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Case Update

So how reliable is scientific evidence?  Not very, at least if it's being handled by Annie Dookhan, recently unemployed by the William A. Hinton State Laboratory Institute.  She specialized in "dry-labbing" drug samples:   reporting that the sample was positive for narcotics, without actually going to the bother of testing it.  A few months ago, Massachusetts vacated the convictions of 21,000 drug offenders whose fate might have been affected by Dookhan's malfeasance.

There's an interesting twist on this.   Back in 2009, Massachusetts law allowed the State in a narcotics case to introduce a certificate by a lab analyst to prove the weight and purity of the drugs at issue.  That made its way to the Supreme Court in Melendez-Diaz v. Massachusetts.  Scalia, building on his view of the Sixth Amendment's Right of Confrontation that he'd articulated in Crawford v. Washington, held that the report was a testimonial statement, and that meant the person who issued the report, who actually did the testing, had to be available to testify at trial.

The drugs in that case were tested at the William A. Hinton State Laboratory Institute, the same which a few years later would come to employ Annie Dookhan.

So that's a vindication of Melendez-Diaz, right?  Maybe not.  In Ohio, the prosecutor has to serve you with notice of his intent to submit a drug report.  If you don't demand within seven days that you want the analyst there, the State can introduce the report.  I've rarely seen defense attorneys make that demand.  I think the jury will be less impressed by a piece of paper than by having a nice man in a lab coat come in and explain all of his qualifications and how he tests drugs.

And cross-examination sure didn't ferret out Dookhan's misdeeds.  An ordinary audit did that.

By the way, Dookhan got three years in prison.

Down in Columbus, we had the rare feat of watching the 8th District getting reversed in not one, but two cases in the same week.

First up was State v. Jackson.  Jackson was convicted of aggravated robbery, but the jury hung on two kidnapping counts.  The State dismissed the kidnapping charges, and Jackson appealed, only to have the 8th District dismiss it; the panel decided that since the dismissal of the kidnapping charges was without prejudice, the charges could be brought again, and thus there was no final appealable order.

As I pointed out when I discussed the case, this is wrong on several levels.  First, while the State could pursue the kidnapping charges at a later time, that would require a new indictment and a new case; this one is over.  Even more problematic, the decision effectively forecloses Jackson from appealing at all.  The only way the order becomes final is if the State reopens the case and either tries Jackson on the kidnapping, or dismisses those counts with prejudice.  It has no incentive to do either.

Still, the State didn't want to be forced into the choice of pointlessly retrying counts or dismissing them with prejudice, so it appealed.  And that's where things got decidedly funky.  Jackson filed a brief also asking the court to take the case, which it declined to do, by a 4-3 vote.  Then both sides filed motions for reconsideration, and a vote switched.  Both sides filed briefs asking for the decision to be reversed.  The court even heard oral argument on case, which essentially featured the prosecutor explaining why the decision was wrong, and defense counsel getting up and telling the court, "What he said."

The opinion in Jackson is to the point:

In this case, we clarify that which we believe is already clear--any dismissal of a count in an indictment resolves that count and does not prevent a judgment of conviction from being final and appealable.

The court's decision in State v. Mohamed was a little more involved.  Mohamed, a taxi driver, had picked up a young lady, and, according to her, had attempted to fondle her on the trip.  The case was a little sketchy -- she got out of the cab several times after Mohamed's initial attempts, then got back in, and he dropped her off at her boyfriend's house -- but the jury nonetheless convicted him of attempted rape, attempted gross sexual imposition, and kidnapping.

There's a provision in the kidnapping statute which reduces the crime from a first-degree felony to a second-degree felony if the victim is left in a safe place unharmed.  The 8th District decided that the lawyer was ineffective for not requesting an instruction on the second degree felony, largely on the basis that harm in this context was limited to physical harm. 

The Supreme Court makes short shrift of that argument, noting that when the legislature wants to limit harm to its physical manifestations, it has no problem doing so.  The felonious assault statute, for example, prohibits causing "serious physical harm."

The other problem with the 8th's analysis was that the analysis was based on an ineffective assistance of counsel claim.  As the Supreme Court's opinion points out, though, whether to ask for a jury instruction is almost invariably considered to be one of those tactical or strategic decisions of counsel that are virtually immune to review.  The opinion notes that counsel may well have felt that disputing the witness' credibility, and thus seeking total acquittal, was the proper strategy to pursue, and arguing that at least the witness was dropped off unharmed would have severely undercut that strategy.

It might have mattered, though.  The judge gave Mohamed ten years on the kidnapping counts, two more than he could've gotten on a second-degree felony, run consecutive to five years on the attempted rape.

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