In a published opinion, an AFCCA panel split 2-1 today in holding that a lab tech’s report identifying controlled substance metabolites in the urine of a suspect who provided a sample to law enforcement agents is not a testimonial statement for Crawford v. Washington purposes. United States v. Blazier, __ M.J. ___, No. ACM 36988 (A.F. Ct. Crim. App. Sept. 8, 2008).
The case basically presented the same issue as NMCCA’s recent published opinion in United States v. Harris, __ M.J. ___, No. 200700531 (N-M. Ct. Crim. App. July 31, 2008), though Senior Judge Brand’s majority opinion in Blazier didn’t cite Harris. In Harris, NMCCA held that a drug lab’s analysis of a command directed urine sample is more like the analysis of a random urinalysis at issue in United States v. Magyari, 63 M.J. 123 (C.A.A.F. 2006), than the targeted lab analysis of drug paraphernalia at issue in United States v. Harcrow, 66 M.J. 154 (C.A.A.F. 2008).
In Brazier, AFCCA similarly contrasted Magyari and Harcrow. And, similar to NMCCA’s conclusion in Harris, the Brazier majority concluded that the lab technicians analyzing SrA Brazier’s urine as part of a much larger batch without any knowledge that the individual who provided that particular sample was a suspect were more like the lab techs in Magyari than those in Harcrow.
Judge Jackson dissented. Relying on a Minnesota Supreme Court opinion, he didn’t believe that the lab technicians’ perspective was dispositive. Blazier, No. ACM 36988, slip op. at 4-5 (Jackson, J., concurring in part/dissenting in part) (citing State v. Caulfield, 722 N.W.2d 304 (Minn. 2006). He found that the primary purpose of the lab technicians’ statements were to prove a past offense for purposes of a criminal prosecution and were thus testimonial.
Both Harris and Blazier are prologue to the Supreme Court’s argument on 10 November in Melendez-Diaz v. Massachusetts, 07-591. The QP in Melendez-Diaz is “Whether a state forensic analyst’s laboratory report prepared for use in a criminal prosecution is ‘testimonial’ evidence subject to the demands of the Confrontation Clause as set forth in Crawford v. Washington, 541 U.S. 36 (2004).” Melendez-Diaz may ultimately lead some military appellate court to reconsider Harris and Blazier. Of course, counsel for both Petty Officer Harris and SrA Blazier will have to try to keep those cases on direct appeal until Melendez-Diaz is decided in case the Supremes overturn Denedo, which might prevent military appellate courts from reversing their decisions in those cases if Melendez-Diaz turns out inconsistently. While a civilian criminal defendant could maneuver such a case to be held at the Supremes pending Melendez-Diaz‘s outcome, Petty Officer Harris and SrA Blazier have no such guarantee, since CAAF controls their access to the Supremes. If they file petitions for grant review and if CAAF denies them, their cases could become final before the Supremes rule in Melendez-Diaz, and they could then be left testing Melendez-Diaz‘s retroactive effect under Teague v. Lane if it then turned out in their favor and they had to challenge their court-martial conviction collaterally. That’s yet another example of how the current quirky SCOTUS statutory cert jurisdiction over military justice cases disadvantages servicemembers compared to their civilian counterparts. Of course, as we previously noted, the Senate Judiciary Committee will be considering a bill this Thursday that would rectify that disparity.