All it takes is one.

Photographer: Philippe Huguen/AFP/Getty Images

Antonin Scalia's Rightful Revolution

Stephen L. Carter is a Bloomberg View columnist. He is a professor of law at Yale University and was a clerk to U.S. Supreme Court Justice Thurgood Marshall. His novels include “The Emperor of Ocean Park” and “Back Channel,” and his nonfiction includes “Civility” and “Integrity.”
Read More.
a | A

Annie Dookhan’s recent release from a Massachusetts prison has been an occasion for considerable comment, but little has been focused on how her case suggests why liberals might come to miss Justice Antonin Scalia.  Not because Dookhan was innocent -- she wasn’t -- but because she was guilty.

Let me explain.

Dookhan, a former lab technician for the Massachusetts Department of Public Health, pleaded guilty in 2013 to charges stemming from an investigation that found she had tampered with crime-scene evidence. She confessed to, among other things, adding cocaine to samples so that they would test positive and forging reports to make it seem that she had performed tests that she had not. Estimates of the number of cases that might be affected run as high as 40,000. (More accurate numbers should be available next month.) Struggling to clean up the mess caused by what it called Dookhan’s “egregious misconduct,” the Massachusetts Supreme Judicial Court ruled last year that if defendants who have pleaded guilty seek to reopen their cases because of her actions, prosecutors cannot try them on more serious charges or, if a second conviction results, ask for stiffer sentences.

Okay, so Dookhan did a terrible thing, and because of it, a lot of people probably went to prison who shouldn’t have. What does any of this have to do with Justice Scalia?

As it turns out, a great deal. Over his final decade on the U.S. Supreme Court, Scalia led a movement to restore significance and force to the Confrontation Clause of the Sixth Amendment. The revolution began in 2004 with Crawford v. Washington, and the battle is raging still. And for those who buy into the neat media image in which the justices vote in unshakable left-right blocs, it’s worth noting that Scalia’s chief ally in the fight has been Ruth Bader Ginsburg, and his principal antagonists have lately been Samuel Alito and Sonia Sotomayor.

What’s the fight about? The Confrontation Clause guarantees a criminal defendant the right “to be confronted with the witnesses against him.” If you’re charged with robbing a bank, the clause is the reason that you have the opportunity to cross-examine whoever is testifying against you. You have the chance to show the jury that the witness who claims to have seen you holding the gun was mistaken, or remembering wrong.

Much of the recent controversy over the Confrontation Clause is rather technical, but the dispute has largely involved the question of who counts as a witness. Everybody had always understood that the woman who swears you drove the getaway car has to tell her story in open court. So does the man who claims he sold you the gun. The prosecutor can’t simply put the lead detective on the stand and let him tell the jury what other people said you did.

But what about a laboratory technician who determined that the substance found in your trunk was cocaine? For a long time, it was generally assumed that a forensic chemist’s performance of a routine test did not implicate the Sixth Amendment. In 2008, the Scalia-Ginsburg faction astonished pretty much everybody by cobbling together a majority of the court for the proposition that, yes, the technician who did the test and signed the report has to show up and testify. Another analyst from the same laboratory who can explain how the test works isn’t good enough. In other words, there is no “forensic evidence” exception to the rule. Chemists are treated just like every other witness.

Prosecutors were aghast. Defense attorneys were elated.

Imagine: Every time a crime lab does a test and a technician certifies the result, the technician has to appear in court if the defendant so demands.  Dissenters warned that chaos would result. To have the technicians sitting around for half a day waiting to testify would involve undue expense. Scalia replied that the assumptions underlying that worry are “wildly unrealistic.”  Only rarely would defense lawyers actually call the forensic technicians to testify. But on those rare occasions, the technicians are no different from any other witness.

Why does this matter? Let’s get back to Dookhan. She began work some years before the Supreme Court decided that lab technicians who perform forensic tests must testify if called, but her arrest and conviction help show why the Scalia faction is right.

Had Dookhan been required to take the stand, defense attorneys might have asked how she was able to clear 500 samples a month when the average chemist analyzes between 50 and 150. They might have asked about discrepancies in her log book that would likely only have come to light had she been a witness.

The knowledge that one will have to testify about one’s actions creates a certain discipline. Either the problems in her work would have come to light much sooner, or, knowing that she would face possible cross-examination about every test she performed, Dookhan would have cleaned up her act.  Either way, a lot fewer results would have been falsified.

The great majority of forensic chemists, like the great majority of people in every line of work, do their jobs with professionalism and integrity.  Unfortunately, Dookhan is far from the only bad apple. And when technicians fudge their results, people can lose their liberty.

Most court-watchers, whether they admired Scalia or despised him, will remember his positions on same-sex marriage or abortion or some other hotly contested issue. But I will remember him best for the revolution he sparked in Sixth Amendment jurisprudence. I earnestly hope that it survives him.

  1. I didn’t believe this when I began teaching the Crawford line of cases some years ago. But real-world events have changed my mind.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Stephen L Carter at scarter01@bloomberg.net

To contact the editor responsible for this story:
Brooke Sample at bsample1@bloomberg.net