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.