On Point

court of appeals publication orders, 9/29/10

On Point posts from this list:

2010 WI App 124 State v. Donald L. Schultz

2010 WI App 129 State v. Adamm D.J. Linton

2010 WI App 132 State v. Jacquese Franklin Harrell

2010 WI App 133 State v. Christopher D. Jones

2010 WI App 134 State v. Dionicia M.

Docket

Decision Below (New Mexico supreme court)

Question Presented:

Whether the Confrontation Clause permits the prosecution to introduce testimonial statements of a nontestifying forensic analyst through the in-court testimony of a supervisor or other person who did not perform or observe the laboratory analysis described in the statements.

Cert. Petition

State’s Brief Opposing Cert

SCOTUSblog page

Follow-up to Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009) (proof of nature and quantity of controlled substance via notarized affidavit rather than live testimony violated confrontation). As the cert petition puts it, “State v. Bullcoming raises the question of whether the prosecution complies with that holding by introducing forensic reports through the in-court testimony of someone, such as a supervisor, who did not perform or observe the testing discussed in the reports.” Here’s how the New Mexico supreme court finessed the problem:

{19} However, the Confrontation Clause permits the admission of testimonial statements “so long as the declarant is present at trial to defend or explain it.” Crawford, 541 U.S. at 59 n.9 (citation omitted). Although the analyst who prepared Exhibit 1 was not present at trial, the evidence revealed that he simply transcribed the results generated by the gas chromatograph machine. He was not required to interpret the results, exercise independent judgment, or employ any particular methodology in transcribing the results from the gas chromatograph machine to the laboratory report. 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, __ N.M. __, __ P.3d ___ (No. 31,187, February 12, 2010) (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”). Thus, the analyst who prepared Exhibit 1 was a mere scrivener, and 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. See United States v. Moon, 512 F.3d 359, 362 (7th Cir. 2008) (“[T]he Confrontation Clause does not forbid the use of raw data produced by scientific instruments, though the interpretation of those data may be testimonial.”); United States v. Washington, 498 F.3d 225, 230 (4th Cir. 2007) (“The raw data generated by the diagnostic machines are the ‘statements’ of the machines themselves, not their operators.”); United States v. Hamilton, 413 F.3d 1138, 1142-43 (10th Cir. 2005) (concluding that the computer-generated header information accompanying pornographic images retrieved from the Internet “was neither a ‘statement’ nor a ‘declarant’”). Under these circumstances, we conclude that the live, in-court testimony of a separate qualified analyst is sufficient to fulfill a defendant’s right to confrontation. See People v. Rutterschmidt, 98 Cal. Rptr. 3d 390, 411-12 (Cal. Ct. App. 2009), review granted and opinion superseded by People v. Rutterschmidt, 220 P.3d 239 (2009) (holding that the testimony of a qualified analyst who did not prepare the defendant’s toxicology report was admissible under the Confrontation Clause).

Any of this sound familiar? Might because of State v. David Barton , 2006 WI App 18 (expert opinion of crime lab analyst, presenting own conclusions about tests performed by non-testifying analyst, didn’t violate confrontation):

¶16 Like the unit leader’s testimony in Williams, Olson’s testimony was properly admitted because he was a qualified unit leader presenting his individual, expert opinion.  Olson not only examined the results of Lyle’s tests, but he also performed a peer review of Lyle’s tests.  He formed his opinion based on his own expertise and his own analysis of the scientific testing.  He then presented his conclusions to the jury, and he was available to Barton for cross-examination.  Thus, Olson’s testimony satisfied Barton’s confrontation right and is admissible under the supreme court’s decision in Williams.

¶17 Barton contends that Crawford v. Washington, 541 U.S. 36 (2004), overrulesWilliams “to the extent Williams is interpreted as permitting the State to rely upon inadmissible hearsay as the basis for Olson’s testimony in this case.”  We disagree.  …

¶20 The holding in Crawford does not undermine our supreme court’s decision in Williams. Williams is clear: A defendant’s confrontation right is satisfied if a qualified expert testifies as to his or her independent opinion, even if the opinion is based in part on the work of another. Williams, 253 Wis. 2d 99, ¶¶9, 11. We do not see, and Barton fails to explain, how Crawford prevents a qualified expert from testifying in place of an unavailable expert when the testifying expert presents his or her own opinion.

For a more recent iteration: State v. Earnest Jean Jackson, 2009AP1449-CR, 4/27/10:

¶28      In State v. Williams, 2002 WI 58, 253 Wis. 2d 99, 644 N.W.2d 919, the Wisconsin Supreme Court held that “[a] defendant’s confrontation right is satisfied if a qualified expert testifies as to his or her independent opinion, even if the opinion is based in part on the work of another.”[5] Barton, 289 Wis. 2d 206, ¶20.  More specifically, Williams held that a defendant’s confrontation rights are satisfied by “the presence and availability for cross-examination of a highly qualified witness, who is familiar with the procedures at hand, supervises or reviews the work of the testing analyst, and renders [his or] her own expert opinion.”  Id., 253 Wis. 2d 99, ¶20.  The court noted that “[t]he critical point … is the distinction between an expert who forms an opinion based in part on the work of others and an expert who merely summarizes the work of others.  In short, one expert cannot act as a mere conduit for the opinion of another.”[6] Id., ¶19.

As you can see from that quite, the Barton-Williams rule is actually pretty narrow, requiring someone who is not a “mere scrivener.” But if Barton-Williams therefore won’t likely be affected by the outcome, then as you track Bullcoming keep in mind State v. Mahlik D. Ellington, 2005 WI App 243 (confrontation clause doesn’t prohibit a witness from reading to the jury admissible medical records):

¶13 First, as we have seen, the certified medical records were received by the trial court without objection. Certainly, the jurors could have read the pertinent excerpts, and, also, the prosecutor or defense counsel could have read to the jury excerpts from those records. Ellington does not explain why any witness could not also read pertinent excerpts to the jury. Generally, the lawyer is the best reader in the courtroom, but there is no rule or doctrine that prevents the lawyer from asking a witness to read to the jury material that is in evidence.

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7th circuit court of appeals decision

Habeas – Napue Issue

The Supreme Court has held that “a conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment.” Napue v. Illinois, 360 U.S. 264, 269 (1959) …. Thus, a new trial is required if a petitioner establishes that (1) the prosecution presented false testimony or failed to disclose that false testimony was used to convict, (2) the prosecution knew or should have known that the testimony was false, and (3) there is a reasonable likelihood that the testimony could have affected the jury’s judgment. …

The court assumes the first two steps of the test, denying relief because Griffin can’t show sufficient impact of the assertedly false testimony. The particulars of this narrow, fact-specific holding needn’t be discussed, except to say that Griffin confessed, something that independent witnesses confirmed, quite apart from the challenged testimony. United States v. Boyd, 55 F.3d 239 (7th Cir. 1995), distinguished, as “an extreme example of gross prosecutorial misconduct.”

Not terribly much Wisconsin caselaw discussion on Napue violations, which suggests it to be a rare visitor to our courts; footnoted mention of doctrine, in State v. Delgado, 194 Wis.2d 737 , 535 N.W.2d 450 (1995).

Habeas – Ineffective Assistance of Counsel

Counsel’s non-tactical failure to investigate potential mitigation in this capital case was prejudicial, notwithstanding state court conclusion to the contrary.

The Illinois Supreme Court concluded that there was no reasonable probability that absent counsel’s alleged errors, the sentencing court would have found that the mitigating evidence precluded the death penalty. The first problem with that assessment is that it is unclear to us how much weight the state supreme court gave to Judge Strayhorn’s statement that the introduction of the proffered evidence would not have changed Griffin’s sentence. Though we, and the Illinois Supreme Court, may give weight to such a statement, it is not conclusive. Raygoza v. Hulick, 474 F.3d 958, 964 (7th Cir. 2007) (stating that where the same judge presides over both the post- conviction proceeding and trial, “we cannot accept as conclusive the judge’s statement that the new evidence would not have made any difference”). The question is not whether a particular judge would have imposed a different sentence, but rather whether there was a “reasonable probability” that the sentence would have been different. In assessing that probability we conduct an objective evaluation of the evidence. Id. at 964-65.

Also, the state court’s conclusion that the proffered mitigation was merely cumulative was unreasonable:  “The state supreme court thought that the information about Griffin’s personal history was included in the presentence report … , but the report was an incomplete and at times inaccurate reflection of Griffin’s tragic personal history.”

Posting will be light to non-existent, 9/27 – 10/5.

Expect, during this time frame, Wisconsin court of appeals decisions and September publication orders, and the first USSC cert grants of OT ’10 (which might include an important good-faith issue; see this Orin Kerr post).

7th circuit court of appeals decision

Prison Mail – Access to Courts

As a matter of the due process right to a fair hearing in a civil matter, which includes the right to aid of counsel, a prison inmate is entitled to receive confidential communications from his lawyer. However, the prison is entitled, as a matter of security, to assure itself that such purported communications are indeed from a lawyer authorized to practice in the relevant jurisdiction. These competing considerations are accommodated by permitting prison staff to open putative legal mail for verification purposes but only in the inmate’s presence.

Protection of the privacy of attorney mail in this fashion is imperfect; the prison employee who opens the letter will have to glance at the content to verify its bona fides. But the imperfection is necessary to protect the prison’s interest in security—and is lessened by allowing prisoners to engage in unmonitored phone conversations with their lawyers. Wisconsin allows this, Wis. Admin. Code § DOC 309.39(6)(a), as do federal regulations in the case of federal prisoners. See 28 C.F.R. § 540.102; see also United States v. Novak, supra, 531 F.3d at 100-04.

…

… We think there must likewise by a showing of hindrance in a claim of interference with a prisoner’s communications with his lawyer.

But proof of a practice of reading a prisoner’s correspondence with his lawyer should ordinarily be sufficient to demonstrate hindrance. …

An isolated interference with the confidentiality of such communications is different; its effect on prisoners’ access to justice is likely to be nil.  …

court of appeals decision (1-judge, not for publication); for Grenie: John C. Orth; Steven J. House; BiC; Resp.; Reply

Traffic Stop – Blue Lights

Traffic stop for having blue lights lit on front of vehicle, upheld. (§ 347.07(2)(a) bars display of “(a)ny color of light other than white or amber visible from directly in front.”)

¶6        Grenie essentially asks this court to credit testimony by his two witnesses suggesting that the blue lights were “never” operational over the officer’s testimony that he saw the lights lit when Grenie’s Jeep passed him. This I may not do. Rather, I defer to the circuit court’s determination that the officer’s testimony was more credible. See id. In its suppression hearing findings, the circuit court clearly credited the officer’s “unshaken” statements that the blue lights were lit. And, the court specifically stated that it did not “buy” Grenie’s brother’s testimony suggesting that there were no bulbs in the lights. In other respects, the court’s rejection of testimony that the lights were never operational is implied by the court’s explicit reliance on the officer’s testimony. See Derr v. Derr, 2005 WI App 63, ¶40, 280 Wis. 2d 681, 696 N.W.2d 170 (when an express factual finding is not made, appellate courts normally assume the circuit court made findings in a manner that supports its final decision).

Dane Co. DHS v. Tierra M., 2010AP1648, District 4, 9/23/10

court of appeals decision (1-judge, not for publication); for Tierra M.: Martha K. Askins, SPD, Madison Appellate

The court rejects the idea that Tierra M.’s termination of parental rights wasn’t “fully tried” under the theory that the subsequently decided Sheboygan County Department of Health & Human Services v. Tanya M.B., 2010 WI 55 requires departmental services relevant to implied as well as explicitly ordered conditions for the children’s return. (The court distinguishes, among other things, “situations where the jury was affirmatively misled or where verdict questions clearly misstated the applicable law,” ¶19.)