Criminal Defendants Constitutional Right to Confrontation

June 26, 2009

Your constitutional rights.  The United States Supreme Court tells us what they mean. The latest revelation is Melendez-Diaz v. Massachusetts, an appeal from a conviction for drug distribution.

At the defendant’s trial, to prove that the substance which the defendant possessed was, in fact, cocaine, the prosecution had offered into evidence a report from the chemical lab.  According to Massachusetts law, the report was accompanied by affidavits by the chemists who analyzed the substance called “certificates of analysis.”  In one of these certificates, the signatory swore he or she found the stated results.    But the chemist himself or herself did not appear in court to testify.  Defendant’s lawyer objected to the admission of this evidence at the trial without the defendant having the opportunity to “confront” this witness and cross examine him or her, just like any other witness before the jury.

The Massachusetts procedure provided that such forensic analysis was to be admitted into evidence as prima facie evidence of its conclusions.  That is, the report could be contradicted by scientific evidence offered by the defendant, but, if uncontradicted, that would be the only evidence offered as to the chemical character of the substance.

The Supreme Court decided today that this procedure deprived the defendant of his Right to Confrontation under the Sixth Amendment to the United States Constitution. “Petitioner was entitled to ‘be confronted with’ the persons giving this testimony at trial, ” the Court held.

The Sixth Amendment to the United States Constitution provides:

Amendment VI
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

Similarly the Oklahoma Constitution provides in Article 2:

§ 20. Rights of accused in criminal cases.
In all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury of the county in which the crime shall have been committed or, where uncertainty exists as to the county in which the crime was committed, the accused may be tried in any county in which the evidence indicates the crime might have been committed. Provided, that the venue may be changed to some other county of the state, on the application of the accused, in such manner as may be prescribed by law. He shall be informed of the nature and cause of the accusation against him and have a copy thereof, and be confronted with the witnesses against him, and have compulsory process for obtaining witnesses in his behalf. He shall have the right to be heard by himself and counsel; and in capital cases, at least two days before the case is called for trial, he shall be furnished with a list of the witnesses that will be called in chief, to prove the allegations of the indictment or information, together with their postoffice addresses. (emphasis added)

In 2004, the Supreme Court had ruled that the Confrontation Clause really meant what it said in Crawford v. Washington. In Crawford, the defendant’s conviction had been based in part on evidence at trial of the tape recorded statement of a witness made outside court, but the witness was not presented in open court for cross-examination by the defendant. The Supreme Court reversed that conviction

Massachusetts had argued (and all law enforcement with them) that these chemical reports are not “testimonial,” that the witnesses who perform these chemical tests and complete the accompanying affidavits as their test results are not “accusatory” witnesses like eyewitnesses or arresting police officers, and therefore the “Confrontation” provision should not apply to them.  They should not be required  to appear in court.  These witnesses, the respondent argued in this case, were not like the “notorious” ex parte witnesses used to convict Sir Walter Raleigh of treason in 1603 by reading the written statements of witnesses instead of producing live witnesses, the case said to be the source for our England’s and our system’s belief in the Right of Confrontation.  But Justice Scalia noted that the Sir Walter Raleigh case was not the source of the Right of Confrontation but instead its violation in convicting Raleigh was a scandal to the jurisprudence of England because the Right was already well established.

“It’s just too much trouble for our chemists to have to come to court all the time,” runs one of the arguments.  The Supreme Court said, “The arguments advanced to avoid this rather straightforward application of Crawford are rejected.”

Justice Scalia, writing for the majority of the Supreme Court, noted that the “certificates” in the Massachusetts trial were really “affidavits,” condemned in the earlier Crawford decision. Justice Scalia said of the certificates, “They are incontrovertibly a ‘solemn declaration or affirmation made for the purpose of establishing or proving some fact.’” “The ‘certificates’ are functionally identical to live, in-court testimony, doing ‘precisely what a witness does on direct examination.’”

The Court noted that the cases involving such “affidavits” had arisen in the last 30 years, since the Court’s 1980 decision in Ohio v. Roberts.  The Roberts case had some language to the effect that unconfronted testimony was admissible so long as it bore “indicia of reliability,” and a number of state supreme court decisions had ruled that such affidavits or certificates did not violation the Confrontation Clause.

The Court noted precedents upholding the Confrontation Clause.  It cited Kirby v. United States decided in 1899.  In that case the defendant had been convicted at trial of receiving stolen property, some of the trial evidence of which was records of convictions of three other persons who were found guilty of stealing the property.

The dissent argued that an honest analyst to forensic tests will not alter his testimony when confronted by the defendant, i.e., just because he has to come to court.  “…The same cannot be said of a fraudulent analysis,” Justice Scalia wrote, noting cases where no analysis was done.   “Like the eyewitness who has fabricated his account to the police, analyst who provides false results may, under oath in open court, reconsider his false testimony.”  And, “like expert witnesses generally, an analyst’s lack or proper training or deficiency in judgment may be disclosed in cross-examination.”

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Oklahoma Court of Criminal Appeals Judge De-frocked, What Goes Around Comes Around

February 20, 2009

When a jury trial results in a conviction, or for any reason one of the parties in a criminal case wants to seek reversal of the trial judge’s decision on a matter, the issue must be taken to and decided by the Oklahoma Court of Criminal Appeals. That is the highest court, the court of last resort, for criminal matters in Oklahoma. Oklahoma is one of only two states in which appellate criminal matters are decided by court dedicated to criminal matters. Texas is the other state. In all other states, all issues of last resort are heard by the same court as the court that decides civil matters, usually called the state supreme court.

The five members of the Oklahoma Court of Criminal Appeals are appointed by the governor. Every four years of their term, their names appear on the retention ballot for decision by the voters. The voters of Oklahoma have never failed to retain a judge on the retention ballot.

For all these reasons, Judge Steve Lile had a job that was secure. He was one of the five judges who sat on the Court of Criminal Appeals. He could rule against every defense lawyer who brought a legal issue to the Court of Criminal Appeals for his decision. He could overrule every motion any lawyer urged on his defendant client’s behalf. He could rubber stamp practically every conviction brought to his court for review, and find no legal merit in any reason to overturn a conviction. And he did.

But then it was his turn.

Steve Lile traveled to attend project conferences, meetings of the Regimented Inmate Discipline (RID) Program offered by the Department of Corrections. He routinely applied for mileage reimbursement for that travel and was paid. But there were no meetings on those dates. Lile was filing false claims to the state so he could visit his illegitimate son, Loran Michael Wilson, in prison. Lile made almost weekly trips between June and October, 2004.

Lile had gotten caught intervening on behalf of his then-loverr, Dawn Lukasik, to get out of drug charges in Lawton. The Lawton District Attorney there dismissed the drug charges for the flimsiest of reasons, obviously as a favor to Lile, and from that incident, the travel claims came to light. Dawn Lukasik is the mother of Loran Michael Wilson, and Lile is his father, Lile later said. Lile had not known Wilson was his son until recently.

When Lile’s behavior came to light a few years ago, Lile resigned rather than fight the efforts of the Attorney General to remove him. Since then, Lile has been a private lawyer, a lawyer representing people accused of crimes, the kind of lawyer for whom Lile had such contempt for so many years.

Now the matter of Lile’s license to practice law has been heard by the Oklahoma Supreme Court. It was an ethical violation for Lile to file those false travel claims, even if he has paid back $1523.64 for false travel claims and paid back $1560.40 for false claims Lukasik made for her personal use under the pretense of using the purchases to remodel Lile’s state judge’s office.

Lile told the Supreme Court that he was regretful and remorseful for his misconduct. He was just not thinking straight, he said. Giving the limpest of possible excuses, Lile urged the Supreme Court to forgive his misconduct, that his conduct merited only a private reprimand.

The Supreme Court found no merit in Lile’s excuses, denials, and minimizations. Lile had sought and accepted an office of the highest responsibility from the sovereign state of Oklahoma. He had taken an oath to follow the law. He should have known better. He betrayed all of these. He does not deserve to practice law in Oklahoma. So decided the Supreme Court.

The Supreme Court listened to and considered all of Steve Lile’s arguments. The Court ruled against him, but he received full consideration of his position by the Court. That is all defense lawyers wanted when they appeared before Lile when he was sitting on the bench.