Filed: Nov. 28, 2017
Latest Update: Mar. 03, 2020
Summary: 15-3831-pr Washington v. Griffin UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term 2016 (Argued: January 18, 2017 Decided: November 28, 2017) No. 15-3831-pr –––––––––––––––––––––––––––––––––––– KENNETH WASHINGTON, Petitioner-Appellant, -v.- THOMAS GRIFFIN, SUPERINTENDENT, SULLIVAN CORRECTIONAL FACILITY, Respondent-Appellee. –––––––––––––––––––––––––––––––––––– Before: KATZMANN, Chief Judge, KEARSE and LIVINGSTON, Circuit Judges. Petitioner-Appellant, convicted in New York State o
Summary: 15-3831-pr Washington v. Griffin UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term 2016 (Argued: January 18, 2017 Decided: November 28, 2017) No. 15-3831-pr –––––––––––––––––––––––––––––––––––– KENNETH WASHINGTON, Petitioner-Appellant, -v.- THOMAS GRIFFIN, SUPERINTENDENT, SULLIVAN CORRECTIONAL FACILITY, Respondent-Appellee. –––––––––––––––––––––––––––––––––––– Before: KATZMANN, Chief Judge, KEARSE and LIVINGSTON, Circuit Judges. Petitioner-Appellant, convicted in New York State of..
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15‐3831‐pr
Washington v. Griffin
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2016
(Argued: January 18, 2017 Decided: November 28, 2017)
No. 15‐3831‐pr
––––––––––––––––––––––––––––––––––––
KENNETH WASHINGTON,
Petitioner‐Appellant,
‐v.‐
THOMAS GRIFFIN, SUPERINTENDENT, SULLIVAN CORRECTIONAL FACILITY,
Respondent‐Appellee.
––––––––––––––––––––––––––––––––––––
Before: KATZMANN, Chief Judge, KEARSE and LIVINGSTON, Circuit Judges.
Petitioner‐Appellant, convicted in New York State of multiple counts of
first‐ and second‐degree burglary and first‐ and second‐degree assault, as well as
first‐degree criminal sexual act and first‐degree sexual abuse, contends that his
Confrontation Clause rights were violated when records of the Office of the
Chief Medical Examiner of the City of New York regarding the DNA testing of
his cheek swab were admitted at trial. He asserts that the United States District
Court for the Eastern District of New York erred in denying his petition for a
writ of habeas corpus on this basis, arguing that the state court’s rejection of his
Confrontation Clause claim was contrary to, or involved an unreasonable
1
application of, clearly established law. We agree with the district court that the
Supreme Court cases on which Petitioner‐Appellant relies neither clearly
establish his entitlement to cross‐examine the analysts who prepared the
informal, unsworn documents in the case file introduced as evidence at his trial,
nor provide a basis for concluding that the state court judgment was contrary to,
or involved an unreasonable application of, clearly established law.
Accordingly, the judgment of the district court is AFFIRMED.
Chief Judge KATZMANN concurs in a separate opinion.
PAUL SKIP LAISURE (Lynn W.L. Fahey, on the
brief), Appellate Advocates, New York,
New York, for Petitioner‐Appellant.
WILLIAM H. BRANIGAN, Assistant Queens
Country District Attorney (John M.
Castellano and Joseph N. Ferdendzi,
Assistant Queens County District
Attorneys, on the brief), for Richard A.
Brown, Queens County District Attorney,
Kew Gardens, New York, for
Respondent‐Appellee.
DEBRA ANN LIVINGSTON, Circuit Judge:
Petitioner‐Appellant Kenneth Washington (“Washington”) appeals from a
judgment of the United States District Court for the Eastern District of New York
(Block, J.), entered on November 5, 2015, denying his petition for a writ of habeas
corpus. Washington was convicted in New York of multiple counts of first‐ and
second‐degree burglary and first‐ and second‐degree assault, as well as
2
first‐degree criminal sexual act and first‐degree sexual abuse. He claims that
the introduction at his trial, during the testimony of an expert lab analyst, of a
case file concerning the DNA testing of Washington’s buccal cheek swab and
containing notations made by the expert’s coworkers, “analysts whom the State
did not call to the stand,” Pet’r’s Br. 2, violated his Sixth Amendment right to
confront witnesses against him, as clearly established by Melendez‐Diaz v.
Massachusetts, 557 U.S. 305 (2009), and Bullcoming v. New Mexico, 564 U.S. 647
(2011). The district court denied the petition, but granted Washington a
certificate of appealability. Washington v. Griffin, 142 F. Supp. 3d 291, 297
(E.D.N.Y. 2015). We conclude that Washington has not shown, as he must, that
the state court either: (1) “arrive[d] at a conclusion opposite to that reached by
[the Supreme] Court on a question of law or . . . decide[d] a case differently than
[the Supreme Court] on a set of materially indistinguishable facts”; or (2)
“unreasonably applie[d] [the correct governing legal] principle to the facts” of
this case. Williams v. Taylor, 529 U.S. 362, 413 (2000). Accordingly, we affirm
the judgment of the district court.
3
BACKGROUND
I. Factual Background1
Washington was charged with multiple felony counts—three counts each
of first‐ and second‐degree burglary, two counts each of first‐ and second‐degree
assault, first‐degree criminal sexual act, and first‐degree sexual abuse—in
connection with three separate home invasions that took place over the course of
eleven months between August 2006 and July 2007 in adjacent neighborhoods in
Queens, New York. DNA evidence was recovered from each of the three crime
scenes, as recounted below. Washington was charged when, as stipulated at
trial, a DNA profile based on the DNA evidence recovered at each crime scene
was found to match his profile, contained in the New York State DNA Index.
A. The Crimes
1. The T‐Shirt Evidence
The first set of crimes occurred around 2:00 a.m. on August 17, 2006, when
an off‐duty New York City Police Department (“NYPD”) detective who lived
alone, awoke to find an intruder in her bedroom rifling through her jewelry box.
The detective described the intruder, who gained access to her home through a
1 The factual background presented here is derived from exhibits, testimony, and
a stipulation offered at trial.
4
kitchen window, as a slender black man with cornrows wearing a white t‐shirt,
denim shorts, and a black stocking cap with a knot at the top. The cap covered
the intruder’s face and he wore socks on his hands.
When the NYPD officer attempted to retrieve a firearm from the
nightstand beside her bed, the intruder approached and they struggled for the
weapon. Calling her a “bitch” and a “stupid fat bitch,” the intruder viciously
beat the detective on the head, first with his hands and eventually with the gun,
so hard she bled into her eyes and could not see. Trial Tr. 494. The struggle
and beating continued into the hallway and then the bathroom. Demanding
money, the intruder pushed his victim into the bathtub and asserted that he had
been watching her and knew that she was “some police type bitch.” Id. at 495.
When he left her alone in the bathroom (apparently so that he could search for
cash), the detective attempted to get up but slipped on the rim of the bathtub,
which was wet with her blood. The intruder returned to the bathroom and
scolded her to stay put, stomping on the woman and dumping the contents of
her handbag over her. When the intruder again left her alone, the detective
used the cellphone that had fallen from her bag to call 911. By the time help
arrived, the intruder had left the scene. Emergency responders took the victim
5
to the hospital, where she was admitted and treated for her wounds. When she
eventually returned to her apartment, the detective discovered that the intruder
had taken jewelry, her police shield, her gun, and an NYPD‐issued MetroCard.
During an early morning search of the area near the victim’s home in the
hours after the crime, a police officer observed a white t‐shirt and a white sock,
both apparently covered in blood, and a stocking cap. Officers photographed,
collected, and documented these items. Eventually, analysts at the New York
City Office of the Chief Medical Examiner (“OCME”), an accredited lab affiliated
with the New York City Department of Health and Mental Hygiene, tested these
items for DNA evidence. 2 From scrapings taken from the neck of the t‐shirt,
the OCME analysts developed a DNA profile of a then‐unknown male
individual.3
2. The Glove Evidence
The second criminal incident occurred on December 5, 2006, about four
months later, and was discovered when a working mother returned home,
Washington refers to the laboratory personnel whose work is at issue here as
2
“analysts.” E.g., Pet’r’s Br. 2. The state refers to these individuals as “analysts” and
“technicians.” Compare Respondent’s Br. 3 with id. 18. For purposes of this opinion
we refer to these workers as “analysts.”
Scrapings from both the blood‐stained t‐shirt and bloody sock generated a
3
DNA profile that matched the NYPD detective. The OCME analysts were unable to
generate a DNA profile from the stocking cap.
6
accompanied by family, to find her house in disarray. Her handbag had been
emptied out, and someone had strewn her earrings around the living room.
Several items—sneakers, multiple video gaming systems, and two
watches—were gone. A window in the dining room had been forced open.
Two gloves that did not belong to any of the home’s occupants were
recovered at the scene. Police officers collected the gloves and sent them to
OCME for DNA testing. OCME analysts determined that, while there was a
mixture of DNA present on each glove, both had the same major donor. A male
DNA profile was generated from glove scrapings.
3. The Iced‐Tea Container Evidence
Finally, on the afternoon of July 15, 2007, the third victim, who was alone
at home at the time of the crime, had just awakened and was watching television
in bed when a male intruder appeared in her bedroom. The intruder, a black
male with cornrows, wore her long white bathrobe, and had covered his face
with a towel or t‐shirt. The third victim, like the first, noticed that the intruder
wore socks on his hands.
The intruder violently assaulted this third victim, placing his hand over
her mouth and pushing her face into a pillow to muffle her screams, before
7
pulling her off the bed by her hair and pressing his penis between her buttocks.
The victim, who was pregnant at the time, used her hands to shield her stomach
during this assault. When she resisted the intruder, he punched the side of her
head, causing her to see stars, and tied a t‐shirt around her face. The intruder
repeatedly called the victim a bitch and also demanded money. At one point
during the attack, the intruder dragged the woman into the kitchen, where he
removed a container of iced tea from the refrigerator and took several gulps from
it—spitting some of the tea onto her leg. The assailant then dragged her back to
the bedroom, where he began choking her.
The victim defecated on herself at this assault, enraging the intruder who
called her a “nasty bitch,” dragged her by the hair into the bathroom, threw her
in the shower, and told her to clean herself. Id. at 719. The intruder then
dragged her back to the bedroom and continued his attack, warning her that if
she didn’t stop whimpering he would kill her. When the victim again defecated
upon being choked, the intruder hit her on the face, returned her to the
bathroom, and left her on the toilet. Once he left the bathroom, the woman
locked the door behind him. While he banged on the door, threatening to kill
her, she opened the bathroom window, which was eight feet above the ground,
8
and jumped out, landing on her back. Scantily clad and covered in blood and
feces, she crawled on her hands and knees across the concrete to the front of the
house, and then ran across the street to a neighbor’s home for help.
The neighbor called 911, noting, as she did so, an individual in a white
robe scaling the fence behind the victim’s home. An ambulance took the victim
to the hospital where medical personnel treated her injuries and monitored her
unborn child during the next few days. She never returned to the residence, but
when friends eventually retrieved her things, and she was able to go through
them, she discovered that her eyeglasses, jewelry, and some money had been
taken. While processing the crime scene, a police officer collected an iced‐tea
container from the bedroom, which the victim identified at trial. The police sent
the iced‐tea container to OCME for testing. The OCME DNA lab developed a
male DNA profile from amylase taken from the container.4
B. The DNA Evidence
1. The DNA Index Match
At trial, the parties stipulated that Washington was not an identical twin
and that, had witnesses been called from the New York State Police Forensic
4 Amylase is an enzyme present in saliva.
9
Biology Laboratory, these witnesses would have offered evidence establishing
that “the male DNA profile developed by [OCME]’s DNA laboratory from the
evidence contained in FB06‐14709, scrapings from the neck of white T‐shirt,
FB07‐2443, scrapings from the glove, and FB07‐1469, amylase from ice[d‐]tea
container, was uploaded into [the] New York State DNA Index in Albany.”
Joint App’x 23. The profile from the crime‐scene evidence was then compared
to known individuals in that database. The database included Washingtonʹs
DNA profile. The parties stipulated that “the New York State DNA Index
revealed that the male DNA profile developed from the evidence described
above matched the defendant, Kenneth Washington’s, DNA profile contained in
the New York State DNA Index.” Id. at 24. DNA Index personnel informed
the NYPD of the match.
Washington was arrested. After Washington’s arrest, Detective Patrick
Curran, who testified at trial, used a buccal swab to take a DNA sample from
Washington pursuant to a court order.5 Detective Curran sent the buccal swab
in a sealed envelope to the OCME DNA lab for testing.
5 A buccal swab is a Q‐tip like instrument that is rubbed along the inside of the
cheek for the collection of cells.
10
2. Yanoff’s Analysis of the DNA Evidence
At Washington’s trial, the state relied on the testimony of Natalyn Yanoff,
a Level Three Criminalist with OCME, who testified as an expert in the field of
DNA analysis, forensic biology, and the statistical significance of DNA profiles,
to establish that the DNA profiles developed from the evidence recovered at each
crime scene matched the DNA profile of Washington developed from the buccal
swab. Yanoff testified that as a Level Three Criminalist, she not only
“manage[s] [her] own cases in which [she] interpret[s] DNA results, write[s]
reports, and testif[ies] in court if needed,” she also supervises others in the use of
various DNA techniques, coordinating the lab’s work flow and reviewing test
results. Joint App’x 26. She testified generally about DNA and about the
process used by her lab to develop DNA profiles.6
6 There are several steps to developing a DNA profile, some or all of which may
be performed by different analysts, and multiple times. When evidence is submitted
for testing, analysts prepare a sample and then extract DNA from the cells in the
sample. If there is enough DNA to proceed, analysts then make millions of copies of
portions of the DNA, which is called amplification. Next, analysts, focusing on the
very small percent of DNA that varies from person to person, examine the DNA to
determine what alleles are present at specific locations, called loci. (Alleles are
alternative forms of a gene found at a particular locus on the DNA strand.) The
resulting DNA profile is a string of numbers representing the particular alleles found at
each of the tested locations.
11
Yanoff testified that as to the first crime‐scene evidence, she cut or scraped
samples from the t‐shirt, the sock, and the stocking cap, after receiving these
items in sealed condition in the lab. She submitted cuttings of apparent blood
stains on the t‐shirt and also scraped the collar, “an area [in] which we expect,”
she testified, “more cells will be found . . . since that area rubs against the neck.”
Id. at 52. She testified about her analysis of the t‐shirt scrapings, which were
determined to contain a mixture of cells from the victim and from a
then‐unknown male. These processes produced sufficient material for the
OCME lab to develop a profile of the unknown male, which was placed in a
database containing all the DNA profiles generated in her lab.
Yanoff testified that the analysis of the iced‐tea container in the third
victim’s residence took place some nine months later, and that when the profile
from this sample was uploaded into the database, “we found out that it
match[ed] the DNA profile that we found in the previous case.” Id. at 65. The
male DNA profile developed from the glove scrapings in the second home
invasion similarly “matched the DNA profile that we saw on [the] ice[d] tea
container and . . . on the T‐shirt.”7 Joint App’x 75. Yanoff testified that she had
7 Yanoff affirmed that the evidentiary items from each crime scene “were never
at the lab at the same time.” Id. at 78.
12
calculated how often this specific profile could be expected to appear in the
human population, and that this combination of alleles would be expected to be
found in approximately “one in greater than [a] trillion individuals.” Id. at 77.
Yanoff made clear that as to the gloves and iced‐tea container recovered
from the second and third crime scenes, she did not personally prepare the
samples for testing. (Regarding the crime‐scene evidence generally, Yanoff
does not appear to have personally performed the tasks necessary to extract the
DNA from the cells or to amplify those portions to be analyzed, nor did she
necessarily make the initial assessment as to the alleles to be found at particular
loci.) Yanoff explained that her lab works “the same way as . . . [an] assembly
line,” with a group of analysts assigned to specific tests each week, but with an
interpreting analyst and at least one supervisor, at the end, reviewing all the raw
data associated with a given sample and “mak[ing] conclusions on the findings.”
Id. at 39. Yanoff testified that she was “familiar with each and every page,
specifically each and every report and analysis” generated in regards to the
laboratory testing of both the crime‐scene evidence and the buccal swab. Id. at
45; see also id. at 79. Yanoff indicated that she personally reviewed the raw data
resulting from all the DNA sampling, reaching her own conclusions based on
13
that data and comparing the DNA profiles developed from each of the crime
scenes and from the swab.
During Yanoff’s testimony, the state offered four OCME case files
(corresponding to each of the three crime scenes and to the buccal swab), each
containing a report from Yanoff as to her conclusions, as well as lab materials
related to the DNA testing associated with each file. Only the case file related to
the buccal swab is relevant here.8 With regard to each case file, Yanoff testified
that she examined each page in the file, considered the raw data, and reached her
own conclusions based on the data in the file. She also testified as to the
foundation for the file’s admission as a business record. As relevant here,
Washington argued that admission of the buccal swab case file violated his
Confrontation Clause rights because Yanoff had not personally tested the swab,
but relied on data generated by other analysts. The trial court nonetheless
admitted this file along with the files regarding the profiles developed from each
crime scene.
The OCME case file regarding the testing of Washington’s buccal swab
contains several documents. The first page is a “Certification as a Business
In his petition, Washington limits his challenge to the admission of the case file
8
regarding the DNA testing of his buccal swab, and does not challenge the admission of
the OCME case files concerning the DNA testing of the crime‐scene evidence.
14
Record” indicating the records in the file “were prepared by [OCME] in the
regular course of business within the Department of Forensic Biology.” Id.
at 381. The next document is the four‐page “Laboratory Report,” signed by
Yanoff. This document identifies the suspect (Kenneth Washington) and
summarizes Yanoff’s conclusion—that the DNA alleles from the buccal swab
taken from Washington match the “DNA alleles of the male donor” from each of
the three crime scene–derived profiles. Id. at 382.
Several documents follow, including, inter alia: evidence tracking forms
bearing chain of custody notations of various sorts; a “Schedule of Analysis”
indicating procedures the sample was to undergo; a “DNA/Serology Submission
Tracking & Productivity Form” indicating that one item was examined, two
samples were submitted for DNA extraction, two samples were submitted for
quantitation, and two samples were amplified and analyzed at sixteen loci each,
two documents each labeled “Control Review Worksheet” stating that several
tests were passed, and an “Exemplar Evidence Packaging and Exam Worksheet”
noting that the cheek swab was packaged in a white paper envelope
approximately 9x6 inches in size that was sealed with tape and had various
information written on it.
15
Yanoff affirmed that the case file reflected the testing of the buccal swab
submitted to the lab by Detective Curran as a vouchered piece of evidence and
received in a sealed envelope. She made clear that she was not personally
involved in the DNA testing of the buccal swab, noting that items of evidence are
examined in a different area from samples of known individuals, and that a
“different group of people . . . perform[s the] testing of samples of known
individuals.” Id. at 62–63. Yanoff described the procedures used for testing
known samples, indicating that “two separate testing[s] at . . . different times
would occur.” Id. at 82. She also testified that she personally had reviewed the
raw data connected with the swab’s testing and that after reviewing this data,
she had compared the DNA profile generated from the buccal swab to the
evidence contained in each of the three crime‐scene files. She affirmed that the
DNA profiles from each of the three crime scenes and from the buccal swab were
the same, and she concluded, to a reasonable degree of scientific certainty, that
Washington was the source of the DNA on the t‐shirt, the gloves, and the
iced‐tea container.
16
II. Procedural History
Washington was convicted on all counts on January 19, 2011, at the
conclusion of his jury trial. He was thereafter sentenced principally to ninety
years in prison. Washington appealed, and on July 3, 2013, the Appellate
Division affirmed his conviction. With respect to Washington’s Confrontation
Clause claim, the Appellate Division stated:
The court properly admitted files prepared by the New
York City Medical Examiner’s Office containing DNA
profiles derived from the testing of evidence recovered
from the crime scenes, since the documents containing
the DNA profiles, which were prepared prior to the
defendant’s arrest, “did not, standing alone, link him to
the crime.” The testimony of the People’s expert
witness established that she conducted the critical
analysis at issue by comparing the DNA profiles
derived from the crime scene evidence to the
defendant’s DNA profile and concluding that all of the
profiles matched. Moreover, the DNA profile
generated from the swab of the defendant’s cheek,
standing alone, shed no light on the issue of the
defendant’s guilt in the absence of the expert’s
testimony that it matched the profiles derived from the
crime scene evidence.
People v. Washington, 968 N.Y.S.2d 184, 186–87 (2d Dep’t 2013) (citations and
brackets omitted) (quoting People v. Dail, 894 N.Y.S.2d 78, 80 (2d Dep’t 2010)).
17
Washington sought leave to appeal the Appellate Division’s decision, which the
New York Court of Appeals denied on January 31, 2014.
In federal court, in his petition for a writ of habeas corpus, Washington
argued before Judge Block that the admission at trial of the OCME file regarding
the testing of his cheek swab and, in particular, the DNA profile that this testing
produced “violated his Sixth Amendment right to confrontation because he was
not afforded the opportunity to cross‐examine the lab technicians who generated
[the profile].” Washington v. Griffin, 142 F. Supp. 3d 291, 292 (E.D.N.Y. 2015).
The district court held that in light of the lack of clarity in the Supreme Court’s
case law on the interaction between scientific report evidence and the
Confrontation Clause, as well as the factual similarities between Washington’s
claim and the one rejected in Williams v. Illinois, 132 S. Ct. 2221 (2012), the
Appellate Division’s decision, which both cited Williams and, according to the
district court, “mirrored [its] disposition,” was not an unreasonable application
of clearly established Supreme Court precedent. Washington, 142 F. Supp. 3d
at 297. The district court nonetheless granted Washington a certificate of
appealability. Id. Washington timely filed a notice of appeal from the district
court’s denial of his petition.
18
DISCUSSION
We review de novo a district court’s disposition of a petition for a writ of
habeas corpus. Tavarez v. Larkin, 814 F.3d 644, 648 (2d Cir. 2016). When the
petitioner presses a claim that was “adjudicated on the merits in State court
proceedings,” as here, the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), Pub. L. No. 104‐132, 110 Stat. 1214 (codified as amended in scattered
sections of 8, 18, 22, 28 and 42 U.S.C.), “obliges federal courts to give deference to
state courts’ decisions,” Chrysler v. Guiney, 806 F.3d 104, 117 (2d Cir. 2015),
issuing a writ of habeas corpus only when the state‐court adjudication “resulted
in a decision that was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the
United States,” 28 U.S.C. § 2254(d)(1).
A principle is “clearly established Federal law” for § 2254(d)(1) purposes
“only when it is embodied in a [Supreme Court] holding,” Thaler v. Haynes, 559
U.S. 43, 47 (2010), framed at the appropriate level of generality, see Nevada v.
Jackson, 133 S. Ct. 1990, 1994 (2013) (per curiam) (noting that framing Supreme
Court precedent at too high a level of generality risks “transform[ing] even the
most imaginative extension of existing case law into ‘clearly established Federal
19
law, as determined by the Supreme Court’” (quoting 28 U.S.C. § 2254(d)(1)). A
state court decision is “contrary to” such clearly established law when the state
court “either has arrived at a conclusion that is the ‘opposite’ of the conclusion
reached by the Supreme Court on a question of law or has ‘decided a case
differently than the Supreme Court has on a set of materially indistinguishable
facts.’” Smith v. Wenderlich, 826 F.3d 641, 649 (2d Cir. 2016) (brackets omitted)
(quoting Williams v. Taylor, 529 U.S. 362, 412–13 (2000)). An unreasonable
application occurs when “the state court correctly identifies the governing legal
principle . . . but unreasonably applies it to the facts of the particular case,” Bell v.
Cone, 535 U.S. 685, 694 (2002), so that “the state court’s ruling on the claim . . .
was so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded
disagreement,” Harrington v. Richter, 562 U.S. 86, 103 (2011).
Washington renews his argument that the information contained in the
OCME case file concerning the DNA testing of his buccal swab was testimonial.
In Washington’s view, the admission of this file during Yanoff’s testimony absent
his opportunity to cross‐examine each of the “non‐testifying OCME analysts who
conducted DNA testing of [his] buccal swab” and made notations in the file
20
violated his Sixth Amendment right of confrontation. Pet’r’s Br. 25. Further,
the Appellate Division’s decision rejecting this claim was contrary to, or involved
an unreasonable application of, clearly established law set out by the United
States Supreme Court in Melendez‐Diaz v. Massachusetts, 557 U.S. 305 (2009), and
Bullcoming v. New Mexico, 564 U.S. 647 (2011). We conclude that Washington
has not met § 2254(d)(1)’s standard for the review of claims adjudicated on the
merits in state court and, accordingly, that his habeas petition was properly
denied.
I
The Sixth Amendment to the United States Constitution, applicable to the
states through the Fourteenth Amendment, guarantees a criminal defendant “the
right . . . to be confronted with the witnesses against him.” U.S. Const. amend.
VI; see Pointer v. Texas, 380 U.S. 400, 403 (1965). In Crawford v. Washington, 541
U.S. 36 (2004), the Supreme Court rejected its earlier view that out‐of‐court
statements falling within a firmly rooted hearsay exception satisfy Confrontation
Clause concerns, see Ohio v. Roberts, 448 U.S. 56, 66 (1980), and “adopted a
fundamentally new interpretation of the confrontation right,” Williams v. Illinois,
132 S. Ct. 2221, 2232 (2012) (plurality opinion). The Court held that the
21
Confrontation Clause prohibits admission at trial of out‐of‐court testimonial
statements against a criminal defendant unless the declarant is unavailable and
the defendant had a prior opportunity to cross‐examine him. Crawford, 541 U.S.
at 68. The Crawford Court, observing that there are various ways to define
“testimonial,” declined to settle on a precise articulation of the term, id. at 51–
52, 68, resulting in a “steady stream of new cases,” Williams, 132 S. Ct. at 2232.
Most recently, the Supreme Court has noted that “under our precedents, a
statement cannot fall within the Confrontation Clause unless its primary purpose
was testimonial”—that is, in light of all the relevant circumstances, viewed
objectively, the statement was made or procured with a primary purpose of
“creat[ing] an out‐of‐court substitute for trial testimony.’” Ohio v. Clark, 135 S.
Ct. 2173, 2180 (2015) (quoting Michigan v. Bryant, 562 U.S. 344, 358 (2011)). And
even then, the Court observed, the Clause does not “bar[ ] every statement that
satisfies the ‘primary purpose’ test,” pointing specifically to out‐of‐court
statements “that would have been admissible in a criminal case at the time of the
founding.” Id.
To establish his Confrontation Clause claim, Washington relies primarily
on the Supreme Court’s decisions in Melendez‐Diaz and Bullcoming, which
22
addressed the meaning of “testimonial” in the context of laboratory testing of,
respectively, purported narcotics and actual blood, for its blood alcohol content.
At the start, however, both cases are sufficiently distinguishable from the
circumstances here as to draw into question Washington’s contention that the
Appellate Division, in rejecting his claim based on these cases, unreasonably
applied clearly established Federal law or acted contrary to it. See § 2254(d)(1).
Melendez‐Diaz was a narcotics case in which the prosecution introduced
into evidence multiple bags of purported cocaine that had been in the possession
of the defendant and his associates. The Supreme Court held that the sworn,
notarized certificates of lab analysts, each reporting on the weight of the bags
and affirming that the contents had been examined and determined, in fact, to be
cocaine, were testimonial, and could not be admitted at trial absent the
defendant’s opportunity to cross‐examine the declarants. 557 U.S. at 308, 310–
11. In reaching this conclusion, the Court observed that the analysts’
reports—titled “certificates of analysis”—were “quite plainly” affidavits, that is,
“declarations of facts written down and sworn to by the declarants before an
officer authorized to administer oaths,” and “functionally identical” to “live,
in‐court testimony.” Id. at 308, 310–11. Indeed, the “sole purpose of the
23
affidavits” under state law, the Court noted, “was to provide ‘prima facie
evidence of the composition, quality, and the net weight’ of the analyzed
substance[s],” and it could be “safely assume[d] that the analysts were aware of
the affidavits’ evidentiary purpose, since that purpose . . . was reprinted on the
affidavits themselves.” Id. at 311 (quoting Mass. Gen. Laws, ch. 111, § 13).
Bullcoming was to similar effect. The Court held there that admission at
trial of a lab report containing a testimonial certification that Bullcoming’s
blood‐alcohol concentration was above the threshold for aggravated DWI was
improper. The report in Bullcoming, although not notarized, otherwise closely
resembled the “certificates of analysis” in Melendez‐Diaz: law enforcement had
provided evidence to a state laboratory for testing, an analyst had tested the
evidence and prepared a certificate attesting to the results, and this certificate
was “formalized,” as the Bullcoming Court put it, “in a signed document” for the
purpose of proving the facts it alleged in the context of a criminal proceeding.9
Bullcoming, 564 U.S. at 664–65. The Bullcoming Court concluded that “the
formalities attending the ‘report of blood alcohol analysis’ [were] more than
adequate to qualify [the analyst’s] assertions as testimonial,” and the report’s
9 Indeed, the document, as the Supreme Court observed, “contain[ed] a legend
referring to municipal and magistrate courts’ rules” providing for the admissibility of
certified blood‐alcohol analyses. Bullcoming, 564 U.S. at 665.
24
admission was error, absent the declarant’s unavailability and a showing of the
defendant’s prior opportunity to cross. Id. at 665. The testimony of another
analyst, who was familiar with the device used to test the blood and the lab’s
procedures but did not observe the test or have an “independent opinion,” id. at
662, concerning the defendant’s blood alcohol content, was insufficient to cure
the problem. Id. at 662–63.
The circumstances here are not the same. Washington does not rely on a
lab analyst’s affidavit, as in Melendez‐Diaz, or on the formal certificate of an
analyst attesting to his results, as in Bullcoming, to make out his Confrontation
Clause claim. He instead points to a medley of unsworn, uncertified notations
by often unspecified lab personnel, working, as Yanoff testified, “the same way
as [an] assembly line.” Joint App’x 39. Such notations, standing alone, are
potentially as suggestive of a purpose to record tasks, in order to accomplish the
lab’s work, as of any purpose to make an out‐of‐court statement for admission at
trial. But as we stated in United States v. James, 712 F.3d 79 (2d Cir. 2013),
Melendez‐Diaz and Bullcoming together suggest that a laboratory analysis is
testimonial only when “the circumstances under which the analysis was
prepared, viewed objectively, establish that the primary purpose of a reasonable
25
analyst in the declarant’s position would have been to create a record for use at a
later criminal trial.” Id. at 94.
II
The differences between Melendez‐Diaz and Bullcoming and the present
case in themselves cast doubt on Washington’s contention that he has satisfied
§ 2254(d)(1)’s demanding standard. This conclusion becomes only clearer in
light of the Supreme Court’s more recent decision in Williams v. Illinois, 132 S. Ct.
2221 (2012), which presented facts closest to those here. “When reviewing state
criminal convictions on collateral review, federal judges,” the Supreme Court has
said, “are required to afford state courts due respect by overturning their
decisions only when there could be no reasonable dispute that they were
wrong.” Woods v. Donald, 135 S. Ct. 1372, 1376 (2015); see also id. (noting that
“AEDPA’s standard is intentionally ‘difficult to meet’” (quoting White v. Woodall,
134 S. Ct. 1697, 1702 (2014)). Fairly read, Melendez‐Diaz, Bullcoming, and
Williams together foreclose any such claim as to the Appellate Division’s decision
in Washington’s case.
Williams involved a state DNA expert’s testimony at a rape trial that a
DNA profile developed from the victim’s vaginal swabs by an outside
26
commercial lab matched the defendant’s profile produced at the lab where the
expert worked. 132 S. Ct. at 2227 (plurality opinion). During her testimony,
the expert “explained the notations on documents admitted as business records
stating that . . . vaginal swabs taken from the victim were sent to and received
back from Cellmark,” the outside lab. Id. She also referred to Cellmark’s DNA
profile “as having been produced from semen found on the victim’s vaginal
swabs,” even though she had not conducted or observed the lab’s work in
developing the profile. Id.; see also id. at 2230. The Court affirmed the
conviction, determining that this testimony did not violate the Confrontation
Clause despite the fact that no analyst from Cellmark testified about the lab’s
work. Id. at 2244. As we have previously acknowledged, however, in so
concluding “[t]he Court came to no clear consensus as to what constituted a
testimonial statement in this context.” James, 712 F.3d at 91.
The Williams plurality opinion, written by Justice Alito, offered two
alternative bases for concluding the expert’s testimony did not implicate the
Confrontation Clause. First, the plurality determined that to the extent the
substance of the Cellmark report (which was not itself introduced into evidence)
was admitted, it was not admitted for its truth but rather as a basis for the expert
27
witness’s opinion that the DNA profile developed by Cellmark matched the
accused’s DNA profile. 132 S. Ct. at 2239–40. Second, the plurality
alternatively concluded that even assuming the contents of the report were
admitted for their truth, these contents were not testimonial because “the
primary purpose of the Cellmark report, viewed objectively, was not to accuse
[the] petitioner or to create evidence for use at trial.” Id. at 2243. The plurality
deemed it significant, inter alia, that when the Illinois State Police lab sent its
sample to Cellmark for analysis, “its primary purpose was to catch a dangerous
rapist who was still at large, not to obtain evidence for use against [the]
petitioner, who was neither in custody nor under suspicion at that time.” Id.
More generally, the plurality noted that, as here, when “numerous technicians
work on each DNA profile”—“[w]hen the work of a lab is divided up in such a
way”—“it is likely that the sole purpose of each technician” is not to make
statements for admission at trial, but “simply to perform his or her task in
accordance with accepted procedures.” Id. at 2244.
As Justice Kagan pointed out in dissent, neither of the plurality’s rationales
commanded a majority. Id. at 2277 (Kagan, J., dissenting). Justice Thomas
rejected both of the plurality’s proffered bases for the Court’s holding but
28
nevertheless concurred in the judgment, agreeing that no Confrontation Clause
violation had occurred. See id. at 2255, 2256 (Thomas, J., concurring in the
judgment). In Justice Thomas’s view, the Confrontation Clause reaches only
formalized testimonial materials. Id. Judged by this standard, the Cellmark
report at issue was insufficiently formalized to qualify as testimonial because it
“lack[ed] the solemnity of an affidavit or deposition, for it [was] neither a sworn
nor a certified declaration of fact.” Id. at 2260. Justice Thomas, noting that the
report did not even “attest that its statements accurately reflect the DNA testing
processes used or the results obtained,” deemed the Cellmark report
distinguishable from the certifications in Melendez‐Diaz and Bullcoming on this
ground. Id.
Against this backdrop, we cannot say, as AEDPA requires, that the
Appellate Division ruling that Washington challenges—namely, that the
admission of the OCME case file about the DNA testing of his buccal swab did
not offend the Confrontation Clause—represented such an “’extreme
malfunction[ ]’” in the state criminal justice system that “there could be no
reasonable dispute that [the state court] was wrong.”10 Donald, 135 S. Ct. at 1376
Although Washington has failed to meet AEDPA’s exacting standard for the
10
issuance of a writ of habeas corpus, we note that the Appellate Division erred insofar as
29
(quoting Harrington, 562 U.S. at 102 (quoting Jackson v. Virginia, 443 U.S. 307, 332
n.5 (1979) (Stevens, J., concurring in judgment))). Assuming arguendo that the
case file here was admitted for its truth, the Supreme Court has never held that
the Confrontation Clause requires an opportunity to cross examine each lab
analyst involved in the process of generating a DNA profile and comparing it
with another, nor has it held that uncertified, unsworn notations of the sort at
issue here are testimonial. As the Williams plurality observed, Melendez‐Diaz
and Bullcoming “held that the particular forensic reports at issue qualified as
testimonial statements, but the Court did not hold that all forensic reports fall
into the same category.” 132 S. Ct. at 2243. Nor do the various Williams
opinions settle the question. As Justice Breyer recognized in his concurrence,
none of these opinions “fully deals with the underlying question as to how, after
Crawford, Confrontation Clause ‘testimonial statement’ requirements apply to
crime laboratory reports.” Id. at 2248 (Breyer, J., concurring in the judgment).
III
it held that DNA profiles, as a categorical matter, are non‐testimonial because “standing
alone, [they] shed no light on the issue of the defendant’s guilt.” As previously noted,
see supra at 29–30, at least five Justices in Williams (Justice Thomas in his concurrence
and those joining Justice Kagan’s dissent) agreed that the introduction of DNA profiles
could, under proper circumstances, run afoul of the Confrontation Clause.
30
A state court cannot be faulted for declining to apply a specific legal rule
“that has not been squarely established by [the Supreme] Court,” Harrington, 562
U.S. at 101 (quoting Knowles v. Mirzayance, 556 U.S. 111, 122 (2009)), nor even for
incorrectly applying an established rule where reasonable jurists could disagree
as to its application. Id. at 102. Washington makes two main arguments in an
effort to avoid the conclusion that these AEDPA principles are determinative of
this appeal. Both derive from the proposition that Williams “did not alter the
rule of Bullcoming and Melendez‐Diaz” with respect to the circumstances of his
case. Pet’r’s Br. 25.
Recognizing that the majority decisions in both Melendez‐Diaz and
Bullcoming applied to “formalized out‐of‐court statements,” id. at 46, and that
Justice Thomas joined the majority opinions in both cases on this basis,
Washington first asserts that, unlike the Cellmark report in Williams, the OCME
case file regarding the testing of his buccal swab is, in fact, analogous to the lab
analysts’ affidavits in Melendez‐Diaz and the testimonial certification in
Bullcoming, even though the individual lab analysts here did not certify their
results. This is because a “certifying agent of OCME signed a ‘Certification as a
Business Record’ cover page to which the file was attached attesting to the fact
31
that the within records had been prepared in the regular course of OCME
business.” Pet’r’s Br. 41. This certification, Washington contends, establishes
that the out‐of‐court notations of the lab analysts here were, as in Melendez‐Diaz,
“formalized testimonial materials,” 557 U.S. at 310 (quoting Crawford, 541 U.S. at
51‐52), rendering Williams inapplicable and the Appellate Division’s decision to
the contrary not merely erroneous but wrong beyond reasonable dispute.
We disagree. Both in the affidavits at issue in Melendez‐Diaz and in the
testimonial certification in Bullcoming, lab analysts affirmed, in essence, that they
had performed particular tests, adhered to precise protocols, and produced
specified results. As the Melendez‐Diaz Court put it, the analysts’ out‐of‐court
“certificates” were “functionally identical to live, in‐court testimony,” id. at 310–
311, and the lab analysts “create[d] [them] for the sole purpose of providing
evidence against a defendant,” id. at 323 (emphasis in original). Here, no lab
analyst did any such thing: rather, a custodian attested in a business records
certification that the OCME case file produced in court was a true copy of the
original case file maintained by the OCME DNA lab, and that the file’s contents
were prepared in the regular course of business.11 Joint App’x 381. To be
As already explained, Yanoff also testified to the foundation requirements for
11
admitting the OCME file as a business record.
32
clear, such a certification does not defeat a meritorious Confrontation Clause
claim. At the same time, however, this certification—a “traditionally
admissible” means, as Melendez‐Diaz recognized, by which “[a] clerk could by
affidavit authenticate or provide a copy of an otherwise admissible record,” 557
U.S. at 322–23—does not transform the underlying notations of the lab analysts
into formalized testimonial materials. Nor does it place beyond reasonable
dispute whether the lab notations satisfy the primary purpose test: whether, as
the Court put it in Clark, they were made with a primary purpose of “creat[ing]
an out‐of‐court substitute for trial testimony,” 135 S. Ct. at 2180 (internal
quotation marks omitted), or instead, as the plurality suggested in Williams, for
the purpose of “perform[ing] . . . task[s] in accordance with accepted
procedures,” 132 S. Ct. at 2244.
Washington next argues that even if Williams, with its discordant opinions,
changed “the rule of Bullcoming and Melendez‐Diaz,” it merely narrowed the
definition of “testimonial” and the evidence in his case falls within that narrowed
definition. Pet’r’s Br. 25. He contends that the “clearly established” rule of this
precedent is “that formalized out‐of‐court statements made by forensic analysts
that have the primary purpose of building a case against a targeted individual”
33
are testimonial, and so subject to the Confrontation Clause. Id. at 46. Any
confusion emanating from the fractured Williams Court, Washington argues,
relates only to “how far beyond the targeted suspect scenario the primary purpose
test reaches.” Id. at 35. Moreover, Washington contends that his case falls
within the “targeted suspect scenario” because his buccal swab was tested after
the match between his DNA profile in the New York State DNA Index and the
crime‐scene evidence profiles led to his arrest.12
This argument, too, is unavailing. The Supreme Court has unequivocally
stated that a principle is “clearly established” for the purposes of § 2254(d)(1)
“only when it is embodied in a [Supreme Court] holding.” Haynes, 559 U.S. at 47
(emphasis added). We have already noted the difficulty in identifying a single
holding of principle from the several opinions of the fractured Williams Court,
using the analytic approach that the Supreme Court recommends. See James,
712 F.3d at 95 (citing Marks v. United States, 430 U.S. 188, 193 (1977)); see also
Williams, 132 S. Ct. at 2277 (Kagan, J., dissenting) (noting that Williams leaves
“significant confusion in [its] wake,” making apparent that Melendez‐Diaz and
Bullcoming “no longer mean all that they say” without clarifying “in what way or
As already noted, Washington does not press a Confrontation Clause claim as
12
to the OCME files related to the evidence found at each crime scene, all of which was
tested prior to his identification as a suspect.
34
to what extent they are altered”). Indeed, the supposedly clear rule that
Washington discerns in Williams runs counter to the opinion of a majority of
Justices there: thus, both Justice Thomas in his concurrence and Justice Kagan in
her dissent specifically reject the proposition that Confrontation Clause
protections should be limited to circumstances in which a suspect has been
identified, see 132 S. Ct. at 2262 (Thomas, J., concurring in the judgment)
(rejecting the “targeted individual” theory of Confrontation Clause protections as
“lack[ing] any grounding in constitutional text, in history, or in logic”); id. at 2274
(Kagan, J., dissenting) (rejecting the theory as insufficiently addressing reliability
concerns), and Justice Thomas alone subscribes to the view that the Clause
reaches only formalized materials. It is therefore difficult to see how
Washington’s purported rule could be “clearly established Federal law” for
purposes of § 2254(d)(1).
Moreover, even were we to assume that this is not a problem—that we
may in theory take as clearly established a narrowed version of “testimonial”
emanating from the plurality opinion, plus Justice Thomas’s
concurrence—Washington fails to show that reasonable jurists would all agree as
35
to the narrowed rule to be drawn from the plurality opinion.13 Harrington, 562
U.S. at 102 (noting that if AEDPA’s standard “is difficult to meet, that is because
it was meant to be”). The Williams plurality clearly stated that in “identifying
the primary purpose of an out‐of‐court statement,” courts are to “look for the
primary purpose that a reasonable person would have ascribed to the statement,
taking into account all of the surrounding circumstances.” 132 S. Ct. at 2243
(emphasis added). As Washington notes, one circumstance supporting the
plurality’s conclusion that the primary purpose of the Cellmark report was not
“to create evidence for use at trial” was that the analysts in Williams were testing
the sample there in an effort to identify a still‐at‐large rapist. Id. Significantly,
however, the plurality opinion at no point affirms that in the “targeted suspect
scenario,” the Confrontation Clause necessarily applies.
And Washington ignores other aspects of what the plurality opinion does,
in fact, say. As to DNA testing in particular, the plurality also deemed it
“significant” that when the work of a lab is divided up among a number of
13 In addition, even taking as clearly established Washington’s purported rule
(that “formalized out‐of‐court statements by forensic analysts that have the primary
purpose of building a case against a targeted individual are testimonial,” Pet’r’s Br. 25),
Washington—as we noted above—does not show that the analysts’ notations were
“formalized” for the purposes of Justice Thomas’s concurrence, much less does he put
this issue beyond possibility of “fairminded disagreement,” see Harrington, 562 U.S. at
103.
36
analysts, the likelihood is that the only purpose of each analyst is “to perform his
or her task in accordance with accepted procedures”—at least suggesting that in
such circumstances, the primary purpose of out‐of‐court notations may not be
testimonial, regardless whether a suspect has been identified. Id. at 2244.
“[T]he use at trial of a DNA report prepared by a modern, accredited
laboratory,” the plurality further observed, “‘bears little if any resemblance to the
historical practices that the Confrontation Clause aimed to eliminate.’” Id.
(quoting Bryant, 131 S. Ct. at 1167 (Thomas, J., concurring in the judgment)).
In such circumstances, we agree with the district court that “whether the
plurality would hold that the primary purpose of those preparing Washington’s
DNA profile implicated the Confrontation Clause is, at the very least, debatable.”
Washington, 142 F. Supp. 3d at 296; see also Harrington, 562 U.S. at 98 (noting that
for claims adjudicated on the merits in state court, “the habeas petitioner’s
burden . . . must be met by showing there was no reasonable basis for the state
court to deny relief”). We also concur in that court’s conclusion that
“[c]onsidering the lack of clarity in the Supreme Court’s Confrontation Clause
jurisprudence, and in light of the factual similarities between Williams and the
present case,” the Appellate Division’s decision here cannot be deemed an
37
unreasonable application of clearly established Supreme Court precedent,
Washington, 142 F. Supp. 3d at 297; see § 2254(d)(1).
* * *
To be clear, our conclusion today is narrow. We note that the New York
Court of Appeals recently decided in People v. John, 27 N.Y.3d 294 (2016), that
where the generation of a DNA profile is testimonial—as it concluded the profile
there was—“at least one analyst with the requisite personal knowledge must
testify.” Id. at 313. The John Court rejected an “all analysts” rule and
concluded that nothing in the record before it suggested that the analysts
involved in the “preliminary testing stages” of “extraction, quantitation or
amplification” were necessary witnesses. Id. Instead, the “analyst who
witnessed, performed or supervised the generation of defendant’s DNA profile,
or who used his or her independent analysis on the raw data” should testify. Id.
at 315. The State argues here that Yanoff satisfies this criterion because she
testified that she consulted the raw data, reached her own conclusions, and
personally reviewed and compared the profile from the buccal swab to the
profiles generated from the crime‐scene evidence.
38
We need not and do not decide whether this case meets the New York
State standard. As the New York Court of Appeals noted in John, courts around
the country are assessing the scope of Confrontation Clause rights in the context
of DNA evidence in the wake of Williams. Id. at 314–15; see, e.g., State v. Norton,
117 A.3d 1055, 1058 (Md. 2015); Commonwealth v. Yohe, 79 A.3d 520 (Pa. 2013).
Our task here is more circumscribed: to assess whether the Appellate Division’s
merits determination was “contrary to, or involved an unreasonable application
of, clearly established Federal law.” 28 U.S.C. § 2254(d)(1). Like the district
court, we cannot conclude that Washington has sustained his burden of showing
that the Appellate Division applied a rule “contradict[ing] the governing law set
forth in [the Supreme Court’s cases],” or that it “confront[ed] a set of facts that
are materially indistinguishable from a [Supreme Court] decision” and arrived at
a different result. Taylor, 529 U.S. at 405–06. Nor is the Appellate Division’s
decision “so lacking in justification” as to constitute an unreasonable application
of clearly established federal law “beyond any possibility for fairminded
disagreement.” Harrington, 562 U.S. at 103.
39
CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s denial of
Washington’s petition.
40
KATZMANN, Chief Judge, concurring:
Mindful of AEDPA’s “intentionally difficult [standard] to meet,” Woods v.
Donald, 135 S. Ct. 1372, 1376 (2015) (internal quotation marks omitted), I concur
in full with the Court’s opinion. I write separately to raise a pragmatic suggestion
for future prosecutions. Given the Supreme Court’s fractured disposition in
Williams and the New York Court of Appeals’ recent holding in People v. John,
27
N.Y.3d 294 (2016), legal and practical issues related to the testimonial use of
DNA test results in criminal trials are sure to remain. Although the John Court
settled on the requirement that, in that case, “a single analyst, particularly the
one who performed, witnessed or supervised the generation of the critical
numerical DNA profile” would suffice for the purposes of the Confrontation
Clause,
id. at 314, serious concerns remain about whether crime labs have
properly stored, extracted, and labeled DNA samples, particularly where a single
lab contains and tests samples from the victim, the crime scene, and the accused,
see, e.g., Williams v. Illinois,
567 U.S. 50, 118-19 (2012) (Kagan, J., dissenting).
One approach to addressing these concerns is to spend years litigating
every instance a DNA profile is offered at trial in order to determine whether or
1
not the Confrontation Clause is implicated. I suggest what I think is an easier and
more efficient route. For cases scheduled for trial, the prosecution could order
that a defendant’s DNA sample be collected and tested again and supervised by
an analyst who is prepared and qualified to testify. This approach mirrors the
recommendation of the National Research Council Committee on DNA Forensic
Science, which has stated that “[t]he ultimate safeguard against error due to
sample mixup is to provide an opportunity for retesting,” and that “[i]n most
cases, it is possible to retain portions of the original evidence items and portions
of the samples from different stages of the testing.”1 The National Institute of
Justice has likewise found that “[a]ny probative biological sample that has been
stored dry or frozen, regardless of age, may be considered for DNA analysis,” 2
and the Innocence Project in fact has utilized DNA testing of preserved evidence
1
National Research Council, The Evaluation of Forensic DNA Evidence 81 (1996), available
at https://www.nap.edu/read/5141/chapter/1.
2
U.S. Department of Justice, Office of Justice Programs, National Institute of Justice,
DNA Evidence: Basics of Identifying, Gathering and Transporting (Aug. 9, 2012),
https://www.nij.gov/topics/forensics/evidence/dna/basics/pages/identifying-to-
transporting.aspx.
2
in every one of its over 350 DNA exonerations.3 Thus, where law enforcement
officers have properly preserved forensic evidence, it would be feasible for the
DNA to be retested under the supervision of an analyst who is qualified and
prepared to testify at trial.
The supervising analyst need not conduct every step of the process herself.
Instead, by supervising the process, she could personally attest to the extraction
and correct labeling of the sample, that a proper chain of custody was
maintained, and that the DNA profile match was in fact a comparison of the
defendant’s DNA to that of the DNA found on the crime scene evidence.4 Such
testimony would assuage Confrontation Clause concerns, and, because the vast
majority of criminal defendants plead guilty, only a small share of the DNA
reports would need to be retested.
3
Innocence Project, Preservation of Evidence, www.innocenceproject.org/preservation-of-
evidence (last visited Oct. 25, 2017).
4
Ideally, the analysts should not be informed that the testing is for the purpose of
providing evidence at trial. Where this is not feasible, cross-examination of the
supervising analyst would alleviate any concern that there was intentional mishandling
of the sample. Of course, the prospect of cross-examination might incentivize more
defendants to go to trial. I find this unlikely, however, because the defendant would not
know at the time of plea negotiations whether the Government intended to retest the
DNA sample (and would therefore call the additional analyst at trial).
3
The State might retort that such testing and testimony would be unduly
expensive, requiring additional time and resources to conduct a DNA test anew
and provide a testifying analyst at trial. Those costs, it seems to me, are far
outweighed not only by the additional assurance provided by the defendant’s
opportunity to cross-examine, but also by the exorbitant costs in both time and
resources implicated by a defendant’s subsequent appeal challenging the denial
of such an opportunity.
Consider the case history here. Washington appealed his conviction on
Confrontation Clause grounds first to the Appellate Division of the New York
Supreme Court, see People v. Washington, 968 N.Y.S.2d 184 (2d Dep’t 2013), and
then to the New York Court of Appeals, which declined to hear his case, see
People v. Washington,
22 N.Y.3d 1091 (2014). He then filed a habeas petition in
federal court, which was first denied by the district court, see Washington v.
Griffin,
142 F. Supp. 3d 291 (E.D.N.Y. 2015), and has now, nearly two years later,
been denied by this Court. This process has involved a half-decade of litigation,
countless hours of attorney manpower, and the dedication of four different
courts at both the state and federal level. Simply testing a second buccal swab
4
sample would have rendered such litigation wholly unnecessary.
To be sure, the analysts conducting the second test might make a mistake.
But if DNA testing is so fickle that we cannot reasonably expect a second test to
produce accurate results, this is an indictment of DNA evidence as a whole
rather than the narrow solution of retesting. Moreover, retesting is likely to
produce more reliable results than the first time around. The supervising analyst
would be physically present during the most error-prone portions of the
analysis, would review the findings of the individual analysts at the end, and
could utilize any additional measures adopted by the original crime lab, such as
running two tests to confirm the results. The probability that the second test
would have a higher risk of error than the first accordingly seems marginal.
DNA evidence has greatly enhanced the State’s ability to investigate
crimes and identify suspects, while also exonerating many wrongly convicted of
crimes they did not commit. As with any rapidly developing technology,
however, its adoption has sometimes outstripped the law’s capacity to oversee
its judicious use. Such failure may not always result in a constitutional violation,
but it does warrant careful consideration and pragmatic policy modifications
5
where feasible. I am hopeful that going forward, prosecutors will endeavor
where possible to make an analyst available at trial who was involved firsthand in
the handling and testing of DNA, even if that may sometimes require the testing
of a second sample from a defendant scheduled to stand trial. It is far better for
all involved — the prosecution, the court, and the accused — that the defendant
has the opportunity to challenge DNA evidence at trial, rather than years later on
appeal.
6
