Wednesday, January 03, 2007

Pending Cert Petitions

Happy new year to all readers!

Here are two pending certiorari petitions. One, filed by Jeff Fisher, seeks review of State v. Campbell, 719 N.W.2d 374 (N.D. 2006), in which the North Dakota Supreme Court upheld a statutory provision allowing introduction of a lab report if the accused does not subpoena the author of the report. I have already criticized the decision, in a posting titled Shifting the Burden, Take 2; see also the prior posting to which that one refers, Shifting the Burden. This is a matter in which the lower courts are in clear conflict – see most recently the decision of the District of Columbia Court of Appeals (the highest D.C. court) in Thomas v. United States, ___ A.2d ___, 2006 WL 3794331 (D.C. Dec. 28, 2006). The North Dakota court assumed, without deciding, that the lab report was testimonial (on this question, I think the court got it right; see my posting on Statements by Government Agents); this also is a matter of clear dispute among the lower courts, and the cert petition advances this question as well. The Supreme Court has asked North Dakota for a response, which you can read by clicking here. You can also read petitioner’s reply by clicking here, and the brief filed in support of the petition by various amici, including the Public Defender Service of the District of Columbia, the National Association of Criminal Defense Lawyers, and the Innocence Project, by clicking here.

Second, on December 19, I filed a petition seeking review of State v. Craig, 853 N.E.2d 621 (Ohio 2006), in which the Ohio Supreme Court held that an autopsy report introduced in a capital murder case was not testimonial. I have till now withheld comment on this blog concerning this opinion or United States v. Feliz, 467 F.3d 227 (2d Cir. 2006), which reached the same conclusion (and which I expect will also soon produce a cert petition), but obviously I think the results of these cases are terrible. Indeed, autopsy reports are perhaps the quintessential type of statement by a government agent that ought to be considered testimonial; these decisions are therefore in clear conflict with the decisions of those state high courts that treat as testimonial lab reports and other statements by government agents routinely generated in anticipation of prosecutorial use. Ohio has until January 25 to respond to the petition.

10 comments:

Anonymous said...

Can you post a link for Jeff's petition and yours>

Richard D. Friedman said...

Oops -- I thought I had, and that was the main point of this posting! Sorry for the oversight. I will corerctthis, but I think it will have to wait until morning.

David B. Chontos said...

Any petitions pending which revolve around a child's statements being admitted through a 3rd party ?

Richard D. Friedman said...
This comment has been removed by a blog administrator.
Richard D. Friedman said...

Not that I know of -- but if other readers know of any, I hope they will fill us in.

David B. Chontos said...

Thank you and here's hoping someone can give us a tip.

Anonymous said...

It seems to me that if a lab report is "testimonial" (which I believe the vast majority drafted by government officials for use at trial are), permitting introduction against a defendant who fails to subpoena the government declarant ignores the following language from Crawford:

A testimonial statement is admissible "only where the declarant is unavailable and only where the defendant has had a prior opportunity to cross-examine" the declarant.

Obviously, if the declarant of a testimonial statement is available for subpoena, he/she isn't "unavailable"!

I believe the D.C. Circuit gets it right in Thomas v. United States.

Anonymous said...

The last posting (anonymous at 5:27)ignores the other language in Crawford, which states...
"the rule of forfeiture by wrongdoing (which we accept) extinguishes confrontation claims on essentially equitable grounds."

This point, (made again in Davis) indicates that there are exceptions to the general rule of requiring both "unavailability and a prior opportunity to cross"

In the case of forfeiture, the witness may be unavailable, but "obviously" there was not a prior opportunity to cross... yet,the statement still comes in.

Similarly, on other equitable grounds, where the government provides a "prior opportunity to cross" by allowing the defendant to subpoena the government declarant, even though they are available, the statement still comes in.

Richard D. Friedman said...

I agree with the bottom line of the next-to-last post before this one -- the subpoena process is inadequate -- but not with the reliance on the language from Crawford. The theory of the subpoena process is that the ability to subpoena the witness is an adequate substitute for cross-examination. If that were true, then the situation would be just as if the prosecution put the witness on the stand and introduced the prior statement, which Crawford says avoids the confrontation problem. (I don’t think it should if the witness no longer asserts the full substance of the prior statement, but that is another matter.) The key is that the subpoena process is not in fact the equivalent of, or an adequate substitute for, cross-examination.

Tom said...

I am a defense attorney in Arizona, and have been using your blog as a reference for some time. Thanks for the service.

I was the appellate attorney in McGill (Ariz. S. Ct. 2006) and recently filed a cert petition in the court concerning the right to confrontation at a death penalty sentencing proceeding. Can I get your email so I can send it your way? I would love to have you look at it and give me any feed back for my reply. My email is tdennis@mail.maricopa.gov