A POWERFUL, UNEQUIVOCAL DEFENCE OF MELENDEZ-DIAZ: THANK YOU MATT KAISER; IT'S ABOUT TIME;

"SECOND, CROSS EXAMINING LAB TECHNICIANS MATTERS. IT IS NOT A “MERE TECHNICALITY.” THESE PEOPLE MAKE MISTAKES. WHEN THEY MAKE MISTAKES, PEOPLE GO TO PRISON FOR THE WRONG THING. THEIR LIVES ARE DESTROYED; THEIR CHILDREN GROW UP WITHOUT A PARENT. HAVING A CHECK ON WHAT THE LAB TECHS DO WILL MEAN THAT THEY SCREW UP LESS, AND THAT FEWER INNOCENT PEOPLE GO TO PRISON. BOTH ARE REALLY GOOD THINGS TO HAVE IN A CRIMINAL JUSTICE SYSTEM."

MATT KAISER; THE KAISER BLOG;
PHOTO; JUSTICE ANTONIN SCALIA;

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Background: It's not every day that an issue involving the work of forensic scientists in the criminal courts comes under scrutiny in the Supreme Court of the United States; Nor is it every day that the Supreme Court issues a searing indictment of the forensic science system in the country and faces head-on the abuses such as manipulation, prosecutorial pressure, outright fraud, bias, error and incompetence. Canadians are well aware of this through the many miscarriages of justice caused in Ontario by Dr. Charles Smith. Americans, who haven't received this message yet, will learn it from the blunt words of Justice Antonin Scalia for the majority. The Supreme Court ruled that a state forensic analyst’s laboratory report prepared for use in a criminal prosecution is “testimonial” evidence and therefore subject to "confrontation" through cross-examination of the analyst - but not before Justice Scalia told Americans how vulnerable they are to wrongful convictions as a result of American forensic science as it is practiced today. They need all of the protection of the law that they can get.

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I have found it difficult to understand why American defence lawyers - and their organizations - have not come up with a more vigorous defence of the Melendez-Decision as a necessary weapon for avoiding miscarriages of justice caused because of forensic breakdowns;

That's why I was pleased to stumble on Matt Kaiser's Blog - published earlier today - called "Why Melendez-Diaz is good policy."

"In Melendez-Diaz, the Supreme Court held that the information in laboratory technician reports can only be introduced against a criminal defendant if the person has had the opportunity to cross-examine the lab tech who did the testing," Kaiser begins;

"This has created an outcry among prosecutors and others. (See previous coverage on the topic on this blog here and here). Admittedly, the decision is a change in the way business has been done in our criminal courts. Such a change is bound to be met with resistance, because it will create more work for the government to convict people," he continues.

Be sure to point if you cross a lab tech:
I received an email from a friend of mine about the effect of Melendez-Diaz on the war on drugs. Drug prosecutions work only because they are able to be done in volume. If the defendants refuse to plead, and prosecutors have to call lab techs, they can quickly overrun the system such that drug prosecutions will quickly become rare.

One writer argues that Melendez-Diaz is a bad idea because,

The proliferation of drug arrests would cripple our state toxicology laboratory if a witness were required in every drug trial. In nearly all instances, the testing is reliable so requiring the toxicologist to appear is no more than a formality. It’s rare where a legitimate challenge can be raised to the reliability of a particular drug screening.

I think this is wrong; Melendez-Diaz is good policy for two reasons. I’ll explain what they are, after the jump.

First, the rumors of the death of the drug prosecution are greatly exaggerated. For better or worse. criminal defendants, and criminal defense lawyers, do not behave like union members being forced to work under an unfair contract. Criminal defendants do not, and generally will not, coordinate a systematic strategy of refusing to plead so that they can overwhelm the state.

Sure, there will be some lawyers who insist on taking cases to trial where prosecutors are unwilling to offer a reasonable plea (though I can see a pretty easy fix for that). Defense lawyers will be watching closely how the government in each jurisdiction handles getting their witnesses to court.

I practice in federal court. Federal judges are notorious for bending the court’s schedule to accommodate government witnesses. And if the prevailing judicial winds are that they think Melendez-Diaz is a technicality to be worked around, they’ll be more willing to be accommodating. Of course, they won’t be endlessly flexible, and it will vary significantly by judge.

In most jurisdictions, I don’t think there will be a great rush of defendant’s to trial, but, rather, a great pressure on prosecutors to cut much better deals to make taking a plea worth not betting that the state can’t call it’s witnesses.

So, to summarize point one – the sky is not falling.

Second, cross examining lab technicians matters. It is not a “mere technicality.” These people make mistakes. When they make mistakes, people go to prison for the wrong thing. Their lives are destroyed; their children grow up without a parent. Having a check on what the lab techs do will mean that they screw up less, and that fewer innocent people go to prison. Both are really good things to have in a criminal justice system.

That said, maybe I’m wrong. So, what I encourage any reader to do is to email me any instance of a lab tech being crossed well. Any error being pointed out, any failure to maintain a chain of custody, or do the testing properly.

Melendez-Diaz is going to mean a lot more lab techs get crossed a lot more aggressively. If something’s working, please share it.

Matt Kaiser's Blog - the Kaiser Blog - can be found at:

http://thekaiserlawfirm.com/blog/

Harold Levy...hlevy16@gmail.com;

JURYGATE; THREE STRIKES AND YOU'RE OUT? MISTRIAL ORDERED BECAUSE OF TAINTED JURY SELECTION BY CROWN; NEW JURY ALSO TAINTED; SECOND MISTRIAL DECLARED!

"A PREVIOUS MISTRIAL WAS ALREADY CALLED IN THIS CASE AFTER DEFENCE LAWYER MITCHELL WORSOFF INSISTED THE CROWN HAD CONDUCTED "ILLEGAL" BACKGROUND CHECKS ON THE JURY POOL BEFORE JURY SELECTION BEGAN. A SECOND JURY POOL WAS BROUGHT IN, BUT WORSOFF SOON DISCOVERED THE CROWN HAD CONDUCTED BACKGROUND CHECKS ON THAT GROUP AS WELL, AND SO JURY SELECTION BEGAN ONCE AGAIN WITH A FRESH, "UNTAINTED" PANEL. ON FRIDAY, THE CROWN WAS AT THE BRINK OF CLOSING ITS CASE WHEN SUDDENLY THE JUDGE CALLED ANOTHER MISTRIAL;"

REPORTER TRACY MCLAUGHLAN; SPECIAL TO SUN MEDIA;
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Background: In a previous post I asked: "Why didn't Ontario prosecutors examine Dr. Charles Smith's qualifications a bit more closely over the years, pay more attention to court decisions suggesting he was biased towards the Crown and that that his opinions were seriously flawed - or at least share the existence of these decisions with the defence?"

My answer was that some prosecutors cared more about winning the case than the possibility that an innocent person might be convicted;

I buttressed my response with the story recently broken by the National Post that prosecutors in several parts of Ontario have been asking police to do secret background checks on jurors.

This controversy has lead to numerous requests for mistrials and could result in a bids to open numerous cases where accused persons have been convicted in the shadow of the illegal practice which taints a criminal jury trial from the outset.

The Charles Smith Blog is very much concerned with the question as to how far prosecutors will go to win the case and is therefore monitoring developments on a regular basis;

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A Barrie, Ontario trial which has foundered twice because of a tainted jury selection process, has now now been hit with a second mistrial.

The story, published earlier today, is told by reporter Tracy McLaughlan in Sun Media under the heading, "Judge declares mistrial -- again; Alleged street racer accused in deadly Hwy. 400 crash."

"BARRIE -- A jury trial in a high-profile street racing case was suddenly shut down Friday and the jury sent home," the story begins;

"The trial against alleged street racer Ravi Badhwar, 23, has been convoluted at best after it began June 1 and was originally set for only two weeks," it continues;

"Badwhar is charged with street racing causing death and failing to remain at the scene after truck driver David Virgoe, 48, was forced to swerve off the highway into a ditch and was killed June 18, 2007.

The Crown had called 13 witnesses -- many of whom testified they were terrified as they drove along Hwy. 400 when three vehicles suddenly began racing against each other and weaving in and out of traffic at speeds reaching 170 km/h.

Court heard the highway was filled with smoke and dust after drivers were forced to slam on their breaks in the middle of the highway.

The drivers of two of the vehicles have pleaded guilty, but Badhwar has insisted he wasn't part of the racing.

A previous mistrial was already called in this case after defence lawyer Mitchell Worsoff insisted the Crown had conducted "illegal" background checks on the jury pool before jury selection began.

A second jury pool was brought in, but Worsoff soon discovered the Crown had conducted background checks on that group as well, and so jury selection began once again with a fresh, "untainted" panel.

On Friday, the Crown was at the brink of closing its case when suddenly the judge called another mistrial.

In court, the trucker's widow and daughter broke down and cried after hearing the trial wouldn't continue.

Throughout the trial, the mother and daughter sat quietly at the front of the court, sometimes wiping away tears as the court was shown photographic evidence of Virgoe's tanker truck in a twisted heap in the ditch on the highway.

"I know the accused has a right to a fair trial," she said later in an interview, "but what about the rights of the victim? ... How long does this go on?"

There is a publication ban on the reason for this latest mistrial.
A new trial with a new jury is set to begin on Aug. 31.

Harold Levy...hlevy15@gmail.com;

THE MELENDEZ-DIAZ CASE: RADLEY BALKO PREDICTS MAY ULTIMATELY DEAL WITH THE RIGHT TO CONFRONT EXPERT WITNESS ISSUE;

"JUST GIVEN MY OWN REPORTING ON FORENSICS OVER THE LAST FEW YEARS, I FIND IT MIND-BOGGLING THAT THERE ARE PEOPLE WHO FEEL A COURT SHOULD BE ABLE TO DENY A DEFENDANT THE OPPORTUNITY TO CROSS-EXAMINE, FOR EXAMPLE, THE MEDICAL EXAMINER WHO PERFORMED THE AUTOPSY IN A MURDER CASE, OR THE LAB TECHNICIAN WHO CLAIMS TO HAVE MADE A FINGERPRINT MATCH."

RADLEY BALKO: REASON;
PHOTO: JUSTICE ANTONIN SCALIA;

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Background: It's not every day that an issue involving the work of forensic scientists in the criminal courts comes under scrutiny in the Supreme Court of the United States; Nor is it every day that the Supreme Court issues a searing indictment of the forensic science system in the country and faces head-on the abuses such as manipulation, prosecutorial pressure, outright fraud, bias, error and incompetence. Canadians are well aware of this through the many miscarriages of justice caused in Ontario by Dr. Charles Smith. Americans, who haven't received this message yet, will learn it from the blunt words of Justice Antonin Scalia for the majority. The Supreme Court ruled that a state forensic analyst’s laboratory report prepared for use in a criminal prosecution is “testimonial” evidence and therefore subject to "confrontation" through cross-examination of the analyst - but not before Justice Scalia told Americans how vulnerable they are to wrongful convictions as a result of American forensic science as it is practiced today. They need all of the protection of the law that they can get.

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From time to time I have focussed on Radley Balko's analysis of America's criminal justice system through articleh he has published on his Blog. (Reason.com);


Earlier today, (on July 16, 2009) Balko focussed his razor-sharp mind on the Melendez-Diaz case in an article headed: "Sotomayor's First Big Case May Deal With the Right To Confront Expert Witnesses."


"A few weeks ago, I posted on the Supreme Court's decision in the Melendez-Diaz case, in which the Court found that the Sixth Amendment's confrontation clause gives criminal defendants the right to cross examine forensic experts who issue lab reports that the state admits into evidence," the article begins;

"The Washington Post reports this week that the decision will have broad-reaching ramifications," it continues;

"The predictions are dire. In New York, murderers could walk free. In Fairfax County, drunken driving cases could be dismissed. And nationwide, thousands of drug cases might have to be thrown out of court annually.

Legal experts and prosecutors are concerned about the results of last month's U.S. Supreme Court ruling that requires lab analysts to be in court to testify about their tests. Lab sheets that identify a substance as a narcotic or breath-test printouts describing a suspect's blood-alcohol level are no longer sufficient evidence, the court ruled. A person must be in court to talk about the test results...

Crime labs that test drug and DNA samples face huge backlogs even when scientists and analysts do not have to testify. If the workers are taken out of the labs to appear in court, those backlogs will grow.

In drug cases, more than 1.5 million samples are analyzed by state and local labs each year, resulting in more than 350,000 felony convictions, national statistics show. "Even if only 5 percent of drug cases culminate in trials, the burden on the states is oppressive," a group of state attorneys general wrote in a brief for the case.

The percentage of cases going to trial could well go up if defense lawyers think that bringing lab analysts to court will help their cases. Lawyers also could go to trial with the hope of a dismissal if the analyst cannot be there.

Note that the objections here are logistical, not legal. Justice Anthony Kennedy's sharply-worded dissent in the case took a similar line, arguing that the decision "threatens to disrupt forensic investigations across the country and to put prosecutions nationwide at risk of dismissal . . . when a particular laboratory technician . . . simply does not or cannot appear."

These objections seem awfully utilitarian. We're supposed to ignore a fundamental component of a fair trial that's explicitly protected in the Constitution—the right to confront one's accusers—because doing so would prove inconvenient to the state? (Note too that the main reason for the backlog at state crime labs is the drug war.)

Just given my own reporting on forensics over the last few years, I find it mind-boggling that there are people who feel a court should be able to deny a defendant the opportunity to cross-examine, for example, the medical examiner who performed the autopsy in a murder case, or the lab technician who claims to have made a fingerprint match.

Unfortunately, the decision my already be in peril. Before its most recent recess, the Court agreed to hear Briscoe, et al., v. Virginia (PDF) a case that raises many of the same issues as Melendez-Diaz. Justice Souter voted with the unconventional majority in the 5-4 decision. His likely replacement, Sonia Sotomayor, is a former prosecutor whose record suggests she'll be quite a bit more law-and-order than Souter. Lyle Denniston at SCOTUSBlog speculates that the minority in Melendez-Diaz may have agreed to hear the Virginia case knowing that they'd have an ally in Sotomayor, suggesting a limitation or even reversal of the decision.

Surprisingly, the case did come up yesterday while Sotomayor was questioned by Sen. Amy Klobuchar (D-Minn.), also a former prosecutor. Klobuchar was critical of Melendez-Diaz, and invited Sotomayor to respond. Not surprisingly, Sotomayor's response was vague:

It's always difficult to deal with people's disappointments about cases, particularly when they have personal experiences and have their own sense of the impact of a case.

I was a former prosecutor. And it's difficult proving cases as it is. Calling more witnesses adds some burdens to the process.

But, at the end, that case is a decided case. And so its holding now is its holding, and that's what guides the court in the future on similar issues to the extent there can be some.

As I said, I do recognize that there can be problems, as a former prosecutor, but that also can't compel a result. And all of those issues have to be looked at in the context of the court's evaluation of the case and the judge's view of what the law permits and doesn't permit.

The American Spectator's John Tabin suggests Sotomayor's answer hints that she would not use the Virginia case to overturn Melendez-Diaz. I agree, although I don't think an outright reversal was in the cards in the first place. A reversal of a decision issued in the preceding term would be unseemly. The more likely possibility is that the Virginia case will limit the scope of Melendez-Diaz. Given how far apart the majority and minority were in the case, and that without Souter the Court stands 4-4 on this issue, the severity of that limitation may be entirely up to Sotomayor."

The Balko article - complete with links - can be found at:

http://reason.com/blog/show/134853.html

Harold Levy...hlevy15@gmail.com;

JURYGATE; BARRIE, ONTARIO; DEFENCE ARGUES SECRET JURY VETTING TAINTED FIRST-DEGREE MURDER CONVICTION IN YOUNG OFFENDER CASE;

"COURT DOCUMENTS, FILED BY FEDUNCHAK (DEFENCE LAWYER), STATE HE'S ASKING THAT THE VERDICT BE THROWN OUT, OR FOR AT LEAST A MISTRIAL, ON TWO GROUNDS: THAT THE JURY WAS VETTED AND, SECONDLY, THERE WAS JURY MISCONDUCT. FEDUNCHAK DID NOT ELABORATE ON WHAT THE MISCONDUCT ENTAILED."

TRACY MCLAUGHLIN: SUN MEDIA;
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Background: In a previous post I asked: "Why didn't Ontario prosecutors examine Dr. Charles Smith's qualifications a bit more closely over the years, pay more attention to court decisions suggesting he was biased towards the Crown and that that his opinions were seriously flawed - or at least share the existence of these decisions with the defence?"

My answer was that some prosecutors cared more about winning the case than the possibility that an innocent person might be convicted;

I buttressed my response with the story recently broken by the National Post that prosecutors in several parts of Ontario have been asking police to do secret background checks on jurors.

This controversy has lead to numerous requests for mistrials and could result in a bids to open numerous cases where accused persons have been convicted in the shadow of the illegal practice which taints a criminal jury trial from the outset.

The Charles Smith Blog is very much concerned with the question as to how far prosecutors will go to win the case and is therefore monitoring developments on a regular basis;

TRACY MCLAUGHLIN; SUN MEDIA;

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The Sun Media Sun Story, by Tracy McLaughlin, ran earlier today under the heading, "Lawyer demands murder conviction be tossed."

"BARRIE -- A defence lawyer wants the murder verdict for a young offender convicted in a brutal stabbing tossed out of court because of secret jury vetting, the Toronto Sun has learned," the story begins;

"Lawyer Ben Fedunchak argues the jury was secretly vetted by the Crown before jury selection in a trial that led to a first-degree murder conviction against his client, who can't be identified," it continues;

"Last February following a two-month trial, a jury spent two days deliberating before it decided that the teen, who was 16 at the time, was guilty of repeatedly stabbing 14-year-old Brayton Bullock in the head, back and chest in Lackie's Bush in Barrie on March 9, 2006.

Court documents, filed by Fedunchak, state he's asking that the verdict be thrown out, or for at least a mistrial, on two grounds: that the jury was vetted and, secondly, there was jury misconduct. Fedunchak did not elaborate on what the misconduct entailed.

Fedunchak also complained that the Crown hasn't given him full disclosure regarding both allegations, while some of the disclosure he did receive "has been edited," court documents state.

A three-day hearing was set to begin yesterday to determine whether the teen should be sentenced as an adult, but that was put on hold. A date for possible arguments over a stay of proceedings or mistrial was set for Aug. 25.

Outside court, the mother and family members of the murdered teen were visibly upset.

"We are sick -- just sick about this," said aunt Cheryl Bullock. "A new trial would put this family through the trauma all over again ... We need this to end."

This is the third or fourth time allegations that the Crown has been vetting its juries has arisen at the Barrie courthouse in recent weeks.

Last month, three jury panels were dismissed in Barrie after defence lawyers claimed the Crown obtained lists of prospective jurors with private information written beside their names that included such things as drinking problems, depression, mental health problems, minor criminal convictions, highway traffic offences and drunk driving offences that dated back more than 30 years.

Defence lawyers involved insisted they were shocked and knew nothing about the jury vetting."

Harold Levy...hlevy15@gmail.com;

THE MELENDEZ-DIAZ CASE: CRITICAL COMMENT; HOUSTON CHRONICAL CASE WELCOMES THE DECISION IN EDITORIAL HEADED "ACCOUNTABILITY";

"LAST DECEMBER, RICARDO RACHELL WAS RELEASED FROM PRISON AFTER SERVING SIX YEARS FOR SEXUALLY ASSAULTING A CHILD, CLEARED BY DNA THAT HAD BEEN AVAILABLE ALL ALONG — A VICTIM OF SHODDY POLICE WORK AND INADEQUATE REPRESENTATION.

JUST LAST WEEK, ANOTHER HOUSTONIAN, GEORGE RODRIGUEZ, WAS AWARDED $5 MILLION BY A FEDERAL GRAND JURY FOR THE “DELIBERATE INDIFFERENCE” OF THE CITY TO DISCREDITED EVIDENCE FROM THE CRIME LAB WHICH LED TO HIS CONVICTION. HE SPENT 17 YEARS IN PRISON FOR A KIDNAPPING AND RAPE HE DID NOT COMMIT."

HOUSTON CHRONICLE EDITORIAL;

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Background: It's not every day that an issue involving the work of forensic scientists in the criminal courts comes under scrutiny in the Supreme Court of the United States; Nor is it every day that the Supreme Court issues a searing indictment of the forensic science system in the country and faces head-on the abuses such as manipulation, prosecutorial pressure, outright fraud, bias, error and incompetence. Canadians are well aware of this through the many miscarriages of justice caused in Ontario by Dr. Charles Smith. Americans, who haven't received this message yet, will learn it from the blunt words of Justice Antonin Scalia for the majority. The Supreme Court ruled that a state forensic analyst’s laboratory report prepared for use in a criminal prosecution is “testimonial” evidence and therefore subject to "confrontation" through cross-examination of the analyst - but not before Justice Scalia told Americans how vulnerable they are to wrongful convictions as a result of American forensic science as it is practiced today. They need all of the protection of the law that they can get.

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"Last week, the U.S. Supreme Court issued a significant ruling, one that upholds the right of a criminal defendant, during trial, to confront the analyst who prepared a forensic report if the prosecution plans to use that report as evidence," the Houston Chronicle editorial begins;

"The ruling, in the case of Melendez-Diaz v. Massachusetts, confirmed the confrontation clause of the Sixth Amendment, which provides that “in all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him," the editorial continues;

"It was no surprise that Justice Antonin Scalia wrote the majority opinion. He was the author of the court’s 2004 decision, in Crawford v. Washington, which unanimously upheld that same principle.

Melendez-Diaz was a narrowly won decision (5–4), and one that will be revisited and clarified. But it was the right decision, one in which the Supreme Court reaffirmed its concern for the rights of criminal defendants, who are often left without adequate resources to defend themselves.

Nowhere has that lack been more obvious in recent years than in Houston, as evidenced by the Houston Police Department’s scandal-ridden crime lab, whose egregious mistakes, omissions and sloppy procedures have led to horrendous miscarriages of justice.

Last December, Ricardo Rachell was released from prison after serving six years for sexually assaulting a child, cleared by DNA that had been available all along — a victim of shoddy police work and inadequate representation.

Just last week, another Houstonian, George Rodriguez, was awarded $5 million by a federal grand jury for the “deliberate indifference” of the city to discredited evidence from the crime lab which led to his conviction. He spent 17 years in prison for a kidnapping and rape he did not commit.

Defense attorneys applauded the decision: Noted Houston attorney Stanley Schneider called the decision “outstanding. An individual’s right to freedom is the most precious thing we have, and the right to cross-examination is the backbone of our system of justice.”

But many prosecutors, and the court minority, complained that it would place an undue strain on forensic analysts and prosecutors. Scott Burns, executive director of the National District Attorneys Association, called it “a train wreck,” reported the New York Times.

But Harris County District Attorney Pat Lykos welcomed the decision, noting that since taking office last January, she has made good on her pledge to pass on all offense reports to defense attorneys and has proposed the creation, she told the Chronicle, of a “regional, independent crime lab, staffed by qualified scientists to meet the forensic demands of our justice system.”

Scalia pointed out that many states have already adopted the confrontation clause, saying “Perhaps the best indication the sky will not fall after today’s decision is that it has not done so already.”

As forensic science expands, so do the ranks of experts who interpret it. It’s reassuring to know they’ll be held accountable."

Harold Levy...hlevy15@gmail.com;

MELENDEZ-DIAZ CASE; ANALYSIS OF THE RULING; LYLE DENNISTON; SCOTUS BLOG;

"PUTTING THE CHEMIST OR LAB TECHNICIAN ON THE STAND TO BE TESTED BY CROSS-EXAMINATION, THE MAJORITY SAID, WILL HELP “WEED OUT NOT ONLY THE FRAUDULENT ANALYST, BUT THE INCOMPETENT ONE AS WELL.”

STILL, SCALIA SAID, THE DECISION TO COMPEL THE REPORTS’ EXPERT AUTHORS TO TESTIFY IS BASED ULTIMATELY ON THE RIGHT OF CONFRONTATION, NOT THE QUALITY OF THE REPORTS OR THE CREDIBILITY OF THE CHEMIST. “WE WOULD REACH THE SAME CONCLUSION,” HE WROTE IN A FOOTNOTE, “IF ALL ANALYSTS POSSESSED THE SCIENTIFIC ACUMEN OF MME. CURIE AND THE VERACITY OF MOTHER THERESA.”

LYLE DENNISTON; THE SCOTUS BLOG;
PHOTO: JUSTICE ANTONIN SCALIA;
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Background: It's not every day that an issue involving the work of forensic scientists in the criminal courts comes under scrutiny in the Supreme Court of the United States; Nor is it every day that the Supreme Court issues a searing indictment of the forensic science system in the country and faces head-on the abuses such as manipulation, prosecutorial pressure, outright fraud, bias, error and incompetence. Canadians are well aware of this through the many miscarriages of justice caused in Ontario by Dr. Charles Smith. Americans, who haven't received this message yet, will learn it from the blunt words of Justice Antonin Scalia for the majority. The Supreme Court ruled that a state forensic analyst’s laboratory report prepared for use in a criminal prosecution is “testimonial” evidence and therefore subject to "confrontation" through cross-examination of the analyst - but not before Justice Scalia told Americans how vulnerable they are to wrongful convictions as a result of American forensic science as it is practiced today. They need all of the protection of the law that they can get.

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"Expressing a heavy dose of skepticism that crime lab reports are so reliable as to be beyond question, the Supreme Court on Thursday cleared the way for chemists and other scientists who prepare such reports to be summoned to the witness stand in criminal trials to defend their analyses," the analysis of the Melendez-Diaz decision on the Scotus Blog begins;

"The 5-4 ruling in Melendez-Diaz v. Massachusetts (07-591) resulted from some unusual alliances among the Justices, and continued the deep division within the Court over how to interpret the Constitution’s guarantee that an individual on trial for a crime has a right to face and challenge the witnesses for the prosecution," it continues;

"Justice Antonin Scalia, the Confrontation Clause’s most devoted defender on the Court, wrote for the majority: “There is little reason to believe that confrontation will be useless in testing analysts’ honesty, proficiency, and methodology — the features that are commonly the focus in the cross-examination of experts.”

The ruling will provide for an added layer of challenge by defense lawyers to such criminal evidence as illegal drugs, fingerprints, blood spatter patterns and blood chemistry, guns and bullets, and other forms of physical evidence subjected to lab analyses, at least when the resulting reports are prepared for use as evidence in criminal trials.

Now, if prosecutors want to offer a crime lab report as evidence, and the report was prepared with the aim that it would be used at trial, the prosecution has to bring along the author or scientist and make them available for questioining by the defense — if the defense insists on the right to confront the analyst. It is not up to defense lawyers to summon them to the stand, but they must assert the right to confront the analyst, the Court indicated.

The opinion recited a good deal of information from published reports about how defective crime labs and their results are, and said that claims that lab reports are the product of “neutral scientific testing” are open to challenge because such reports are not “as neutral or as reliable” as advertised. “Forensic evidence,” Scalia wrote, “is not uniquely immune from the risk of manipulation.”

He cited one report, for example, that said “there is wide variabiility across forensic science disciplines with regard to techniques, methodologies, reliability, types and numbers of potential errors, research, general acceptability, and published material.”

Putting the chemist or lab technician on the stand to be tested by cross-examination, the majority said, will help “weed out not only the fraudulent analyst, but the incompetent one as well.”

Still, Scalia said, the decision to compel the reports’ expert authors to testify is based ultimately on the right of confrontation, not the quality of the reports or the credibility of the chemist. “We would reach the same conclusion,” he wrote in a footnote, “if all analysts possessed the scientific acumen of Mme. Curie and the veracity of Mother Theresa.”


To the complaints of prosecutors (and the dissenting Justices) that the decision is going to lay a heavy new burden on the preparation and analysis of criminal evidence, Justice Scalia opined that “the sky will not fall.”

The best evidence of that, he wrote, is that the sky had not fallen even without the new ruling, because “many states have already adopted the constitutional rule that we announce today, while many others permit the defendant to assert (or forfeit by silence) his Confrontation Right after receiving notice of the prosecution’s intent to use a forensic analyst’s report…There is no evidence that the criminal justice system has ground to a halt…”

Moreover, Scalia said, defense lawyers may often opt not to insist on confronting a crime lab analyst, because they may conclude for strategic reasons that this might highlight rather than cast doubt on the report’s results as evidence.

Scalia’s opinion was supported by three of the Court’s more liberal members — Justices Ruth Bader Ginsburg, David H. Souter and John Paul Stevens — and by another conservative like Scalia: Justice Clarence Thomas. Thomas filed a separate concurrence, putting some limits on what he understood the sweep of the ruling might be.

Justice Anthony M. Kennedy, joined by two conservatives, Chief Justice John G. Roberts, Jr., and Justice Samuel A. Alito, Jr., and a member of the liberal bloc, Justice Stephen G. Breyer. Kennedy began his dissent with a sweeping challenge: “The Court sweeps away an acceped rule governing the admission of scientific evidence. Until today, scientific evidence could be introduced into evidencde without testimony from the ‘analyst’ who produced it. This rule has been established for at least 90 years.”"

Harold Levy...hlevy15@gmail.com;

THE MELENDEZ-DIAZ CASE: SUPREME COURT JUSTICE SCALIA TELLS AMERICANS HOW VULNERABLE THEY ARE TO AMERICAN FORENSIC SCIENCE AS IT IS PRACTICED TODAY;

"CONFRONTATION IS DESIGNED TO WEED OUT NOT ONLY THE FRAUDULENT ANALYST, BUT THE INCOMPETENT ONE AS WELL. SERIOUS DEFICIENCIES HAVE BEEN FOUND IN THE FORENSIC EVIDENCE USED IN CRIMINAL TRIALS. ONE COMMENTATOR ASSERTS THAT “(T)HE LEGAL COMMUNITY NOW CONCEDES, WITH VARYING DEGREES OF URGENCY, THAT OUR SYSTEM PRODUCES ERRONEOUS CONVICTIONS BASED ON DISCREDITED FORENSICS."

JUSTICE ANTONIN SCALIA; MELENDEZ-DIAZ v. MASSACHUSETTS.

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Background: It's not every day that an issue involving the work of forensic scientists in the criminal courts comes under scrutiny in the Supreme Court of the United States; Nor is it every day that the Supreme Court issues a searing indictment of the forensic science system in the country and faces head-on the abuses such as manipulation, prosecutorial pressure, outright fraud, bias, error and incompetence. Canadians are well aware of this through the many miscarriages of justice caused in Ontario by Dr. Charles Smith. Americans, who haven't received this message yet, will learn it from the blunt words of Justice Antonin Scalia for the majority. The Supreme Court ruled that a state forensic analyst’s laboratory report prepared for use in a criminal prosecution is “testimonial” evidence and therefore subject to "confrontation" through cross-examination of the analyst - but not before Justice Scalia told Americans how vulnerable they are to wrongful convictions as a result of American forensic science as it is practiced today. They need all of the protection of the law that they can get.

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Here is the portion of Justice Scalia's decision for the majority of the Court which certainly caught my attention and should be required reading for anyone concerned about the fairness and accuracy of America's criminal justice system. I find it hard to believe that prior to this decision, scientific analysis could be introduced into evidence without testimony from the 'analyst' who produced it. I have omitted references in order to facilitate facilitate the flow of his comments. (I have provided a link to the complete decision - with references - at the end of this post);

“Nor is it evident that what respondent calls “neutral scientific testing” is as neutral or reliable as respondent suggests. Forensic evidence is not uniquely immune from the risk of manipulation. According to a recent study conducted by the National Academy of Sciences, “(t)he majority of laboratories producing forensic evidence are administered by law enforcement agencies such as police departments where the laboratory administrator reports to the head of the agency.” And (b)ecause forensic scientists often are driven in their work by a need to answer a particular question related to the issues of a particular case, they sometimes face pressure to sacrifice appropriate methodology for the sake of expediency. A forensic analyst responding to a request from a law enforcement official may feel pressure – or have an incentive – to alter the evidence in a manner favourable to the prosecution.

Confrontation is one means of assuring accurate forensic analysis. While it is true, as the dissent notes, that an honest analyst will not alter his testimony when forced to confront the defendant, the same cannot be said of the fraudulent analyst. See brief for National Innocence Network as Amicus Curiae (discussing cases of documented “drylabbing” where forensic analysts report results of tests that were never performed. National Academy Report (discussing documented cases of fraud and error involving the use of forensic evidence.) Like the eyewitness who has fabricated his account to the police, the analyst who provides false results may, under oath in open court, reconsider his false testimony. And, of course, the prospect of confrontation will deter fraudulent analysis in the first place;

Confrontation is designed to weed out not only the fraudulent analyst, but the incompetent one as well. Serious deficiencies have been found in the forensic evidence used in criminal trials. One commentator asserts that “(t)he legal community now concedes, with varying degrees of urgency, that our system produces erroneous convictions based on discredited forensics. One study of cases in which exonerating evidence resulted in the overturning of criminal convictions concluded that invalid forensic testimony contributed to the convictions in 60% of the cases. And the National Academy Report concluded:

“The forensic science system, encompassing both research and practice, has serious problems that can only be addressed by a national commitment to overhaul the current structure that supports the forensic science community in this country.”

Like expert witnesses generally, an analyst's lack of proper training or deficiency in judgment may be disclosed in cross-examination.

After noting that the Melendez-Diaz case is illustrative of the reality that ”Like expert witnesses generally, an analyst's lack of proper training or deficiency in judgment may be disclosed in cross-examination," Justice Scalia goes on to conclude that:

“Contrary to respondent’s and the dissent’s suggestion, there is little reason to believe that confrontation will be useless in testing analyst’s honesty, proficiency, and methodology – the features that are commonly the focus in the cross-examination of experts;"

The Melendez-Diaz decision can be found at:

http://www.supremecourtus.gov/opinions/08pdf/07-591.pdf

Harold Levy...hlevy 15@gmail.com;