Supreme Court Update: Williams v. Illinois (10-8505) and Order List

July 7, 2012 Supreme Court Update

Greetings, Court fans!

In this Update, we bring you Williams v. Illinois (10-8505), the latest in a series of skirmishes between the Justices on the admissibility of crime lab reports under the Confrontation Clause, plus a long list of cert grants to whet your appetite for next Term.

Williams v. Illinois (10-8505) engendered a particularly rancorous 4-1-4 split among the Justices. Just a few years ago, in Melendez-Diaz v. Massachusetts (2009), the Court held that the Confrontation Clause barred the admission of certificates identifying the police-seized substance as an illegal drug, where the laboratory analysts who performed the analysis were not made available for cross-examination. Last year, in Bullcoming v. New Mexico (2011), the Court held that the State could not satisfy its Confrontation Clause requirement by calling an analyst who worked at the lab, but who did not sign the report. Here, in Williams's bench trial for rape, the prosecution did not present a witness who performed the DNA analysis on the vaginal swab taken from the victim. Instead, the prosecution presented an expert who testified that: according to documents admitted as business records, vaginal swabs taken from the victim were sent to Cellmark Diagnostics Laboratory; the expert received a copy of a report prepared by Cellmark; and the DNA profile in the Cellmark report matched the DNA profile of Williams's blood (which had been taken and entered into a law enforcement database in connection with another arrest). Williams argued that his Confrontation Clause rights were violated when the expert agreed with the prosecutor's description of the Cellmark DNA profile as "the male DNA profile found in semen from the vaginal swabs" taken from the victim. The Illinois courts rejected Williams's argument, on the ground that the statement was not admitted for the truth of the matter asserted, and the Confrontation Clause did not reach such statements.

Justice Alito, writing for a plurality consisting of himself, the Chief, Kennedy, and Breyer, agreed. Thomas provided a fifth vote to affirm, but on a different ground altogether. Indeed, he and the four dissenters agreed on why they thought the plurality was wrong. But we're getting ahead of ourselves. First, the plurality opinion: Alito would affirm for two independent reasons. One, in discussing the Cellmark DNA profile, the expert was merely explaining the facts on which her opinion – that the Cellmark DNA profile matched Williams's profile – was based. The statements were not admitted for the truth of the matter asserted, and thus fell outside the reach of the Confrontation Clause. Alito acknowledged that if Williams had opted for a jury trial, there would be a valid concern that jurors would take the expert's testimony as proof that the Cellmark profile was derived from the sample obtained from the victim's vaginal swabs. But Williams had chosen a bench trial, and judges are presumed to understand the limits of inadmissible information and not rely on that information for any improper purpose. The dissent's view that the Cellmark report must have sneaked in because there was no other evidence to establish that the Cellmark profile was based on the semen from the victim's vaginal swabs was, in Alito's opinion, "both legally irrelevant for present purposes and factually incorrect." It was legally irrelevant because the question before the Court was whether Williams's Confrontation Clause rights were violated, not whether the State had offered sufficient foundational evidence (a Due Process Clause claim, which Williams did not raise). The dissent's view was factually incorrect because the state offered evidence showing the chain of custody from the physician, to the police, to Cellmark, and back. The DNA match itself provided strong circumstantial evidence that the Cellmark profile was based on semen taken from the victim. Because Williams had not been identified as a subject before the match, it was highly unlikely that Cellmark would have had access to any other sample of Williams' DNA.

The plurality would also affirm for a second reason: even if the Cellmark report had been admitted into evidence, it would not have been the type of extrajudicial statement the Confrontation Clause was intended to reach. The Confrontation Clause refers to testimony by "witnesses against" an accused. Under the Court's precedents, Confrontation Clause abuses have always involved out-of-court statements having the primary purpose of accusing a targeted individual of engaging in criminal conduct. By contrast, the Cellmark report was produced for the primary purpose of finding a rapist on the loose; Williams was not even under suspicion at the time. Laboratory technicians generally have no way of knowing whether the DNA profiles they prepare will incriminate – or exonerate – anyone, and there was no evidence of malice or improper conduct by anyone at Cellmark in this case. Finally, the plurality noted that numerous technicians are involved in preparing a DNA profile. If such profiles could not be introduced without calling every technician who had a role, economic pressures would force prosecutors to forgo DNA testing and rely instead on older forms of evidence, such as eyewitness identification, which have proven less reliable.

Although he joined the plurality, Justice Breyer wrote a separate concurrence to lament that neither the plurality nor the dissent had truly grappled with the question of how to apply the Confrontation Clause to crime lab reports, where the "reality of the matter" was that reports involved "layer upon layer of technical statements (express or implied) made by one expert and relied upon by another." There seemed to be "no logical stopping place" between requiring the prosecution to call one of the technicians who worked on the matter and calling them all. Because "judges, prosecutors, and defense lawyers have to know, in as definitive a form as possible, what the Constitution requires so that they can try their cases accordingly," Breyer would have the parties and amici reargue the case, focusing on where the lines should be drawn. In the absence of reargument, however, Breyer would adhere to the dissenting view in Melendez-Diaz and Bullcoming, and not consider the Cellmark report "testimonial" for purposes of the Confrontation Clause. Like Alito, Breyer noted that the DNA report here did not seek to accuse Williams, but to generate objectively a profile of a then-unknown suspect's DNA from evidence left at the crime.

As noted earlier, Justice Thomas concurred in the judgment only. He would affirm, but only because the statements at issue were not "solemn" enough. The text of the Confrontation Clause applies to "witnesses," i.e., those who bear testimony. Testimony is defined as a "solemn declaration or affirmation made for the purpose of establishing or proving some fact." Here, the Cellmark report lacked the solemnity of an affidavit or deposition, and – unlike the reports in Melendez-Diaz and Bullcoming – was not sworn or certified. Thus, it fell outside the reach of the Confrontation Clause. Apart from providing a fifth vote to affirm, however, Justice Thomas disagreed with the plurality in almost every respect. In Thomas's view, there was "no meaningful distinction between disclosing an out-of-court statement so that the factfinder may evaluate the expert's opinion and disclosing that statement for its truth." The value of the expert's testimony depended on the truth of her "assumptions" – but she was the only person who testified directly about those assumptions. Thomas also criticized the primary purpose test in the plurality's second rationale as "lack[ing] any grounding in constitutional text, in history, or in logic." Indeed, in Melendez-Diaz, the Court held that the Sixth Amendment contemplates only two classes of witnesses – those against the defendant and those in his favor – and rejected the notion that there was a third category of witnesses, helpful to the prosecution, but somehow immune from confrontation."

Justice Kagan penned a blistering dissent, joined by Scalia, Ginsburg, and Sotomayor. This was "an open-and-shut case," in the dissenters view. The prosecution introduced the results of Cellmark's testing without putting the analyst that generated them on the stand, thereby depriving Williams of his right to confront the witnesses against him. (Kagan exclaimed: "Have we not already decided this case?") Kagan pointed out that 5 Justices rejected the plurality's view that the statements were not covered by the Confrontation Clause because they weren't admitted for the truth of the matter asserted. Although the Court had recognized a not-for-the-truth carveout from the Confrontation Clause in the past, those cases involved situations where the truth of the statement was entirely immaterial. "The situation could not be more different when a witness, expert or otherwise, repeats an out-of-court statement as the basis for a conclusion, because the statement's utility is then dependent on its truth." Under the plurality's approach, a prosecutor could choose the analyst-witness of his dreams, offer her as an expert, and have her say everything an actual tester might have said: "If the Confrontation Clause prevents the State from getting its evidence in through the front door, then the State could sneak it in through the back. What a neat trick—but really, what a way to run a criminal justice system. No wonder five Justices reject it." The dissenters acknowledged that there was less of a risk in bench trials that a judge would consider such evidence for an improper purpose. But the Court had never considered the decisionmaker's identity to be relevant in applying the Confrontation Clause. The dissenters also rejected the plurality's second ground for affirmance. The plurality's focus on the purpose or motivation for the statement overlooked the fact that the typical problem with modern laboratory analyses is not with intentional tampering and personal vendettas, but rather, careless or incompetent work. Cross-examination was designed to suss that out.

You might think that Kagan would have some kind words for Thomas, in light of how he helped her create a 5-4 bloc against using experts to introduce lab reports. But no. Kagan dismissed Thomas's solemnity-focused approach as "grant[ing] constitutional significance to minutia." If Thomas's approach were accepted, prosecutors would quickly figure out how to avoid Confrontation Clause obligations by using (or not using) the right kind of forms and language. Indeed, Thomas's approach would turn the Confrontation Clause upside down by admitting the least solemn – and thus most unreliable – statements. In parting, Kagan took one more swipe at the five Justices who voted to affirm: "What comes out of four Justices' desire to limit Melendez-Diaz and Bullcoming in whatever way possible, combined with one Justice's one-justice view of those holdings, is—to be frank—who knows what." Unfortunately, I don't think we could have said it any better.

We still have a few more decisions from this Term to bring you. In the meantime, here's a sneak peak at what we'll be seeing next Term. The Court has granted cert in the following cases:

Smith v. United States (11-8976) will consider whether "withdrawing from a conspiracy prior to the statute of limitations period negates an element of a conspiracy charge such that, once a defendant meets his burden of production that he did so withdraw, the burden of persuasion rests with the government to prove beyond a reasonable doubt that he was a member of the conspiracy during the relevant period."

Decker v. Northwest Envtl. Defense Center (11-338), consolidated with Georgia-Pacific West v. Northwest Envtl. Defense Center (11-347) asks: (1) Whether a citizen may bypass judicial review of the Environmental Protection Agency's (EPA's) rules implementing the Clean Water Act's (CWA's) National Pollutant Discharge Elimination System (NPDES), as provided under 33 U.S.C. § 1369, and instead challenge the validity of the rule in a citizen suit to enforce the CWA; and (2) Whether the Ninth Circuit erred in holding that stormwater from logging roads is industrial stormwater under the CWA and EPS's rules, even though EPA has determined that stormwater from logging roads and other specified silvicultural activities is non-industrial stormwater that does not require an NPDES permit?

Los Angeles Cty. Flood Control v. Natural Resources (11-460) asks: "When water flows from one portion of a river that is navigable water of the United States, through a concrete channel or other engineered improvement in the river constructed for flood and stormwater control as part of a municipal separate storm sewer system, into a lower portion of the same river, can there be a ‘discharge' from an ‘outfall' under the Clean Water Act, notwithstanding this Court's holding in South Florida Water Management District v. Miccosukee Tribe of Indians (2004), that transfer of water within a single body of water cannot constitute a ‘discharge' for purposes of the Act?"

Vance v. Ball State University (11-556) asks whether the "supervisor" liability rule established in Faragher v. City of Boca Raton (1998) and Burlington Industries, Inc. v. Ellerth (1998) – that an employer is vicariously liable for severe or pervasive workplace harassment by the victim's supervisor, but not liable for harassment by the victim's co-employee absent proof of negligence – "applies to harassment by those whom the employer vests with authority to direct and oversee their victim's daily work, or . . . is limited to those harassers who have the power to ‘hire, fire, demote, promote, transfer, or discipline' their victim."

Comcast Corp. v. Behrend (11-864) asks whether "a district court may certify a class action without resolving whether the plaintiff class has introduced admissible evidence, including expert testimony, to show that the case is susceptible to awarding damages on a class-wide basis."

Already, LLC v. Nike, Inc. (11-982) asks whether "a federal district court is divested of Article III jurisdiction over a party's challenge to the validity of a federally registered trademark if the registrant promises not to assert its mark against the party's then-existing commercial activities."

Genesis Healthcare Corp. v. Symczyk (11-1059) asks whether "a case becomes moot, and thus beyond the judicial power of Article III, when the lone plaintiff receives an offer from the defendants to satisfy all of the plaintiff's claims."

FTC v. Phoebe Putney Health (11-1160) asks two questions: (1) Whether the Georgia legislature, by vesting a local government entity with general corporate powers to acquire and lease out hospitals and other property, has "clearly articulated and affirmatively expressed" a "state policy to displace competition" in the market for hospital services, such that the federal antitrust laws do not apply; and (2) "Whether such a state policy, even if clearly articulated, would be sufficient to validate the anticompetitive conduct in this case, given that the local government entity neither actively participated in negotiating the terms of the hospital sale nor has any practical means of overseeing the hospital's operation."

Sebelius v. Auburn Regional Medical (11-1231) will decide whether "the 180-day statutory time limit for filing an appeal with the Provider Reimbursement Review Board from a final Medicare payment determination made by a fiscal intermediary, 42 U.S.C. 1395oo(a)(3), is subject to equitable tolling."

U.S. Airways, Inc. v. McCutchen (11-1285) will decide whether Section 502(a)(3) of the Employee Retirement Income Security Act "authorizes courts to use equitable principles to rewrite contractual language and refuse to order participants to reimburse their plan for benefits paid, even where the plan's terms give it an absolute right to full reimbursement."

Finally, Rule 52(b) of the Federal Rules of Criminal Procedure permits an appellate court to correct a trial court's "plain error" despite the lack of an objection in the trial court. In Johnson v. United States (1997), the Court held that when the governing law on an issue is settled against the defendant at the time of trial but then changes in the defendant's favor by the time of appeal, "it is enough that an error be 'plain' at the time of appellate consideration." Henderson v. United States (11-9307) now asks whether an appellate court should apply Johnson's time-of-appeal standard when the governing law is "unsettled at the time of trial but settled in the defendant's favor by the time of appeal."

The Court has also asked the SG to weigh on a number of pending petitions:

Blue Cross and Blue Shield v. Fossen (11-1155) would ask "[w]hether a substantive state-law insurance standard saved from preemption under the insurance saving clause of the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1144(b)(2)(A), can be enforced through state-law remedies or instead is enforceable exclusively through ERISA's enforcement scheme, 29 U.S.C. § 1132."

Hillman v. Maretta (11-1221) would ask "whether 5 U.S.C. § 8705(a), any other provision of the Federal Employees Group Life Insurance Act of 1954 (FEGLIA) or any regulation promulgated thereunder preempts a state domestic relations equitable remedy which creates a cause of action against the recipient of FEGLI insurance proceeds after they have been distributed."

35 U.S.C. § 271(e)(1) provides a safe harbor from patent-infringement liability for otherwise-infringing conduct that is "reasonably related to the development and submission of information under a Federal law which regulates the manufacture, use, or sale of drugs." Glaxosmithkline v. Classen Immunotherapies, Inc. (11-1078) would ask whether the Federal Circuit erred in concluding that this safe harbor "is limited to activities conducted to obtain pre-marketing approval of generic counterparts."

Harris v. Quinn (11-681) would ask: (1) "May a State, consistent with the First and Fourteenth Amendments to the United States Constitution, compel personal care providers to accept and financially support a private organization as their exclusive representative to petition the State for greater reimbursements from its Medicaid programs?" and (2) "Did the lower court err in holding that the claims of providers in the Home Based Support Services Program are not ripe for judicial review?"

Retractable Technologies v. Becton, Dickinson and Co. (11-1154) would ask two questions: (1) "Whether a court may depart from the plain and ordinary meaning of a term in a patent claim based on language in the patent specification, where the patentee has neither expressly disavowed the plain meaning of the claim term nor expressly defined the term in a way that differs from its plain meaning;" and (2) "Whether claim construction, including underlying factual issues that are integral to claim construction, is a purely legal question subject to de novo review on appeal.

Hold on to your hats - we'll be back with the last of this Term's decisions soon.

Kim & Jenny

From the Appellate and Complex Legal Issues Practice Group at Wiggin and Dana. For more information, contact Kim Rinehart or any other member of the Practice Group at 203-498-4400