A quick look at Harris

As we noted yesterday, on Thursday, NMCCA issued an important and interesting opinion. United States v. Harris, __ M.J. ___, No. NMCCA 200401897 (N-M. Ct. Crim. App. Jul. 31, 2008). Chief Judge O'Toole wrote the unanimous opinion.

First for the less important inside baseball part that will interest NAMARA alumni. When NMCCA first decided Petty Officer Harris's appeal, Senior Judge Geiser was a member of the panel and actually wrote the opinion in the case. After the case was initially decided, the defense moved to disqualify Senior Judge Geiser and the other members of the panel because during a previous tour in the Administrative Law Division, Senior Judge Geiser had some connection to an ethics inquiry into the trial counsel's actions in Petty Officer Harris's case -- an investigation that ultimately cleared the TC and that concerned the same actions that gave rise to issues in Petty Officer Harris's appeal. CAAF then kicked the case back to NMCCA to look at the disqualification issue again with the benefit of the Administrative Law Division's files concerning the ethics investigation. United States v. Harris, 65 M.J. 485 (C.A.A.F. 2007). On remand, a new panel considered the disqualification issue and ultimately decided to reconsider the previous decision without ruling on disqualification.

NMCCA found that CAPT Geiser had minimal involvement with the ethics investigation into the TC from the Harris case:

Captain Geiser's personal role in the processing of the appellant's ethics complaint can be succinctly described as having included two actions: first, in his capacity as Division Director, he forwarded to the Rules Counsel the preliminary package assembled by Lieutenant Commander Hanna with a memo "concurring" with her recommendation that an ethics investigation should be conducted; and second, at the request of the Rules Counsel, Captain Geiser issued a letter, which he signed "by direction," appointing a senior officer in the geographic area of the complaint to conduct an investigation into its merits. Captain Geiser then detached from the Administrative Law Division and joined this court. His successor and the successor Rules Counsel received the results of the investigation months later and took final action, dismissing the appellant's complaint.

Harris, No. NMCCA 200401897, slip op. at 4-5.

While this might support a rejection of the attempt to disqualify Senior Judge Geiser, NMCCA declined to rule on that issue, NMCCA believed that to rule on the disqualification issue would require further fact-finding. Id., slip op. at 5 n.3. NMCCA observed, "Delaying disposition of this case while additional facts were gathered, however, is not in the best interests of justice." Id. So the court chose to reconsider the mertis of Petty Officer Harris's appeal, thus rendering the disqualification motion moot. Id., slip op. at 5.

With that entertaining preview out of the way, we can now get to the important main feature: NMCCA's ruling on a Crawford challenge to a drug lab report. Petty Officer Harris was the subject of a command directed urinalysis -- and rarely has there been greater reason to direct a urinalysis than provided by Harris's bizarre conduct that preceded his urinalysis. "Once obtained, the appellant's urine was forwarded to the Navy Drug Screening Lab, where it was tested in a batch containing 97 other samples from various commands, and three blind samples." Id., slip op. at 10. "Since each sample was identified by its assigned accession number, the laboratory technician testing them did not know the source command, the identity of the provider, or the basis on which the command had obtained the urine sample." Id.

The central question in Harris is whether it is better analogized to United States v. Magyari, 63 M.J. 123 (C.A.A.F. 2006) -- where CAAF held that a drug lab report resulting from a random urinalysis wasn't considered testimonial -- or United States v. Harcrow, 66 M.J. 154 (C.A.A.F. 2008) -- where CAAF held that a Virginia forensic lab's report on drug paraphernalia seized from Harcrow's residence was considered testimonial.

NMCCA ruled that even though Petty Officer Harris's urine was obtained through a command directed urinalysis, the situation was actually more like Magyari than Harcrow. NMCCA reasoned that unlike in Harcrow, the lab personnel testing Harris's urine were unaware that it was suspected to contain evidence of a crime -- to the lab personnel, it would have appeared no different than the random sample tested in Magyari. NMCCA also observed that Harris's command didn't initially view this as a criminal case. Rather, until Harris himself took a series of legally unwise steps that ultimately landed him in a court-martial, his command was trying to ad sep him.

NMCCA held "that the balance of evidence tips towards a conclusion that, despite the initial basis for obtaining the sample, and its label as 'probable cause,' the lab reports in this case remained a routine, objective cataloging of unambiguous factual matter by the prospective witnesses who prepared the reports. As such they were not 'testimonial' in nature as contemplated by Crawford, and their admission into evidence did not violate the appellant's Sixth Amendment Right to Confrontation." Id., slip op. at 12.

And for that published development of the law, the remand on the disqualification issue was worth it.