Thursday, May 26, 2011

An illustration of the dangers of the New Mexico rule in Bullcoming

Hon. Dib Waldrip, a Texas trial court judge, active student of the Confrontation Clause, and reader of this blog, has told me about a recent case that illustrates the value of having the analyst who performed a lab test testify at trial – or, put another way, a danger that will not be prevented unless Bullcoming is reversed. He has given me permission to report on it here.

The defendant was charged with possession with intent to distribute a quantity of methamphetamine of 4 grams or more but less than 200 grams. In Texas, this is a first-degree felony with a punishment range of 5 to 99 years or life and a fine up to $10,000.00.

The official lab report, signed by the analyst who performed the actual test, reflected the presence in the tested substance of methamphetamine with an aggregate weight of 4.51 grams. The analyst testified at trial. Using his personal notes to refresh his memory, he testified that the aggregate weight of the methamphetamine was 1.51 grams. The prosecutor then asked the analyst to review the lab report. After a pause the analyst testified that report was in error and that his notes reflected the correct amount. (Apparently, a clerk prepared the report from the notes of the analyst and made the error.)

Soon after, the prosecutor moved to dismiss. The judge granted the motion, with thanks to the analyst for his integrity. But it appears that earlier, before a different judge, a co-defendant had entered a plea based on the erroneous report.

Mistakes like this might not happen every day, but by now we have heard enough evidence of lab errors that we should not think that they are extraordinarily rare. It has always seemed to me that, before sending a person to prison, perhaps for many years, it is not too much to ask that a someone with personal knowledge of the facts recited in a report that is critical to conviction come to court to testify in person about it.


Brian said...

This is a great example, thanks for sharing it. Hopefully the Court will have similar concerns in mind when it issues the opinion in Bullcoming.

John Thacker said...

The opinion in Sykes today, while not about the Confrontation Clause, worries me deeply. Justice Sotomayor once again joined the "pragmatist" "law and order" justices-- Roberts, Alito, Breyer, Kennedy-- to uphold prosecutors against defendants, just like in Michigan v. Bryant.

Will we see this 5 member majority narrow or overturn Ring, Blakely, Booker, Arizona v. Gant, Melendez-Diaz, etc.?

pv said...

Sotomayor will break with Kennedy, Alito, Roberts & Breyer in Bullcoming.

The later justices will hold that the "statement" by the nontestifying analyst -- that the defendant's BAC was .20 -- is outside the scope of Confrontation Clause protection. Their rationale will be the same as they stated in Melendez-Diaz. And, they might throw in that the "primary" purpose of the statement (under the Bryant totality-of-the-circumstances test) was not to build a case against Bullcoming. But, to the extent a "primary" purpose can be divined, was simply to create an official record as part of his official duty as an analyst.

Sotomayor will hold that the .20 BAC statement was made for the "primary" purpose of use at a subsequent criminal trial. And, thus, under Davis & Bryant, was "testimonial" and within the scope of the CC.

Scalia (and Ginsburg) will hold that the .20 BAC statement is "testimonial," by applying the "objective witness" test they cited in Melendez-Diaz. And, possibly, by finding a "primary" purpose to create trial evidence. Although Scalia certainly favors the much broader "objective witness" formulation.

Kagan will join either Scalia/Ginsburg or Sotomayor. Probably the later.

Thus, the result in Bullcoming (like the result in M-D) will depend upon whether the unsworn .20 BAC statement is formal enough to satisfy Thomas' interpretation of the CC.

Bottom line: Plurality opinion, with Thomas once again (like in M-D) casting the decisive vote.

Anonymous said...

This story from Texas seems to be a non sequitor. Most people are sent to prison after pleading guilty, not after trial, and no interpretation of the confrontation clause can affect that. The logic of the argument would require all cases go to trial. The lesson of the Texas story is that parties and their lawyers--for both sides--should investigate their cases before deciding the best course of action.

Just a thought.

Richard D. Friedman said...

I certainly am not going to argue against the importance of preparation and knowing one's case, but (1) I don't think it's accurate to say the Confrontation Clause can't affect guilty pleas. Pleas are negotiated in light of the prospective strength of the case at trial, and part of what happens at trial is confrontation. (2) If this case had pleaded out, I am not sure how defense counsel would have known of the error. The prosecutor would have waved the report around during negotiations, and defense counsel likely would have had to operate on the basis that it was accurate.

Anonymous said...

My only point was that counsel could have known of the answer the same way he found out at trial: ask the witness. But rather than sit back and wait for trial (which he presumably demanded for some other reason anyway), make a simple phone call ahead of time. Why would counsel "have had" to assume anything about the report? One finds out the strength of one's case by doing some (and sometimes simple) investigation.

And before everyone gets excited and says that's not the way things work in the trial courts, I've been toiling in these vineyards (and on different sides) for nearly 20 years. It's not too hard.

Again, just my two cents.

Richard D. Friedman said...

But the witness would have been under no obligation to answer, or even respond to a phone call. My sense is that the type of pre-trial communications between defense counsel and lab witness that the anonymous commentator posits hardly ever happen, but I would be glad to know if I'm wrong.

Anonymous said...

Defense attorneys and their investigators contact and interview lab analysts all the time, just as they do with lay witnesses... especially when preparing for a jury trial where they are not stipulating to the forensic testimony.

Anonymous said...

This is the original anon poster above; here too "professional" witnesses are friendly--indeed professional--with both sides. I'm in a jurisdiction of about 750,000 with thousands of felonies and tens of thousands of misdemeanors charged each year. Business is good.

This communication goes on regardless whether there is a stipulation; indeed, perhaps even more when there is.

And I'm glad someone else (anon above) has a similar experience.