Q: Was there a computer match generated of the male DNA profile found in semen from the vaginal swabs of [L.J.] to a male DNA profile that had been identified as having originated from Sandy Williams?
Lambatos: Yes, there was.
On February 10, 2000, in Chicago, a young woman, L.J., was abducted while she was walking home from work, forced into a car, raped and robbed. L.J. went to the hospital for treatment and the police conducted a rape exam taking the necessary samples. The Illinois State Police sent samples to Cellmark Diagnostics Laboratory in Germantown, Maryland, for DNA testing, which matched the DNA with a male profile it had. Sandra Lambatos, a forensic specialist at the ISP lab, was then able to match that profile to Sandy Williams in the Illinois state DNA database, based on a sample of his blood taken after an arrest on unrelated charges on August 3, 2000.
L.J. was subsequently able to identify Williams at a police lineup, and in 2006 Williams was convicted of all charges in a bench (i.e., non-jury) trial. As part of the trial, however, Lambatos had testified as to how she used the Cellmark report to make her identification, but didn't introduce Cellmark's report itself as evidence, nor was anyone from Cellmark called to testify. Williams' attorney objected to this, saying it violated his client's rights under the Confrontation Clause to not be able to cross-examine anyone from Cellmark as to how they handled the evidence and did the match.
In a 5-4 decision today, the Court upheld Williams' conviction, and it's not your typical 5-4 lineup:
Alito, J., announced the judgment of the Court and delivered an opinion, in which Roberts, C. J., and Kennedy and Breyer, JJ., joined. Breyer, J., filed a concurring opinion. Thomas, J., filed an opinion concurring in the judgment. Kagan, J., filed a dissenting opinion, in which Scalia, Ginsburg, and Sotomayor, JJ., joined.
And what happens with such a mishmosh? Basically, Justice Thomas' "unique" separate holding means uncertainty for lower courts, prosecutors and defense counsel. As Justice Kagan puts it in dissent:
First, [the other five Justices] have approved the introduction of testimony at Williams’s trial that the Confrontation Clause, rightly understood, clearly prohibits. Second, they have left significant confusion in their wake. What comes out of four Justices’ desire to limit Melendez-Diaz and Bullcoming in whatever way possible, combined with one Justice’s one-justice view of those holdings, is—to be frank—who knows what. Those decisions apparently no longer mean all that they say. Yet no one can tell in what way or to what extent they are altered because no proposed limitation commands the support of a majority
Below the orange gnocchi, I'll explain. (Warning: A geegaw is involved.)
First, some context. Last June, a 5-4 Supreme Court found the Confrontation Clause violated in a drunk driving case (Bullcoming) when the state tried to introduce the defendant's blood-alcohol lab results through a lab analyst who hadn't himself observed or reviewed the testing in question. Concurring in that case, Justice Sotomayor noted:
This [was] not a case in which an expert witness was asked for his independent opinion about underlying testimonial reports that were not themselves admitted into evidence.... We would face a different question if asked to determine the constitutionality of allowing an expert witness to discuss others’ testimonial statements if the testimonial statements were not themselves admitted as evidence.
And this is that question today. Essentially, writes Justice Alito for a four-justice plurality, the Cellmark stuff was reliable enough to get in this way:
[T]here is simply no plausible explanation for how Cellmark could have produced a DNA profile that matched Williams’ if Cellmark had tested any sample other than the one taken from the victim. If any other items that might have contained Williams’ DNA had been sent to Cellmark or were otherwise in Cellmark’s possession, there would have been a chance of a mix-up or of cross-contamination. But there is absolutely nothing to suggest that Cellmark had any such items. Thus, the fact that the Cellmark profile matched Williams—the very man whom the victim identified in a lineup and at trial as her at- tacker—was itself striking confirmation that the sample that Cellmark tested was the sample taken from the victim’s vaginal swabs.
More:
[T]he primary purpose of the Cellmark report, viewed objectively, was not to accuse petitioner or to create evidence for use at trial. When the ISP lab sent the sample to Cellmark, its primary purpose was to catch a dangerous rapist who was still at large, not to obtain evidence for use against petitioner, who was neither in custody nor under suspicion at that time. Similarly, no one at Cellmark could have possibly known that the profile that it produced would turn out to inculpate petitioner—or for that matter, anyone else whose DNA profile was in a law enforcement database. Under these circumstances, there was no “prospect of fabrication” and no incentive to produce anything other than a scientifically sound and reliable profile. ...
At the time of the testing, petitioner had not yet been identified as a suspect, and there is no suggestion that anyone at Cellmark had a sample of his DNA to swap in by malice or mistake. And given the complexity of the DNA molecule, it is inconceivable that shoddy lab work would somehow produce a DNA profile that just so happened to have the precise genetic makeup of petitioner, who just so happened to be picked out of a lineup by the victim. The prospect is beyond fanciful.
Justice Breyer believed the Court needed to say more, and wanted the case to be reargued so that the Court could lay out fuller ground rules regarding the Confrontation Clause in the era of C.S.I., and would have concluded:
I would consider reports such as the DNA report before us presumptively to lie outside the perimeter of the Clause as established by the Court’s precedents. Such a holding leaves the defendant free to call the laboratory employee as a witness if the employee is available. Moreover, should the defendant provide good reason to doubt the laboratory’s competence or the validity of its accreditation, then the alternative safeguard of reliability would no longer exist and the Constitution would entitle defendant to Confrontation Clause protection. Similarly, should the defendant demonstrate the existence of a motive to falsify, then the alternative safeguard of honesty would no longer exist and the Constitution would entitle the defendant to Confrontation Clause protection.
Justice Thomas concurred separately because he'd restrict the Confrontation Clause protections to "formalized statements that are characterized by solemnity," and not all out-of-court statements being used to establish or prove past events potentially relevant to later criminal prosecution.
No one agreed with him.
Justice Kagan, writing for the dissenters, emphasizes that crime labs screw up, and the Confrontation Clause is what holds them accountable:
Some years ago, the State of California prosecuted a man named John Kocak for rape. At a preliminary hearing, the State presented testimony from an analyst at the Cellmark Diagnostics Laboratory—the same facility used to generate DNA evidence in this case. The analyst had extracted DNA from a bloody sweatshirt found at the crime scene and then compared it to two control samples—one from Kocak and one from the victim. The analyst’s report identified a single match: As she explained on direct examination, the DNA found on the sweatshirt belonged to Kocak. But after undergoing cross-examination, the analyst realized she had made a mortifying error. She took the stand again, but this time to admit that the report listed the victim’s control sample as coming from Kocak, and Kocak’s as coming from the victim. So the DNA on the sweatshirt matched not Kocak, but the victim herself.
... The Kocak incident illustrates how the Clause is designed to work: Once confronted, the analyst discovered and disclosed the error she had made. That error would probably not have come to light if the prosecutor had merely admitted the report into evidence or asked a third party to present its findings. Hence the genius of an 18th-century device as applied to 21st-century evidence: Cross-examination of the analyst is especially likely to reveal whether vials have been switched, samples contaminated, tests incompetently run, or results inaccurately recorded.
Under our Confrontation Clause precedents, this is an open-and-shut case. The State of Illinois prosecuted Sandy Williams for rape based in part on a DNA profile created in Cellmark’s laboratory. Yet the State did not give Williams a chance to question the analyst who produced that evidence. Instead, the prosecution introduced the results of Cellmark’s testing through an expert witness who had no idea how they were generated. That approach—no less (perhaps more) than the confrontation-free methods of presenting forensic evidence we have formerly banned—deprived Williams of his Sixth Amendment right to “confron[t] . . . the witnesses against him.”
And to Justices Kagan, Scalia, Ginsburg and Sotomayor, that makes this an easy case:
Have we not already decided this case? Lambatos’s testimony is functionally identical to the “surrogate testimony” that New Mexico proffered in Bullcoming ... Like the surrogate witness in Bullcoming, Lambatos “could not convey what [the actual analyst] knew or observed about the events . . . , i.e., the particular test and testing process he employed.... Nor could such surrogate testimony expose any lapses or lies” on the testing analyst’s part.... 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. At least the surrogate witness in Bullcoming worked at the relevant laboratory and was familiar with its procedures. That is not true of 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.
Under our case law, that is sufficient to resolve this case. “[W]hen the State elected to introduce” the substance of Cellmark’s report into evidence, the analyst who generated that report “became a witness” whom Williams “had the right to confront.” As we stated just last year, “Our precedent[s] cannot sensibly be read any other way.”
And what's the problem? Justice Kagan explains:
Imagine for a moment a poorly trained, incompetent, or dishonest laboratory analyst. (The analyst in Bullcoming, placed on unpaid leave for unknown reasons, might qualify.) Under our precedents, the prosecutor cannot avoid exposing that analyst to cross-examination simply by introducing his report. Nor can the prosecutor escape that fate by offering the results through the testimony of another analyst from the laboratory. But under the plurality’s approach, the prosecutor could choose the analyst-witness of his dreams (as the judge here said, “the best DNA witness I have ever heard”), offer her as an expert (she knows nothing about the test, but boasts impressive degrees), and have her provide testimony identical to the best the actual tester might have given (“the DNA extracted from the vaginal swabs matched Sandy Williams’s”)—all so long as a state evidence rule says that the purpose of the testimony is to enable the factfinder to assess the expert opinion’s basis. (And this tactic would not be confined to cases involving scientific evidence. As Justice Thomas points out, the prosecutor could similarly substitute experts for all kinds of people making out-of-court statements. The plurality thus would countenance the Constitution’s circumvention. If the Confrontation Clause prevents the State from getting its evidence in through the front door, then the State could sneak it in through the back. What a neat trick—but really, what a way to run a criminal justice system. No wonder five Justices reject it.
But nor are they fans of Justice Thomas' approach, which Justice Kagan says "would turn the Confrontation Clause into a constitutional geegaw—nice for show, but of little value."
Justice Thomas’s unique method of defining testimonial statements fares no better. ... Justice Thomas’s approach grants constitutional significance to minutia, in a way that can only undermine the Confrontation Clause’s protections....
The prosecution could avoid its demands by using the right kind of forms with the right kind of language. (It would not take long to devise the magic words and rules—principally, never call anything a “certificate.”) And still worse: The new conventions, precisely by making out-of-court statements less “solem[n],”would also make them less reliable—and so turn the Confrontation Clause upside down. ...It is not surprising that no other Member of the Court has adopted this position. To do so, as Justice Thomas rightly says of the plurality’s decision, would be to “diminis[h] the Confrontation Clause’s protection” in “the very cases in which the accused should ‘enjoy the right . . . to be confronted with the witnesses against him.’ ”
Bottom line: Justice Thomas' insistence on going his own way means that while there's a ruling on the
result here, there is no set rule going forward for what judges, prosecutors and defense counsel should do in these cases. And, accordingly, there will be many more such cases.
Bravo, Justice Thomas.
11:23 AM PT: Scott Lemieux notes, regarding what he calls Justice Thomas' "risible, hairsplitting concurrence," that this is the "second term in a row in which Thomas has found a feeble excuse for not applying Sixth Amendment rights he’s theoretically committed to, while Scalia has been steadfast in both cases," and concludes:
Thanks to Thomas, the Court today failed in the most basic tasks of an appellate court; it diluted the protections offered by the Bill of Rights, and did so in a way that makes the applicable law less clear for no coherent reason.