Ineffective assistance and adequacy of a prior opportunity for cross

A reader's question raises an interesting issue on which I haven't given much thought: If a witness testifies subject to cross against an accused at a first trial, which ultimately is thrown out, but then is unavailable at the time of the retrial, in what circumstances (if any) can the accused keep the testimony from the first trial out on the ground that the lawyer there did an inadequate job on cross? If I am wrong in what I say below, I hope readers will correct me, but here is the answer I glean from reading United States v. Owens, 448 U.S. 554 n.1, Ohio v. Roberts, 448 U.S. 56, 73 n.1, and Mancusi v. Stubbs, 408 U.S. 204 -- yes, all pre-Crawford cases, but no reason to believe that Crawford overruled any of them on this point:

(1) If a court has not determined on the basis of other conduct that the first counsel was inadequate, the court will not ermine that the accused had an inadequate opportunity to cross on the basis that counsel did a poor job in cross.

(2) If there is an independently-based determination that counsel was inadequate,

(a) that does not automatically mean that the accused had an inadequate opportunity to cross-examine this witness, but

(b) it does mean that the court should examine counsel's actual performance with respect to the witness in question, and if that performance does not meet some minimum level of sufficiency then the prior opportunity should not be deemed adequate for Confrontation clause purposes.

Does that sound right?

Detroit Police Crime Lab closed because of high error rate

My student Brenna Speiser has called to my attention a report by the Detroit Free Press, on freep.com, with this dramatic lead:

The Detroit Police crime lab is so riddled with errors that officials
ordered an immediate shut down today, saying that the local criminal justice
system could be at risk.

The closure results from an audit by the state police indicating a 10% error rate in ballistics evidence. The firearms unit had previosuly been closed, but today the entire lab -- which also handles fingerprint, DNA, and drug evidence -- was closed.

Among the officials announcing the closure was Kym Worthy, the Wayne County prosecutor, who is quoted as saying:

If we have even one person in prison on evidence that was improperly done,
that’s a huge problem. As prosecutors we completely rely on the findings
of police crime lab experts every day in court and we present this information
to juries. And when there are failures of this magnitude, there is a complete
betrayal of trust.

Quite right. But what makes this especially intriguing -- and, I must confess, chortle-inducing -- is that Worthy is a signatory to the prosecutors' amicus brief filed earlier this month in Melendez-Diaz (and previously posted on this blog), contending that an intolerable burden will be cast on the criminal justice system if live testimony by lab analysts is routinely required in drug cases.

But I'm happy to assume that Worthy deserves substantial credit for not attempting to delay the decision to close the lab until the Supreme Court decides Melendez-Diaz.

Respondent-side amicus briefs in Melendez-Diaz

Two amicus briefs supporting hte Commonwealth have been filed in Melendez-Diaz. You can read the brief of the United States by clicking here, and the brief of the National District Attorneys Association and several prosecutors by clicking here.

A legislative response to Giles?

My student Ted Whalen has called to my attention a bill pending in Illinois, which you can read by clicking here, that seems designed to take advantage of the leeway left by Giles (though I suspect it was drafted before the Supreme Court's decision in Giles and was in fact drafted in response to the Illinois Supreme Court's decision in People v. Stechly.

Respondent's brief in Melendez-Diaz

Here is the brief on the merits of the Commonwealth, as respondent, in Melendez-Diaz v. Massachusetts. I expect I will post some comments on it within a few days.

Reply brief in support of cert in Briscoe

Here, rather belatedly, is the reply brief I filed last month in support of certiorari in Briscoe v. Virginia, challenging Virginia's burden-shifting statute. If the Court decides in Melendez-Diaz (as I bleieve it should) that forensic lab reports are testimonial, then the issue posed by this petition will be presented.