What's Up with Bullcoming v.New Mexico

In a follow up to Melendez-Diaz, the Supreme Court accepted for review and recently heard oral argument (February 28) in the case of Bullcoming v. New Mexico. On first blush, it is a classic Crawford question and with all star Jeff Fisher arguing on behalf of Bullcoming, one would chalk this up in the win column for the defense. So what's up with the Court hearing this case?

The background of the case is relatively straightforward. Bullcoming was sent to prison for felony aggravated OWI. After refusing a breath test, the state took a blood draw pursuant to a search warrant. The state introduced the results of the test by introduction of the lab report. Bullcoming argued that the lab report was testimonial evidence subject to the Confrontation Clause. The state appeals court affirmed the conviction on the grounds that it was a business record and as a public record, the report was non-testimonial and presented no issue under the Confrontation Clause. While the case was pending before the New Mexico Supreme Court, the US Supreme Court issued its decision in Melendez-Diaz v. Massachusetts. The New Mexico court then ruled that the report was testimonial but still admissible even though the analyst who performed the test did not testify because the defendant had the option of crossing a surrogate witness (lab supervisor) instead of the analyst.

Fisher began his argument by postulating that this case should be an easy decision in light of Melendez-Diaz. Justice Ginsburg however quickly intervened and began to question Fisher about the possibility of such lab analysts appearing by video conferencing or some other option ala the child witness under Maryland v. Craig. Justice Scalia indirectly undercut the suggestion by positing whether the police office who took the confession could appear by televideo. Much more time was spent on how does the Court handle the situation where one analyst conducts part of the testing and another does the remainder. Do both have to testify?

This case will either solidify the Court's ruling in Melendez-Diaz or give law enforcement some type of out. We await the Court's decision. It is important to remember that Melendez-Diaz was decided by a 5-4 decision. Two members of the majority, Justices Stevens and Souter, are no longer on the Court.

Hearsay for Background Purposes

A subtle and frequent problem recently arose in a jury trial that I was involved in. All too often police officers will relate information that they have gathered from non testifying sources (i.e. confidential informants). The ostensible purpose for this testimony is to explain to the jury, the "background" of the investigation or "why they were there (e.g. conducting surveillance)." Typically, the information comes from a nontestifying confidential informant who is seeking some type of consideration. It is also typical that the content of the information is of the nature of "bad character" evidence. Way way too often either an objection is not made or the trial court allows this testimony because the state contends it is not for the truth of the matter asserted but is relevant for the reasons previously noted; background or course of the investigation. Unfortunately, the problem is then compounded because not only does the police officer who spoke with the informant testify but also all the subsequent radio calls among the responding officers come into evidence.

It is incumbent on defense counsel to object to this type of testimony. The grounds for the objection should be apparent. First, it is hearsay and a violation of the right to confrontation per Crawford. Second, it is not relevant and even if it is, the undue prejudice substantially outweighs its probative value (remember that probative value should be looked at on an incremental basis). Third, it is inadmissible character evidence.

Wisconsin practitioners should have two cases at their fingertips. First, there is an unpublished decision that agreed with the above analysis with little or no detailed discussion of the issues. In State v. ODonnell, 2000 WI App 1, the state conceded it was error but harmless. The appellate court disagreed and ordered a new trial.

A much more thorough discussion takes place in the 7th circuit case of United States v. Silva, 380 F.3d. 1018 (2004). An excerpt from the case relates a portion of the argument:

The prosecutor contends that most of the statements were admissible to show “the actions taken by [each] witness”.   Allowing agents to narrate the course of their investigations, and thus spread before juries damning information that is not subject to cross-examination, would go far toward abrogating the defendant's rights under the sixth amendment and the hearsay rule.   This court has warned against the potential for abuse when police testify to the out-of-court statements of a confidential informant.   See United States v. Lovelace, 123 F.3d 650 (7th Cir.1997).   See also McCormick on Evidence § 249 (5th ed. 1999).  

While Silva acknowledges that sometimes this information could be relevant, the 403 balancing test will frequently tip in the defendants favor. Go forth and fight.

Wisconsin Adopts Daubert and Federal Rule 702

While the recent legislative activity ( passage of special session bill #1) caused a fair amount of controversy, a section of the bill specifically addressed a long time concern for criminal practitioners. Wisconsin amended its rule of evidence governing expert testimony (907.02) to come into conformity with Federal Rule 702, effectively adopting the Daubert standard. Due to an adherence to the relevancy standard since the decision in State v. Walstad, 119 Wis. 2d 483 (1984), Wisconsin trial courts have routinely admitted 'expert testimony' in criminal cases that I would characterize as 'junk science." Police or other law enforcement advocates would be qualified as experts and be allowed to describe the character traits of undefined third parties (defendants or complaining witnesses/victims) in other cases (undefined and undisclosed) they were involved in and opine that the present case was 'consistent' was those character traits. Simply put, they were allowed to opine that the facts of the present case fit the same pattern of other cases involving guilty defendants. Hopefully, the above change will encourage trial judges to exercise some independent judgment and scrutinize this type of testimony with some skepticism.

For those unfamiliar with the Federal Rule and its potential impact, a good case to read as a starting point is the 2nd Circuit's decision in U. S. v. Mejia, 545 F.3d 179 (2nd Cir. 2008). The court begins the decision with a survey of the development of officer expert testimony in the 1980s and court's generally favorable response to the same. It noted that courts had analogized the testimony of agents regarding gangs similar to that of anthropologists. Such an analogy is flawed because social science research is subjected to peer review, sometimes with a contrary viewpoint that examine the methodologies used. In sharp contrast, police experts are generally seeking information that will bolster the likelihood of conviction and their methodology and opinions are not objectively critiqued.

Bottom line is that this provides an opportunity for good counsel to do good work on behalf of one's client.

Jeff Fisher at it Again

Heads up....a petition for cert is pending in the case of Barbour v. State of Louisiana. Petitioner was convicted of attempted second degree murder by a less than unanimous jury. On behalf of the petitioner, Jeff Fisher seeks to have the court revisit its decision in Apocada v. Oregon, 406 U.S. 404 (1972) which held that state criminal convictions are not required by the U.S. Constitution to be unanimous. Jeff's petition simply states the issue as follows: "Whether the Sixth Amendment right to jury trial, as applied to the States through the Fourteenth Amendment, allows a criminal conviction based on a nonunanimous jury verdict." Jeff is joined by two powerful amici; the National Association of Criminal Defense Lawyers and the American Bar Association. It is time that this anomaly be corrected.

Jeff after you finish this issue, how about joining me in taking on the lack of a reasonable doubt instruction (and a prohibition on arguing its meaning) in the Seventh Circuit?

Holiday Wish List

Some wishes for the upcoming year:

1. A good competent replacement is found for Nick Chiarkis as head of the state public defender.

2. The private bar rate is raised...very unlikely in light of today's economic realities

3. More jury trials occur in federal court....hopefully the jury system will be revitalized

4. Strip searches of defense counsel entering the federal building finally end

5. Judge Crabb can finally retire as a second judge is confirmed for the Western District

Feliz Navidad

I can't help it--UW Embarrasses Alum

While I have dedicated this blog to the advancement and protection of the 6th Amendment, this past weekend has weighed on my thoughts. The UW football team beat Indiana 83-20. I was embarrassed by the behavior of our head coach. For the third time this season, he made extraordinary efforts to run up the score on lesser opponents. Can we say sportsmanship? Or perhaps the complete lack of sportsmanship? While the pros and cons of college sports are outside the scope of this blog, the conduct of my alma mater is not. Well Biddy are you going to take a stand or keep quiet because of the $$$$?

Can 6th amendment help with wrongful convictions -- Massiah Issues

In State v. Lewis 2010 WI App 52, District II of the Wisconsin Court of Appeals faced the issue of a jail house informant providing information to the state in return for leniency about supposed inculpatory statements made by his cellmate while awaiting trial. Obviously, the cellmate (defendant Lewis) was represented by counsel during the time period that the conversations supposedly took place. In rejecting Lewis's Massiah (see Massiah v. United States, 377 U.S. 201 (1964)) claim (jailhouse inmate was acting at the direction of the state to elicit the statements circumventing his right to counsel); Judge Brown thoroughly analyzed the multifactor test for Massiah violations set forth in United States v. Henry, 447 U.S. 264 (1980). He found that 1) Lewis was in custody and 2) the informant was a fellow cellmate. However, as to the third factor, he concluded that the informant was not under the direction or control of the state and that the informant did not receive direction from the state. An informant's hope to receive a benefit does not create an implicit agreement that is a predicate for a Massiah violation. (see paragraph 23).

This decision does not mention nor make any reference to a study completed by the ABA Criminal Justice section discussing the problems of jailhouse informants and the frequency of wrongful convictions as a result of such testimony. An entire chapter is dedicated to jailhouse informants and the problems they present in the report entitled: Achieving Justice: Freeing the Innocent , Convicting the Guilty.

In other words what I am suggesting is that practical considerations and the reality surrounding the misuse of jailhouse informant testimony calls for a revisit to the parameters set forth in Henry with the goal of making the use of this type of testimony more difficult unless reliability is determined in advance in a Daubert type setting. The next time trial counsel faces the use of jailhouse snitch testimony...perhaps some use can be made of the social cost of wrongful convictions as justification to modify the Henry parameters