DCCA: DNA analysts should present results in court

Earlier this summer, I wrote about the North Carolina Supreme Court‘s handling of the doctrinal mess made by the U.S. Supreme Court‘s fractured opinions in Williams v. Illinois.  Well, on September 12, the D.C. Court of Appeals announced its latest solution to this problem, in Jenkins v. United States — and it turns out the approaches of NC and DC are basically polar opposites.

"DNA lab" by flickr user snre
Supreme Court results: inconclusive.

In my earlier post, I reviewed the Supreme Court’s 4-1-4 breakdown in Williams and concluded that the North Carolina court had followed the spirit of four Justices, and as a result, probably stretched the law to allow testimony about drug analysis that five Justices would have forbidden.

On the other hand, the new D.C. opinion starts with a case that is, in many important ways, just like Williams: the evidence included DNA profiles that were produced before police had identified the defendant as a suspect. (The twist is that the police did have a suspect at the time — not the defendant, but another guy whom the DNA exonerated.) It’s almost certain from Williams that five Justices would say that this important out-of-court evidence is fair game, if they were faced with the question. But the defendant argued this evidence should not be admitted, Williams notwithstanding, and the D.C. court had to decide what effect the Supreme Court’s fractured opinion in Williams had on existing law.

The answer in D.C. turns out to be, none at all (unless you have a case almost identical to Williams.) When dealing with non-majority opinions, the practice is to try to identify a rule that gives the result on the narrowest possible grounds identified by the concurrence. In other words, how do the plurality and concurring opinions overlap?

Reading the plurality and concurrence in Williams, the D.C. court (through Judge Oberly) decided they don’t overlap at all. Williams, then, did not change existing law. As a result, the court announced it would mostly stick with the bright-line rule that existed pre-Williams (essentially the approach of the Williams dissent.) If the government wants to introduce scientific evidence, call the analyst who performed the test.

This drew a dissent (on many grounds) from Judge Thompson. In important part, she wrote that the D.C. court’s previous post-Williams decision (Young) did not forbid out-of-court testimony in circumstances like this. (The majority described Young as stating a rule that gave a “sufficient” condition for what counts as “testimonial,” but not a “necessary” one.) And she pointed out that five Justices of the Supreme Court would undoubtedly allow this testimony, albeit for various reasons. But in the end, it was the “various reasons” that troubled the majority. If there’s no single reason, then there’s no rule for the lower courts to apply.

Paradoxically, though DC and NC have reached totally different results, both of their approaches also seem to violate the rule of “counting to five.” (Not a real “rule” — as this case shows, the courts are not actually supposed to speculate on what five Justices would rule, but rather are supposed to follow existing rules as best they can.) And this paradox perfectly illustrates the importance of the Supreme Court providing clear guidance (or at least, majority opinions) on important questions. Without this guidance, results are unpredictable — and the meaning of the United States Constitution depends on what state or territory or circuit you live in.

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Fourth Circuit: NC town can’t deny forum for takings claim

In an opinion published last week by the U.S. Court of Appeals for the Fourth Circuit, Judge Shedd writes that a town being sued for a Fifth Amendment taking can’t avoid the suit by playing jurisdictional games.

In this case, homeowners were suing their town over various regulations and actions dealing with beach erosion; one of their claims was that the town was depriving them of the value of their land without just compensation, a “taking” under the Fifth Amendment. (The town is Nags Head, on the NC outer banks, nestled between the sites of the first heavier-than-air flight and the Lost Colony.)

The homeowners initially sued in state court. The town removed the case to federal court, and then asked to have the takings claim dismissed because it was unripe. Under existing Supreme Court precedent, takings claims must first be raised under state procedures for dealing with those claims before a federal court will deem those claims “ripe” for federal litigation. The federal district court dismissed the claims under this “state-litigation” requirement.

The appeals court, however, saw mischief here. The town itself took the case out of state court and into federal court, only to ask to have it dismissed because it should be in state court instead of federal court. The Supreme Court has ruled that similar manipulative litigation is not allowed when a state invokes Eleventh Amendment immunity. The situation here is analogous, the Fourth Circuit wrote. The town waived its opportunity to have a state forum when it removed the case from that forum.

The Fourth Circuit sends the case back to the district court to deal with the landowners’ Fifth Amendment takings claims.

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NC Supreme Court: Scientific experts can testify to out-of-court results

In recent years, the U.S. Supreme Court has created a new field of evolving case law regarding the Sixth Amendment’s confrontation clause (the criminal defendant’s right “to be confronted with the witnesses against him”). This right was given new life in the 2004 Crawford decision, and the high court has been clarifying (or muddying, depending on your perspective) the contours of this right ever since.

One line of cases deals with how the results of scientific tests (like drug analysis or DNA profiles) can be used properly at trial. These are Melendez-Diaz (2009, decided 5-4), Bullcoming (2011, 5-4), and Williams (2012, 4-1-4 and downright confusing). A full explanation of these cases would be too long. But to simplify, the current Supreme Court seems to have (with the occasional qualification):

  • four justices (Roberts, Kennedy, Breyer, Alito) who would make an exception to the confrontation clause for scientific tests;
  • four justices (Scalia, Ginsburg, Sotomayor, Kagan) who tend to rule that the specific analyst who performed the test must be present to testify; and
  • one justice (Thomas) who bases his rulings on whether each out-of-court analysis counts as “formalized testimonial material.”
"DNA lab" by flickr user snre

In Melendez-Diaz and Bullcoming, the view of the latter four (plus the one) prevailed. The analysts (drug and blood alcohol, respectively) had to come to court, testify, and be cross-examined about the tests they performed; otherwise, the results could not be used. This was a fairly clear rule… until Williams, in which a DNA expert was allowed to testify to the results of a test that she did not do herself.

Here, the other four justices wrote a non-controlling plurality opinion, holding that the DNA test was being admitted not as evidence of the defendant’s guilt, but only as the basis for the expert’s opinion. The five remaining justices thought this justification was nonsense: of course the DNA test was being treated as substantive evidence against the defendant. But because Justice Thomas also wrote separately that the DNA test was not “formalized testimonial material”, the result was that five justices held that the analysis was admissible. So, with no controlling justification coming out of Williams, the state of the law is extremely confusing.

With this backdrop, the North Carolina Supreme Court concluded its term last month with seven decisions about drug analysis. The justices on this court are also closely divided on the issue, 4-3. But the controlling opinion (in the lead case, Ortiz-Zape) was that an independent expert could “present an independent opinion obtained through his or her own analysis [as long as it was] not merely ‘surrogate testimony’ parroting otherwise inadmissible statements.” (The other opinions can be found here.)

As a result, in most of the seven cases the NC Supreme Court looked at, the expert’s testimony was permitted, even though the testimony described the results of tests that the expert did not perform him- or herself. According to the majority, the defense has the right to cross-examine this witness, and this would include establishing, for example, that the witness did not actually run the test, and is only assuming that another analyst did the test correctly. As long as the witness engages in this rhetorical dance (giving an “independent opinion” assuming the tests were done correctly), the results of the test may be described as the basis for the expert’s opinion.

This reasoning aligns with the four-justice plurality in Williams. But would five justices of the US Supreme Court buy it? I think this is unclear, but my opinion is, probably not. In my view, the NC cases are unlike Williams, in part because the drug analyses were done specifically for proving the guilt of a specific defendant. By contrast, in Williams, the plurality noted (in an alternative holding) that the original DNA profile was generated without a specific suspect in mind; the potential for misconduct is much less in such a situation. This angle also seemed to influence Justice Thomas’s holding that the original DNA profile was not a “formalized testimonial” statement.

Similar stories are playing out in each jurisdiction across the country right now. For now, the state of the law in North Carolina is that an expert scientific witness can give an “independent opinion” based on tests done by other analysts, even if those analysts do not come to court and present their results.

Emphasis on “for now.” Eventually, the U.S. Supreme Court will have to address these questions again. I think that they will be confronted with issues like this for years to come.

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Fourth Circuit: Federal law governs limitations period for pollution suit

In an opinion published today for the U.S. Court of Appeals for the Fourth Circuit, Judge Floyd writes that CERCLA, a federal environmental law, extends North Carolina’s absolute ten-year limitations period for people affected by environmental pollution; as written, NC law keeps plaintiffs from suing whether they knew about the pollution at the time or not.

"Rusty barrel" by flickr user cowboyx
Per Emerson, the choice between truth and repose.

The plaintiffs in this case discovered toxic carcinogens in their well water (TCE and DCE), and allege that CTS Corporation is responsible for this pollution under the law. Because the pollution occurred more than ten years ago, North Carolina law would ordinarily prevent them from suing, even though they did not find out about it during the period when they could sue.

But a federal statute, CERCLA, sets up its own limitations period that is tied to when plaintiffs discover the pollution, rather than when the pollution actually occurs. And this statute was meant to preempt state law that provided a shorter limitations period.

The issue in the case turns on a legal distinction between “statutes of limitations” and “statutes of repose.” CERCLA clearly preempts statutes of limitations. But CTS Corp. claimed that the ten-year period was a “statute of repose” and that CERCLA clearly was not meant to preempt such statutes.

The district court agreed with CTS Corp., but on appeal, the Fourth Circuit has now reversed that decision. The Fourth Circuit determined that the text of CERCLA was ambiguous on this point, and so they looked to other evidence of Congress’s intent, finding that CERCLA should apply to statutes of repose as well.

The Ninth and Fifth Circuits had previously addressed this question, and came out differently. The Fourth Circuit agreed with the Ninth Circuit’s interpretation.

Judge Thacker dissented from the three-judge panel, finding that CERCLA was unambiguous in preempting only statutes of limitations, and invoking a presumption against preemption.

The court reverses the district court’s decision to dismiss the case, and sends it back to the district court to allow the litigation to continue.

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