Supreme Court looks at wrinkle in right to face your accuser

McClatchy Washington BureauMay 12, 2014 

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    The case in North Carolina

    On January 18, 2008, a Goldsboro, North Carolina, police officer conducted a consent search of John Edward Brewington, pulled over for bicycling without a reflector.

    During the pat-down, the officer found “an offwhite rock-like substance” he believed to be cocaine.

    The rock-like substance was sent to the North Carolina State Bureau of Investigation (“SBI”) laboratory and was analyzed by Assistant Supervisor in Charge Nancy Gregory. Determined to be 0.1 gram of cocaine.

    Rather than Gregory testifying, Special Agent Kathleen Schell, also of the SBI laboratory, was tendered at trial as an expert witness in forensic chemistry.

    Brewington found guilty of possession, placed on two years probation.

— Jared Thomas Alger killed a friend while hunting frogs in Northern California. John Edward Brewington was caught, police say, with cocaine in North Carolina. Police in Pennsylvania charged George William Yohe II with drunken driving.

Now these disparate cases will confront the Supreme Court with a common problem. The rules governing trial testimony hang in the balance, as do numerous individual fates.

This week, meeting behind closed doors, justices will weigh 11 different cases that test when certain crime lab or autopsy reports can be presented to jurors. In particular, the cases involve reports where the person who prepared them isn’t around for trial. It’s a big question that keeps confounding judges.

“The lower courts are very much in need of guidance,” Stanford Law School Professor Jeffrey L. Fisher said in an interview Monday.

The Confrontation Clause of the Sixth Amendment guarantees a criminal defendant the right “to be confronted with the witnesses against him.” This means defendants, or their attorneys, can challenge the witnesses under cross-examination. But the guarantee gets complicated when it comes to documents.

Over the past decade, the Supreme Court has questioned how the Confrontation Clause applies to documentary testimony. In a crucial 2004 case that involved a Washington state murder, the court said a tape-recorded conversation that implicated the defendant couldn’t be admitted without an opportunity for cross-examination.

In subsequent cases, the court has addressed crime lab reports. It’s not enough, justices say, for prosecutors to simply present the documents.

“The accused’s right is to be confronted with the analyst who made the certification,” Justice Ruth Bader Ginsburg summed up, in a 2011 decision out of New Mexico that involved blood-alcohol testing.

The cases at the Supreme Court’s private conference Friday involve follow-up questions, including what counts as testimonial evidence, which triggers the Confrontation Clause requirement, as well as who else can testify instead of the original analyst. If at least four justices agree, a case will be heard next term. Several cases might be consolidated.

The direct confrontation is particularly important, defense attorneys say, because of the imperfections that have plagued certain labs. A 2010 audit of North Carolina’s State Bureau of Investigation Crime Laboratory, for instance, found agents had withheld or distorted evidence in 230 cases over 16 years.

“Proof continues to pour in that forensic analysts sometimes make mistakes and on occasion even lie in forensic reports,” Fisher wrote in a brief.

A co-director of the Stanford Law School Supreme Court Litigation Clinic, Fisher won the 2004 Supreme Court case out of Washington state. He now represents Brewington, whose petition is one of those that will be considered Friday.

Brewington was riding a bike in Goldsboro, N.C., one evening in January 2008, when a police officer stopped him for not having reflective lights. In a subsequent search, the officer found an off-white, rocklike substance in Brewington’s left sock.

An SBI crime lab analyst determined the substance was cocaine. Another lab employee, who hadn’t conducted the testing, then testified about the findings.

“This case is one in which the expert’s testimony was based upon a straightforward application of her expertise,” North Carolina Special Deputy Attorney General Robert C. Montgomery declared in the state’s brief.

Fisher countered Monday that “that’s not genuine expert testimony, that’s just repeating the findings made by someone else.”

Supreme Court justices could choose among cases with different facts but similar principles. These include the May 2007 arrest in Charlotte, N.C., of a man named Mario Ortiz-Zape. He was subsequently convicted of cocaine possession, following testimony from a lab official who hadn’t conducted the original analysis.

Alger was a Tracy, Calif., resident in 2006 when he fatally shot a friend with a .22-caliber rifle while they were out looking for frogs and rabbits. Alger called the shooting an accident, but a jury found him guilty of voluntary manslaughter.

Prosecutors had summoned a witness to read the autopsy report. The original coroner had moved and, according to Alger’s attorney, Shannon Dorvall, prosecutors didn’t want to pay for the original coroner’s travel back to California. Consequently, she said, the testifying witness couldn’t speak knowledgeably.

“That’s a pretty sad state of affairs,” Dorvall said in an interview Monday.

California officials did not file a competing brief.

Yohe was stopped near York, Pa., in August 2009 by a Northeastern Regional Police officer who said he noticed faulty brake lights. The officer subsequently arrested Yohe on charges of driving under the influence. At trial, prosecutors summoned a laboratory’s assistant director instead of the analyst who did the original blood work.

The Pennsylvania Supreme Court rejected Yohe’s challenge, noting that the lab’s assistant director had independently reviewed the testing and verified that correct procedures were used. This independent work, the court reasoned, was “not merely a parroting of a prior analysis supplied by another individual.”

Email: mdoyle@mcclatchydc.com; Twitter: @MichaelDoyle10.

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