“No refusal” weekends are spreading throughout Texas like a wild prairie fire. In several Texas cities, “no refusal” weekends will be conducted every weekend for the next three years due to grant money. In light of these “no refusal” weekends (and the five mandatory blood draw scenarios that do not require a warrant), there will be an even greater demand and backlog on Texas crime laboratories analyzing the blood specimens obtained in these cases. This demand and backlog will create problems as to who the State presents at trial to testify about the blood test analysis. A Bull[is]coming to answer the question of whether criminal defense lawyers are entitled to confront at trial the actual analyst who conducted the testing on the blood specimens, or any other specimen analyzed in any criminal case.
On March 2, 2011, the Supreme Court will hear oral arguments in a case styled Donald Bullcoming v. New Mexico, No. 09-10876 (below: 2010-NMSC-007, Docket No. 31,186 (NM Sup. Ct., Feb. 12, 2010))(set for argument on Tuesday, February 22, 2011). At issue is whether the Confrontation Clause permits the prosecution to introduce testimonial statements of a non-testifying 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.
Bullcoming was prosecuted for DWI in the State of New Mexico. During trial, the state introduced a forensic report asserting that gas chromatograph testing had determined his blood alcohol level to have been 0.21. The State did not present live testimony from the lab analyst who conducted the blood test and wrote the report. Instead, the State presented the laboratory supervisor, a “surrogate witness,” who did not witness the testing. The State did not show that the analyst was unavailable to testify, and Bullcoming never had a prior opportunity to cross-examine the analyst. Bullcoming objected on the basis that it violated his right to confront the actual witness who performed the analysis. Bullcoming was convicted and he appealed.
While Bullcoming’s appeal was pending in the New Mexico Supreme Court, the U.S. Supreme Court held in Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009), that authors of forensic reports are “witnesses” under the Sixth Amendment and “are therefore subject to confrontation.” Id. at 2531–32, 2537. The New Mexico Supreme Court nonetheless rejected Bullcoming’s Confrontation Clause claim and affirmed his conviction. The U.S. Supreme Court granted certiorari.
Bullcoming’s counsel, Jeffrey Fisher of Stanford Law School Supreme Court Litigation Clinic, filed an outstanding brief. It is a must-read. A brief summary of his argument is that allowing a surrogate witness to take the stand in the place of the analyst violates the Confrontation Clause’s bar against surrogate testimony and denies an accused a meaningful opportunity to cross-examine the surrogate about the non-testifying witness’s testimonial statements. A surrogate witness who lacks personal knowledge regarding whether the analyst skipped or botched important steps in the forensic process stymies all of these inquiries. In Bullcoming, the surrogate witness conceded that “you don’t know unless you actually observe the analysis that someone else conducts, whether they followed the protocol in every instance.” A surrogate may not know anything about the analyst who wrote the report. Even if he does, the surrogate would likely be unable to speak from personal knowledge about the analyst’s training, skill, or attention to detail—or to demonstrate the analyst’s professionalism or knowledge of laboratory procedures. And the jury would be unable to observe the analyst in order to gauge those attributes for itself.
The Bullcoming case illustrates the importance of having live testimony from the analyst who wrote the report in order to probe his credibility. During the trial, the surrogate witness admitted on cross-examination that the actual analyst did not testify because the State had “very recently put [him] on unpaid leave.” These statements of the surrogate describe past events and human actions, not machine-generated data. What is more, these statements constituted powerful evidence against Bullcoming. Among the leading reasons for forensic errors are contamination of samples, switching samples, and running the wrong kinds of tests. The assertions of the surrogate witness that none of these things occurred here thus provided fodder for potentially important cross-examination. Yet because the State put a surrogate witness on the stand, the witness’ testimonial assertions were insulated from adversarial testing. This violated the Confrontation Clause under any reasonable interpretation of the provision.
Jeff Fisher summed up the confrontation problem presented in Bullcoming with a terrific analogy: “Just as substitute counsel cannot satisfy the Sixth Amendment, neither can confrontation of a substitute witness.”
The National Association of Criminal Defense Lawyers and the National College for DUI Defense joined together and filed an Amicus Curiae Brief in support of the right to confront the actual analyst. The Amicus Curiae Brief was written by Leonard Stamm of Greenbelt, Maryland; Justin McShane of Harrisburg, Pennsylvania; and Ronald Moore of Irvine, California. These lawyers did an outstanding job of simplifying the complicated methodology of gas chromatography. The Amicus Curiae Brief is also a must-read.
If the Supreme Court’s recent confrontation decisions in Crawford v. Washington, 541 U.S. 36 (2004), Davis v. Washington, 547 U.S. 813 (2006), Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009), and Briscoe v. Virginia, 130 S. Ct. 1316 (2010), are any indication, the right to confront the actual analyst who performed the blood analysis should prevail. Melendez-Diaz was decided by a 5–4 vote, with Justice Scalia leading the way. Justice Scalia suggested during oral argument in Briscoe v. Virginia that the only reason certiorari was granted in that case was due to an attempt to undermine the right to confront the actual analyst created in Melendez-Diaz. There is no reason to doubt that certiorari was granted in Bullcoming for any other reason. The justices leading the charge against confrontation will try once again with the two new justices on the Supreme Court. The outcome in Bullcoming will affect any criminal case where forensic chemical tests are conducted. Stay tuned, and remember to wear all white and a red sash on March 2, 2011: We want to make sure that our clients do not get gored a second time.
Doug Murphy is a partner with Trichter & Murphy, P.C., based in Houston, Texas. Doug is a nationally recognized legal seminar lecturer and author of numerous published legal articles. Doug is a Regent with the National College for DUI Defense. He is a co-chair of the DWI program with the Texas Criminal Defense Lawyers Association (TCDLA), in addition to serving his second term on the Board of Directors. Doug is board certified in DUI/DWI Defense by the National College for DUI Defense, and is also board certified in criminal law by the Texas Board of Legal Specialization. Doug has been recognized as a Texas Super Lawyer Rising Star by Texas Monthly magazine every year since the recognition began in 2004, and as a Texas Super Lawyer in 2009. Doug was also recognized as a Top Lawyer for the People for being one of the best DWI lawyers in Texas by H-Texas magazine. Frequently sought after as a news commentator on DWI and other criminal law issues, Doug was referred to as the “Drinking Driver’s Best Friend” by the Houston Press.