It's always a mistake to read too much into a denial of certiorari, but I find encouraging the Supreme Court's denial this morning in Lee v. Garlick. This is a homicide case, and at trial the prosecution was allowed to introduce and rely on an autopsy report that indicated that stab wounds were the cause of death; that was crucial evidence, because it was clear that the accused, Garlick, had stabbed the victim and that another person had hit him repeatedly in the head. But the report was introduced through a medical examiner who had played no role in the autopsy or in preparation of the report. Garlick was convicted, the New York courts upheld the judgment, and the Supreme Court denied cert; in a prior post, I referred briefly to the case and posted the petition. (That one included a link to a useful research memo by Cody Reaves, a recent Michigan Law alum, on the topic. Among my other prior postings on autopsy reports is this one.) But Garlick sought federal habeas relief. The district judge, acting over the recommendation of a magistrate judge (who thought the point was not sufficiently well established for habeas), granted the petition. And a panel of the Second Circuit unanimously affirmed. The decision basically says – correctly, in my view – that the New York courts have been clearly wrong in treating autopsy reports in murder cases as non-testimonial. Michael Hutter of Albany Law School, who called my attention to this phase of the case, has pointed out to me that one of the judges on the panel, Richard Wesley, is a former judge of the New York Court of Appeals, though he had left that court before it began issuing decisions on this question.
It was this Second Circuit decision that the Supreme Court declined to review today. Although I've thought for fifteen years or so that the Court ought to resolve definitively (and affirmatively!) the question of whether autopsy reports in homicide cases are testimonial (note my failed cert petition in Craig v. Ohio, I think it's probably better if the issue comes up cleanly, not enmeshed in the rigorous standards for granting habeas.
Beyond that, I think the cert denial is also good news because the Supreme Court evidently didn't turn a hair at a federal appellate decision holding that it is clearly established that autopsy reports are testimonial. What is more, the decision was a forthright, boundary-pushing one, in the right direction. The panel waved at the "primary purpose" test but did not rely at all on it; instead, it seems to have regarded the case, quite appropriately, as a simple, straightforward application of Melendez-Diaz v. Massachusetts, and the key sentence applies what I regard as the appropriate standard: "The circumstances under which the autopsy report was created would lead any objective witness to 'believe that the [report] would be available for use at a later trial.'" And this is from the same court that years ago had issued an atrocious decision, after Crawford but before Melendez-Diaz, saying that autopsy reports should be admitted as business records; the Garlick court didn't even feel the need to cite that case. So all in all, I think it's great that this decision stands.
By the way, it now appears that when the Supreme Court resolves this issue, and all other Confrontation Clause issues, it will be with Justice Breyer's successor. For some years, he has been one of the Court's steadiest skeptics about Crawford. Justice Kennedy was another. I'm hoping that the changes in membership will lead to better, sturdier decisions. And one of them should be a clear affirmation that when an autopsy report points to homicide as the cause of death, it's clearly testimonial, whatever other purposes it might serve.
