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 denial.  But 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.

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.

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.