CAAF will hear oral argument in the certified Air Force case of United States v. Katso, No. 14-5008/AF (CAAFlog case page), on Tuesday, October 7, 2014. The Air Force CCA reversed Appellee’s convictions of aggravated sexual assault, burglary, and unlawful entry, for which he was sentenced to confinement for ten years, total forfeitures, and a dishonorable discharge. The court took this action after finding that a DNA expert who testified for the Government improperly repeated testimonial hearsay. The Judge Advocate General of the Air Force then certified the case to CAAF, with the following issue:

Whether the Air Force Court of Criminal Appeals erred when it found Appellee’s Sixth Amendment right to confrontation was violated when the military judge permitted, over Defense objection, the testimony of the Government’s DNA expert, and that the error was not harmless

The facts 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 [Appellee] as her attacker.

United States v. Katso, __ M.J. __, __, slip op. at 2 (A.F. Ct. Crim. App. Apr. 11, 2014). DNA samples were collected from both SrA CA and Appellee. 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 Appellee’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, Mr. Davenport.

The Government intended to call Mr. Fisher to testify at trial, but he was unavailable due to a family emergency. So the Government offered the expert testimony of Mr. Davenport instead. Mr. Davenport testified over the objection of the Defense, which objected on Confrontation grounds. The military judge overruled the Defense objection, ruling that Mr. Davenport could testify about his independent findings. But a three-judge panel of the Air Force CCA unanimously concluded that Mr. Davenport improperly repeated testimonial hearsay from Mr. Fisher during his trial testimony, and that this violated Appellee’s right to confrontation. Id., slip op. at 6; Id., slip op. at 18 (Orr, S.J. concurring in part and dissenting in part). The panel then split 2-1 to find that error prejudicial, reversed the convictions, and authorized a rehearing.

In my analysis of the CCA’s opinion I thought that the following passage was particularly significant:

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). I also noted that it’s not clear from the facts that there is any way the Government 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) (per curiam) (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].”).

The Government’s brief doesn’t appear to add facts that would change this analysis, nor does the Government (or Appellee) directly address this finding by the CCA. Instead, the Government argues that the CCA’s predicate legal analysis was wrong and that “the underlying scientific data generated during the forensic analysis was not hearsay and any statements relied upon by the government’s DNA expert from the original analysis were not offered to prove the truth of the matter asserted.” Gov’t Br. at 4. It follows this argument with an assertion that even if the statements and data were hearsay, they were not testimonial.

The Government’s brief focuses on the assertion that “Mr. Davenport’s testimony rested on his independent interpretation of machine-generated data.” Gov’t Br. at 8. Dodging what I think is the key holding of the CCA (that the testifying expert lacked the personal knowledge necessary to link Appellee to the DNA sample), the Government’s brief asserts that:

As demonstrated by the record, Mr. Davenport did not solely rely upon the findings and conclusions contained in Mr. Fisher’s report. He conducted a comprehensive and independent review of Mr. Fisher’s entire analysis, to include analyzing and interpreting the raw data, to reach his own independent conclusions that were consistent with Mr. Fisher’s conclusions.

Gov’t Br. at 17. Appellee’s brief responds:

[I]n Mr. Fisher’s absence, Mr. Davenport testified to the following: (1) all evidence was received appropriately and in its properly sealed condition; (2) semen was identified on SrA C.E.A.’s vaginal, rectal, and debris collection swabs; (3) Appellee’s DNA profile matched the DNA profile obtained from the victim’s rectal swabs; (4) male DNA was present on the victim’s vagina swabs; (5) a mixture of DNA profiles from the victim and Appellee were obtained from the penile head swabs, penile shaft swabs, and the scrotum swab; and (6) testified as to the statistical frequency associated with the DNA profile.

Mr. Davenport’s testimony was offered to the members to establish the truth of the foregoing statements. As Mr. Davenport was not present during the receipt and testing of the evidence, his statements on these issues was hearsay.

Appellee’s Br. at 10. Appellee’s brief then asserts:

In fact, the only reason Appellee’s DNA was tested was for the specific purpose of furthering a criminal investigation and potential court-martial. Thus, the document “reviewed” by Mr. Davenport and repeated on the stand was clearly a formal document reciting findings involved in a criminal case, and to a criminal investigating agency. Under those facts, the actual declarant, or author of the forensic report, was required to testify about the findings.

App. Br. at 15 (emphasis in original). Both the Government and Appellee’s briefs discuss the Supreme Court’s fractured opinion in Williams v. Illinois, 132 S. Ct. 2221 (2012), to argue alternatively that Mr. Davenport’s testimony was or was not hearsay (testimonial or otherwise). It’s hard to predict how CAAF will respond to these arguments (or even how SCOTUS would respond), though I think that CAAF’s decision in Porter predicts a hard fight for the Government in this case.

However, an amicus brief from USACIL adds a significant factual twist:

Mr. Davenport was not “merely parroting” the report of Mr. Fisher, rather during a technical review, which included a review of the inventory and the submitting agency’s request, he made his own conclusion to confirm that the kits that were submitted to the laboratory were properly reflected in the case file. He verified that two kits were received belonging to Airman Katso and the alleged victim. ( J.A. 294) In doing, so Mr. Davenport was able to identify the Appellee, by name as he would have received Katso’s name in the same manner as Mr. Fisher: by reviewing the submitting agency’s documentation and inventory. As neither analyst would have personally taken the swabs, they must rely on the submitting agency’s labeling to determine what evidence is being tested and from whom it was taken.

Amicus Br. at 13. The amicus brief directly contradicts the AFCCA’s finding regarding Mr. Davenport’s knowledge in a way not addressed by the Government or Appellee’s briefs and that may well be dispositive to CAAF’s analysis. For instance, the amicus brief includes this rather persuasive argument:

The technical reviewer of a DNA examination is required to take the data generated by the examiner being reviewed and to interpret the data to ensure that there are no discrepancies between his findings and the findings of the testing analyst. Mr. Davenport testified that he performed this interpretation. (J.A. at 282) It is in this position that he stands as an original witness to the report upon which he testifies as he is describing the acts he performed as a technical reviewer and not merely a surrogate expert witness. A technical reviewer ultimately testifies to his own findings at the time of the examination.

Amicus Br. ar 6-7 (emphasis added). This makes Mr. Davenport was a second expert – not a surrogate expert – and his testimony was equal to what Mr. Fisher’s would have been. If the record supports this argument then it’s hard to understand how the CCA found that Mr. Davenport lacked the first-hand knowledge needed to connect Appellee to the DNA sample that was tested (opening the door for the testimonial hearsay issue in the first place). And if CAAF can decide the case on this factual basis, then it can (and I suspect will eagerly) avoid the difficult questions of just how much hearsay an expert can consider and what specific factors make that hearsay testimonial.

But if CAAF is forced to decide this case on confrontation grounds then I predict that its decision will be a significant one.

Case Links:
AFCCA opinion
Blog post: A significant confrontation clause decision from the AFCCA
Blog post: CAAF grants USACIL additional time to file an amicus brief in Katso
Appellant’s (Government) brief
Appellee’s brief
Amicus brief (Defense Forensic Science Center / U.S. Army Criminal Investigation)
Blog post: Argument preview

5 Responses to “Argument Preview: United States v. Katso, No. 14-5008/AF”

  1. Michael A says:

    Sounds like there are a lot of facts in the USACIL amicus brief that were not brought out during trial. Not sure how or why CAAF is allowed to consider them.

  2. brian lc says:

    ZS,
    Curious about what you think about the standard the CCA used in making their factual determination (“We find as a matter of fact the record of trial does not definitively establish …”).  This seems to be a very high burden.  For example, one can imagine the CCA finding a fact by a preponderance, but simultaneously finding that it hasn’t been disproven “definitively.”
    Overall, I can see why USACIL wanted to submit an amicus.  The CCA does not seem to have a working knowledge of how a crime lab works.  No one at USACIL would have first hand knowledge of who was swabbed…only what someone wrote on a label.  (That’s not a dig, it all depends on what was briefed).
    Good post.   

  3. Phil Cave says:

    Micheal A., which leads to the question of why CAAF would allow USACIL to file as an amicus in a case where they (the organization) is a central witness in the case.  In the future, will we see a complaining witness be able to file amicus when a CCA has a factual sufficiency review to do of a 120.  If you agree with USACIL being able to file an amicus and possibly introduce new facts, then it’s not too far away for a 120 CW being able to file an amicus.  Improvidently granted comes to mind. There is plenty of new facts in the pleading as best I can tell.

  4. Michael A says:

    Good article on the Supreme Court’s use of facts from amicus briefs in opinions:
    http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/09/01/the-dubious-sources-of-some-supreme-court-facts/

  5. Zachary D Spilman says:

    Michael A and brian lc, I think your comments go to the findings of fact that the military judge made on the Defense objection to the Government’s use of Mr. Davenport instead of Mr. Fisher. The CCA’s opinion reveals that:

    After argument, the military judge denied the defense’s motion, finding 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. But the CCA looked at the testimony and the rest of the record and concluded that:

    Thus, Mr. Davenport could rely on Mr. Fisher’s creation of various DNA profiles to conduct and testify about his own statistical testing (following steps 3-7 above) concerning the likelihood of a match between the DNA profiles. What he could not do, though, was to “act as a conduit for repeating testimonial hearsay.” Id. at 225. Mr. Davenport did so by repeating testimonial statements contained in Mr. Fisher’s report, namely that the DNA profile found on the evidentiary samples from SrA CA specifically came from the appellant. Mr. Davenport could not form an independent conclusion that the known DNA in the analysis he reviewed came from the appellant because his review was limited to repeating statistical comparisons performed after Mr. Fisher had already done all the hands on work necessary to properly prepare the samples for the machine-generated portions of the analysis. [Footnote 9] Because Mr. Davenport repeated testimonial hearsay to the factfinder, the appellant’s right to confront Mr. Fisher was violated.

    Slip op. at 13. The footnote explains (somewhat comically):

    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. 

    As I wrote above, USACIL’s brief adds a factual twist by asserting that Mr. Davenport could form an independent conclusion that the known DNA in the analysis he reviewed came from the appellant because “he stands as an original witness to the report.” Amicus Br. at 6. Besides directly contradicting the CCA, this assertion is one of two things:

    1) An explanation of something that’s in the record (maybe testimony or documents about USACIL procedure) that the parties themselves (and the CCA it seems) just don’t fully understand, or

    2) A totally new fact that comes from outside the record and that USACIL may as well have just made up (I’m not implying that it’s a fabrication; rather, I’m saying that if it’s not in the record then it doesn’t exist).

    If this assertion is in the record then I think it will be dispositive (and CAAF may style its opinion as a rather mundane affirmance of the judge’s ruling allowing the substitution). If it’s not in the record then I suspect we’ll hear about it during oral argument (I don’t see any indication that amicus will argue). But what happens next if it’s not in the record is something of a toss-up. This case may well be in the there-be-dragons portion of the confrontation clause map. 

    I don’t think the CCA’s use of the word “definitively” (“we find as a matter of fact the record of trial does not definitively establish that Mr. Davenport had first-hand knowledge…”) is particularly significant. The CCA was wrestling with what amounts to inadequate foundation for Mr. Davenport’s testimony, and perhaps with a contradiction between the judge’s findings on the Defense motion opposing Mr. Davenport as a substitute for Mr. Fisher and the actual evidence elicited at trial.

    But that said, considering that Mr. Davenport testified as an expert I’d expect the record to definitively establish what he actually knew.