SCOTUS will revisit crime lab confrontation decision

Over the weekend the New York Times ran a story by Adam Liptak previewing a US Supreme Court case ("Justices revisit rule requiring lab testimony," Dec. 19) called Briscoe v. Virginia that prosecutors hope will overturn the Melendez-Diaz case from last term requiring confrontation for testimony by crime lab workers. (Lyle Denniston at SCOTUSBlog discussed this case last summer soon after the court agreed to hear it; oral arguments will happen January 11. See the SCOTUSWiki page for briefs and lower court decisions.)

The case doesn't affect Texas state courts, which already have confrontation procedures which comply with the SCOTUS ruling, but it's important both for federal cases and because the debates surrounding the issue reach core questions about errors and misconduct uncovered in the last few years at the nation's crime labs: Should crime lab work product be considered neutral and scientific or does it require cross-examination just like other kinds of testimony put on by the state in criminal cases?

Another story published in the Times two days before ("Report condemns police lab oversight," Dec. 17) to me demonstrates precisely why crime lab testimony should require confrontation:

The New York State Police’s supervision of a major crime laboratory was so poor that it overlooked evidence of pervasively shoddy forensics work, allowing an analyst to go undetected for 15 years as he falsified test results and compromised nearly one-third of his cases, an investigation by the state’s inspector general has found.

The analyst’s training was so substandard that at one point last year, investigators discovered he could not properly operate a microscope essential to performing his job, the report released on Thursday said.

And when the State Police became aware of the analyst’s misconduct, an internal review by superiors in the Albany lab deliberately omitted information implicating other analysts and suggesting systemic problems with the way evidence was handled, the report said. Instead, the review focused blame mostly on the analyst, Garry Veeder, who committed suicide in May 2008 during the internal inquiry.

Who thinks it would be wise to allow this fellow to testify in cases without cross-examination? How about his co-workers who must have known about his shoddy practices and said nothing? Is it really reasonable to just allow the state to produce a piece of paper from people such as this and allow that to be admitted as evidence without the right to confrontation? Surely this would be the wrong time to revisit Melendez-Diaz, unless they intend merely to clarify or strengthen the ruling.

Not to be outdone by New York, the Houston crime lab recently cut loose several long-time fingerprint experts accused of sloppy lab work. In recent years, they've had drug-analysis technicians verify the existence of drugs without running any tests. An HPD ballistics analyst misidentified not only scoring patterns on bullets but the weapons caliber. An employee in Houston PDs serology lab allegedly falsified results to help secure convictions. Investigators who examined these problems found Houston's crime lab had a "team spirit" mentality which had sometimes encouraged them to withhold exculpatory evidence. I could go on and on.

This problem is not limited to New York and Houston: A Texas DPS breath test technician allegedly faked records and committed fraud. A DPS crime lab in Lubbock supplied false evidence that convicted Brandon Moon, one of Texas' early DNA exonerees. A DPS serology lab in McAllen was temporarily closed because of errors. Statewide, autopsy reports are frequently shoddy, incomplete or flat-out erroneous. All these examples show why the state shouldn't just be allowed to submit a piece of paper to the court and insist it be taken as fact without cross-examination just because the cop who wrote it wore a white jacket and worked behind a door labeled "Laboratory."

In Texas, the confrontation requirement is satisfied through a "notice and demand" process where the defense is notified of the evidence and may demand the right to confront the witness at trial if they choose. Our system processes cases at a high volume and extending this right to defendants has not significantly retarded the ability to prosecute crime. In most cases the right is waived, but there have been enough examples of unreliable crime lab testimony that it seems important to retain it for cases where there's reason to doubt the results or the work of a specific examiner. Notably, Texas Attorney General Greg Abbott is not a signator on the amicus brief (pdf) filed by state attorneys general.

The fight here is over the vote of rookie Justice Sotomayor: All the other justices took sides in last term's 5-4 vote, so if Obama's new appointment reverses David Souter's vote, the outcome could change 180 degrees. That's another reason to care about this case: It will be an early indicator of Justice Sotomayor's approach on SCOTUS to criminal cases. Will she side with Justice Scalia, who is confrontation's greatest champion on the court? Or will she follow the lead of Chief Justice Roberts and Justice Alito, who would overlook logical or constitutional inconsistencies to cater to practical concerns? Quien sabe?

I don't know which way the court will go, but backing confrontation may be an easier vote for the ex-prosecutor Sotomayor with the crime labs in her home state demonstrating "pervasively shoddy forensics work."