Here is an excerpt from an email I recently received from Maine Federal Defender David Beneman detailing recent Confrontation Clause issues. The attachments are very useful, particularly the memorandum on successful Confrontation Clause cases since Crawford.
Confrontation Clause
The Confrontation Clause of the Sixth Amendment remains a hotbed of litigation. See Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004); Melendez–Diaz v. Massachusetts, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009);Bullcoming v. New Mexico, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011). We await the Court’s opinion in Williams v. Illinois, argued December 6. (Is it a violation of the Confrontation Clause to allow an expert witness to testify about the results of DNA testing conducted by another analyst who has not appeared as a witness at the trial)(oral argument transcript attached).
Despite the pendency of Williams, we have a number of recent on point rulings. As background, I attach a wonderful resource summarizing the state and federal cases granting relief on Confrontation Clause grounds through January 1, 2011. Thank you John R. Mills of the Habeas Assistance and Training Project for creating and sharing this detained compendium.
The First Circuit in a pair of recent cases vacated a conviction over lack of confrontation (Ramos-Gonzlez) while also holding the clause does not apply in most pre-trial hearings (Mitchell-Hunter).
Substitute Chemist Not Enough
Conviction vacated in U.S. v. Ramos-Gonzlez, 2011 WL 6118530 (1st Cir., 12/9/11). Admission of substitute expert’s testimony as to contents of drug analysis report conducted by a non-testifying expert violated Confrontation Clause and not harmless. Almost 10 years ago, island police attempt to stop a pickup truck for the egregious crime of “unlawfully tinted windows”. The truck fled and following a car and foot chase, the drive eluded police. Not so for the truck from which two plastic wrapped blocks of probable drugs (cocaine) were seized. We are left to wonder how the defendant came to be charged, but that is apparently a not germane sub-plot. The original chemist, Borrero, listed as a government witness became unavailable to testify (mental illness is referred to in the opinion). Three days before trial the government adds substitute chemist Morales to the witness list. Morales is called by the government and, surprise, he tried to testify to the work of Borrero. Apparently the prosecutor never had Morales do his own testing ! The defense objects but J. Fuste over rules and the defendant is convicted and sentenced to 327 months.
On appeal the government first claims defense failed to preserve the objection, hence “plain error” standard. Although counsel did not use the “magic words” confrontation clause, or 6th Amendment when objecting, he said, “I object to the fact that he has no personal knowledge of the test being conducted.” The court finds that is enough to preserve. If Ramos’s Sixth Amendment rights have been violated, his conviction must be vacated unless the government demonstrates that the error was harmless beyond a reasonable doubt. United States v. Cabrera–Rivera, 583 F.3d 26, 36 (1st Cir.2009); United States v. Earle, 488 F.3d 537, 545 (1st Cir.2007).
After a brief review of confrontation clause jurisprudence, the court targets the issue in this case, noting it is essentially the issue to be resolved in William v. Illinois. The government relying on evidence rule 703 falls back on the old “expert can testify to things that have not been admitted” argument. The government still does not seem to understand Crawford; the Confrontation Clause is not a “rule of evidence” and cannot be trumped or cured by evidence rules. That only worked pre-Crawford. The opinion makes the distinction;
“Where an expert witness employs her training and experience to forge an independent conclusion, albeit on the basis of inadmissible evidence, the likelihood of a Sixth Amendment infraction is minimal. ..Where an expert acts merely as a well-credentialed conduit for testimonial hearsay, however, the cases hold that her testimony violates a criminal defendant’s right to confrontation.”
Here, The government is hard-pressed to paint Morales’s testimony as anything other than a recitation of Borrero’s report. Thank you, our point exactly. Still unhappy, the government argues the “harmless error” back up. How can it be harmless error when the government has failed to produce ANY witness who actually tested the substance and found it to be cocaine ? Exactly says the court;
“Morales’s testimony was neither cumulative of nor sufficiently corroborated by alternative evidence, and it comprised the only compelling basis for the jury to conclude a critical element of the government’s case—that the substance seized from the truck was cocaine. We cannot conclude that the presence of cocaine would have been proved without the testimony of Morales, and therefore the admission of his testimony was not harmless beyond a reasonable doubt.”
Meanwhile on the mainland, the MA SJC, addressing what seems to be the identical issue, reaches the opposite conclusion in Commonwealth v. German Munoz, SJC-11028, 12/15/11. http://www.socialaw.com/slip.htm?cid=21080&sid=120 Trafficking in crack. Seized drugs sent to the state lab, weighed and tested by Jaszek. Trial set for 1994, but defendant a fugitive so no trial until May 2010. By 2010 Jaszek has retired and detective who took what is arguably a confession, had died. Interesting that there does not seem to be an argument that the lack of chemist was due to defendant’s misconduct as a fugitive. The State puts on Hanchett, Jaszek’s successor. “Hanchett’s testimony covered (1) the procedure Jaszek followed in weighing and analyzing the contents of the bags; (2) the conclusions that Jaszek drew from this analysis; and (3) the conclusions that Hanchett “would have made” in Jaszek’s position. Because Hanchett did not retest or reweigh the seized substance himself, his testimony was based on information contained in Jaszek’s notes and reports as well as the machine printouts generated by Jaszek’s analysis.”
Defense counsel objected to Hanchett’s testimony on the basis it lacked foundation. Counsel did not say “6th Amendment” or “Confrontation Clause”. Unlike the First Circuit in Ramos-Gonzlez, the MA SJC apparently requires the “magic words” in the objection so here reviews under the plain error standard which they describe as “review only for a substantial risk of a miscarriage of justice, that is, to determine “if the evidence and the case as a whole . . . [leave] us with a serious doubt that the defendant['s] guilt [has] been fairly adjudicated.” (emphasis added). Is there any doubt that the defendant is now toast ? What else might the chunks in the baggie be ? Remember, this is a war.
The court then runs through the full analysis and the confrontation clause cases, but the die is set; “we discern no reason to conclude either that cross-examination of a substitute analyst offering an independent opinion cannot be meaningful or that the opinion offered cannot fairly be characterized as independent.” You have not recently though you might fare better in federal court ?
Does Not apply to Jurisdictional pre-trial Motion
In U.S. v. Mitchell-Hunter, No. 10-2203 (1st Cir. 12/12/11) the charge was drugs (1,170 pounds of cocaine ) and the major case issue jurisdiction under the Maritime Drug Law Enforcement Act (MDLEA). For those “inland”, there is an “alleged” drug smuggling method called “go-fast”. The smugglers from “away” approach Puerto Rico in a small fast boat which they hope can outrun the Coast Guard. In our ever humble US fashion, the government takes the position that our “war on drugs” allows our interdiction of such vessels on the high seas under MDLEA. Here, Defense counsel moved to dismiss claiming lack of federal jurisdiction. The government grounded their conduct in the portion of the MSLEA which says a ship “without nationality” is subject to US jurisdiction. To enforce, the Coast Guard apparently stops and boards “suspicious boats” and demands proof of nation marine registration. They then check that produced against the records of the purported home country. When, as here, the claimed home country (surprise Columbia and Venezuela), will neither “confirm nor refute the vessel’s registry”, we deem the boat a “ship without nationality” granting us jurisdiction. Defense counsel attacked the various certifications submitted by the government claiming a right to confront the Coast Guard commander who issued the certification.
The court started with an interesting analysis; the purpose of the MDLEA’s jurisdictional requirement is not to protect a defendant’s rights, but instead to maintain comity between foreign nations; the MDLEA’s “subject to jurisdiction” provision is “a matter of diplomatic comity.” “Meanwhile, the Confrontation Clause has the opposite focus”, i.e. on a defendant’s rights. Unfortunately, there seems to be no case law extending the confrontation clause beyond the actual trial, and there is “extensive case law declining to apply the confrontation right to various pre- and post-trial proceedings.” Courts do love having the security of case law. Denying the appeal, the court concludes; “To be clear, we need not and do not decide whether the Confrontation Clause could ever apply to pretrial determination, but only find that it does not apply in the circumstances of this case.
Conclusion
1. Preserve your objections.
2. Use the “magic words” 6th Amendment and “Confrontation Clause”.
3. Keep an eye out for the decision in Williams.
4. Finally, why do prosecutors not direct substitute chemists to retest ? That is for someone else to worry about.
