21,000 Reasons Scalia Was Right
In an intriguing way, this week’s decision by Massachusetts prosecutors to vacate some 21,000 drug convictions represents a vindication of Justice Antonin Scalia. The astonishing move is fallout from the mess created by Annie Dookhan, a chemist who in 2013 pleaded guilty to 27 counts of tampering with evidence, filing false reports and misleading investigators. In particular, she admitted faking test results used by prosecutors against individuals who have become known as the Dookhan defendants.
In the seven counties that used the Hinton State Laboratory, where Dookhan worked, one in four drug convictions over a 10-year period relied on her work. She was, as they say, a big deal. So swiftly did Dookhan work that her colleagues called her Superwoman. They never suspected that she was winning by cheating.
Dookhan would add drugs to samples that were clean, and report a positive result. She would claim to have tested samples that she hadn’t. She would forge signatures. Her goal, she said, was to earn higher performance ratings. Which she did, right up to the time she went to prison.
After the scandal broke, the Massachusetts Supreme Judicial Court gave prosecutors until this week to determine which convictions would have to be voided because they were tainted by Dookhan’s chicanery. According to the American Civil Liberties Union, the tally is 21,587. Only the convictions of some 500 to 700 Dookhan defendants are expected to remain in place.
Great news for many thousands of Dookhan defendants. A huge embarrassment for the Commonwealth of Massachusetts, and, frankly, for those who tout the near-infallibility of forensic science. But what has all this to do with the late Justice Scalia? It reminds us that he was right about the Sixth Amendment.
The Sixth Amendment guarantees that “in all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” Until about a dozen years ago, the Supreme Court had allowed this confrontation clause to become, if not precisely moribund, certainly a relatively minor obstacle for prosecutors to overcome. In 2004, that all changed. In a case called Crawford v. Washington, Scalia wrote for the majority that the clause means exactly what it says: Anyone giving testimony against the defendant has to show up in court, be sworn as a witness, and be subject to cross-examination. 1
The Crawford case involved a husband accused of assaulting a man he believed to have tried to rape his wife. The defendant claimed that he had acted in self-defense, but his wife gave a tape-recorded statement to police that suggested otherwise. At trial, Crawford’s wife did not testify due to the spousal privilege. The judge allowed the prosecutors to play the tape for the jury, and Crawford was convicted.
The Supreme Court reversed that verdict. The wife’s statement to the police was “testimonial” in nature, and therefore the confrontation clause required that the witness be produced. If the prosecutors did not put the witness on the stand so that the defendant could cross-examine her, the tape was inadmissible.
Prosecutors and law professors responded with disbelief. Scalia could not possibly have meant what he said. But he did. Five years later, in a case called Melendez-Diaz v. Massachusetts, the majority extended its analysis to cover -- wait for it -- drug analyses produced by state laboratories if used at trial. Previously, judges had allowed prosecutors to present certificates or affidavits from lab technicians who vouched for the results. Melendez-Diaz held that the technician who performed the test had to be produced for cross-examination.
Critics were astonished. The cost alone would be prohibitive. And there was no need, they argued: Error or forgery in the laboratory was so unlikely that constantly calling lab techs to testify was a waste of time. There was nothing to be gained.
As the Dookhan case illustrates, Scalia was right. Despite the forensic magic worked on television, there is ample reason to bring the technicians into court and let them be cross-examined. And Dookhan is far from the only example. Just last month the Washington Post reported that the Firearms Examination Unit of the District of Columbia Consolidated Forensic Laboratory was repeating more than 150 ballistics tests after discovering that three examiners had “incorrectly matched bullets or shell casings recovered at crime scenes to individual weapons.”
The discovery of the errors should not have been surprising. Despite the perfection with which TV technicians match bullets to particular guns, a landmark 2009 study of criminal forensics by the National Academy of Sciences found that ballistics tests had little demonstrated scientific accuracy -- or, in the polite language of the report, “the validity of the fundamental assumptions of uniqueness and reproducibility of firearms-related toolmarks has not yet been fully demonstrated.” No serious work had been done, wrote the panel, “to scientifically determine the degree to which firearms-related toolmarks are unique or even to quantitatively characterize the probability of uniqueness.”
The National Academy study was not limited to firearms. The authors questioned the scientific basis of hair-and-fiber analysis, of bite-mark analysis, of nearly everything -- even, to a limited extent, of fingerprint matching. The only science that emerged unscathed was DNA matching. 2
Lately, an emerging plurality of justices has been questioning the Crawford line of cases. Not every witness, they argue, must actually appear. But as the Dookhan scandal should remind us, there are good reasons to have laboratory technicians come into court and defend their work. Scalia was right: It’s what the Constitution requires.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
The court suggested, but did not decide, that several traditional exceptions to the confrontation right might survive.
Scalia quoted the National Academy of Sciences report in his majority opinion in Melendez-Diaz.
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