CAAFlog » October 2019 Term » United States v. Baas

Audio of today’s oral arguments at CAAF is available at the following links:

United States v. Baas, No. 19-0377/MC (CAAFlog case page): Oral argument audio (wma)(mp3)

United States v. Moore, No. 20-0119/AR (CAAFlog case page): Oral argument audio (wma)(mp3)

The audio is also available on our oral argument audio podcast.

CAAF will hear oral argument in the Marine Corps case of United States v. Baas, No. 19-0377/MC (CAAFlog case page), on Tuesday, March 17, 2020, at 9:30 a.m. The court granted review of two issues involving the admission of a laboratory test result:

I. Did admission of an allegedly positive Diatherix Laboratories test for gonorrhea without testimony at trial of any witness from Diatherix violate the Sixth Amendment confrontation clause?

II. Did the lower court abuse its discretion in admitting an alleged positive Diatherix test result for gonorrhea in a child’s rectal swab-where Diatherix failed to follow its own procedures and the result was of near zero probative value?

Corporal (E-4) Baas was convicted of numerous offenses including rape of a child (his son, who was one year old at the time). The evidence supporting the rape conviction included a positive gonorrhea test of the child. Baas told military law enforcement that he had gonorrhea (a sexually-transmitted disease) and he encouraged them to test the child for it in the belief that the test would exonerate him. Swabs were taken from the child by a pediatrician and sent to Diatherix Laboratories, where a nucleic acid amplification test (NAAT) revealed the positive result. However, the pediatrician who took the swabs explained that the NAAT was a screening test that was susceptible to false positives, and that more reliable tests should be performed to confirm the diagnosis.

Those confirmatory tests were not performed. Rather, the child was treated with antibiotics, rendering further testing impossible. Nevertheless, the prosecution moved to introduce the NAAT result, and the parties litigated its admissibility. The military judge ultimately ruled that the result was admissible because the test was reliable and it was for the members to determine what weight to give the result.

The Navy Marine Corps CCA affirmed, concluding that the Diatherix lab report was nontestimonial (and so could be admitted without calling a witness from the laboratory) because the report was merely a business record of a test conducted primarily for treatment (not law enforcement), the report contained only unambiguous factual matters, and the report was not primarily created for the purpose of introducing it as evidence at trial.

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Back in November, CAAF granted review in the Marine Corps case of United States v. Baas, No. 19-0377/MC (discussed here). The case involves the admission of a gonorrhea screening test and includes a Confrontation Clause challenge and a substantive challenge to the reliability of the test.

CAAF’s daily journal has this entry from Tuesday:

No. 19-0377/MC. U.S. v. Nicholas S. Baas. CCA 201700318. On consideration of Appellee’s motion to return or strike Appellant’s brief for non-compliance with this Court’s rules, it is ordered that the motion is granted in part, regarding Appellant’s citation to the Diatherix manual found on pages 10, 11, 12, and 51 of his brief, that the motion is denied in part, regarding Appellant’s citation to Thinking, Fast and Slow, and the brief is returned to Appellant to refile a brief that complies with this Order on or before February 5, 2020.

I can’t recall any other example of CAAF rejecting a brief from an individual appellant, and certainly not on motion of a Government division.

Last week CAAF granted review in this Marine Corps case:

No. 19-0377/MC. U.S. v. Nicholas S. Baas. CCA 201700318. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is granted on the following issues:

I. DID ADMISSION OF AN ALLEGEDLY POSITIVE DIATHERIX LABORATORIES TEST FOR GONORRHEA WITHOUT TESTIMONY AT TRIAL OF AN WITNESS FROM DIATHERIX, VIOLATE THE SIXTH AMENDMENT CONFRONTATION CLAUSE?

II. DID THE LOWER COURT ABUSE ITS DISCRETION IN ADMITTING AN ALLEGED POSITIVE DIATHERIX TEST RESULT FOR GONORRHEA IN A CHILD’S RECTAL SWAB-WHERE DIATHRIX FAILED TO FOLLOW ITS OWN PROCEDURES AND THE RESULT WAS OF NEAR ZERO PROBATIVE VALUE?

Briefs will be filed under Rule 25.

The CCA’s opinion is available here.

The appellant was convicted of numerous offenses including rape of a child. The evidence supporting the rape conviction included a positive test of the child for gonorrhea; a sexually-transmitted disease that the appellant told military law enforcement he had and that he encouraged them to test the child for in the belief that the test would exonerate him. Swabs were taken from the child and sent to Diatherix Laboratories, where a nucleic acid amplification test (NAAT) revealed the positive result. But the pediatrician who took the swabs explained that the NAAT was a screening test that was susceptible to false positives, and that urethral and rectal culture tests should be performed to confirm the diagnosis.

Those confirmatory tests were not performed. Rather, the child was treated with antibiotics, rendering further testing impossible. Nevertheless, the prosecution moved to introduce the NAAT result, and the parties litigated its admissibility. The military judge ultimately ruled that the result was admissible because the test was reliable and it was for the members to determine what weight to give the result.

The CCA considered and rejected the first granted issue, concluding that the Diatherix lab report was nontestimonial (and so could be admitted as business records) because the test was conducted primarily for treatment (not law enforcement), the report contained only unambiguous factual matters, and the report was not primarily created for the purpose of introducing it as evidence at trial.

The CCA’s opinion also references the underlying claim in the second granted issue – that the Diatherix laboratory failed to follow its own procedures – in a larger analysis of the military judge’s ruling that admitted the test result. The CCA affirmed the military judge’s ruling admitting the result.