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Walking Melendez-Diaz back?

Curt Caylor and Gerry Razatos worked at the New Mexico Health Department's Toxicology Bureau back in August of 2005, and when someone brought in a blood sample for Donald Bullcoming, who'd been driving a truck that rear-ended another vehicle, Caylor put it in the gas chromatograph machine and ran the test.  When the machine spit out a number, he put that down on a report and signed it.  At the trial, the state offered the report, and a witness to testify as to its contents.  The witness wasn't Caylor, though, it was Razatos.

Bullcoming was convicted of aggravated drunk driving, and sentenced to two years in prison.  From that point on, the case worked its way through the courts, and Bullcoming thought he caught a break when the Supreme Court handed down its decision in 2009 in Melendez-Diaz v. Massachusetts, holding that admission of a certificate of a drug analyst, in lieu of his live testimony, violated the defendant's confrontation rights under Crawford v. Washington.  The New Mexico high court agreed that the lab report in Bullcoming's case was testimonial, but held that Razatos' appearance gave Bullcoming's lawyers a sufficient opportunity for cross-examination regarding the report.

So a couple weeks back, the Supreme Court heard argument on whether that was the right call.

You could make a good argument that Melendez-Diaz was the most significant of the Crawford cases.  Although the case was narrowly focused on the issue of whether a lab report was admissible in lieu of live testimony, the implications were much broader.  A scenario similar to Bullcoming's was presented in Ohio in State v. Crager, where one DNA analyst had testified to a report prepared by another.  In its first go-around on the case (discussed here), the Supreme Court decided that this was permissible because lab reports weren't testimonial under Crawford.  That holding was scotched by Melendez-Diaz, and when the US Supreme Court vacated Crager and remanded it for reconsideration in light of Melendez-Diaz, the Ohio court dawdled a bit, then finally reversed itself (here).

But Melendez-Diaz was only a 5-4 decision (by comparison, Crawford was unanimous), with the dissenters arguing that cross-examination was largely unnecessary because of the reliability of the technology involved.  That's a stretch -- Scalia, in writing the majority opinion, relied heavily on an amicus brief by the National Innocence Project pointing out the problems with much of forensic science -- but there's a middle ground to the issue, which is highlighted by Crager and Bullcoming:  as long as someone familiar with the process is available for cross-examination, is it necessary for the person who actually performed the test to appear?

Bullcoming's attorney, under questioning by Justice Alito, acknowledged that there were four things the state was trying to prove in the case:  (1) that the sample that was tested was taken from the defendant; (2) that the standard procedures for testing were followed in the case, (3) that the sample had not been contaminated or tampered with, and (4) that the result was a .21 blood/alcohol level.  Somewhat oddly, he conceded that there wasn't a confrontation problem with the first three:  that the state, by introducing testimony about the way things were generally done in the lab, could ask the jury to properly infer that those procedures were followed in this case.  

This concession left Alito a sizable opening:  the only thing left on the table was the the result that the machine had produced. 

The purpose of the Confrontation Clause is to allow cross-examination.  How are you going to cross-examine the machine?

How much good cross-examination Caylor could have done was also on Justice Ginsberg's mind:

How do you answer the practical situation that Caylor, who did this particular run, does some dozens day in and day out, and he will have no memory, in fact, of this particular test.  So having him there -- he knows how the process operates; he doesn't remember this particular one -- how does having him there -- what could be elicited on cross-examination of him that couldn't be from his supervisor?

And that's where the cavalry arrived, in the form of Justice Scalia.  "Wasn't it the case that these tests are unusual in this jurisdiction?"  Oh, yes, it was, which is why Caylor might have remembered this particular test.  And even if he couldn't remember this particular test, Scalia continued, the prosecution can bring out his "high qualifications," which "can be persuasive to the jury, can't it?"

And Scalia was just warming up.  When the State's attorney took to the podium and argued that the Melendez-Diaz involved an affidavit that was specifically prepared for use as an in-court statement, while here the report was a "public record," Scalia was at his sarcastic best:  "And that was prepared just for fun, not for use in trial?"  Scalia then honed in on the reason that Caylor wasn't available at the trial:  he had been placed on unpaid leave.

Does the defense know why it was leave without pay?  Could the defense have found out in cross-examination that the reason he was leave without pay because he was -- had shown himself to be incompetent, and they were in the process of firing him?  I don't know whether that's true, but wouldn't that be important to the defense?

The backdrop to all this, of course, was the decision just two days earlier in Michigan v. Bryant (discussed here), in which the Court had substantially narrowed the confrontation right defined by Scalia's opinion in Crawford v. Washington.  Scalia has been on the Court for a quarter of a century, and Crawford is one of his two legacies.  (The other is the Apprendi/Blakely/Booker line of cases regarding the scope of the right to jury trial.)  He also authored Melendez-Diaz, and if he was going to see two of his prizes go down in a week, it was going to be with guns blazing.

Whether it works remains to be seen.  Justice Sotomayor, who wrote the opinion in Michigan, quizzed the State AG on his assertion that the certificate in this case was no different from a birth certificate, noting that the latter certainly isn't prepared for use at trial, while the former clearly was.  Sotomayor replaced Suitor, who was one of five-member majority in Melendez-Diaz and had voted consistently with Scalia in the Crawford cases; despite her break with that in Bryant, she didn't give any indication that she was intending to go off the reservation in Bullcoming.  And it may be that the Justices were cowed by Scalia's stinging dissent in Bryant. 

But probably not.  After all, Bryant is hardly the first time that Scalia dissented in terms which would probably have earned a lawyer who said the same thing about the Court a disciplinary hearing.  His record of success in doing so is decidedly mixed.  In the 1989 decision in Webster v. Reproductive Health Services, the Court declined to overrule Roe v. Wade by a bare 5-4 majority.  Justice Sandra O'Connor, while having been critical of Roe in previous decisions, joined that majority, finding that Webster wasn't the proper vehicle for re-examining Roe.  Scalia lashed out, calling her assertion one "that cannot be taken seriously."  If the desire was to bring her around to Scalia's point of view, it didn't work:  three years later, in Planned Parenthood v. Casey, O'Connor voted with the majority to specifically affirm Roe.

That might be part of the reason that Scalia, universally regarded as the intellectual powerhouse for the conservative judicial movement, has as his legacy two lines of decisions expanding the rights of criminal defendants.

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