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.

AN “ALL-TECHNICIANS-MUST-TESTIFY” RULE WOULD HAVE DIRE CONSEQUENCES FOR THE CRIMINAL JUSTICE SYSTEM

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.

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*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.

Good intentions - Bad Decision

Jonathan Gresham was put on trial twice for having oral sex with E.T., a 14-year-old girl. Generally, the Double Jeopardy Clause would prohibit that. There's a pretty good case for saying that it should have prohibited it this time, though the court of appeals didn't buy it - and it's not particularly clear that Gresham's lawyer made it.

Gresham was a security officer at a public housing complex in Dayton, Ohio. The jury apparently believed the evidence that one evening he arranged to meet with E.T., and they had oral sex. She told her aunt. He got arrested and charged with Unlawful Sexual Conduct with a Minor.

During the trial, Gresham testified in his own behalf. His lawyer asked him if there were complaints about E.T. that were investigated. His answered.

A resident that I don’t recall who the resident was, informed me that she was sexually active in the building and that she was a drug addict and that she was trading sex for drugs.

The prosecutor objected and called for a mistrial. The judge, deeply troubled by the answer, granted the request, sent the jury home, and rescheduled the trial.

Here's the relevant law.

The crime Gresham was charged with makes it an offense to having sex with someone between the ages of 13 and 16 if he knew or should have known the person's age. It doesn't matter who started it, whose idea it was, who seduced whom. You just can't do it. There's apparently no dispute that Gresham knew E.T.'s age. So the only legal question is whether they in fact had oral sex. Whether she was a drug addict who traded sex for drugs all day just doesn't matter. If she gave Gresham a blow job, he broke the law. So the allegation is irrelevant if it's meant to suggest a legal defense.

On the other hand, if she's a drug addict and prostitute, then her testimony might not be worth much. Her story about telling on Gresham because she was deeply troubled by the sex they had wouldn't seem particularly believable. And if she was being investigated, then turning the tables on the authorities and making her a victim might serve her purposes. She would have had a motive to make up the story. That might well make the information relevant not to the charge itself but to her credibility.

On the third hand, there's the rape shield law, a part of the rape statute, and applicable to certain other offenses under an evidence rule, which says that, in trials for those offenses,

Evidence of specific instances of the victim’s sexual activity, opinion evidence of the victim’s sexual activity, and reputation evidence of the victim’s sexual activity shall not be admitted under this section unless it involves evidence of the origin of semen, pregnancy, or disease, or the victim’s past sexual activity with the offender, and only to the extent that the court finds that the evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value.

Admitting the allegations about E.T. would violate that statute if Gresham were being tried for one of those offense, but he wasn't. Still, the point, one that has some social value and seems sensible, is that there's something offensive about accusing a victim of bad behavior. The courts frown on that.

Finally, on the fourth hand, there's the hearsay rule. Hearsay is a legal quagmire, but the idea is simple enough. Unless there's some exception that applies (and there are dozens of exceptions), statements made out of court aren't admissible in court in order to prove the substance of the statement. So, for instance, "Fred told me that Joe shot him" won't normally be admitted into evidence at Joe's trial for shooting Fred.

Everyone in this case was deeply upset by the hearsay. Except it wasn't hearsay because Gresham wasn't saying that E.T. was a drug addict and prostitute. He was saying that there had been complaints about E.T. being a drug addict and prostitute. It's a subtle distinction, perhaps, but not even a close call in this case. But nobody - including it seems Gresham's lawyers - noticed it.

The trial judge was horrified by what Gresham had said.

My problem isn’t just the hearsay part of it. My problem is the bell is rung and there’s now accusation [sic] right now flying out there that are completely unfounded, completely uninvestigated, completely inappropriate and inadmissible in this case.

The prosecutor took a hint and asked for a mistrial. The judge agreed, dismissed the jury, and announced that the case would be tried again.

That's where the whole double jeopardy thing kicks in. After all, the state had taken a shot at trying Gresham, then the state asked to stop the trial and start over. Double jeopardy ordinarily prohibits that sort of thing. But it happened. A different judge did the trial this time, and Gresham was convicted.

In his appeal, Gresham argued that the state had no right to try him a second time. The court of appeals disagreed. It said in a correct statement of the law, that there's an exception to double jeopardy protections where the judge orders a mistrial out of "manifest necessity" (which the court is careful to explain is less necessary than actual necessity; think of it as close enough to necessity for goverment work).

In this case, the court said

Gresham’s testimony, however, that he was told by an unnamed resident that E.T. was sexually active and trading sex for drugs was clearly hearsay prohibited by Evid. R. 802, as well as inadmissible character evidence under Evid. R. 404(A)(2).

Except, again, the statement was clearly not hearsay, nor is it prohibited under Evidence Rule 404(A)(2). And, in fact, if it were prohibited by those things, the prohibition might be unconstitutional in violation of Gresham's rights under the Sixth Amendment.

But the court wasn't done.

The trial court, however, found that the taint from the objectionable testimony was so great that a curative instruction would not suffice. Under the circumstances presented in the instant case, we agree.

Got that? The jury was so tainted by the mere fact that the allegation had been made against E.T. that they'd never have been able fairly to judge the evidence and decide whether Gresham actually got that blow job from her.

Rape shield laws - and, again, despite the best efforts of everyone involved to make it apply, neither the rape shield law nor the expansi0n of it in Evidence Rule 404(A)(2) is actually implicated here - were adopted out of noble purposes. A victim of sexual assault shouldn't have to be victimized again in court by having her character trashed by the guy who assaulted her.
The downside of those laws is that they assume that the person claiming to have been assaulted actually was. And they interfere greatly with the ability, the constitutional right, of the accused to demonstrate that the accuser has no credibility. Good intentions make bad law.

This is even worse, since the law doesn't apply.

And then there's the fact that the same allegations came in during the second trial and the jury somehow found Gresham guilty anyway. Doesn't matter, the court of appeals says. It was still manifestly necessary to stop the first trial because of the allegation.

[T]hat fact, standing alone, is irrelevant to our review of the first judge’s decision to grant a mistrial in light of the highly inflammatory and prejudicial hearsay testimony offered by Gresham.

Let's review.

It was OK to try Gresham twice because the court had no real alternative. The hearsay and rape shield violation (which violated neither the hearsay rule nor the rape shield laws) was so irrelevant and prejudicial that no jury could have convicted Gresham once they heard it. And it's wholly irrelevant to that decision that Gresham was convicted by a jury that heard it. And because the only way to give the state a fair trial was to stomp on the defendant's protection against double jeopardy, they did that.

I don't know what did or did not happen that night. And I'm not particularly concerned with whether Gresham should have been prosecuted for what E.T. said happened. But the guy got shafted by the courts. That happens too much in sex offense cases - especially when the purported victim is a kid and everyone assumes the guy must be guilty.