Last week I was accused of being obsessed with Melendez-Diaz. So imagine my delight when CAAF released an important Melendez-Diaz decision today.
In United States v. Blazier, No. 09-0441, CAAF determined that the drug testing reports that had been introduced at trial were testimonial for Crawford purposes. But CAAF ordered additional briefing on whether the Confrontation Clause was satisfied by an expert witness’s testimony. Judge Ryan wrote for a unanimous court.
Blazier involved two sets of drug testing reports — one the result of a random urinalysis and the second the result of a consent urinalysis obtained at law enforcement behest. The Air Force Drug Testing Laboratory compiled the drug testing reports after Blazier’s command requested them for court-martial use. Each of the drug testing reports included “a cover memorandum describing and summarizing both the tests the urine samples were subjected to and the illegal substances discovered.”
CAAF had no difficulty concluding that the portion of those cover memoranda reporting the drug testing results was testimonial. The court reasoned:
[W]hile the drug tests themselves occurred in June and July, the top portion of the cover memorandum of each report — dated “AUG 16 2006,” detailing the tests taken and summarizing the results — was prepared not only after the results reporting assistant knew that the specimens had tested positive for illegal substances, but also in response to the prior day’s request by Appellant’s command for such reports “for court-martial use.”
Given these circumstances, the top portions of the drug testing report cover memoranda — which summarize and clearly set forth the “accusation” that certain substances were confirmed present in Appellant’s urine at concentrations above the DOD cutoff level — are clearly testimonial.
Slip op. at 11.
CAAF emphasized that the evidentiary nature of those portions was apparent “regardless of the impetus behind the testing, the knowledge of those conducting laboratory tests at different points in time, or whether the individual underlying documents are themselves testimonial.” Id. at 12.
CAAF declined to address whether other documents in the drug testing reports were testimonial as well. Id. at 10 n.6.
CAAF directed additional briefing on the issue of whether the Confrontation Clause was satisfied by the testimony of Dr. Papa, a forensic toxicologist and lab certifying official at the Air Force drug lab who “certified the authenticity and ‘business-record’ nature of the records attached to the drug testing report cover memoranda and reviewed the bottle label for [Blazier’s first] test sample, but . . . did not otherwise personally observe either the testing or reviews of Appellant’s samples.” Id. at 5-6. CAAF also directed briefing on whether, if Dr. Papa’s testimony wasn’t sufficient to satisfy the Confrontation Clause, the admission of the testimonial reports was nevertheless harmless beyond a reasonable doubt under the theory that Dr. Papa was qualified as an expert and testified as an expert under Military Rule of Evidence 703.
CAAF directed Appellant’s counsel to file a brief within 30 days, followed by a brief from the government within 30 days, followed by a 10-day reply period. If both sides take all of their time, that would result in briefing being completed on 3 June. CAAF also invited the other services’ appellate government and defense divisions to file amicus briefs within 10 days of the briefing deadline for the party they support.
So I’ll be able to continue obsessing over Melendez-Diaz for the remainder of CAAF’s term — and perhaps beyond.