High court lab analyst case fizzles out 

Posted: 1:00 am Mon, February 8, 2010
By Kimberly Atkins

It looked like a potential blockbuster.

Just four days after handing down a closely-split ruling — complete with an emphatic dissent — requiring forensic lab analysts to be available to testify in criminal trials if their lab reports are entered into evidence, the U.S. Supreme Court granted certiorari in another case that promised to test the limits of that ruling.

The first case, Melendez-Diaz v. Massachusetts, sparked protests from prosecutors who said the ruling would allow criminals to walk free because it would be impossible to produce every lab analyst as a trial witness.

The defense bar, on the other hand, praised the decision as a safeguard against violations of defendants’ Confrontation Clause rights.

Equally divided on the issue were the justices of the court, with soon-to-retire Justice David Souter joining the 5-4 majority.

The second case, Briscoe v. Virginia, offered critics of Melendez-Diaz a glimmer of hope: perhaps the dissenting justices saw an opportunity to limit the reach of the ruling by agreeing to decide whether a statute that allows defendants to call lab analysts as witnesses satisfies the Confrontation Clause.

Later, when Justice Sonia Sotomayor replaced Souter on the bench, court watchers wondered if the former prosecutor could provide the crucial vote to limit Melendez-Diaz — or even to overturn it altogether.

But the case that started out with a roar ended with a whimper.

Just two weeks after oral arguments in Briscoe, the court handed down a one-sentence per curiam ruling that read, in its entirety: “We vacate the judgment of the Supreme Court of Virginia and remand the case for further proceedings not inconsistent with the opinion in Melendez-Diaz v. Massachusetts.”

No sharply-worded dissents. No earth-shattering ka-boom. Just 26 words in an unsigned ruling and Melendez-Diaz is still the law.

So what happened?

“My guess is that they thought the Virginia state law worked differently than it turned out to work,” said Jeffrey Fisher, a Supreme Court litigator and professor at Stanford University Law School who successfully argued the Melendez-Diaz case. “It just so happened that, as a practical matter, once you dig into it the argument in Briscoe was almost identical to the argument made in Melendez-Diaz.”

Hints from the bench

There were some clues during oral arguments in Briscoe that the case might fizzle rather than sizzle.

Most came from Justice Antonin Scalia, who authored the opinion in Melendez-Diaz, and made it clear that he thought the court was wasting its time on an already-decided issue.

During the time given to Leondra Kruger, the Justice Department attorney arguing as amicus on behalf of Virginia, Scalia was less than receptive to the argument that the Virginia statute satisfied the Confrontation Clause right discussed in Melendez-Diaz.

“A state adequately safeguards the Confrontation right recognized in Melendez-Diaz when it guarantees that it will, on the defendant’s request, bring the analyst into court for face-to-face confrontation and cross-examination at trial,” Kruger argued.

“That’s not what we said in Melendez-Diaz, unfortunately,” Scalia said.

Then Scalia read from his opinion in the case.

“We said the following: ‘More fundamentally, the Confrontation Clause imposes a burden on the prosecution to present its witnesses, not on the defendant to bring those adverse witnesses into court,’” Scalia read. “‘Its value to the defendant is not replaced by a system in which the prosecution presents its evidence via ex parte affidavits and waits for the defendant to subpoena the affiants, if he chooses.’ So you are asking us to overrule that statement?”

Later Scalia again signaled his belief that the question presented in Briscoe was already answered by Melendez-Diaz. “Why do we have to say anything? Why is this case here except as an opportunity to upset Melendez-Diaz?”

And noting that the Virginia law at issue no longer exists — Virginia was among a number of states that changed their statutes in the wake of the Melendez-Diaz ruling — he said: “I’m not criticizing Virginia. I’m criticizing us for taking the case.”

Not the case they thought

it would be?

Since it only takes four justices to agree to grant certiorari in a case — and there were four dissenters in Melendez-Diaz, it’s tempting to wonder if some justices were looking to take a second stab at the Confrontation Clause issue.

But Fisher said he doubts that, noting that one thing the justices share is a strong respect for the doctrine of stare decisis.

Fisher said the case could simply be an example of something that is not at all unusual at the court.

“Every year the court grants cert in a couple of cases that end up not being the case they thought they were getting,” Fisher said. “This usually ends up with a case being dismissed as improvidently granted, or in a GVR,” shorthand for a case that is granted, vacated and remanded to a lower court to decide — usually in light of recent high court precedent.

In this case, perhaps the court didn’t realize how similar the issue was until it was argued in front of them.

In the end, only the justices know for sure.

“Whether it was misinformation or going too fast or hoping that something would happen after [oral arguments], who knows?” Fisher said.

This article was originally published in Lawyers USA, Minnesota Lawyer’s national sister publication.