Wednesday, April 16, 2014

Something brewing?

Papers in three of the cases mentioned in my post of February 27 – Derr v. Maryland, No. 13-637, Galloway v. Mississippi, No. 13-761, and Edwards v. California, No. 13-8618 – have been
distributed for this Friday’s conference.  Derr, incidentally, was Petition of the Day  on SCOTUSBlog on Monday – but Medina v. Arizona was previously Petition of the Day, and that got denied.  (It’s still four Justices, not designation by SCOTUSBlog, required for a grant.)  Two other petitions filed since that post that raise Williams-related issues, Bolus v. Pennsylvania, No. 13-1078, and Marino v. North Carolina, No. 13-1081, are also on for this conference.  (In each of these cases, the state waived its right to respond and the Court has not requested a response.)

Two other Williams-related cases, James v. United States, No. 13-632, and Johnson v. California, No. 13-8705, have been distributed for the following conference, on April 25.

All this activity is worthy of attention; something might happen soon.  But it does not necessarily mean the Court will soon grant one of the petitions.  It doesn’t even necessarily mean that it will soon decide whether to grant one of the petitions.  Turner v. United States, No. 13-127, and Ortiz-Zape v. North Carolina, No. 13-633, have been held for months.  Yohe v. Pennsylvania, No. 13-885, was distributed for the conference of March 28 and is still being held.  And there are other cases in the pipeline.  All the papers are now filed in Brewington v. North Carolina, No. 13-504, but it has not been redistributed.  And in Cooper v. Maryland, No. 13-644, the Court recently requested a response from the state, due May 9.  Also, another petition filed since my post of Feb. 27, in Alger v. California, No. 13-1102, is pending.  I invite readers to tell me about other cases presented to the Court raising Williams-related issues.

Thursday, February 27, 2014

Pending and recent cert petitions on forensic lab reports

    This week, the Supreme Court denied cert in Medina v. Arizona, No. 13-735.  The case presented the question of whether an autopsy report concluding that the death was a homicide caused by blunt force trauma is testimonial.  I sure think that this ought to be an easy question to answer in the affirmative.  I do not know whether the Court is not ready to answer the question, or it believed that the case was not an appropriate vehicle for resolution of the issue.  Another pending autopsy case is James v. U.S., No. 13-632, which was filed on Nov. 22.  (There the autopsy report concluded that the cause of death was acute ammonia poisoning, but it did not otherwise indicate that the cause was homicide.)  The Government has gotten three extensions of time to file its response, which is now due March 17.

    The Court has been sitting on other petitions raising other issues related to forensic reports, and one way or another asking for clarification of Williams v. IllinoisTurner v. U.S., No. 13-127, Ortiz-Zape v. North Carolina, No. 13-633, and Cooper v. Maryland, No 13-644, have all been distributed for conference and held.  After Brewington v. North Carolina, No. 13-504, was distributed, the Court requested a response from the state; that was filed on February 3, and the reply brief on February 13.  And in Yohe v. Pennsylvania, No. 13-885, filed on January 22, the state filed its response on February 24.  So these cases too will soon go on the conference calendar, but the best guess is that they will be held as well, pending completion of the papers in one or more of the other pending cases:  Galloway v. Mississippi, No 13-761, filed Dec. 20, 2013, with the state’s response now due, after extension, on March 7; Edwards v. California, No. 13-8618 (in forma pauperis, seeking review of People v. Edwards, 306 P.3d 1049 (Cal. 2013)), filed Feb. 7, with the state’s response due March 10; and Derr v. Maryland, No. 13-637, which has twice been distributed for conference, resulting in a request from the state for a response, due March 17.  So I am sure that the Court will be impressed by the fact that there is a lot of confusion in the lower courts; whether it will be motivated to step in is of course another question.

    Meanwhile, the Court has denied several petitions raising Williams-related issues.  It denied a few, including the one in New Mexico v. Navarette, which I discussed in a prior blog post, on the first day of term (when, by the way, it also denied my petition in Berkman v. Indiana, raising another confrontation issue), and it has since denied a couple of others, Dyarman v. Pennsylvania, No. 13-611, and Lusk v. United States, No. 13-403.

    I encourage any readers who are aware of other pending (or recent) petitions that might be of interest to let us know.

Tuesday, December 17, 2013

Pending cert petitions seeking clarification of Williams

An anonymous reader has pointed out that the second petition for certiorari in Turner v.  United States, No. 13-127, one of the cases that was GVRed (grant, vacate, remand) in light of Williams v. Illinois, came before the Supreme Court's conference on Friday but the Court did not take any action.  (The case was originally distributed for the conference of September 30, but before hen the Court requested a response form the Government, so the case was relisted.)  It may well be that the Court realizes that it needs to do something in light of the confusion created by the fractured decision in Williams, but it has not yet decided which case to take.  There are several others pending.  The Court has already requested a response from the State in Brewington v. North Carolina, No. 13-504, filed in October, and the State's response is not due until February 3.  Derr v. Maryland, No. 13-637, was filed on Nov. 20, Ortiz-Zape v. North Carolina, No. 13-633, on Nov. 21, and Cooper v. Maryland, No. 13-644,  on Nov. 22.  If readers know of other cases, I'd be glad to learn of them.  It looks like something might be brewing.  Comments welcome! (And I am hoping to post more on this blog in the next several months than I have in the last several!)

Tuesday, October 01, 2013

Two pending cert petitions

To my regret, I have not posted on this blog for a long time.  I will try to be better about that in the future.

The Supreme Court opens its new term next week, and there are at least two pending cert petitions, both in murder cases, raising Confrontation Clause issues.

One is my own, in Berkman v. Indiana, No. 12-10691, seeking review of Berkman v. State of Indiana, 976 N.E.2d 68 (Ind. Apps. 2012), transfer denied, 984 N.E.2d 221 (Ind. 2013).  The petition raises two issues:  (1) The Indiana courts hold that a discovery deposition provides an opportunity for cross-examination sufficient to satisfy the Confrontation Clause.  I think this is wrong, and there is a clear conflict among states on this point.  (2) In this case, the trial and appellate courts applied what I contend amounted to a per se rule that a transient disability is sufficient for a determination of unavailability.  Numerous courts have done the same, but the rule properly followed by most jurisdictions is that a determination of unavailability requires consideration and articulation of various factors, including the likely duration of the disability.  Here are links to the petition, the appendix to the petition, the brief in opposition, and the reply brief in support of the petition.

The second is New Mexico v. Navarette, seeking review of State v. Navarette, 294 P.3d 435 (N.M. 2013).  The New Mexico Supreme Court held – as I think should be obvious – that an autopsy report performed as part of a murder investigation is testimonial for purposes of the Confrontation Clause. The petition seeks not only to reverse that holding but also to cut back dramatically on Crawford. Here are links to the petition and the reply brief in support of the petition on Westlaw and SCOTUSblog, and here is one to the brief in opposition.  Sooner or later the Court will probably have to address the question of whether autopsy reports in murder cases are testimonial -- though I think it should be a no-brainer.  Whether this is an appropriate case is another matter.

Monday, October 15, 2012

Three decisions from the California Supreme Court on forensic reports

The California Supreme Court issued three decisions today on the Confrontation Clause and forensic reports.  Two of them divided the court and show how bad things can get in light of the confusion sown by the US Supreme Court's decision in Williams v. Illinois

The lead case, People v. Lopez, involves a lab report of blood alcohol content.   Seems familiar, doesn't it?  But a majority of the court says that the analyst doesn't have to show up because this report was not sufficiently formal, given where the analyst's signature was on the report.  Maybe a subsequent reading will make this appear less bizarre than it appears to me at the moment, but two quick reactions:  (1) The majority engages in a fine-tuned analysis of the placement of signatures and notations that I think utterly loses sight of the fundamental right at stake of an accused to be confronted with those who provide evidence against him.  (2) The decision, if it stands, provides a recipe for avoiding the confrontation right with respect to forensic reports, something that many labs and prosecutors have been eager to accomplish (one of the concurring opinions is pretty explicit on this).  This recipe will denigrate the quality of evidence presented.

The second case, People v. Dungo, involved an autopsy report in a murder case.  The majority decision says this was not testimonial because it was not made with the primary purpose of creating evidence for trial.  My reaction to this is on the order of "Give me a break."  I understand that there are all sorts of reasons why a medical examiner might do an autopsy.  But by the time the examiner is ready to write a report saying that death was by strangulation, he knows exactly what he is doing -- creating prosecution evidence in a murder case.  I am not a fan of the "primary purpose" test, but if this autopsy report doesn't meet it then the test has become farcial.

The third case, People v. Rutterschmidt, was decided on harmless error grounds, without dissent.  But it's worth mentioning, because it's not every day that a pair of elderly ladies is charged with having taken out multiple insurance policies on the lives of two men, in incidents six years apart, and then murdered them by running over them while they were in compromised condition.

Thursday, June 21, 2012

Source of the "targeted individual" test?

I hope to be offering more commentary on Williams within a few days.  Meanwhile, perhaps I can offer a solution to one mystery.  Justice Kagan quite sensibly says that where Justice Alito's "targeted individual" test comes from "is anybody's guess."  One answer, ironically, might be right here on this blog.  In a couple of commentaries, and then in a longer one in January 2011 that I put in a full posting, titled "Pure Cold Case" Prosecutions & The Confrontation Clause:  What Does The Future Hold?, Paul Vinegrad, a frequent contributor to this blog -- always resourceful and frequently, as here, wrong-headed, in my view -- suggested this test.  (He spoke about the need for "reasonable suspicion" to detain or arrest "a particular person.")  You can see Paul's posting, and the critical commentary I offered on it, by clicking here.

Of course, even if this does solve the mystery of where Justice Alito got the idea, it only pushes the mystery back somewhat.  Referring to Paul's test in my response, I said, "I’m not sure where he gets that – so far as I know there is no historical basis for it." And I pointed out what would be its stunning consequences -- for example, rendering outside the scope of the confrontation right a police officer's formal description of a crime scene, made before a suspect was identified but in full anticipation of use at an eventual trial.

Five justices rejected this theory, and for good reason.  I am sorry that four justices remain so desperate to limit the impact of Melendez-Diaz that they are willing to sign on to just about any theory that achieves that objective, no matter how lacking in foundation it might be and what devastation it would work on the confrontation right.  But five remains greater than four.

Tuesday, June 19, 2012

Thoughts on Williams, Part I: Reasons to Think the Impact May be Limited

Here is a first installment of preliminary thoughts on Williams. Obviously, I think the result is unfortunate; I think Williams should have won. But the damage to the Confrontation Clause may be much less than I might have guessed it would be given the result. This posting will simply focus on four reasons why that is so.

Splintered Court

First, to state the obvious, there is no majority opinion. The case appears to stand for nothing more that the proposition that in the circumstances of this case there is no Confrontation Clause violation. And, as Justice Kagan emphasizes, repeatedly and usefully, five Justices reject the rationales stated in Justice Alito’s opinion, clearly and decisively. That opinion, like the dissent in Melendez-Diaz, contains some assertions that would seriously undercut the Confrontation Clause if they became law. But only the Melendez-Diaz dissenters sign on to that opinion. Predictions that Justices Sotomayor or Kagan would go over in the circumstances of this case were not borne out, and Justice Kagan wrote an excellent, refreshing dissent.  

No Plausible Alternate Explanation

Second, Justice Alito rightly seizes, repeatedly, on a circumstance that is helpful to him, and the prominence he gives to it suggests that for at least one member of the plurality it may have been decisive. This case was not like Melendez-Diaz, Briscoe, or Bullcoming, in which the questions were how much, if any, of a bad factor (cocaine, blood alcohol) was present in a given sample; in those cases, one can imagine a lazy, incompetent, or dishonest analysis helping the prosecution by simply saying, in effect, “A lot.” In this case, by contrast, Cellmark was presented with a crime scene sample and reported a DNA profile that, as it turned out, matched a person against whom there was significant other evidence. As Justice Alito points out, Cellmark had no reason to suspect Williams, and no other source, so far as we can tell, for knowing Williams’s profile. So the chance of Cellmark coming up by chance with a DNA profile that happens to match a guy in the vicinity and one against whom there is, at least in the end, substantial evidence, is really infinitesimal.

This is not simply a matter of saying that the Cellmark report is reliable. I’ll make the point by drawing on an analysis I made decades ago, Route Analysis of Credibility and Hearsay, 96 Yale L.J. 667, 682-83 (1987), of an old case, Bridges v. State, 19 N.W.2d 529 (Wis. 1945). Bridges was accused of molesting a young girl. The girl made a statement to her mother describing the apartment where the incident occurred. The description closely matched that of Bridges’s apartment, and let’s assume that, taken in conjunction, the set of features that she described was highly unusual. Let’s also assume that she didn’t testify and that there is no reason to suspect that she was in the apartment on any occasion other than the one in question. The statement might appear to be offered for the truth of what it asserts – that the girl was in (and molested in) a room meeting the description that she stated. But now let’s say that instead of stating that she was in a room of that description, she came home from school with a story she wrote featuring a room of that description Clearly, the story is not offered for the truth of what it asserts. And yet, if the description is sufficiently odd, but matches the accused’s apartment, it has substantial probative value. Given that the child was not in the apartment on any other occasion, the fact that she put together the odd conjunction of features may be powerful evidence that she was in the apartment on the occasion in question – even if she is not regarded as a reliable witness.

So now let’s bring this back to a DNA case. Suppose (1) a crime scene sample is sent to a lab, (2) the lab sends back a piece of paper bearing the case number for that sample and a set of numbers that, it turns out, match the DNA profile of a given person, (3) the lab was not given that person’s DNA profile, and (4) there is substantial other evidence suggesting that that person left DNA in the crime scene sample. I believe all of these facts were true in Williams. In these circumstances, I think the prosecution probably should be allowed to present that piece of paper and say, in effect, “I’m not asking you to rely on the proficiency of this lab. But there’s no plausible way in these circumstances that the lab could have come up with those numbers unless Accused left his DNA in the crime scene sample and the lab did an accurate DNA test on the sample.”

That’s not the way the evidence was presented here, and so I still thought Williams ought to have won. My point now is simply that this set of circumstances was sufficiently important to the Alito group that he cited it three times; absent it, the case might (and should) have looked very different to one of that group.

Identity of the Fact-finder

Justice Alito indicates that the foursome might have viewed the case differently if the fact-finder were a jury. The other five properly wonder how the identity of the fact-finder can affect a Confrontation Clause issue. As I understand it, Justice Alito’s response is in effect this: There was an OK way that a fact-finder could use the Cellmark information, as supporting the expert’s opinion (I don’t agree, given the presentation of the information, but that’s a subject for another post), and a bad way, which would violate the Confrontation Clause. There’s a substantial chance that a jury would fail to draw the distinction, but a trial judge can do it. I think it probably hurt Justice Alito to have to make the concession, acknowledging that instructions might not be a satisfactory cure here, but it may have been the price of keeping the four together. Of course, one of the difficulties here is that the supposed distinction between admission for the truth and admission in support of the expert’s opinion is non-existent when the statement supports the opinion only if true. Five justices recognized this point.


As I understand Justice Thomas’s opinion, the case would come out differently if the report had been certified. Let’s put aside for the moment the merits of that view. (I don’t think there are any.) My understanding is that as of now the laws of some states purport to allow lab reports only if sworn or certified, or somehow made what even Justice Thomas would regard as sufficiently formal to come within the Confrontation Clause. So where this is true, even if the facts are otherwise identical to those of Williams, it appears the case comes out differently. Those state laws might be changed, of course. If a given state removes its requirement of formalization, for the obvious and presumably stated purpose of making the lab report admissible, would Justice Thomas then say that this is the type of evasion he has previously, and again in Williams, said cannot be made to avoid the Confrontation Clause? I wouldn’t hazard a prediction.