More on cages and due process

In response to my post Defendants, cages and due process, I received the following e-mail from Sabrina Carliss:

Paul, you had an Aug 9th article titled 'Defendants, Cages and Due Process' where you spoke about the process of placing defendants behind bars or reverse cages where they testify from another room. Since it seems you're adamantly against this practice, how would you propose to deal with future alleged victims of sexual assault deal with the trials? Seems like this practice is rather kind to those assaulted (if the alleged is truly guilty). Where did you find the info for the last paragraph? 

Well, Ms. Carliss, my solution is quite simple - the complaining witness takes a seat in the witness stand and answers questions on direct from the prosecutor and on cross from the defense attorney. The Sixth Amendment guarantees a defendant the right to confront the witnesses against him and I believe that the right to confront is severely diluted when a witness is allowed to testify from another room.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence. -- Sixth Amendment

My idea may sound harsh but my job is to defend the Constitution. The Bill of Rights doesn't make exceptions (and neither should we) for different crimes. When a person goes on trial, the state is looking to take away that person's life, liberty or property. If we're going to allow the state to do that then we damn well better guarantee that the defendant's rights are protected and that he be afforded all of his rights under due process of law.

By allowing a witness to testify on camera from another room we are telling the jury that the defendant is a bad person. We are telling the jury that it's okay to ignore the presumption of innocence. We are telling the jury it's okay to ignore the Bill of Rights.

Those who seek to tear down our constitutional protections like to twist the question around and ask what we would want if it was our child on the stand. The real question, however, is what would you want if you were the one on trial?

Supremes to tackle confrontation again

The US Supreme Court is set to hear another case on what appears to be the biggest hot button topic in the courthouse - confrontation.

In Williams v. Illinois, 939 NE.2d 268 (Illinois 2010), Sandy Williams was charged with two counts of aggravated sexual assault, aggravated robbery and aggravated kidnapping. At trial the state chose not to call the lab analyst who ran DNA tests on swabs in a rape kit. The state did not seek to introduce the lab report into evidence but called another lab analyst as an expert witness. The state's expert then testified as to the method by which DNA samples are tested. She was then asked to give her opinion as to whether the DNA profile from the sample "matched" the DNA profile of Mr. Williams. She claimed she reviewed the lab report in coming to her opinion.

The defense objected to the analyst's testimony on the grounds that Mr. Williams' Sixth Amendment right to confront the witnesses against him was violated as he was not afforded the opportunity to cross examine the analyst who performed the actual tests upon which the lab results were based.

The judge ruled that this was not a Crawford matter and that the real issue was how much "weight" to give the evidence, not whether it should be excluded.

The Supreme Court will now decide if this scenario falls within the holding in Bullcoming. In that case Justice Sotomayor penned a concurrence that seemed to indicate she thought it was acceptable for the state to put on an expert witness (who did not conduct the test in question) to give their "independent" opinion of the results of the test.

While the rules of evidence allow experts to base their opinions on documents that would not be admissible in a court proceeding, that rule had more to do with the sources of the experts' knowledge than with giving an opinion based on someone else's (otherwise) inadmissible report.

Allow the state to get away with such a blatant end-run around Crawford would deprive defendants from questioning the analysts who conducted lab tests about the procedures used in the test. It would prevent defendants from questioning analysts about whether tests were conducted properly and in accordance with generally accepted standards.

Let's get real here. The state's "expert" did not give an "independent" opinion on the lab results. The "expert" was chosen because she would testify that the lab results indicated that Mr. Williams did what he was accused of. The "expert's" opinion was based upon a lab report that was inadmissible since the state didn't call the actual analyst to the stand. And, to top it off, claiming that the real issue is the weight to be given the expert's opinion, and not whether Mr. Williams' confrontation rights were violated, makes an absolute mockery of a person's right to confront his accusers. The assumption of the court is that the analysis was good science - whether or not the state met its burden to prove so.

Confrontation is not a right that can be "balanced" by some scale that weighs the rights of the accused against the level of inconvenience for the state.

Avoiding confrontation 101

Last Thursday I wrote about what the Supreme Court had to say about confrontation and scientific reports in the Bullcoming opinion. The Court's decision does not mean, however, that the only person who can testify about the results of a lab report is the analyst who authored it.

In Bullcoming, the lab report included observations about the condition of the blood tubes and the procedures followed in testing the blood sample. The analyst who testified (not the author of the report) was not asked whether he had developed an independent opinion of the underlying test.

First let's assume that the report does not contain any personal observations of the analyst but consists merely of the results of the test. In that case, another analyst can testify as to the results of the test - but not to the manner in which the test was conducted. Whether such a scenario actually affords a defendant the opportunity to confront the witnesses against him is another story, however.

Now let's say that the analyst's supervisor had observed the analyst conduct the blood test. Then let's say that, just as in Bullcoming, the analyst was not called to testify. The supervisor could have testified to the contents of the report that he observed.

Now let's assume the other analyst conducted a second test on the blood sample. If the results of his test and the result of the test referenced in the lab report were consistent, the other analyst could have testified to his independent opinion about whether the driver was intoxicated at the time of the test (or driving).

Finally, let's not forget that the original analyst was on unpaid leave for an undisclosed infraction at the time of trial. The defendant was entitled to explore the reason for his being placed on leave as it might be relevant as to the trustworthiness of his testimony or the test results.

As a colleague of mine pointed out last week, the Court's opinion in this matter - particularly Justice Sotomayor's concurring opinion - is a primer in how the state can get lab reports (or at least the results of lab tests) into evidence in the absence of the analyst who either conducted the tests or wrote the report.

So while the Bullcoming decision is a victory for the right of confrontation, it's also a blueprint for the state in how to get around it.

Author, author

David Bullcoming was arrested for driving while intoxicated after being involved in an automobile accident in Farmington, New Mexico. The driver of the other car noted that Mr. Bullcoming smelled of alcohol and had his wife call the police. Mr. Bullcoming left the scene but was stopped shortly thereafter. The arresting officer said he failed the roadside exercises and placed him under arrest.

After Mr. Bullcoming decided not to blow into the breath test machine, police obtained a search warrant allowing for a forcible blood draw. That blood specimen was tested by the New Mexico Department of Health's Scientific Laboratory Division (SLD). Curtis Caylor tested the sample which had an alcohol concentration of 0.21 grams per 100 milliliters, and wrote a report in which he certified that the test was conducted properly. As a result, Mr. Bullcoming was charged with aggravated DWI (BAC over 0.16).

At trial the prosecutor announced that Mr. Caylor would not be testifying because he had been placed on unpaid leave and that another analyst would testify as to the test result. Defense counsel objected on the grounds that Mr. Bullcoming's right to confront the analyst who conducted the test was being violated. The trial court didn't see it that way, overruled his objection and allowed the lab report into evidence as a business record.

On appeal the New Mexico Supreme Court ruled that Mr. Bullcoming's confrontation rights under Crawford weren't denied because Mr. Caylor was just the person who wrote down the test result. The Court held that the analyst called to testify was also an expert in gas chromatography and was qualified to testify as to the results of the test.

The US Supreme Court took the case to determine whether or not the state can introduce a lab report that is testimonial in nature through the testimony of an analyst who neither conducted the test nor authored the report.

The answer is no.

As a rule, if an out-of-court statement is testi­monial  in  nature, it may not be introduced against the accused at trial unless the witness who made the state­ment is unavailable and the accused has had a prior op­portunity to confront that witness.   Because the New Mexico Supreme Court permitted the testimonial state­ment of one witness,  i.e., Caylor, to enter into evidence through the in-court testimony of a second person,  i.e., Razatos, we reverse that court’s judgment.  -- Bullcoming v. New Mexico, 564 US ___ (2011)

In making its decision, the Court looked at the contents of the report written by Mr. Caylor. The report contained more than just a test result. The report indicated the steps Mr. Caylor took in testing the sample. The report indicated the condition of the sample before the test was conducted. Since the report contained information that only the person conducting the test could know, Mr. Bullcoming had the right to confront the analyst was conducted the test. Denying Mr. Bullcoming the opportunity to cross examine Mr. Caylor deprived Mr. Bullcoming of his right of confrontation under the Sixth Amendment.

The Court also shot down New Mexico's argument that the lab report was nontestimonial.

A document created solely for an “evidentiary pur­pose,”  Melendez-Diaz  clarified, made in aid of a police investigation, ranks as testimonial. -- Bullcoming

Lab reports are not just business records, they are testimonial documents and defendants have the right under Crawford and Melendez-Diaz to confront the authors of the lab reports. The failure of the state to make the analysts available is a violation of a criminal defendant's rights under the Sixth Amendment.

Court deems lab reports inadmissible

While standing trial for possession with intent to distribute narcotics, Ronald Johnson objected to the admission of lab reports attesting to the weight of the drugs and to testimony from a supervisor about the contents of the reports in the absence of the lab techs who wrote the report.

The trial court, finding no harm in allowing a witness to parrot the information contained in a lab report written by someone else regarding tests performed by another person, allowed the reports to be entered into evidence and allowed the supervisor to testify to the contents of the reports. Surprisingly enough, Mr. Johnson was convicted.

On appeal (Johnson v. State, No. 09049F (Tex.App.--Dallas, 2011) Mr. Johnson argued that the trial court's decision violated his 6th Amendment right to confront the witnesses against him. The state argued that even if the reports were inadmissible, an expert witness may base his testimony on inadmissible hearsay.

In dismissing the state's contention that the supervisor's testimony was admissible, the court stated that while it was permissible for an expert base his expert opinion on inadmissible hearsay, it was not kosher for a person to act as "little more than a conduit for...testimonial hearsay."

The court found that the reports were testimonial in nature and that Mr. Johnson had not been afforded the opportunity to cross examine either the author or the person who performed the tests. Since the court found the evidence violated Mr. Johnson's 6th Amendment right to confrontation, the court:

should consider several factors: (1) The importance of the hearsay statements to the State's case; (2) Whether the hearsay evidence was cumulative of other evidence; (3) The presence or absence of evidence corroborating or contradicting the hearsay testimony on material points; and (4) The overall strength of the prosecution's case.

Having found that the state's case rested entirely on the reports in question, the court reversed the conviction.

Reviewing the nation's blueprint

This morning members of the House of Representatives read the Constitution. Of course, they couldn't agree on how the document should be read.

Do we read the entire document, including those provisions that have been superseded by amendment?

Do we read that messy little section that talked about some folks only being worth 60% of what other folks are worth?

Should we just skip over that whole Prohibition thingy?

Under the new regime, all bills must cite the Constitutional provision that gives Congress authority to take action. Does that mean members might have to read the provision of the 4th Amendment that bans unreasonable search and seizure? Does it mean they might have to review the 5th Amendment to realize that criminal defendants have a right to remain silent (whether or not they announce their intention to remain silent)? Will they look at the 6th Amendment and remember that criminal defendants have the right to have an attorney and to confront their accusers?

Maybe it means someone will think twice before creating yet another federal crime and duplicates what's on the books in the states.

If these guys and gals can't even agree on how to read the blueprint of our democracy, how can we expect them to get anything done? Of course that might not be a bad thing, if you know what I mean.

Collapsing under its own weight

The City of Houston Municipal Courts handled 1.2 million cases in 2009. Of those 1.2 million cases, defendants requested jury trials in 415,297 of them. The Houston Chronicle reported that there were 415,297 jury trials at 1400 Lubbock Street last year; Houston's "leading information source" was wrong. There are seven municipal courts that handle jury trials. In those seven courts, one case, at most, will go to trial each afternoon. Not taking holidays into account, there are approximately 260 working days in a year. If we are to believe the number reported, that means each of those seven courts conducted an average of 228 jury trials a day, every weekday, for the entire year.

The number reported by the Houston Chronicle is not the number of jury trials conducted, but, instead, the number of cases set on the courts' jury trial dockets. That means each court averaged approximately 228 cases on its docket each day.

And with our city attorney doing his best to make Governor Perry look like a genius and declaring that police officers needn't bother with showing up at 8:00 a.m. and making folks sit around the courthouse all day long, the Municipal Courthouse will soon collapse under its own weight.

Now just imagine what would happen if none of those 228 cases plead out during the morning session and that every defendant in that courtroom demanded a jury trial. Imagine 227 cases having to be reset in every court every day. Sure, the new policy is ridiculous and it attempts to coerce pleas by making people sit in a courtroom all day long but to watch the entire system come crashing down is priceless.

Now if you are offended by David Feldman's latest dumb idea and think that it's just plain wrong that you are expected to be in court at the time shown on your summons but that the police can show up whenever they damn well please, then give your mayor and city councilmembers a piece of your mind:

Mayor Annise Parker
(832) 393-0800 or (832) 393-1013

Brenda Stardig
(832) 393-3010

Jarvis Jordan
(832) 393-3009

Anne Clutterbuck
(832) 393-3004

Wanda Adams
(832) 393-3001

Mike Sullivan
(832) 393-3008

Al Hoang
(832) 393-3002

Oliver Pennington
(832) 393-3007

Ed Gonzalez
(832) 393-3003

James Rodriguez
(832) 393-3011

Stephen Costello
(832) 393-3014

Sue Lovell
(832) 393-3013

Melissa Noriega
(832) 393-3005

Clarence Bradford
(832) 393-3012

Jolanda Jones
(832) 393-3006

You might even want to drop Mr. Feldman a line at david.feldman@houstontx.gov.

Who's burden is it?

Memo to: Mayor Annise Parker and City Attorney David Feldman
From: Paul B. Kennedy
Date: 7/29/2010

I'm not sure if y'all realize this but when a police officer stops a motorists and issues a citation for speeding, that motorist is being charged with a criminal offense. I understand it's only a Class C misdemeanor - but that motorist may still have to pay a fine and deal with DPS surcharges.

The motorist is presumed innocent unless the state can prove its case beyond all reasonable doubt. That's right, the prosecution has the burden of proof. The motorist has a right to a trial before a jury of his peers - no matter how inconvenient that may be. The motorist also has a right to confront the witnesses against him - even if the City of Houston is going to have to shell out some overtime money for the officers.

The motorist is issued a notice informing him of where and when he is to appear for his trial. The officer who issued the citation is served with a summons to appear at the same time in the same place. If the motorist is not sitting in the courtroom when his name is called, the judge will have a warrant issued for his arrest. If the officer isn't present, the case is dismissed. But now y'all have decided that the law doesn't apply to the city and that officers don't have to be in court for the morning docket call.

It's the government who's attempting to take money out of the motorist's pocket. It's the motorist's money. It's the motorist's time. If the government wants to infringe on someone's liberty then it's the government who needs to deal with these messy inconveniences of our criminal justice system, not the motorist. Yet it's the government who decides to make innocent people sit in a courtroom for hours waiting for their accusers to show up in court. The state may have the burden of proof, but I guess the citizenry have the burden of exercising their rights.

It seems to me that the government is taking offense at the notion that a motorist dare stand up and proclaim himself not guilty. We've already seen the city proclaim red light camera violations to be civil violations in order to avoid dealing with due process and confrontation issues. How long until y'all declare all traffic offenses to be civil violations, too?

What's going to happen when nobody pleads out their cases in the morning and the courtroom remains full at 1:00 pm? What's going to happen when everyone in the courtroom demands their right to trial by jury and the Municipal Courthouse grinds to a halt?

Jurors, technology and confrontation

Mike Masnik of the Techdirt blog asks why shouldn't jurors be allowed to do a little online research outside the courtroom. His view is since jurors come to the table with their outside experiences, biases and prejudices, what harm would it do to allow the smart ones to use a little technology to aid their decision-making.

Courts are increasingly looking to ban jurors from using any kind of technology. And yes, before we go through this again, we understand the arguments why courts do this (so no need to keep repeating it in the comments like last time). The question is does this really make sense?

So, if we can admit that jurors are always bringing outside information (in the form of their own life history and knowledge) into the court room, can't we at least begin to understand why there's an argument for letting smart jurors make use of technology to better understand the issues at play?

First off might be the oath that jurors in Texas take before any evidence is presented. Texas Code of Criminal Procedure Art. 35.22 states the the court shall administer the following oath to the jury:

"You and each of you do solemnly swear that in the case of the State of Texas [against the defendant], you will a true verdict render according to the law and the evidence, so help you God."

The evidence refers to any pictures, photographs, charts, graphs, tangible items and testimony introduced and admitted at trial. There are plenty of items that might qualify as evidence that a crime was committed, but are deemed inadmissible as a result of the law.

To allow the use of technology by jurors would also gut the Confrontation Clause of the sixth amendment. The defendant in a criminal matter has the right to cross-examine the witnesses brought against him. Cross-examination can be used to attack the witness' account of the event or to challenge the assumptions or bases of a scientific opinion or to impeach the witness. If Joe Juror googles the defendant on his computer one night, the defendant is robbed of his right to challenge the information.

Here is one of the more interesting comments to Mr. Masnik's post:

Wrong argument Mike

by Just Joe

Mike, I normally agree with a lot of what you write about. In this case I think you've gone the wrong way.

Juries are like an antiquated business model. Choosing 12 random people to make decisions that can affect the next 5-50 years of someone's life seems like a poor way to do things. I don't care so much about the tech they have access to so much as I care who these people actually are.

Shouldn't we think more along the lines of choosing professional juries? People who are experts in given fields and can make informed decisions about the evidence presented.

I just don't think choosing 12 people who were not bright enough to get out of jury duty is the best way to go about things.

Who would serve on the jury for a DWI case? A kiddie porn case? A rape case?

Thanks to Dr. Dennis C. Elias, Ph.D. for spotting Mr. Masnik's article.

Supreme Court affirms Melendez-Diaz ruling

Faced with the opportunity to curtail a defendant's right to confrontation as laid out in the Melendez-Diaz case, the United States Supreme Court today held that "notice and demand" statutes similar to Virginia's recently repealed statute violate the Sixth Amendment's right to confrontation.

At issue was whether Virginia's statute under which a lab analyst would be available for cross-examination upon the request of the Defendant, seemingly shifting the burden of proof.

The Court's opinion reads as follows:

"We vacate the judgment of the Supreme Court of Virginia and remand the case for further proceedings not inconsistent with the opinion in Melendez-Diaz v. Massachusetts, 557 US ___ (2009)." -- Briscoe v. Virginia, 559 US ___ (2010), per curiam

The prohibition of trial by affidavit lives on.

See also:

"Supreme Court hears challenge to confrontation ruling" The Defense Rests (Jan. 14, 2010)

Supreme Court hears challenge to confrontation ruling

On January 11, 2010, the United States Supreme Court heard oral arguments in Briscoe v. Virginia (No. 07-11191), in which the Court was asked to vacate a conviction on the grounds that Virginia's former "notice and demand" statute violated defendant's rights under the Confrontation Clause.

Richard Friedman, a professor at the University of Michigan Law School, appeared on behalf of the petitioners and Stephen McCullough, Virginia'a Solicitor General, appeared on behalf of the state.

Justice Sotomayor questioned Mr. Friedman on exactly how a notice and demand statute robbed a criminal defendant of his right to cross-examination. According to the old statute, the state was not required to bring in a lab technician in order to admit a lab report into evidence. The defendant, however, had the right to demand the presence of the lab tech for cross examination.

Justice Breyer questioned Mr. Friedman on the cost of forcing the state to produce all analysts and lab techs who took part in the testing in question. He seemed particularly concerned over the number of lab techs who would have to be produced to satisfy the rule in Melendez-Diaz.

When questioning Mr. McCullough, Justice Breyer was concerned that the "notice and demand" statute would allow for trial by affidavit and, as a hypothetical, asked if Sir Walter Raleigh's accusers made sworn statements that were introduced into evidence, how effective cross examining them about the conditions under which they made their statements would be.

Justice Ginsburg then proposed that Virginia's statute created a situation by which the state could introduce a lab report and rest their case; the defendant would then rest and request a directed verdict on the grounds the state had failed to prove its case; but the motion could not be granted because the lab report was in evidence.

Justice Scalia seemed bothered by the fact that the "notice and demand" statute placed the burden on the defendant and did not address, in plain language, the sanction, if any, against the state should a witness fail to appear.

It would seem to me that since it's the state who's seeking to limit the freedom of its citizens that the burden of prosecuting that case should fall on the state. The defendant is innocent unless proven guilty, not the other way around.

On a more light-hearted note, Mr. Friedman, in his argument, introduced us to the termorthogonal. According to Mr. Friedman, orthogonal means right angle, unrelated or irrelevant. According to Merriam-Webster, however, the term means lying at right angles.

See also:

"Supremes to revisit confrontation question" The Defense Rests (Dec. 21, 2009)

"Trying to get around the Sixth Amendment" The Defense Rests (July 23, 2009)

"No more trial by affidavit in Virginia drunk driving cases" The Defense Rests (July 18, 2009)

"Supreme Court upholds right of confrontation" The Defense Rests (June 25, 2009)