Saturday, December 3, 2011

Your Lyin' Eyes

The case is Williams v. Illinois, cert granted at the end of June, argument before the berobed ones in DC on Tuesday.
It's another in the line of cases that began with Crawford v. Washington which said that the Confrontation Clause of the Sixth Amendment prohibits the prosecution from presenting "testimonial hearsay." In Melendez-Diaz v. Massachusetts, the Court made clear that reports of crime lab technicians are testimonial hearsay and that the prosecutor can't bring in those reports without also presenting testimony by the lab tech.  The formal question in Williams is whether DNA test results are like crime lab reports.  Must the lab folks who did the actual tests come and testify or can some flunky just say,
Hey, here's the report.  No, I didn't have anything to do with it - never even heard of DNA until just now, you know, I'm a janitor at the pizza place next door to the lab.  But they did it perfectly just like always and there's less than a 1 in 673 bazillion chance your guy isn't the killer.  Trust me.  It's DNA so there can't be anything wrong with how the samples were handled, how the test was done, or how the data were analyzed.  No, don't bother with cross-examination.  Thanks, I can find my own way out.  Say, you guys like pepperoni or anchovies?
That's the technical question.  The real question is whether Melendez-Diaz should be overruled either specifically or in effect.  Justice Scalia, the architect of this line of cases, has been losing his majority, so it's a tough question.  I mean, really, why should we bother with requiring the DNA testers to come to court when the pizza guy's available?
The essence of Williams's argument is going to be that the Constitution says confrontation* which means Illinois has to bring in the person who actually did the testing and analysis so that she can be cross examined.  There's no DNA exception to that, no lab tech exception, no don't-be-silly-there's-no-need-we're-all-scientists-here exception.  Besides, Williams will argue, it matters.  Labs fuck this shit up all the time.  And the analysis is never as clear and simple as they say.  Cross-examination isn't just a constitutional guarantee, it's a necessary component of getting an accurate verdict.
Again, the state's argument is Constitution Shmonstitution.  Really, the report speaks for itself.  There's just no point to confrontation. And it's so much trouble.  They haven't sold that to a majority of the Court in this post-Crawford world, but they may manage it this time.
Which is really too bad because Williams is right.  He's not just right as a matter of constitutional law. He's right as a matter of getting it right.  It does matter.  It matters with DNA analysis and with ballistics and with gas chromatography and breathalyzers.  It makes a real difference in the real world because the labs really do fuck it up.  
So I'm watching Williams with some trepidation.  Because when you put convicting people on one side of the scale and constitutional rights and actually getting it right on the other, the convicting people side tends to be a whole lot weightier.
And yet, because I'm a glass-half-full sort of guy (just ask anyone who doesn't know me), because I can always see the bright side, and seriously because I know a good point when it appears in a Times op-ed by Jeffrey Fisher (the lawyer who won Crawford and Melendez-Diaz) and in blog posts from Scott Greenfield and the Appellatesquawk, there's this.
New York just gave away the store.
Four amicus briefs were filed on each side in the case.  The one that made those folks sit up and take notice is from the New York County (that's Manhattan) District Attorney and Medical Examiner.  It makes three points, not in this order.
  1. There's no testimonial hearsay involved so the whole case should just go away.
  2. DNA is science and absolutely trustworthy so there's no point in cross-examination.
  3. If we actually have to produce the people involved, there will  be "dire consequences."
It's that last one, dire consequences, that's interesting.  Here's the heading (all the caps are how it appears in the brief) of the argument's second section.
OK, I'm scared.  But what exactly are those consequences?
  • The guilty will go free?
  • Raping and pillaging on the streets?
  • Blood and destruction?
  • The terrorists will win?
Nope.  None of the above.  No, the dire consequence is that innocent people would be convicted.
Yep.  That's right.  If defendants have the right to confront the folks who do DNA tests, the innocent will suffer.
You say that's bizzare?  It's counter-intuitive? It's bullshit?  Ah, grasshopper, how much you have to learn.  Are you not familiar with the poison pill?  Here's the important part of the brief (footnote omitted)
At worst, an all-technicians-must-testify rule would force the OCME to reduce the amount of DNA testing it conducts, and force prosecutors to forego forensic DNA analysis in cases where it might be highly probative. In the absence of DNA testing, defendants might well be prosecuted solely on the basis of eyewitness testimony, the reliability of which is often questioned. See United States v. Wade, 388 U.S. 218, 229 (1967)(“the influence of improper suggestion upon identifying witnesses probably accounts for more miscarriages of justice than another other single factor” (internal quotation and citation omitted)). Significantly, over a recent twelve-month period, nearly one in ten suspect profiles tested by the OCME for the Manhattan DA’s Office resulted in an exoneration. Indeed, in a recent “pattern rape” case in Brooklyn, DNA testing exonerated 18 suspects before the nineteenth submission led to a match. No one concerned for innocent individuals suspected of serious crimes should prefer a world in which DNA testing is needlessly curtailed.
If requiring the testimony of each technician would significantly advance the truth-seeking process, then the practical concerns advanced above would give way. But nothing could be less true.
Got that?
If DNA testers actually have to testify, well then, the police and crime labs will stop doing DNA testing.  They won't do the test because if it showed they had the right guy, they'd want to tell the jury, and that would mean testimony.  Can't have that.  And can't have the information and not tell the jury.  So they just won't learn.
That means that cops and prosecutors and juries will have to rely on eyewitness testimony.  And that means that at least 10 percent of the people convicted of crimes, and maybe as many as 95 percent, will be factually innocent.
And remember, "nothing could be less true" than that this will happen.  That is, it's absolutely certain.
Being prosecuted in New York?  Based on eyewitness evidence?  You've now got what is (at least arguably) an admission by a party opponent - not hearsay - able to be put before the jury - saying that there's a pretty fair chance (if not a near certainty) that you're innocent.
Outside New York?  We'll find a way.
Or, of course, as I've written before, they could just test the DNA.  You know.  Cause they might wanna know.

*The actual language of the Sixth Amendment, is
In all criminal prosecutions, the accused shall enjoy the right . . .  to be confronted with the witnesses against him.


  1. Look at it this way...

    If DNA technicians have to spend more days in court (including travel-days getting to court, and days sitting around waiting to be called as a witness), then they will spend fewer days in the lab. If technicians have fewer days in the lab, then they will not be able to test as many samples -- because you really can't do your lab work on a plane or in the courthouse hallway. As a result, fewer samples will be tested.

    The phenomenon is well known to members of the defense- and prosecutorial-bar who do routine drug cases. It's commonplace for a defense lawyer to refuse to stipulate to the drug test, require the prosecutor to bring the chemist to court (which eats up 1-2 or more days of the chemist's time, depending on traveling, and depending on how much time is spent waiting around to be called), then for the defense at the last minute -- when the chemist is there and ready to testify -- to change its mind and be ready to stipulate. (Or, for that matter, for the defense to have no questions at all to ask the chemist on cross.)

    Does that mean the Confrontation Clause doesn't apply? No. But for you to deny that the rule will result in fewer samples tested is intellectually dishonest.

    Will testing fewer samples (while increasing cross-examination) have a net effect on accuracy of convictions? It's hard to say - probably the samples most likely to produce results (say, semen samples in a rape case) will continue to be tested, but it will be much harder to get lower-yield items tested. Some of those lower-yield items might be things that would point to an otherwise unknown suspect. How much you support that may depend on whether you represent that previously unknown suspect (who would have gotten away with it otherwise), or whether you support the other, more likely suspect, who could be exonerated (or at least benefit from a heavy dose of reasonable doubt) once the fingernail scrapings point to some other guy. (If the defense bar didn't believe DNA testing could be exonerative, they wouldn't have pushed for statutory testing rights, right?)

    The other question, of course, is how confident we are in lab procedures. The additional error rate introduced by lessening overall testing may well be outweighed by the potential error rate in unconfronted testimony. I lean towards this latter view.

    P.S. It's not a very good answer to say that defense lawyers have the option to have the miscellaneous items tested when their investigation and client interviews lead them to believe it would bear fruit. DNA evidence sometimes is most powerfully exonerative not because of links to an identifiable person, but rather because of links to other crimes committed by still-unidentified people. If the sample from crime X (for which my client is on trial) links to person A (a convicted rapist), then that's great. But I can also win by showing that the sample from crime X links to the sample from crime Y, if crime Y is one my client couldn't have done (e.g., he has an alibi, he wasn't born yet, he doesn't match the description, etc. etc.). The exonerative and convictive power of DNA testing lies largely in the breadth of the CODIIS database -- which will surely suffer as more analysts and technicians need to spend more of their days in courtrooms.

  2. It's tautologically true that with finite resources the expense of a resource (time, money, personnel, whatever) in one way reduces the amount of the resource that can be spent elsewhere. Fisher's Op-Ed in the Times is called "The Bill of Rights Doesn't Come Cheap" for a reason. If the Constitution demands the expense of a resource, then the government has to find the means to provide it.

    But our criminal justice and law enforcement budgets are bloated with overkill and a foolish determination to spend more on cleaning up the consequences of crime and less on addressing the root causes of crime and thereby reducing it. Crime can't be eliminated, but it can be reduced. And we could save a ton by not making everything that bothers some minion of the nanny state into a crime.

    On the specific issue, the data doesn't really support your claim. Footnote 12 of Melendez-Diaz is generally true across the board. "As the dissent notes, post, at 2557, some state statutes, 'requir[e] defense counsel to subpoena the analyst, to show good cause for demanding the analyst's presence, or even to affirm under oath an intent to cross-examine the analyst.' We have no occasion today to pass on the constitutionality of every variety of statute commonly given the notice-and-demand label. It suffices to say that what we have referred to as the 'simplest form [of] notice-and-demand statutes,' supra, at 2541, is constitutional; that such provisions are in place in a number of States; and that in those States, and in other States that require confrontation without notice-and-demand, there is no indication that the dire consequences predicted by the dissent have materialized."