Here’s a link to an interesting unpublished ACCA decision setting aside a marijuana use conviction on confrontation grounds.  United States v. Harrington, No. ARMY 20090442 (A. Ct. Crim. App. July 29, 2011) (per curiam).

While the defense had not challenged the admissibility of the Laboratory Documentation Packet (LDP) at trial, on appeal Private Harrington’s counsel argued that the LDP’s admission violated the Confrontation Clause.  The government acknowledged that many of the LPD’s pages “may have been testimonial,” but argued that a surrogate expert witness “satisfied appellant’s right to confrontation.”  Nope, ruled ACCA.

First, ACCA concluded that the issue had not been intentionally waived, so it applied a plain error analysis.  ACCA then reasoned:

We agree with the parties that portions of the LDP are testimonial, but reject the government’s argument that a surrogate witness satisfied appellant’s right to confront those persons making the testimonial statements contained within the LDP.  The use of a surrogate witness “who did not sign the certification or perform or observe the test” in question is not a constitutional substitute for the cross-examination of the declarant whose testimonial statement is actually admitted into evidence.  Bullcoming v. New Mexico, ___ U.S. ___, ___, 131 S.Ct. 2705, 2710 (2011); See also United States v. Blazier, 69 M.J. 218, 223–24 (C.A.A.F. 2010).  Accordingly, we find that the admission of the LDP was plainly erroneous.  Furthermore, after reviewing the entire record before us, we are not convinced that the admission of the LDP was harmless beyond a reasonable doubt in this case. 

6 Responses to “ACCA relies on Bullcoming to set aside drug use conviction”

  1. stewie says:

    So, Bullcoming is going to make an impact on military justice practice and MJ offices should react accordingly.

  2. GRH says:

    Once again, a case where waiver would be clear in state or federal district court. Only in a court-martial do the appellate courts strain reason to find an issue not waived. What is an “unintentional waiver” anyway? That actually sounds like negligence and IAC.

  3. stewie says:

    ok, so overturn it for IAC then.

    Oh wait, we bend over backwards not to do that.

  4. Cap'n Crunch says:

    There is a pragmatic reason why I think service courts and CAAF try their best not to find IAC — if it occurred with any frequency, it would serve as some sort of systemic admission or evidence that military defense counsel are not competent. Of course, everyone knows that every lawyer makes mistakes, some big, some small, and that no trial is perfect – but just the same, I can at least understand the push not to find IAC.

  5. stewie says:

    I understand it too, I’m just responding to GRH who seems to want this placed in the realm of IAC, knowing that IAC is actually found about as often as Leprechauns.

  6. Michael Korte says:

    IAC is not a definitive ruling that counsel is an incompetent attorney who should die in a fire.

    IAC is a finding that, in the particular case, the accused did not receive sufficiently accurate advice counsel. Hopefully, appellate courts are not afraid to find IAC where applicable. It is valuable, because it tells the field that there are certain areas within the military justice system that parties simply cannot botch.
    All counsel need to know what areas of trial practice are mission critical, and nobody outside appellate nerds like us will ever read the unpublished opinions that discuss — but fall short of making firm guidelines on — what is/not IAC.

    I yield the rest of my time to the other commentators.