by Trace Rabern, criminal defense and appellate writer

The Sixth Amendment and Bullcoming in Non-DWI Cases: Materials.

Fri, 21 Oct 2011 14:35:10 -0600

Bullcoming Opinion
Bullcoming Briefs

WilliamsAmicus_innocence.pdft
Willams v. IL Brief Prof. Friedman

FACKELMAN.doc
Derr Opinion.pdf

2011 Confrontation in NM by Trace.pdf

Bullcoming Comebacks Quick ReferenceQuick Reference- Common Whines.pdf

First Amendment Remedies

Tue, 11 Jan 2011 23:44:28 -0700

The Tucson, Arizona shooting tragedy has our country talking (finally) about, well, talking. How our words matter. How, no matter our intent, our words effect change when loosed upon the world. All the election rhetoric about targeting, reloading, and resorting to “Second Amendment remedies” haunts us like that beautiful nine-year-old’s face. Words matter. We need to own them.

Now, from the very tattered fringe edge of the First Amendment, the Westboro Baptist Church folks with chief hater Fred Phelps apparently plan to sully the funeral of our country’s newly-lost daughter with their message of hate, hell, and intolerance. In typical government response, Arizona lawmakers are hastily considering passing laws that would shut up the Westboro group or otherwise keep them from expressing their views. Admirable and well meaning, but that is wrong.

Passing laws that restrict the speech of hate groups invariably restricts the speech of any unpopular, disruptive movement. We do not want our government in the position to choose what speech is allowed and what is not. Such power will someday be used by those in government against dissenters, queer folk, and small groups that vocally disagree. This is, without much exaggeration, what we fought the Revolutionary War to avoid.

Now is the time to resort to First Amendment remedies. Less speech is not the best answer: More speech is. Show bad ideas for what they are, and publicly reject them as a community. Expressions of peace that responds to and overwhelm Westboro's expressions of hate. Here is a model, that is close to my heart. That must-read post is by my Twitter friend and science writer John Fleck, six years ago. He proudly describes how young people, wearing huge bed-sheet wings as angels, peacefully turn their backs on the hate group’s protest and unfurled their wings--angels protecting that line between the community and hate. Those angels standing between Westboro and the civilized world in the video? Twitter friends now in University. (I am so proud.) Embodying both peace action and the First Amendment in its most glorious form.

When we discussed this on Twitter, another Twitter friend described countering a Westboro hate protest with a dance counter-protest (one that involved glitter!). What could be a better remedy for the message “God Hates Fags” than a glittery flash mob? I can’t imagine. I only wish I was there. I found scores of inspiring videos on YouTube associated with the counter-protest organizers Not In Our Town, and everyone who has ever been touched by The Laramie Project. (If you haven’t, you must see.) And even this: The Westboro hate folks somewhat ironically (prophetically?) protest some productions of The Laramie Project, and are met with Angel-style counter-protests from the community. (Talk about meta!)

This was a gift that was given to us by the civil rights struggle: that we can, over time, drown out expressions of hate and bad ideas with louder and stronger expressions of love, tolerance, and good ideas. The bad ideas do not seem to go away fast enough, but they do lose currency.

These are First Amendment remedies: peaceful expressive action putting the hate speech in context. The expressions of bad ideas (here, hate) counterpoised starkly against the backdrop of right ideas (dancing, angels, a community united). We drown out expression of bad ideas with more expression of the good. At the same time, we actively and publicly reject the hate rhetoric, as a community. This--a community coming together deliberately and publicly to overcome hate with love--is the highest, most perfect form of the First Amendment I can imagine.

I am hopeful that an entire Wall of Angels will peacefully overwhelm the Westboro hate protests in Tucson this week. Here is a link to organizers of such a counter-protest. A wall of angels would better embody the support, grief, and solidarity of our community against hate than passing hasty laws banning controversial speech ever would.

(By the way, I feel the same principle applies to political rhetoric with violent and disturbing themes. The answer to that kind of speech is more speech, calling it out, putting it in stark contrast to good ideas, and drowning it out. If the First Amendment means anything, it means we can freely criticize uncivil discourse, with civil discourse.)

Our country was born of this idea of fighting unpopular and downright bad expression with more free counter-expression. It was born of the ideal that small, vocal, unpopular and even disruptive movements should be protected from government squelching. The founders apparently thought we future generations could work out the good ideas from the bad this way. With angels. And flash mobs. And glitter.

Time to resort to First Amendment remedies.

Photo: Tell me that is not an alien. Someone check that creature’s papers.

OT: My Take On Wikileaks Chat-log leaks. [Updated!]

Thu, 30 Dec 2010 10:22:44 -0700

This is completely non-topical to my New Mexico law blog, but is of great nerdy interest to me as a criminal defense lawyer working in the world of leaks, informants, entrapment, etc. for much of the day.

If you haven’t been keeping up with the cyber-law drama centered around excerpts, redactions and edits to leaks about Wikileaks and accused Pfc. Bradley Manning, snitch jerk from hell government informant Adrian Lamo, and a host of smart media and legal people who have and have not pieces of information and the whining about who will and won’t share this week, you can start here and here and here and here. The disturbingly shrill personal mudslinginging and complete twitter blowup that has become Wired vs Greenwald is something I don’t care to touch. The best cliff-notes version of relevant points is here by Rob Beschizza at boingboing, which is aptly titled “Greenwald vs Wired in 1000 words or thereabouts.” (NB: one of few comments sections I’ve ever found interesting as a criminal defense attorney.)

What follows comes from no more than my following of the material published elsewhere and my criminal defense instincts.

(1) Why the drama? Really, I ask myself that all the time. But legally speaking, why that the portions of the chat logs not published by Wired are potentially important is because one of few ways the government could theoretically charge Julian Assange, aka Undesirable Number One, with espionage is some indication he actively helped with the original stealing of the documents from under the bell jar that is United States Government secrecy. It is actually a geeky law issue about extraterritoriality: If the government can show Assange aided and abetted the leaker, allegedly Pfc. Manning, to actually steal the documents--by providing specialized code, physically sending his people to pick things up, providing a special server, bringing Red Bull--then the government can state a criminal claim against Assange. If Assange, as Wikileaks, was merely the recipient of documents through the Wikileaks confidential submission procedure, it is much much harder to find a United States criminal statute that applies to Assange.
Which leads to:

(1) This is really about Assange. And extraterritoriality. And US criminal statutes.
Yep. See my paper here.

(1) The chat logs Julian Lamo leaked to Wired and others were strategically leaked under supervision of the government. This instinct comes in part from knowing how the government agents work, and in part from the the implausibility of the timing Lamo has claimed--that Lamo provided the chat logs to Wired et al. before tipping off the government, or after tipping off the government but before they were interested enough to take his computers away. (If you are old like me you will understand the reference here to the movie Absence of Malice.) As described below, this has every sign that Lamo was working as a government informant before he brought his scoop to Paulson. I am not saying that the reporter at Wired knew this--in fact, to be effective, he likely did not. He was given a hell of a juicy scoop and ran with it.
This means that, yes:

(1) The chat logs leaked to Wired and others are, at best, cherry-picked edits, and, at worst, manufactured mis-information. The government sent Lamo to the journos with those parts of the logs (real or not?) that the government wanted leaked. Others have analyzed the extant chat logs and found time stamps and other indications of skipped or pasted material. We are wrong to presume that the logs we’ve seen are anything more than what the government wanted seen. This is also supported by the fact that there seem to be differing versions of the same chat logs out there in the wild.

(1) Lamo was working with the government before the first chat started . This may be the most important consideration in the matter. If we are willing to make the assumption that the chat logs we’ve seen bear any resemblance to reality, and are not wholly made up, then my instincts say that Lamo was working for the government from before the first chat. (How far back, I wonder?) Having been in trouble with the law before, Lamo was ripe for turning for the government. Most people see his felony record as a reason to distrust him (validly), but the government works just the opposite--they like to use someone already under their thumb. My instincts tell me that it was at the government agent’s request that Lamo instructed Manning to switch from encrypted email love notes to chat, which of course serves to allow the agent to structure the conversation. (Also suggests Lamo was sharing the emails with the government already.) My instincts tell me clearly that an agent was sitting with Lamo as he chatted with the alleged Bradley Manning, helping him to use all the standard techniques--let the mark do the talking, ask about others involved, ask how he managed it, flatter him and ask how he managed it again, ask hypothetically if someone like me where to do this how would I do it, ask 3 times for information that will check-sum his involvement with the product, etc. Note especially how hard Lamo tries to get the alleged Manning to claim a relationship with Assange, a path to Assange. The government, even then sitting at Lamo’s elbow, was working extraterritoriality law. They were already looking past this alleged Private Manning and to Assange.

(1) Lamo and the government have been spreading misinformation on the timing of Lamo’s start as an informant for a couple reasons. In part, Lamo claims to not go to the government until after (or about) the time of his scoop to Wired because Lamo’s leak to Wired et al. had more credibility before he was a stool pigeon. The alleged chat logs had more credibility when the government got involved with them later. Not to mention, Lamo seems less creepy. Second and more importantly, the government is probably self-conscious about when Lamo became an agent of the government. All kinds of legal consequences flow from the fact that Lamo was acting as a government agent (not agent in the sense of commissioned law enforcement, but agent in the sense of operating on behalf of and under instruction of the government). For example, if an informant obtains a jailhouse confession from his cell-mate, whether he began working as an informant before, or after, the confession determines whether such a confession is admissible without Miranda rights advice. That probably doesn’t apply here as the alleged Manning character was not in custody. But doesn’t it seem like a different situation to a jury to know Lamo was working for the government and in that role targeted the alleged Manning for certain information trying to get Manning, and even Wikileaks, than if one sees Lamo as a just stumbling into Manning on the internet and doing his patriotic duty of turning him in? The Lamo that befriended the alleged Manning in order to serve him up to the government, at the government’s direction, is a seriously compromised witness. Also, there are protocols for the care and handling of informants that the government is supposed to follow, not following these best practices leads to taint, and departing from them makes for fodder for a defense team.

(1) The chat logs leaked to Wired are not fully reproduced by Wired at least in part because they contain DADT-sensitive information. The pollyanna in me wants to believe this instinct. Of course it is plausible that Wired is sitting on some of the material Informant Lamo handed it out of some promise to Lamo. I think it is unlikely that they are kowtowing to the government, for the reason that they only got in the first place what the government wanted them to get. I think it is equally unlikely the unpublished portions contain anything that implicates Assange because the government would be singing that from the rooftops. It is much more romantic to note it is plausible, for example, that source (informant) Lamo may have made Paulson promise to keep confidential exchanges that show Lamo played on (preyed on?) Manning’s status. (Face it, that could explain the hard-to-explain fact that if the chat logs are even somewhat accurate, Bradley Manning is spilling his heart out to nearly-stranger Lamo on their first chat date.) And, more romantic still, perhaps Wired is sitting on the fuller version of alleged logs not so much out of promise to Lamo, but instead because they understand the anti-gay and anti-repeal-DADT firestorm that might come with the disclosure that Undesirable Number One is gay (and flapping his trap about secrets on a gay chat date). (Nevermind that if we believe the chat logs resemble reality, it seems that inane medieval military policies like DADT are what disillusioned the idealistic young Manning in the first place.) And maybe it is as simple as the not-released portions of the chat implicate other military personnel, not in secret-stealing, but in proscribed romance. Because the media does not have the equivalent to the justice system’s request that a judge or special master review material in camera to see if it contains any relevant bits, it is hard to know. (It seems to be Greenwald’s gavamen that he has to trust Wired and Pauson to do this role of reviewing in camera, much the same way we criminal defense attorneys sometimes resent trusting a judge to be able to tell what is Brady material.)

(1) If this all were in civilian court and I were on Bradley Manning’s defense team I would subpoena those puppies. And every note from everything Lamo ever said to any media outlet. The reason? In think the chat logs leaked to the media were either cherry picked, edited, or fakes. I also think Lamo was acting as a government agent at a much earlier time in his relationship with Manning than he has admitted, and showing the leaked logs were altered would help show that. If there are multiple versions out there, that also supports my theory. One would litigate if necessary to get the government to turn over the original 1’s and 0’s from all Lamo’s equipment. One could compare what went to the media with what comes from Lamo’s gear. One would litigate for the informant handling file on Lamo, and every other bit of help/contact he’s had with his government handlers. Moreover, Lamo cannot seem to keep his story straight. All of these impeachment items would need to be gathered and organized to show any prospective jury what an unreliable, biased and tainted witness Lamo is. It would be mighty fun to assemble an Adrian Lamo assassination list (NOTE: for a criminal defense lawyer, an assassination list has nothing to do with violence. It is a list of things to hit a witness with in cross-examination. And by hit I mean question, until he cries.)

(1) If the chat logs disclosed in the media thus far are any reflection of reality, the military has some serious changes to make. And I don’t mean to security, cyber-security, or whatever. I mean to morale. To the way it treats bright young people. To the attitude of everyone around Manning, as ‘shrug, whatevs’ about their jobs. To treating individuals as cogs. About not taking care of our soldiers’ mental health. About not using and honoring their gifts. About the damage from policies like DADT. About all those things that our country has to be ashamed of--the same things that Manning (allegedly) saw and drove him to the edge. Any geek will tell you that it is much, much easier to breach any system through human failures than it is to breach it by technical means. This leak was, if the chat logs are to be believed (?), a human failure, not a technological one.

Your theories, please?
Photo: Mercy on Delilah, day after Christmas, 2010.

Extraterritorial Application of United States Criminal Laws; Or: What Julian Assange’s Lawyers Need To Know About the Long Arm of the US Law

Tue, 28 Dec 2010 12:57:02 -0700

Here is a very early draft of a paper on the extraterritorial application of United States criminal laws. (Translation: Whether our country can charge and punish someone not from our country for doing things not in our country that may violate the law of our country.) Given a number of recent inquiries, I should probably consider re-drafting the paper to include analysis of the alleged case of Julian Assange. Please contact me if you are interested in this little corner of the law.

The brilliant Marc Lowry of The Rothstein Firm is due all credit for things I get right in this paper. Mistakes are mine, alone.

Seibert, Patane, and when Miranda Violations Bear Fruit

Wed, 13 Oct 2010 22:34:28 -0600

What follows is the reprint of an article that I wrote for the NMCDLA newsletter, “FOR THE DEFENSE” several years ago, by request of a colleague. Please note, and am posting it as written back then, and have not updated the research or even checked to see if I was on the right planet when I wrote it.

Outline of Broad Strokes of Seibert and Patane and similar state constitutional issues

In Missouri v. Seibert, 124 S. Ct. 2601 (2004), the United States Supreme Court (5-4) held that a second, Mirandized statement must be suppressed when there was an initial unwarned statement just before it. The investigative technique of questioning first, then Mirandizing, then questioning again and taking down all the information in a presumptively-admissible form, the high court plurality held, was an end-run around the protection of Miranda. The two-stage interrogation technique used in the case "undermines the Miranda warning and obscures its meaning," according to concurring Kennedy, the tie-breaker. The second statement was the testimonial fruit (i.e., statements) of the first, illegally-taken statement, and must be suppressed.

There are weaknesses in Seibert. Justice Kennedy, the tie-breaking vote, adopts a severely weakened form of the rule (for example, if there was enough time between interrogations, or enough warnings, or different officers, Kennedy would not suppress even direct testimonial fruit). Also, one of the themes in Seibert is the blatant police misconduct—adopting a policy designed to break folks sans Miranda. The facts in Seibert were outrageous: The officer involved had "resort[ed] to an interrogation technique he had been taught." At the first questioning session he had made "a 'conscious decision' to withhold Miranda warnings" and, after obtaining incriminating statements, had called a short recess (twenty minutes) before resuming the questioning. At the outset of the second session the officer did advise the suspect of her rights, and did obtain a waiver, but he then confronted the suspect with the statements she had made during the first session (when she had not been warned of her rights). Not surprisingly, the suspect confessed again. The new statement was "'largely a repeat of information . . . obtained' prior to the warning." Arguably, a showing of overreaching by police might be required, under some interpretations of Seibert.

The same day, the United States Supreme Court in United States v. Patane, 124 S. Ct. 2620 (2004), ruled (again, 5-4) that the physical fruit (i.e., gun found where accused said it was) of a Miranda violation should not be suppressed. (Kennedy was the one who changed sides.) Thomas wrote the plurality opinion for the winning side in Patane, and for rather illogical reasons, held that physical fruit of a Miranda violation (such as Patane’s gun, found pursuant to his un-warned custodial statement) is not constitutionally protected.

There are two potential ways to get around Patane.

The first is to show that the actual statement that was the product of the Miranda violation was involuntary. The Patane case is limited to the case where there is a failure to Mirandize but the statement was nonetheless “voluntary.” (While a “voluntary statement taken after a Miranda violation” is an oxymoron under Miranda itself, this is what I would call a classic legal fiction, is quite common to find in recent Miranda-eroding cases.) The question presented in Patane was "whether a failure to give a suspect the warnings prescribed by Miranda requires suppression of the physical fruits of the suspect's unwarned but voluntary statements." There are several passages in the somewhat unintelligible and inconsistent plurality opinion (Thomas) that state clearly that the case would have the opposite result if the statements were involuntary—coerced, as opposed to just a product of a technical Miranda violation. (Offensive, I know, but that’s Thomas.) When a statement is coerced or not voluntary, under Patane, using the fruit of that statement (the gun) offends the constitution. (If you are asking yourself what could be the logical grounds for this distinction, so are most law professors who write about this for a living.)

The second way to cope with Patane is to engage the state constitution. New Mexico courts have never had opportunity to reach the issue, but other states have, quite more intelligently than Justice Thomas, held that their respective state constitutions compel suppression of physical fruit of Miranda violations, in addition to testimonial fruit. The most basic rationale is that to hold otherwise (like Thomas did) is to reward police for violating Miranda. The other very elementary rationale is that, well, fruit is fruit—and that the 5th amendment-type rights have had a tainted fruits analysis for much longer than have the 4th amendment-type rights. (I like to think of this as states throwing the finger at Justice Thomas, but that’s a personal opinion.)

I have gotten a bit behind in keeping a running tally of such states, but at last I checked, at least arguably, the states of Oregon, Washington, Massachusetts, Idaho, and Missouri have suppressed the physical fruit of a Miranda violation. I can update this and provide the cases with summaries for you all.

Photo: Mercy at Ghost Ranch, near Chama, New Mexico. She is on top of the cliffs over the Georgia O’Keeffe house.

New Forthcoming Project: NMSC Opinion in Williamson Is an End Run Around NM’s Rejection of Leon/Good Faith Exception

Wed, 13 Oct 2010 22:23:54 -0600

Apparently some glitch has caused my very early draft analysis about Bullcoming, Aragon, and Crawford to vanish. It has vanished from the site, and from my computer (gasp). I so don’t have the energy to re-create that work (sadly) right now.

But, thanks to the legal thinking and creative insights of some particularly brilliant students at UNM Law in Appellate Law in Practice, I have a new pet project: forthcoming draft analysis on why the NMSC case State v. Williamson completely and deceptively eviscerates New Mexico’s rejection of the good faith exception, based in the New Mexico Constitution. When I get back to working less-than-20-hour days, I am going to turn my passion to this.

Photo: Mercy, Leigha, and just-rescued wild kitten.

My Analysis/Draft Paper on Bullcoming

Fri, 1 Oct 2010 00:12:33 -0600

“[T]he justice of England has never been so degraded and injured as by the condemnation of the honourable Sir Walter Raleigh.” --Crawford v. Washington

Bullcoming Update; Links to Cert Petition and Reply

Thu, 30 Sep 2010 19:35:22 -0600

The United States Supreme Court has granted certiorari to review State v. Bullcoming, the case that created and then drove through its own loophole to Melendez-Diaz’ ruling that when the government relies on the results of forensic testing to prove its case, the right to confrontation requires the laboratory analyst who actually did the testing to testify and be subject to cross-examination.

The Petition for Writ of Certiorari by Appellate Defender Susan Roth is HERE. The Reply on the Petition is HERE.

The Bullcoming Opinion by the New Mexico Supreme Court is HERE (pdf) . It really cannot fully be understood without also reading the contrasting opinion issued the same day, Aragon, which is HERE (pdf).

Photo: M-Cat, Asleep on New Mexico Statutes.

SCOTUS Grants Cert in Bullcoming; Slapdown Expected

Tue, 28 Sep 2010 19:55:24 -0600

Today the United States Supreme Court granted certiorari in State v. Bullcoming. As discussed (at way long length) in the last post, Bullcoming is the New Mexico Supreme Court case, issued the same day as Aragon, which grudgingly recognizes that forensic laboratory reports are testimonial, but still gives a criminal defendant no right to require the testing lab analyst to testify in person. The strained/tortured/desperate reasoning for denying the right to confrontation in Bullcoming was that the lab analyst who ran the gas chromatography test on blood to determine alcohol levels was a “mere scrivener.” This in contrast to the lab analyst in Aragon, who uses gas chromatography and mass spectrometry to identify type and purity of drug evidence, who is under Aragon required to testify live and in-person.

Even a GVR or a Briscoe-like slapdown would be sufficient to sober up the Supreme Court.

Congratulations to Appellate Warrior Susan Roth and the team at the Appellate Public Defender for the cert. grant!

******Update September 29: I received word from the Dean this afternoon that Jeff Fisher, SCOTUS rockstar and man who brought us Blakely and Crawford (inter alia), will take on lead counsel duties in Bullcoming. This is wonderful.

Photo: End of summer, I will miss you. Delilah and Mercy.

Confrontation, Melendez-Diaz, and Lab Reports in New Mexico: Twisted

Fri, 24 Sep 2010 19:38:11 -0600

UPDATE: Since this material was prepared, the United States Supreme Court has granted cert in Bullcoming. I expectSCOTUS to slap down Bullcoming--even a GVR or Briscoe-like quash would elevate Aragon’s analysis over the faulty analysis of Bullcoming.

The following is material I prepared for an upcoming NMCDLA CLE panel, on the subject of Crawford application in New Mexico. The point is that in order for the present state of confrontation law in New Mexico to make any sense at all, one has to understand the history since Crawford. At the end is a chart I made for practitioners in New Mexico, to allow them to make their cases more Aragon (Confrontation Clause requires analyst who did test to testify) and less Bullcoming (lab reports are testimonial but no Confrontation Clause right to require analyst to testify). The chart should not be seen as any indication that I think that Bullcoming and Aragon can be reconciled or even understood-to the contrary, I think they are mutually exclusive, and Bullcoming is fatally flawed.

To understand (to the extent it can be understood) the present state of confrontation clause law in New Mexico, one must really understand the cases that got us to this point (or dead-end, as the case may be).

1. Crawford. The United States Supreme Court in 2004 in Crawford held that the Confrontation Clause prohibits the admission of “testimonial statements” unless the declarant is unavailable to testify, “and the defendant had had a prior opportunity for cross-examination.” 541 U.S. at 53-54. Though the Court declined to definitively state what constitutes a “testimonial” statement, it described the various formulations of the core class of testimonial statements covered by the Confrontation Clause. Id. at 51-52. The high court noted that a main concern of the Confrontation Clause was the “[i]nvolvement of government officers in the production of testimony with an eye toward trial,” because this provides a “unique potential for prosecutorial abuse.” 541 U.S. at 56 n. 7. Crawford overruled Ohio v. Roberts, 448 U.S. 56 (1980) which had held that “that unconfronted testimony was admissible as long as it bore indicia of reliability.”

2. Dedman. Later in 2004, the New Mexico Supreme Court in State v. Dedman, 2004-NMSC-037, ¶¶ 30, 45-46, 136 N.M. 561,102 P.3d 628, purported to follow the United States Supreme Court case in Crawford and held that "(1) blood alcohol reports are public records and (2) they are non-testimonial under Crawford because public records are not 'investigative or prosecutorial' in nature." The Dedman Court reasoned that such blood alcohol reports were non-testimonial because, as public records, their preparation was “routine, non-adversarial, and made to ensure an accurate measurement.” since blood alcohol reports are not prepared by law enforcement personnel, and are “neither investigative nor prosecutorial,” thus they do not present the same potential for abuse as that addressed in Crawford. Id. ¶¶ 29-30.

Apparently the Court missed the fact that SLD is a forensic laboratory, and that the daily function of a forensic laboratory is to produce evidence for use in criminal trials.

3. Melendez-Diaz. This flaw in the analysis in Dedman was made clear when, in 2009, the United States Supreme Court issued the opinion in Melendez-Diaz v. Massachusetts. The Supreme Court held that when a forensic laboratory is reporting the results of forensic analysis, “there is little doubt that [they] fall within the ‘core class of testimonial statements,’ ” governed by the Confrontation Clause. 557 U.S. ----, ----, 129 S.Ct. 2527, 2532 (2009) (5-4 decision) (quoting Crawford, 541 U.S. at 51,). Moreover, Melendez-Diaz made clear that the same concerns of governmental abuse which exist in the production of evidence by law enforcement exist in the production of forensic evidence. The Court noted that “[a] forensic analyst responding to a request from a law enforcement official may feel pressure-or have an incentive-to alter the evidence in a manner favorable to the prosecution.” Id. at ----, 129 S.Ct. at 2536. Forensic evidence is neither immune from manipulation nor inherently “neutral.” Id. at ----, 129 S.Ct. at 2536. Finally, Melendez-Diaz explicitly rejected an argument based on the Dedman analysis that such reports are business records or public records. Justice Scalia chided that while they are routinely prepared in the course of the business of being a forensic laboratory, the entire business of a forensic laboratory is to prepare reports in anticipation of trial--”calculated for use essentially in the court, not in the business.”

So after Melendez-Diaz it was back to the drawing board.

4. Bullcoming and Aragon. Thus in early 2010 in the DWI case of State v. Bullcoming (Justice Maes) and drug case of State v. Aragon (Justice Chavez), the New Mexico Supreme Court was forced to revisit the issue. While the result in each case was the same and the opinions reference each other in a favorable light, these two opinions illustrate two nearly opposite approaches to the confrontation clause. One gets the feeling that the opinions in these two cases were actually dueling it out for some time, until they reached an uneasy truce that allowed all five justices to sign on to both opinions, which were issued on the same day.

A. On one hand, State v. Bullcoming says that forensic laboratory analysts who use a gas chromatography machine to analyze blood samples for alcohol content are fungible “mere scriveners” who can be replaced at trial by any qualified analyst. In State v. Bullcoming, 2010-NMSC-007, 147 N.M. 487, 226 P.3d 1 (2010) (certiorari pending), the State wished to rely on results of a blood alcohol test done by the Scientific Laboratories Division of the Department of Health--the people in charge of blood and breath alcohol testing in New Mexico, among other things. Because the analyst who performed the test was unavailable because she had been recently “put on leave without pay”, the State used another analyst, one with some vague supervisory duties ("helps in overseeing the breath and blood alcohol programs throughout the state") but who had not had anything to do with the test of Mr. Bullcoming's blood.

Justice Maes, writing for the Supreme Court acknowledged that its holding in Dedman was wrong under Melendez-Diaz, and that the laboratory report was testimonial. However, the Court held that it was still legal for a lab technician who had not prepared the testimonial report or done the testing to come to court and testify from it without violating the Confrontation Clause because the laboratory witness was a "mere scrivener" who just wrote down values outputted by the forensic test:

Although the blood alcohol report was testimonial, we conclude that its admission did not violate the Confrontation Clause, because the analyst who prepared the report was a mere scrivener who simply transcribed the results generated by a gas chromatograph machine and, therefore, the live, in-court testimony of another qualified analyst was sufficient to satisfy Defendant’s right to confrontation.

The New Mexico Supreme Court in Bullcoming literally espoused the infallibility of the machine: “Defendant’s true ‘accuser’ was the gas chromatograph machine which detected the presence of alcohol in Defendant’s blood, assessed Defendant’s BAC, and generated a computer print-out listing its results.” The Court characterized the gas chromatography output as “raw data”. “As previously explained, the results of the gas chromatograph machine BAC test do not constitute expert opinion, but, rather, constitute facts or data of the type reasonably relied upon by experts in the field.” Id. at P 25. The Bullcoming court then asserted that raw data is not subject to the constraints of the Confrontation Clause, and suggests that an expert who relied on hearsay raw data could in some cases through her testimony make the raw data admissible. Id. at P 26 (discussing Rule 11-703).

Supreme Court in Bullcoming apparently didn't consider the concept "garbage in, garbage out". Or, to the extent it did, it felt "garbage in" was controlled adequately by the fact that the nurse who drew the blood, and the officer who ordered the test, observed the blood draw, and then sent the blood kit to SLD, testified and were subject to cross-examination. Cf. Melendez-Diaz, 557 U.S. at ----, 129 S.Ct. at 2537-38 (stating that the methodology used in generating the reports “require [d] the exercise of judgment and present[ed] a risk of error that might be explored on cross-examination”); State v. Aragon, 2010-NMSC-008, ¶ 30, 147 N.M. 474, 225 P.3d 1280 (holding that “[t]he determinations of whether a substance is narcotic and its degree of purity ... must be classified as ‘opinion,’ rooted in the assessment of one who has specialized knowledge and skill”).

NB: Susan Roth and the Appellate Division of the Public Defender have filed a Petition for Writ of Certiorari in the United States Supreme Court in Bullcoming. At the time these materials were submitted for printing, the Supreme Court was actually conferencing on the Petition. It is quite possible the Supreme Court could grant certiorari in Bullcoming and GVR it or issue an order like that in Briscoe v. Connecticut, firmly telling the state court that it got the analysis wrong, try again.

B. On the other hand, State v. Aragon says that forensic laboratory analysts who use gas chromatography and mass spectrometry to identify drug evidence are not fungible, the conclusion in the report is actually an expert opinion, and the report’s creator must testify in person to her conclusions. On the same day as the Supreme Court issued Bullcoming it also issued State v. Aragon, 2010-NMSC-008, ¶ 30, 147 N.M. 474, 225 P.3d 1280. Aragon held that the testimony of a lab analyst other than the one who did the testing did not meet the requirements of the confrontation clause, although it found the violation to be harmless error in this case.

Aragon concerned two baggies of suspected methamphetamine seized from different places in a home and sent to the New Mexico Department of Public Safety’s Las Cruces Forensics Laboratory (“Southern Crime Laboratory”) for analysis. The two bags were analyzed by two different forensic chemists, and they produced two reports describing the chemical makeup of the bags’ contents. (Each concluded their respective baggie contained methamphetamine of a similar purity.) One of these forensic chemists, Chemist 1, testified at trial to his own analysis, the report he produced, laboratory procedure. However Chemist 2 did not appear for trial. Chemist 1 nonetheless testified, over objection, that Chemist 2 did a similar analysis of bag 2, and then testified as to the contents of the bag (the conclusion of Chemist 2's report) even though Chemist 1 did not observe, supervise, or participate in either the analysis or the preparation of the report.

In Aragon the Supreme Court rejected the Dedman reasoning, and government’s argument, that the chemist’s report at issue is inherently reliable because it is objective and aimed at “getting to the bottom of the matter.” See Aragon, 2010-NMSC-008, ¶¶ 11-16 (rejecting that part of Dedman that reasoned blood-alcohol reports “follow a routine manner of preparation that guarantees a certain level of comfort as to their trustworthiness” and are “made to ensure an accurate measurement”citation omitted). The Aragon court noted that Melendez-Diaz directly rejected the idea that forensic reports are the product of “neutral, scientific testing.” Id. (internal quotation marks and citation omitted). The Aragon court noted that Crawford made clear that the reliability of a testimonial statement is not a measure of its susceptibility to the right of confrontation, holding that “any consideration of their reliability is irrelevant to a determination of confrontation requirements.” Id.

The Aragon court held that forensic chemists and their testimony are not fungible for purposes of the Confrontation Clause. The Supreme Court apparently believes that forensic chemist identification of substances with a gas chromatographer or mass spectrometer requires some level of skill, talent, and thinking beyond that required to run the same gas chromatography machine on blood samples in like the “mere scrivener” in Bullcoming.

In an apparent attempt to reconcile the Aragon analysis with Bullcoming, the Aragon opinion noted that perhaps the chemist’s testimony would not have violated the Confrontation Clause if he “had expressed his own opinion based upon the underlying data that contributed to the opinion announced in the report [of Chemist 2].” The Court then discussed how testifying expert is limited by Rule 11-703 to relying on “facts or data” in forming an opinion, and so is precluded from relying “upon the oral or written opinion of another expert.”

However, again diverging from Bullcoming, the Court in Aragon cautioned that “In criminal cases, a court’s inquiry under Rule 703 must go beyond finding that hearsay relied on by an expert meets these standards. An expert’s testimony that was based entirely on hearsay reports, while it might satisfy Rule 703, would nevertheless violate a defendant’s constitutional right to confront adverse witnesses. The Government could not, for example, simply produce a witness who did nothing but summarize out-of-court statements made by others. A criminal defendant is guaranteed the right to an effective cross-examination.”

Below is a chart I prepared comparing the factors in Aragon (confrontation clause gives right to cross-examine laboratory analyst who tested evidence) to Bullcoming (while laboratory report is testimonial, there is not right to cross-examine analyst). This is not to say that I think that Bullcoming and Aragon can be distinguished in a principled manner! I think they cannot. Bullcoming