn't know that before. Perhaps Justice Kavanaugh is on the wrong side, but here's no way of knowing for sure -- and if he is, the Court would be just where it was before on these issues, no worse.

Tuesday, May 01, 2018

Continuing confusion on lab tests

Stu Dedopoulos, who does a wonderful job of keeping me informed, has brought to my attention the decision of the supreme court of his home state of New Hampshire, issued today, in State v. Watson.  It provides a good opportunity to comment on the sad state of affairs regarding forensic lab tests.

Watson was charged with felony sale of a controlled drug resulting in death, so toxicology tests on the victim were critical to the prosecution.  In all autopsy cases, the state's Chief Medical Examiner sends specimens to a private lab based in Pennsylvania.  In this case, the lab was asked to test for over 200 substances.  How many different tests the lab actually performed is not clear from the court's opinion.  In any event, the prosecution presented one witness from the lab, Dr. Daniel Isenschmid, a toxicologist, who supervised the lab's report but apparently observed none of the testing.  He testified to the presence in the victim's blood of fentanyl, norfentanyl ( metabolic breakdown of fentanyl), and a breakdown of marijuana, and to the presence of marijuana and opiates in the victim's urine.  He also testified to the amounts of fentanyl and norfentanyl (21 and 2.2 nanograms, respectively), and given those he offered the opinion that the victim had ingested a large amount of fentanyl and that he died shortly after doing so.  The state supreme court ultimately upheld that Isenschmid's testimony did not violate the Confrontation Clause violation because "he testified to his own, independent conclusions."

Several points.  First, if the state had properly proved that there were 21 nanograms of fentanyl in the victim's blood and 2.2 nanograms of norfentanyl, there would be no problem under the Confrontation Clause with Isenschmid -- or any other qualified witness -- using that information to testify to an opinion regarding the cause and manner of death.  But Isenschmid did not know the facts on which his opinion was based, and the only proof of those came through testimonial statements by persons who did not testify.

Second, and relatedly, we really should be clear that it is nonsense to say that Isenschmid's testimony did not violate the Confrontation Clause because he offered "independent" conclusions.  His conclusion as to the manner and cause of death was based critically on information provided to him, such as that there were 21 nanograms of fentanyl in the victim's blood.  If he had just testified to factual propositions like that, based on testimonial statements made by other persons who did not appear at trial, I think the Confrontation Clause violation would have been clear.  That in addition to reporting those facts he offered an opinion based on them does not diminish the problem.

Third, to be precise, the problem is not that Isenschmid did not perform any of the tests.  Rather, it's that his testimony relayed, and relied on, testimonial statements made by persons who did not testify subject to confrontation, and as to facts as to which Isenschmid could not testify.  If, for example, he had observed a test and had recorded its results, there would be no problem with his testifying at trial as to that.  (This is important in autopsy cases, where there may be an observing medical examiner.)

Fourth, given Isenschmid's testimony that 12 lab employees handled the samples, the court says that "[t]aken to its extreme," the defendant's implication is that all 12 would have had to be produced for Isenschmid to be able to testify.  I don't know what Watson argued, but this parade-of-witnesses horrible is a strawman.  (Mixed metaphor cheerfully acknowledged.)  It is not necessary to produce everyone who handled samples; it is only necessary to produce persons whose testimonial statements are being presented, explicitly or implicitly, to the trier of fact. 

Fifth, as a related matter, the prosecution does not have to present live witnesses testifying to a chain of custody with no breaks whatsoever.  The court accurately quotes Melendez-Diaz, 557 U.S. at 311 n.1, that “it is not the case . . . that anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device, must appear in person as part of the prosecution’s case.”  Melendez-Diaz further said that gaps in the chain normally go to the weight rather than admissibility of evidence, and added:  "It is up to the prosecution to decide what steps in the chain of custody are so crucial as to require evidence; but what testimony is introduced must (if the defendant objects) be introduced live."  I'd add that it could be that the break is so large that the court is obligated to conclude that there is insufficient proof that the sample tested is the material one, but that would be an unusual case.

Sixth, I don't think there's any problem with a witness like Isenschmid testifying, "This is what we ordinarily do. . . ." and letting the jury conclude from that testimony that the lab acted in that way in the particular case.  The problem comes when he testifies, "This is what we did here (because my colleague, understanding full well this was a forensic test, told me what she did) . . . ."

Seventh, the Confrontation Clause should shape lab organization, not the other way around.  In the US Army lab, according to the evidence in a case I handled a couple of years ago, one lab analyst handles the sample from intake all the way through to report, even for DNA tests.  Perhaps that is mildly less efficient, not taking into account the accused's confrontation rights.  That's not a good enough reason to decline to organize the lab in that way.  Note that in this case Watson was convicted of a felony that subjected him to a life term (I don't know what sentence the court actually imposed.)  If the lab that the state chooses to use chooses to have three different analysts perform one test each, and the testimonial report of each is critical to the prosecution, then all three should testify.  But that is a non-inevitable choice that the lab makes.

Ultimately, I think it is the supposed multi-witness problem that scares courts in this area.  I think defense lawyers have to make carefully thought-out arguments as to what evidence the prosecution might need in the particular case, and who must therefore testify.  And they should not take the organization of a particular lab as a given.

Friday, March 09, 2018

Autopsy reports -- still waiting for clarification

Last May, I posted a discussion concerning the treatment of autopsy reports under the Confrontation Clause.  The principal issue is when, or whether, such reports should be considered testimonial.  A secondary issue, which arises in other contexts, is whether, assuming a report is testimonial, the prosecution can present secondary evidence concerning the contents of the report on the ground that it supports the opinion of an expert testifying live at trial.

I think the answers should be clear:  An autopsy report should clearly be considered testimonial when it concludes that the probable cause of death is homicide or otherwise provides evidence that a reasonable person in the position of the person writing the report would realize would likely be used in prosecution.  And if a report is testimonial, the Confrontation Clause is not satisfied by having an in-court witness rely on the report  for her opinion, whether or not that opinion is characterized as "independent," if the report only supports the opinion on the premise that the report is truthful.

But unfortunately there remains a great deal of confusion on these issues in the lower courts.  Some get them right, and others do not.  The Supreme Court indicated some interest in the problem last fall when it asked for a brief in opposition to the petition for certiorari (in which Jeff Fisher participated) in Garlick v. New York, but in the end it denied the petition.  Here are the petition (together with the motion for leave to proceed in forma pauperis) and the reply brief in support of the petition.

Meanwhile, Cody Reaves, who has since graduated from the University of Michigan Law School, did an independent study under my supervision on the Confrontation Clause issues related to the use of autopsy reports.  I believe his memo is a very useful resource for anyone doing research in this area, so I am posting it here.  It is Cody's work, not mine, and the conclusions are his; I certainly agree with some of his opinions, but not necessarily with all.

Friday, September 15, 2017

Another look at the Craig-Crawford disjuncture?

Crawford did not purport to disturb Maryland v. Craig, 497 U.S. 836 (1990), which allowed a prosecutor in some circumstances to present the testimony of a child by electronic transmission from a place outside the physical presence of the accused.  But Craig was based on the flexible approach to the Confrontation Clause of Ohio v. Roberts, 448 U.S. 56 (1980), which Crawford overturned.  It is not surprising that Justice Scalia, the author of Crawford, wrote a bitter dissent in Craig, a 5-4 case, and that Justice O'Connor, the author of Craig, was one of two members of the Court not to join the majority opinion in Crawford:  The two opinions reflect radically different views of the Confrontation Clause.  Up til now, the Supreme Court has declined to discuss what the standing of Craig is in light of Crawford.  It has certainly had opportunities.  For example, see here and here. Now Judge Jeffrey Sutton of the Sixth Circuit has written a concurrence in a decision, United States v. Cox, strongly suggesting that the Supreme Court ought to take the matter up.   We'll see what happens. The justices won't necessarily take up Judge Sutton's suggestion, but his is a voice to which they will likely pay attention.

Cox involves electronically transmitted testimony by a third-grader and a sixth-grader.  Other child witnesses evidently testified live at the trial.

Scotusblog piece on the effects of Melendez-Diaz

Scotusblog recently ran a piece by Andrew Hamm titled Looking back at predictions in Melendez-Diaz v. MassachusettsHere is a link. 

I think it's fair to say that this article bears out the conclusion that, despite the dire predictions made by Justice Kennedy of how devastating Melendez-Diaz would be to the criminal justice system, the actual effect has been rather modest.  There was, at least in some states, an initial period of adjustment, as one would expect.  And it may be that defendants' hands in plea bargaining have been strengthened slightly -- but that's not inappropriate, because if defendants' rights have been ignored and are then restored, their bargaining hands should be strengthened.  The Scotusblog article reports the findings of a Ph.D. dissertation by Catherine Bonventre concluding that the effects of Melendez-Diaz have been "none to minimal.  It also uses a study that I supervised, previously reported on this blog, indicating that even in DNA cases adhering to the confrontation right does not result in a parade of lab witnesses.

The Scotusblog article also summarizes the argument made by Sean Driscoll that the case of Annie Dookhan, who was cross-examined 150 times without her years of lab fraud being discovered shows the futility of cross in this context.  I certainly don't think it's a panacea, and it may be that a determined liar like Dookhan will often not be exposed on cross.  But I think the principal value of cross, or the possibility of it, in this context is that the practice of lab techs is likely to be considerably more careful if they know they may have to answer questions under oath about what they have done.

Tuesday, May 30, 2017

An issue to be resolved: The treatment of autopsy reports

This blog has remained dormant for some time, it part because I have been distracted by other work and in part because there haven't been all that many developments that I have thought are worth reporting on.  But I will try to begin posting again more frequently.

There is one set of issues in particular that I think is headed for resolution by the Supreme Court, the treatment of autopsy reports in murder cases, and I expect to be writing several posts on it.  There are two basic issues, one specific to autopsy reports and the other common to other types of forensic reports.

First is the question of whether, or when, an autopsy report is testimonial.  Let's bear in mind how this issue comes up.  Almost always, it is the prosecution in a murder case that wants to use the report without producing as a live witness the medical examiner who made the report.  And the report provides some information -- often the cause of death, and sometimes the time as well -- that is helpful to the prosecution.  Almost always it is clear that, at least as of the time the examiner wrote the report, he or she believed that the death was probably a homicide.  And that means that the examiner must have known that he or she was creating evidence for use in a criminal case.  In such a case, I think it is clear that the report (and especially the statements of use to the prosecution) is testimonial in nature.  If it were not, that is akin to saying to the medical examiner, "Write up your report, and send it in to the police and the prosecutor.  You know, and everyone else knows, that you are doing so with the anticipation that it will be used as evidence or the prosecution in a homicide case, but there will be no need for you to take an oath, or appear in court or before the accused, or be subjected to cross-examination."  That goes against the very core of the confrontation right, and it utterly lacks historical foundation.

Some courts have seen it this way.  Others, though, have regarded autopsy reports as non-testimonial, principally on the basis of the proposition that autopsies are frequently performed for public health purposes having nothing to do with prosecution.  That proposition is true but immaterial.  The question should not be resolved by taking a survey of such a large body of reports -- the question in any given case is whether this report is testimonial.  And even if one did think that the question should be resolved by looking at a category of cases, "autopsies" is too broad -- a more appropriate category would be "forensic autopsies" or "medico-legal autopsies", both of which are well-known in the field.  Even assuming we are to look at the "primary purpose" of the statement (I don't think that should be the test, and perhaps the autopsy case will finally cause the Supreme Court to abandon it), and even assuming that there can be only one "primary purpose" of a statement (an unresolved matter), the primary purpose of a forensic autopsy report is to provide information for the criminal justice system leading to the conviction of the perpetrator of a homicide.

It also should not matter whether the autopsy report is directed at a targeted individual -- five justices rejected that idea in Williams v. Illinois, and for reasons I have explained before and won't bother with now, they were right in doing so.

Nor does it matter that autopsy reports are sometimes performed in cold cases, and prosecution may not follow for some years to come.  It is not a general principle of law that when time passes the prosecution can be excused from presenting its witnesses, absent proof that the accused forfeited the confrontation right, and there is no reason to create such a principle with respect to medical examiners.  And indeed, in this context (unlike that of a crucial eyewitness) the state can protect itself to a great degree by ensuring (as is standard practice in at least some jurisdictions) that at least two people competent to testify about what happened in the autopsy are present (and preferably one of them rather young!).  The state could also protect itself to a great degree by taking a continuous film of the autopsy, including the patient's face.

Finally, it does not mater whether the medical examiner is independent of the police or prosecutor. We do not have a system in which the confrontation right applies only to witnesses who have an affiliation with the criminal justice system.

Second is the question of whether one expert witness can offer an "independent" opinion based on factual assertions made by another expert in a testimonial statement.  This issue is not peculiar to autopsy reports; it arises with respect to many types of forensic lab reports, and was present in Williams.  Five justices properly answered the question in the negative, but because of the unusual result in that case -- the four prevailing because Justice Thomas joined them on other grounds -- the matter is still in contention.  I've addressed this matter before, especially in discussing Williams, and may come back to it later, but won't say more here.

There is a case pending before the Pennsylvania Supreme Court, Commonwealth v. Brown, that presents both issues (although with respect to the second it may be that only state-law issues are involved).  The Superior Court opinion, 139 A.3d 208 (Pa. Super. Ct. 2016), held that the autopsy report was testimonial and introduction of it was a Confrontation Clause violation -- but that the error was harmless because another examiner testified to her "independent" opinion (even though that opinion was based in part on facts asserted in the autopsy report).  So the court got one right and one wrong.  Both parties have appealed.  Here is Brown's initial brief; here is the state's initial brief; here is Brown's second brief (reply brief on his appeal, and appellee's brief with respect to the state's appeal).  The state will presumably file a reply brief on its appeal.

More to come on this set of issues.

Wednesday, December 23, 2015

Third petition on surrogate experts

Tim Provis, counsel for the petitioner in Roalson v. Wisconsin, No. 15-6037, which presents an issue similar to Griep and Katso, has kindly provided me with copies of the papers on cert.  Here are links to the Petition, the State's Brief in Opposition, and the Reply Brief supporting the Petition.