In a published opinion in United States v. Katso, __ M.J. __, No. 38005 (A.F.Ct.Crim.App. Apr. 11, 2014) (link to slip op.), the AFCCA reverses convictions of aggravated sexual assault, burglary, and unlawful entry, for which the appellant was sentenced to confinement for ten years, total forfeitures, and a dishonorable discharge. A three-judge panel of the court led by Chief Judge Roan finds that a DNA expert who testified for the Prosecution improperly repeated testimonial hearsay, depriving the appellant of his constitutional right to confrontation, and the panel split 2-1 to find that error prejudicial. The court reverses the convictions and authorizes a rehearing.

The fact of the case are that:

While celebrating her 21st birthday with several friends, Senior Airman (SrA) CA became intoxicated after consuming between 15 and 20 drinks over the course of the evening. At an off-base bar and unable to return to the base on her own, she was assisted back to her room and fell asleep on her bed. SrA CA testified that she woke up when she felt “someone having sex with [her].” She said she was attacked by someone wearing denim pants, glasses, a beanie cap, and a coat. After SrA CA struggled against him, her assailant left, and SrA CA ran into another room and told a friend she had been raped. SrA CA subsequently identified the appellant as her attacker.

Slip op. at 2. DNA samples were collected from both SrA CA and the appellant. The samples were sent to the United States Army Criminal Investigations Laboratory (USACIL) for analysis, where a forensic examiner named Mr. Fisher conducted an examination and produced a report that showed a match between the appellant’s DNA profile and semen found in the samples taken from CA. In accordance with USACIL procedure, Mr. Fisher’s report was reviewed by a second examiner, named Mr. Davenport.

The Prosecution intended to call Mr. Fisher to testify at trial, but he was unavailable due to a family emergency. So the Prosecution offered the expert testimony of Mr. Davenport instead. Mr. Davenport testified over the objection of the Defense, with the Defense “arguing [that] the appellant’s right to confront Mr. Fisher, the witness who had performed key steps in the DNA analysis that was to be used against him at trial, would be violated.” Slip op. at 2. During a pretrial hearing, Mr. Davenport explained that:

during his technical review of Mr. Fisher’s report, he examined the case file and reviewed the documents submitted by AFOSI to ensure the tag numbers were properly reflected on the report confirming that evidence in fact came into the laboratory and was properly documented. He also examined the report to ensure all steps of the testing process were conducted and recorded, the positive and negative controls were tested, and the lot numbers were written down. As part of the technical review, Mr. Davenport testified that although he did not reconstruct the DNA profiles previously developed by Mr. Fisher (as described in steps 1 through 7 above), he did examine the raw data that was created during the generation of the DNA profile by running the information through a computer program to produce a statistical frequency determination. He personally interpreted the data to determine whether the DNA profiles matched and then compared his findings with those of the original analyst to verify the results. This same process was repeated for all known samples and submitted items of evidence. Following this, Mr. Davenport concluded the semen found on the swabs taken from the victim in this case contained the appellant’s DNA profile.

Slip op. at 5. The military judge denied the Defense motion, concluding that “Mr. Davenport could testify concerning his independent findings without violating the Confrontation Clause. This included providing his independent opinion about the reliability of the testing procedures used, the findings and results, and the frequency statistics related to those findings and results.” Slip op. at 5. Mr. Davenport then testified along these lines at trial. Mr. Fisher’s report was not admitted into evidence.

The three-judge panel of the CCA unanimously concludes that Mr. Davenport improperly repeated testimonial hearsay from Mr. Fisher during his trial testimony, and that this violated the appellant’s right to confrontation. Slip op. at 6; slip op. at 18 (Orr, S.J. concurring in part and dissenting in part).

Chief Judge (Colonel) Roan begins his analysis by considering what makes an out-of-court statement testimonial and therefore subject to the Confrontation Clause:

In United States v. Sweeney, 70 M.J. 296, 301 (C.A.A.F. 2011), the Court of Appeals for the Armed Forces reiterated its holding in Blazier I that “a statement is testimonial if ‘made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.’” (quoting Blazier I, 68 M.J. at 442). Thus, “[a] document created solely for an evidentiary purpose . . . made in aid of a police investigation, ranks as testimonial.” Id. (citing Bullcoming v. New Mexico, 131 S.Ct. 2705, 2717 (2011) (alterations in original)). The court declared “the focus has to be on the purpose of the statements in the drug testing report itself, rather than the initial purpose for the urine being collected and sent to the laboratory for testing.” Id. at 302 (emphasis in original). The court noted that although those performing initial drug tests may well be “‘independent scientist[s]’ carrying out ‘non-adversarial public dut[ies],’ that does not mean that their statements are not produced to serve as evidence.” Id. (alterations in original).

Slip op. at 7-8. Chief Judge Roan considers the continued viability of this objective test in the wake of the Supreme Court’s fractured decision in Williams v. Illinois, 132 S.Ct. 2221 (2012). He finds that the objective test is still valid, concluding that “Williams did not establish a new primary purpose test for determining when a statement is considered testimonial.” Slip op. at 9 (marks omitted). But he also distinguishes the facts of this case from the facts of Williams:

This case, unlike Williams, involved a jury trial and a known suspect, against whom charges had been preferred, and who was in pretrial confinement for the suspected offense prior to the DNA testing. At the time Mr. Fisher created the DNA profiles, he knew the appellant’s identity and further knew the results of his analysis would be turned over to the AFOSI for potential prosecution.

Slip op. at 10. Applying Sweeny, he concludes that “the information placed in Mr. Fisher’s report clearly set forth the accusation critical to the Government’s case: that the DNA found in the victim’s sample specifically matched the appellant. Mr. Fisher’s DNA analysis report is therefore testimonial.” Slip op. at 10 (marks and citations omitted). He also distinguishes this case from a typical drug prosecution involving a positive urinalysis, where it is common for an in-court expert to interpret the results of someone else’s out-of-court laboratory analysis:

This case is unlike the typical urinalysis trial where a drug testing report is admitted into evidence tying the accused to the tested sample through chain of custody documents. Here, the prosecution did not admit Mr. Fisher’s report. As a result, the only evidence the members received linking the male DNA profile found in the victim’s swabs directly to the appellant – the penultimate issue in the case – came from Mr. Davenport’s testimony. We find as a matter of fact the record of trial does not definitively establish that Mr. Davenport had first-hand knowledge as to whom the known DNA sample or its corresponding profile belonged. He was able to identify the appellant by name only by repeating the testimonial statement contained in Mr. Fisher’s report that directly linked the appellant to the generated DNA profile. Without this connection, Mr. Davenport could testify that in his expert opinion the two DNA profiles Mr. Fisher created by purifying, quantifying, and copying the DNA found in the swabs he analyzed matched one another in certain respects, but consistent with the Confrontation Clause, Mr. Davenport could not identify the appellant by name.

Slip op. at 11-13 (emphasis added). It’s not clear from the facts that there is any way the Prosecution could have avoided this error and still used the DNA match at trial, without the in-court testimony of Mr. Fisher. See United States v. Porter, 72 M.J. 335, __, slip op. at 5 (C.A.A.F. 2013) (CAAFlog case page) (affirming the NMCCA’s decision that reversed the convictions on confrontation grounds because “at no time during his testimony, however, did [the expert] specifically interpret or rely on the machine-generated data contained in the [drug testing report] to independently conclude that Appellee’s sample tested positive for [marijuana] and [cocaine].”).

Notably, a lengthy footnote reproduces much of Mr. Davenport’s direct examination, during which the Prosecution repeatedly asked questions that began with the words: “Based on your technical review, have you formed an independent opinion whether. . .” A separate footnote rejects the notion that such magic words are sufficient to avoid the confrontation issue:

Although trial counsel included the phrase “in your independent opinion,” or some version thereof in the key questions he asked Mr. Davenport, simply inserting such phrases into a question does not transform an exchange containing testimonial hearsay into something else where a predicate fact presumed in the question’s wording is, itself, testimonial hearsay.

Slip op. at 13 n.9.

After grappling with this difficult question of whether Mr. Davenport’s testimony was improper and concluding that it was, Chief Judge Roan then turns to the test for prejudice: “In the context of an erroneous admission of testimonial hearsay, the question is not whether the evidence is legally sufficient to uphold a conviction without the erroneously admitted evidence; rather, the question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.” Slip op. at 13 (marks omitted) (quoting Chapman v. California, 386 U.S. 18, 23 (1967)). He concludes:

Based on the totality of the evidence presented, we find the Government has failed to demonstrate that the DNA evidence played an insignificant role in the Government’s case, and that the testimonial hearsay was an important piece of evidence leading to the appellant’s conviction. We are therefore not convinced beyond a reasonable doubt that the constitutional error was not a factor in obtaining that conviction.

Slip op. at 15. It is this point that splits the court, with Senior Judge (Colonel) Marksteiner writing separately, concurring but emphasizing that the Government’s burden to prove the erroneous admission of Mr. Davenport’s testimony harmless beyond a reasonable doubt is different than the court’s duty to review the case for legal and factual sufficiency. He concludes:

On the facts of this case as presented, I believe it is simply impossible to unring the DNA evidence bell in a fashion that would enable us to find no reasonable possibility that Mr. Davenport’s testimony might have contributed to the conviction. I therefore respectfully concur.

Slip op. at 18 (Marksteiner, S.J. concurring) (emphasis in original).

And Senior Judge (Colonel) Orr dissents from the finding of prejudice, noting that the Defense focused not on whether sexual activity occurred, but on whether the activity was consensual:

After the military judge properly admitted the portions of Mr. Davenport’s testimony describing the process he used in analyzing the DNA samples and that Senior Airman (SrA) CA’s sample contained semen, the only issue in dispute was whether the sexual activity was consensual. The crux of the appellant’s argument is the portion of Mr. Davenport’s testimony explaining that the appellant’s DNA matched the semen found in SrA CA’s sample led to his conviction. I disagree. Given SrA CA’s fresh complaint and identification of the appellant as her attacker, this case was not about whether the appellant and SrA engaged in sexual intercourse. The sole issue before the panel members was whether SrA CA consented to the sexual activity.

Slip op. at 19  (Orr, S.J. concurring in part and dissenting in part).

Senior Judge Marksteiner’s concurring opinion addresses Senior Judge Orr’s contention that the Defense strategy provides a basis for a finding of harmless error in this case:

[A]s the case played out, once the military judge ruled against the appellant on the admissibility of Mr. Davenport’s statement linking the sample he tested to the appellant, it would have been beyond benign futility – indeed it would likely have been affirmatively detrimental to the appellant’s case – to argue the appellant did not have sex with SrA CA. Accordingly, to the extent the appellant resorted to litigating consent, the sequence of events strongly suggests that he did so only because the trial judge’s decision to admit Mr. Davenport’s testimonial hearsay left him no alternative.

Slip op. at 16 (Marksteiner, S.J. concurring).

Considering the significance of the CCA’s analysis and decision in this case, I think certification to CAAF is a certainty. I also believe that the significance of this case warrants certification, because CAAF hasn’t recently considered this issue outside of the context of a urinalysis (where its caselaw makes significant confrontation exceptions for “machine-generated data”).

It’s just too bad that the Air Force JAG has so aggressively used (and perhaps even abused) the certification power in recent months (discussed most recently in this post from Monday).

One Response to “A significant confrontation clause decision from the AFCCA”

  1. Balkan Ghost says:

    Zach, I just wanted to say thanks for all you are doing. The history of this important time of military justice is being written by you on this site. Keep plugging.