The Supreme Court Splinters Apart Over the Confrontation Clause

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Yesterday's decision in  Williams v. Illinois should have been simple. But not with these justices.

a guarded supreme court-body.jpgReuters

Forget about the Affordable Care Act debacle heading our way sometime in the next 10 days. The United States Supreme Court Monday morning, in a relatively simple case about the scope of the Confrontation Clause, displayed virtually all the dysfunction the justices' most vocal and powerful critics ever could realistically contemplate.

The case, styled Williams v. Illinois, generated no fewer than four separate opinions, no clear and meaningful majority ruling, and another plain-spoken dissent from Justice Elena Kagan, who called out her colleagues for "endorsing a prosecutorial dodge."

Here's the dodge: At Sandy Williams' Illinois rape trial in 2006, a trial held without a jury, prosecutors got an expert witness to testify that there was, indeed, a DNA "match" between samples from Williams and from the victim. However, the witness against Williams that day was not the laboratory analyst who had compiled the scientific information upon which the testimony was based. The incriminating trial testimony came instead from a "state-employed scientist" who had no relationship whatsoever with the contents of the report.

Prosecutors could have called the folks who had undertaken the research that comprised the report. But they didn't. They instead used a witness, Sandra Lambatos, who was unfamiliar even with the general details of the testing protocols at the lab that produced the incriminating report. Williams' attorneys objected to this at trial, arguing that her testimony had deprived Williams of his Sixth Amendment right to confront the accusers against him. The trial judge didn't buy his argument. And neither did a state appellate court.

And neither did four of the justices. Justice Samuel Alito ruled that Williams did not have a right to confront the report's creator because the trial judge would have been able to understand just how limited the scope of the witness's testimony had been. The testimony was not introduced to prove "the truth of the matter asserted" so it wasn't inadmissible "hearsay evidence," Justice Alito wrote, nor could the trial judge have believed the testimony was designed to prove a link of the "chain of custody" common in DNA cases.

No, indeed. None of that. All this witness did instead was link the report to other expert testimony and then link all of that to the defendant. It was obviously a very incriminating bit of testimony. But was it a big enough deal to trigger the protections of the Sixth Amendment? What constitutional disadvantage did Williams suffer as a result of the prosecution's shortcut around basic evidentiary? What damage was done? Justice Kagan supplied the answer in her dissent. She wrote:

Williams's attorney could not ask questions about that analyst's "proficiency, the care he took in performing his work, and his veracity." He could not probe whether the analyst had tested the wrong vial, inverted the labels on the samples, committed some more technical error, or simply made up the results.

Indeed, Williams's lawyer was even more hamstrung than Bullcoming's [a defense attorney in a prior case]. At least the surrogate witness in Bullcoming worked at the relevant laboratory and was familiar with its procedures. That is not true of [Sandra] Lambatos: She had no knowledge at all of Cellmark's operations. Indeed, for all the record discloses, she may never have set foot in Cellmark's laboratory.

Those sorts of trial questions seem to be at the core of Confrontation Clause rationale -- of course a defense attorney should be able to ask such basic questions of a witness who testifies, on whatever basis and for whatever reason, in such a highly incriminating way. It's little wonder, then, that five of the justices refused to sign on to Justice Alito's opinion. Only Justice Clarence Thomas, always looking for an opportunity to rule against a criminal defendant, signed on to the result even as he skewered Justice Alito's logic in getting there.

Before we go on to Justice Thomas, though, let me briefly check in with Justice Stephen Breyer. In his "concurring opinion," he declared that he wanted to have the case re-argued so the justices could decide how the Confrontation Clause applies "to the panoply of crime laboratory reports and underlying technical statements written by (or otherwise made by) laboratory technicians." Justice Breyer, in other words, wanted the High Court to answer questions many in the criminal justice community thought this case might actually be about when the Court decided to hear it.

Justice Thomas was up next in the litany of conflicting opinions. He saw right through Justice Alito's theory. Of course the witness had testified as to the truth of the "match" between Williams and the victim, Justice Thomas wrote, but it didn't matter since the report itself was not a "statement by a witness" which would trigger relief under the Confrontation Clause. By giving the critical lab report the heft of an elementary school book report, Justice Thomas gave prosecutors a pass to proceed with their shortcut. He wrote:

The Cellmark report [which Lambatos had testified about] lacks the solemnity of an affidavit or deposition, for it is neither a sworn nor a certified declaration of fact. Nowhere does the report attest that its statements accurately reflect the DNA testing processes used or the results obtained. See Report of Laboratory Examination, Lodging of Petitioner. The report is signed by two "reviewers," but they neither purport to have performed the DNA testing nor certify the accuracy of those who did. See ibid. And, although the report was produced at the request of law enforcement, it was not the product of any sort of formalized dialogue resembling custodial interrogation.

I suspect this characterization of the document came as a shock to the prosecutors, who relied upon it to make their case against Williams. And I bet it came as a shock to the folks at Cellmark, too. If the report were as untrustworthy as Justice Thomas made it out to be wouldn't that make it even more necessary to vindicate Williams' fair trial rights? I mean, here's a document that "lacks ... solemnity," and Lambatos still was allowed to rely upon it to tell the trial judge that there was a DNA "match." Imagine the force of that testimony had a jury heard it instead.

It's difficult not to hear the tone of Justice Kagan's dissent. She begins with a memorable cut at Justice Thomas, for his odd concurrence, and at Justice Alito and the three other justices who had signed on to the main ruling. "In the pages that follow," she writes, "I call Justice Alito's opinion 'plurality' because that is the conventional term for it. But in all except its disposition, his opinion is a dissent: Five Justices specifically reject every aspect of its reasoning and every paragraph of its explication." On the merits, here's how Justice Kagan saw it:

The Cellmark report identified the rapist as having a particular DNA profile (think of it as the quintessential birthmark). The Confrontation Clause prevented the State from introducing that report into evidence except by calling to the stand the person who prepared it. So the State tried another route -- introducing the substance of the report as part and parcel of an expert witness's conclusion.

In effect, Lambatos testified (like the police officer above): "I concluded that Williams was the rapist because Cellmark, an accredited and trustworthy laboratory, says that the rapist has a particular DNA profile and, look, Williams has an identical one." And here too, that form of testimony should change nothing. The use of the Cellmark statement remained bound up with its truth, and the statement came into evidence without any opportunity for Williams to cross-examine the person who made it.

So if the plurality were right, the State would have a ready method to bypass the Constitution (as much as inmy hypothetical case); a wink and a nod, and the Confron¬tation Clause would not pose a bar to forensic evidence.

And that's what this case comes down to -- a wink and a nod. You would think that a criminal justice system that has been confronted lately by so many awfully inaccurate convictions would be looking for ways to increase the accuracy of the forensic evidence which makes its way into court. But whatever force the Williams "plurality" has cuts the other way, excusing prosecutors and judges for settling for evidentiary short cuts at critical parts of a criminal case. Surely, this is no way to insure more accurate verdicts.

If this sorry excuse for a decision is the best the Court can do with an easy evidentiary rule case just imagine the ferocity (and the disconnect) the Gang of Nine is experiencing today over the future of the federal health care law. Justice Ruth Bader Ginsburg recently mentioned the likelihood of "sharp disagreements" between and among the justices and to the current term being "more than usually taxing." No pun intended, of course, but it's not hard to imagine this Court as being as divided as the rest of us. We saw a glimpse of this in Williams. And the bad news is that the worst is yet to come.

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Andrew Cohen is a contributing editor at The Atlantic, 60 Minutes' first-ever legal analyst, and a fellow at the Brennan Center for Justice. He is also chief analyst for CBS Radio News and has won a Murrow Award as one of the nation's leading legal journalists. More

Cohen is the winner of the American Bar Association’s 2012 Silver Gavel Award for his Atlantic commentary about the death penalty in America and the winner of the Humane Society’s 2012 Genesis Award for his coverage of the plight of America’s wild horses. A racehorse owner and breeder, Cohen also is a two-time winner of both the John Hervey and O’Brien Awards for distinguished commentary about horse racing.

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