Godzilla v. Mothra

That sound everyone in Texas heard at around 9:17 a.m. this morning was Judge Cochran squealing with glee.

Today, SCOTUS handed down the much-anticipated opinion in Melendez-Diaz v. Massachusetts. The Court held, not really surprisingly, that the State's introduction of a affidavits detailing a laboratory analysis of seized drugs without calling the person who analyzed the drugs violated Melendez-Diaz's Sixth Amendment right to confront the witnesses against him. It was a 5-4 split, but this time, it was Scalia and Thomas not Kennedy that made the difference.

If I could be so presumptuous . . . well I guess I can because it's my blog, the interplay between Scalia's and Kennedy's opinions seemed kind of similar, to me at least, to a fight between Godzilla and Mothra in that both sides really try to lay waste to each other and no one focuses on the collateral damage, namely the destroyed city. This opinion doesn't really destroy a city, mind you, but it will have an impact on Texas, and maybe even in some not-so-obvious ways.

The facts are these.

Basically, Boston police officers found out that this guy Thomas Wright was basically dealing coke out of a Kmart. He'd get calls there, a car would pick him up, and then he'd get dropped back off when the deal was done. The police set up surveillance and witnessed Wright get picked up by a blue sedan to go make the exchange. When the sedan returned, police stopped Wright, searched him, and found cocaine. They also stopped the folks in the car. Luis Melendez-Diaz, our hero, was one of the guys in the car.

Police put all three men in a police cruiser, and during the drive they saw MD acting nervous. Police searched the cruiser and found cocaine in it. The State charged MD with distributing cocaine. At his trial, the State introduced "certificates of analysis" showing the results of the forensic analysis performed on the seized substances. MD objected based on Crawford arguing that the Confrontation Clause required the analyst to testify in person, but the trial court overruled the objection.

In a pretty straightforward way, Scalia, writing for the majority, just says that Crawford recognized that a defendant has the right to confront the witnesses who bear testimony against him. Simple enough, right? A witness's out-of-court statements are inadmissible unless the witness testifies at trial, or the defendant had a previous opportunity to cross-examine that witness if the witness doesn't testify. There is little doubt that these affidavits fell within the "core class of testimonial statements" (we mentioned affidavits twice, don't'cha know). Moreover, they are functionally identical to life, in-court testimony doing "precisely what a witness does on direct examination." So, the affidavits were testimonial and the analysts were witnesses; MD should have been confronted with those analysts at trial. A pretty logical extension of Crawford.

Of course, there's more to the story.

Scalia then goes on to discount the various arguments that the State wasn't required to call the "analysts" to testify. He actually breaks the fourth wall and turns to us, dear readers, as if he's Jim Dale from Pushing Daisies. Then he calls out Justice Kennedy by assuring us "of the falsity" of the dissent's opening "alarum" that this decision sweeps away an accepted rule governing the admission of scientific evidence that has been established for 90 years. The cases the dissent relies upon, according to Scalia, were primarily decided under the now discarded Ohio v. Roberts particularized guarantees of reliability theory, and the ones that pre-date Roberts are a decidedly mixed bag. So, it's not the majority that's overturning precedent, says the majority, it's the dissent seeking to overturn Crawford. [Note: Personally, after the Montejo and Gant throw downs I don't think anyone up there has any credibility regarding adherence to precedent. But that's just me.]

Scalia then rejects various arguments seeking to characterize the witnesses in terms that suggest they don't need to be cross-examined. Just because they aren't "accusatory," meaning they're not directly accusing the defendant of wrongdoing, doesn't mean they aren't testifying against the defendant. Just because they aren't "conventional" like the ones called in the trial of Sir Walter Raleigh (I swear Judge Cochran plays poker with Scalia or something) to relate past events doesn't mean the State can keep them off the stand. It doesn't matter whether the witness is describing contemporaneously observed facts or relating matters from the past. It doesn't matter that they did not observe the crime or any human action related to it. It doesn't matter that the statements didn't come from interrogation. It doesn't matter that the testimony is simply neutral scientific testing. What matters is that the Confrontation Clause provides a procedural guarantee of reliability by allowing the defendant an opportunity to cross-examine those witnesses against him. He doesn't come out and say it, but it seems this applies to any witness's observations. This is refreshing in its simplicity, but could be problematic in practice.

I mean, it's all well and good, but Scalia is kind of trying to marginalize Kennedy's point without really addressing it. I mean, we don't care about the witnesses we care about the data. Rhetorically, I think Scalia avoids explaining what witnesses we are talking about by taking various adjectives that Kennedy uses and saying they aren't appropriate either. It's almost like he's more concerned with showing how wrong Kennedy is that he forgets that this isn't about which one of them is right. It's about setting out the law that governs the people. In the end, Scalia doesn't tell us who exactly are the witnesses the State must offer against the defendant and he destroys Kennedy's suggestions so we're still left with no clue as to what the phrase "witness against" really means. Is it the analyst? Is it the clerk certifying the records? Is it one of the links in the chain of custody? Who knows. It sure sounds good though.

Yeah, yeah, yeah, but what does this mean for Texas? Well, funny you should ask. Scalia reassures us that the sky is not going to fall based on this decision. He notes that 95% of convictions are obtained via guilty pleas so this would only be implicated in a small fraction of cases. Moreover, many States have already adopted the constitutional rule announced in the case, and the majority seems to note with approval that States can also permit a defendant to assert his Confrontation Clause right (or forfeit it by his silence) after receiving notice of the prosecution's intent to use a forensic analyst's report. What's one of the examples he cites to for this approach? Why Article 38.41 of the Texas Code of Criminal Procedure, of course. [Presumably Article 38.42 is good too as it applies the same procedure to chain of custody witnesses, another fear expressed in Kennedy's dissent.]. Scalia defends these provisions from the dissent's argument that they shift the burden of proof to the defendant. According to the majority, the defendant always bears the burden of raising his Confrontation Clause objection, notice-and-demand statutes simply govern the time within which to raise those objections. It's common to require a defendant to exercise his Compulsory Process rights in advance of trial, there's no reason he can't be required to exercise his Confrontation Clause rights in advance of trial, as well.

So what's all the brouhaha? Well, I skipped over some things. Obviously, Scalia's opinion provides a propaganda victory for the Innocence Movement with some great language regarding scientific reliability. [SCOTUSblog even took note of this. How trendy.] In making his argument that scientific witnesses are also subject to the Confrontation Clause, Scalia also goes through several pages where he talks about how forensic analysts can be just as fraudulent as regular witnesses and that the need to cross-examine them can protect against incompetence as well.

Look, it's a fair point, but it is not really necessary to resolve the case, a fact Scalia kind of acknowledges in a footnote. In footnote 6 to be exact. There he says that he's mentioning this stuff simply to refute Kennedy's suggestion that this category of evidence is uniquely reliable. The Court would reach the same result, according to the majority, even if analysts always possessed the scientific acumen of Mme Curie and the veracity of Mother Theresa. [Kind of a bad pop history example there Tony, Marie Curie died of radiation poisoning for not following any lab safety protocols and Mother Theresa felt a great deal of doubt that she never expressed in her lifetime. But it sure is punchy.] But that part's cosmetic because it's not really crucial to the outcome and it just says scientific testimony isn't any more important than regular testimony when it comes to the Constitution. Why not just say that?

But Scalia also goes into talk about business records, and this portion of he opinion may be a little more than cosmetic. Here, Scalia makes clear that business records that satisfy the hearsay definition of a business record aren't necessarily immune from a Confrontation Clause objection, either. This may come as a shock to Judge Keasler who concurred in Smith v. Texas that business records are not testimonial under Crawford. According to Scalia, business records that are kept in the normal course of business may not violate Crawford, but we have to look at whether the regularly conducted business activity is production of evidence for use at trial. Scalia notes that an accident report prepared by an employee of a railroad company did not qualify as a business record because it was calculated for use essentially in the courts, not in the business. Palmer v. Hoffman, 318 U.S. 109 (1943).

As mentioned above, Kennedy quite aptly notes that the majority fails to clarify or define who the "analyst" is in this situation. While the majority is only concerned with lab analysis, Kennedy points out that the range of other scientific tests that may be affected is staggering. One of the examples he seems to give is an autopsy. Does this case mean the State can't call just any medical examiner to interpret an autopsy report? Does it have to be the medical examiner who performed the autopsy? Scalia notes in a footnote that there may not be any other way to challenge the reliability of an autopsy than cross-examination, and the burden upon prosecution is not really relevant to his Constitutional analysis. That seems to leave the field wide-open for creative challenges. It's kind of ironic, Justice Scalia, scourge of living constitutions everywhere, seems to broaden the definition of witness beyond what the framers were thinking of at the time. Conversely, Justice Kennedy, lover of international authority, ends up essentially arguing that the Sir Walter Raleigh case was concerned with eyewitnesses not chemists. Or alchemists. Or sorcerers. I'm not up on my 16th Century occupations. Whatever the end result, Justice Kennedy's dissent is sure to give the defense a lot of ideas on the types of challenges to make after this case. I'm sure defense attorneys will be looking at this part of the opinion with anarchic glee at all the new stuff they can try, and I can't really blame them. It's a shame that he seemed so concerned with refuting Scalia that he telegraphed what he saw as the impraticality of the holding thereby increasing the likelihood that his prophecy would become self-fulfilling. Way to tear down the system even as you're arguing to preserve it.

I think what Kennedy is groping for is that it's not that the scientific analysis is more or less "reliable" than fact witnesses, it's that experts are pretty fungible. In the area of these types of tests the defendant is really being confronted with data that has no confrontable witness. The lab results aren't really a "witness" against the defendant, so Scalia picks the guy who reads the machine. There's no reason to believe that a defendant hasn't been afforded the opportunity to cross-examine witnesses against him when the data is introduced and he can cross-examine the expert that the State calls to explain the data. However, there's no reason for Scalia to address this point where the problem was that absolutely no witness was offered so to me that looks like Kennedy's overreaching.

For some more concrete speculation (yet another paradox), I did immediately ponder the ramification of the jail infraction records at issue in Smith v. State (cited above) and Russeau v. State and the parole revocation certificates in Segundo v. State when I read this opinion. Clearly, this portion of the opinion vindicates the results in Smith and Russeau, namely that narratives contained in jail records are testimonial. But the CCA reached that result by drawing a distinction between a subjective interpretation facts and a sterile recitation of the facts. In Segundo, the parole revocation certificates did not violate Crawford because they contained sterile recitations of the fact of revocation rather than a detailed description of the case. Upon reading this opinion, it's arguable that this "sterile recitation of the facts" paradigm could be seen as another attempt to impose the same reliability standard that the majority rejects in Melendez-Diaz. The flip side of this argument is that the more sterile record notations are found in records that are not prepared in anticipation for trial, but necessary notations so that the jailers who have access to these records and the administrators that make housing decisions need to rely upon them when moving prisoners from place to place. I don't know. I'm just going off the dome. [As a side note, Scalia does mention in footnote 2 that medical reports created for treatment purposes would not be testimonial under the decision in this case.] But I will be interested to see how these types of evidence are considered going forward.

Still, the thing to remember is that this case only dealt with drug lab results and SCOTUS pretty much endorsed the Texas statutory notice-and-demand scheme for drug analysis. For you legislative history buffs, this statute was so cleverly suggested by the prescient Jay Johannes of the Colorado County Attorney's Office, drafted (the first draft anyway) by Ken Sparks the Colorado County Attorney, and sponsored by House Rep. Debbie Riddle. They're the ones that crafted the legislation, and their foresight may have shielded Texas from another Apprendi-like storm.

More problematically for the State, the majority has indicated that not all business records are going to be immune to a Confrontation Clause challenge and courts will need to look to whether the records are prepared for business or for trial. Justice Kennedy fears that lack of a clear definition of what witnesses we're talking about could grind the criminal justice system to a halt. I'm sure it won't, but we'll have to wait a little for the smoke to clear so we can look through the rubble.