Thursday, June 25, 2009

Melendez-Diaz: Bad News For Armed Forces Drug labs

Today's 5-4 application of Crawford v. Washington is another shot of bad news for already embattled armed forces drug screening labs. See SCOTUSBlog coverage here and opinion here.

I think CAAF will need to re-look at the rule in United States v. Magyari, 63 M.J. 123, 125 (C.A.A.F. 2006). Here is how CAAF distinguished Magyari (admissible drug lab report on urine testing for drugs) from United States v. Harcrow, 66 M.J. 154 (C.A.A.F. 2008) (inadmissbile lab report on testing of drugs),
Our reasoning in Magyari that “[b]ecause the lab technicians were merely cataloging the results of routine tests, the technicians could not reasonably expect their data entries would ‘bear testimony’ against [a]ppellant at his court-martial” does not apply here.
While you could argue that CAAF's decision in Harcrow (with nearly identical facts to Melendez-Diaz) would make the Magyari facts fit within Melendez-Diaz, this passage from Melendez-Diaz was a shot across the bow (or possible up it) of Magyari and similar cases:

Respondent claims that there is a difference, for Confrontation Clause purposes, between testimony recounting historical events, which is "prone to distortion or manipulation," and the testimony at issue here, which is the "resul[t] of neutral, scientific testing." . . . Relatedly, respondent and the dissent argue that confrontation of forensic analysts would be of little value because "one would not reasonably expect a laboratory professional . . . to feel quite differently about the resultsof his scientific test by having to look at the defendant." . . . This argument is little more than an invitation to returnto our overruled decision in Roberts . . . which held that evidence with "particularized guarantees of trustworthiness" was admissible notwithstanding the Confrontation Clause.

We'll see what happens, though the harmless error analysis in Harcrow is interesting in light of SCOTUS not addressing the issue.

Rodney Dangerfield note: Justice Kennedy has caught on to the existence of the military justice system, see Dissent at 22, but apparently Justice Scalia has not--no cite to Harcrow anywhere (though in light of the Magyari precedent discussed infra., the omission may well have been intentional).


Phil Cave said...

I wish and have argued you are right. But I'm not sanguine that CAAF will retreat from distinguishing Crawford and now Melendez-Diaz.
I think they will continue to hold onto their reading of the third prong of the Crawford language about the makers belief as to uses in a prosecution. They will continue to focus on the lack of focus on a particular individual, the supposed anonymity of the testing process, and that the testers don't know whether the result will actually be used in a prosecution.
Also, urinalysis cases don't usually have a affidavit of the tester, but have a surrogate introduce the evidence. It is the laboratory expert who is evaluating the GC/MS print-outs, along with introducing the laboratory packages. I think this language from the opinion summarizes:

""Here, moreover, not only were the affidavits “‘made under circumstances which would lead an objective witness reasonably to believe that the statement would beavailable for use at a later trial,’” Crawford, supra, at 52, but under Massachusetts law the sole purpose of the affidavits was to provide “prima facie evidence of the composition, quality, and the net weight” of the analyzed sub-stance, Mass. Gen. Laws, ch. 111, §13. We can safely assume that the analysts were aware of the affidavits’ evidentiary purpose, since that purpose—as stated in the relevant state-law provision—was reprinted on the affidavits themselves.""

Anonymous said...

I agree with Phil Cave, and you need only look to Thomas' concurrence to see that he would agree with that reasoning that if it isn't an affidavit or in some formal package for want of a better word, then he doesn't think Crawford applies.

I can easily see the military system saying a simply printout isn't barred by Crawford.

Now authentication of such a document may be a bit of an issue.

Mike "No Man" Navarre said...
This comment has been removed by the author.
Anonymous said...

Look man- (aint that a cool way to start a comment?) I note that now that the CAAF personnel have changed, with a more constructionist bent, I forsee that they will more stictly adhere to the "confrontation is king" school of thought. Nobody who does lab work can honestly say that they don't think the reports they are preparing will not be used in a judicial or quasi judicial proceeding (as much as it irks me to agree with the former Chief Judge Crawford). How can they not be testimonial in nature?

Mike "No Man" Navarre said...

Phil Cave said:
CAAF will focus on the "third prong of the Crawford language about the makers belief as to uses in a prosecution. They will continue to focus on the lack of focus on a particular individual, the supposed anonymity of the testing process, and that the testers don't know whether the result will actually be used in a prosecution."

I think one of Scalia's points is that even where the lab is Switzerland a crim def still has the right to challenge an expert that makes judgments about evidence of guilt. Like I said, we shall see.

Anyone know where United States v. Blazier, __ M.J. ___, No. ACM 36988 (A.F. Ct. Crim. App. Sept. 8, 2008)and United States v. Harris, __ M.J. ___, No. 200700531 (N-M. Ct. Crim. App. July 31, 2008), stand. As CAAFlog mentioned in his post, here, there is a distinction in drug lab reports between command directed-probable cause urinalysis reports that may be influenced by Melendez-Diaz but has not been recognized by CCAs. I think Melendez-Diaz throws them all out.


How is the NDSL package not a formal package? Their professed mission is "To support winning the global war on terrorism readiness by deterring illegal drug use through forensic drug testing, expert testimony, consultation,
education, and methods development." That's not exactly a Switzerland mission. And they expressly state in the package that

And on the point of the Justice Thomas concurrence, Justice Thomas is an Army of one on the affidavits versus reports distinction. And for that matter, his sumamry of his concurren ce in Giles seems to suggest that NDSL drug lab reports would fall within his "core testimonial statemetns" rubric. As he summarized in Melendez-Diaz "statements within the scope of the Confrontation Clause . . .include those that are 'sufficiently formal to resemble the Marian examinations' because they were. . .'accompanied by [a] similar indicia of formality.'” While I think his distinction harkens back to Ohio v. roberts and doesn;t fit with the majority, I think even he would accept that a signed and certified drug lab report is accompanied by indicia of formality.

Phil Cave said...

Well, at trial in Blazier I spent a lot of time getting Dr. Pappas from Brooks to discuss the thinking and beliefs of the examiners and evaluators once the sample twice failed the IA. I tried to make a distinction that once it went to GC/MS there was close to 100% certainty of a positive result, and that the testers knew that the most likely result in Air Force cases was a prosecution. The Lab expert agreed!
That issue was not discussed or granted in Blazier, it's the PC one that is.
Note, that the sole difference in Blazier was the testing basis. Once the sample was taken how it went through the process was essentially the same EXCEPT the marking as PC. So at least there the people at the lab had to know there was a possibility of use at a court-martial.
I just don't think the politics and hysteria of the drug program -- which oddly doesn't seem to cover alcohol the No.1 drug of abuse with a history of death, serious injury, and serious property damage -- will allow them to permit a situation where it might be hard or harder to prosecute "druggies."

Dew_Process said...

Harcrow is also a "forfeiture" by failing to object, case.

In the "No Respect" arena NM, I don't see any citation to the MJ's at page 22 of the dissent - are you referring to the citation to the bizarre case cited at page 30, US v. Vietor?

Anon 0910 is probably right. If you look at any of the drug testing labs "Internal Procedures" manuals or however they label them, they specifically mention prosecution support, and if you subpoena their annual budgets, they earmark $$ for that as well.

The more practical question - at the trial level - is probably going to be does the Surrogate [i.e., professional witness] satisfy the "confrontation" requirement IF s/he isn't the person who did the actual testing?

Harcrow is probably going to be revisited soon.

Mike "No Man" Navarre said...

Dew, page 21-22:

As for the Federal Constitution, before Crawford the authority was stronger still: The Sixth Amendment does not require analysts to testify in court. All Federal Courts of Appeals to consider the issue agreed. . . .Some 24 state courts, and the Court of Appeals for the Armed Forces, were in accord. See Appendix A, infra.

Anonymous said...

I am not sure exactly what you mean by an NDSL package, I think you mean what we called the litigation package or report, but I'm simply talking about the computer printout that one gets that simply says, person A, SSN, and positive for cocaine.

That certainly doesn't appear to me as a formal document with any kind of particularized, trial-specific purpose/language.

Don't get me wrong, I think it clearly is Crawford material, but I'm not convinced that J. Thomas would necessarily agree.

Anonymous said...

ANON 1815 - your example is precisely why Confrontation is necessary. The military labs almost never test for cocaine, they test for BZE and extrapolate from that on the premise that BZE is a true metabolite of cocaine. The problem from an analytical chemistry and biology perspective is that it isn't.

Absent having the Chemist to cross, they don't put that info into their "reports."

But, this adds a new dimension - The Army's crime lab recently refused to turn over some internal DNA documentation on the basis that it was "proprietary" and that in their licensing agreement, they agreed to NOT turn it over. It specifically dealt with the "frequency" determinations which we were contesting. Does confrontation now trump the "proprietary" defense??

I recognize that it is a pretty esoteric example, and an infrequent issue, but it was a "fact" that we contested at the trial.