Cargill, a federal public defender, was perturbed by a rarely discussed U.S. court rule that critics say conflicts with the presumption of judicial openness. In the Western District of Virginia, as in many other U.S. court districts, a probation officer makes a secret sentencing recommendation to the judge. Cargill accidentally saw the probation officer’s recommendation for his client. The report was “misleading and inaccurate,” Cargill wrote in a protest letter. (Emphasis added.)

Here is a link to the full article in the Roanoke (VA) Times.

Probation officers work for the court, for judges — not for the defense or the prosecution, Conrad said. Any facts the probation officer turns up are supposed to be in the report shared with the defendant and the lawyers, Conrad said. The sentencing recommendation is supposed to be the probation officer’s interpretation of the facts. People accused of a crime have a constitutional right to face their accusers, but that’s at trial, for a judgment of guilt or innocence, Conrad said.

Remember, CAAF has held that the Sixth Amendment right to confrontation does not apply at sentencing, but that Fifth Amendment due process does. See United States v. McDonald, 55 M.J. 173 (C.A.A.F. 2001).

Title: NIBCO, Inc. v. Rivera Docket: 10-383 Issue(s): (1) Whether a court of appeals must conduct a comparative juror analysis when reviewing a claim under Batson v. Kentucky, even though the comparative analysis was neither raised before nor considered by the trial court below; and (2) whether a court of appeals that identifies a suspected Batson problem based on a comparative juror analysis never considered by the trial court can vitiate a trial without remanding to allow the trial court to consider the new arguments and evidence in the first instance.

Title: Dunn v. Louisiana Docket: 10-386 Issue(s): Whether a court’s modification of the three-step Batson v. Kentucky analysis, requiring the defense to prove that its strikes were not motivated by race, while simultaneously requiring it to prove that the state’s strikes were motivated by race, violates the Sixth and Fourteenth Amendments.

The Virginia Supreme Court today issued its decision in Briscoe on remand from the United States Supreme Court. . The court held that the former Virginia statutory scheme (under which the defendant had to call a lab analyst as his witness if he wanted to examine the analyst) was unconstitutional. This, of course, was the point that I sought to establish in bringing the petition for certiorari; Melendez-Diaz made the point clear, and now the Virginia Supreme Court has drawn the obvious conclusion. The court held that the error was harmless in Briscoe’s case, but Cypress’s conviction was reversed. I expect his case will plead out.

Here are the SCOTUSWiki links on the Supreme Court litigation.

Appellate defense counsel initially raised one assignment of error to this court – that appellant’s conviction for uttering checks with intent to defraud was legally and factually insufficient. Upon our initial review, we specified the following issues: I. WHETHER APPELLANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WHEN, AFTER PLEADING NOT GUILTY, HIS DEFENSE COUNSEL ARGUED DURING SENTENCING THAT: (1) APPELLANT “LIVED OUT THE FANTASY OF A SOLDIER WHO GOT [AN] INHERITANCE AND WHO HAD MONEY IN THE BANK,” AND; (2) APPELLANT, “OUT OF DESPERATION, . . . TOOK A CHECK FROM [HIS ROOMMATE], WROTE IT OUT FOR 300 DOLLARS, AND CASHED IT.” See United States v. Wean, 45 M.J. 461 (C.A.A.F. 1997). II. ASSUMING, ARGUENDO, THAT APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL ON SENTENCING, WHAT IS THE APPROPRIATE REMEDY? See United States v. Boone, 49 M.J. 187 (C.A.A.F. 1998).

So now what:

In United States v. Wean, 45 M.J. 461, 463 (C.A.A.F. 1997), our superior court stated that in general, when an accused has consistently denied guilt, a functional defense counsel should not concede an accused’s guilt during sentencing, not only because this can serve to anger the panel members, but also because defense counsel may be able to argue for reconsideration of the findings before announcement of sentence.

The court comes to this conclusion or evaluation of the defense tactics on sentencing:

We are at a loss as to how this tactic could possibly “preserve what little credibility [CPT D] had left with the panel so they would fully consider [appellant’s] sentencing case.” On the contrary, we believe it is much more likely that this tactic damaged counsel’s credibility and, as in Wean, “was directly contrary to appellant’s insistence upon his innocence.” See Wean, 45 M.J. at 463. The law in this area is in a state of flux, however, so we will assume arguendo that CPT D’s performance was deficient and proceed to our analysis of prejudice.

ACCA ended up affirming the findings and sentence because they found no prejudice to the appellant.

These cases and issues are TOUGH to do. On the one hand the client wants to litigate and that’s not a bad strategy even if it’s a litigate to mitigate case. But the quandry comes on how best to try and do damage control on sentencing. Here the client didn’t help.

Joseph Allen served in the United States Air Force (Air Force) for more than twenty years, from January 14, 1985, until September 30, 2006, when he voluntarily retired and received an Honorable Discharge. During his service, on February 18, 2004, the Air Force initiated general court-martial proceedings against Allen, alleging that he took indecent liberties with a minor child and contributed to the delinquency of two minor children. The general court-martial trial began more than two years later, on March 21, 2006. Allen was convicted, and his sentence included a reduction in grade from Master Sergeant (E-7) to Senior Airman (E-4), significantly reducing his retirement benefits. Following the conviction, Allen filed a complaint against the Air Force and nineteen individuals in the District Court for the District of North Dakota, claiming that his Sixth Amendment speedy trial rights were violated. The district court[ 2 ] granted the Air Force’s motion for summary judgment. Allen appeals, and for the following reasons, we affirm. Allen also moves to supplement the record, and we deny his motion.

Following his conviction, Allen requested that the court-martial’s findings and sentence be set aside and that the charge and specifications be dismissed because the military judge should have granted Allen’s motion to dismiss for violation of his speedy trial or due process rights. In a memorandum, the Director of the Air Force Judiciary, Colonel Roberta Moro, acting pursuant to Article 69 of the UCMJ, reviewed the record of the court-martial, determined that no relief was warranted and declined to send the case to the Air Force Court of Criminal Appeals because the court-martial’s findings and sentence were supported by law. On September 30, 2006, Allen voluntarily retired from the Air Force and received an Honorable Discharge.

Whether the Confrontation Clause permits the prosecution to introduce testimonial statements of a nontestifying forensic analyst through the in-court testimony of a supervisor or other person who did not perform or observe the laboratory analysis described in the statements.

Pendergrass v. State, 913 N.E.2d 703 (Ind. 2009).

STATEMENT OF THE CASE This Court held in Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009), that the prosecution violates the Confrontation Clause when it introduces forensic laboratory reports into evidence without affording the accused an opportunity to “‘be confronted with’ the analysts at trial.” Id. at 2532 (quoting Crawford v. Washington, 541 U.S. 36, 54 (2004)). This case raises the question of whether the prosecution complies with that holding by introducing forensic reports through the in-court testimony of someone, such as a supervisor, who did not perform or observe the testing discussed in the reports. In this case, a bare majority of the Indiana Supreme Court upheld the practice, deepening a square conflict of authority on the issue. The Indiana Supreme Court granted discretionary review. While the case was pending, this Court issued its decision in Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009), clarifying that forensic laboratory reports are testimonial under Crawford. Three months later, a bare majority of the Indiana Supreme Court affirmed the court of appeals, adopting yet another rationale to justify admitting Powers’ forensic reports without calling her to the stand. Specifically, the Indiana Supreme Court upheld the admission of Powers’ testimonial statements on the ground that “it [is] up to the prosecutors to choose among the many ways of proving up scientific results, as long as the way chosen feature[s] live witnesses.” App. 12a (citing Melendez-Diaz, 129 S. Ct. at 2532 n.1). The court noted that State introduced two live witnesses: Lisa Black, Powers’ supervisor, and Dr. Conneally, the prosecution’s genetics expert. In the Indiana Supreme Court’s view, this “sufficed for Sixth Amendment purposes.” App. 12a-13a. The dissent accused the majority of basing its reasoning on “certain isolated passages from the Melendez-Diaz opinion” that, “taken in context,” dictated the opposite result. App. 15a-16a. In the dissent’s view, Melendez Diaz held that “a defendant has a constitutional right to confront at the very least the analyst that actually conducts the tests.” App. 19a. The opportunity to cross-examine a supervisor is “no substitute for a jury’s first-hand observations of the analyst that performs a given procedure.” App. 19a.

The petition notes a growing and deeper split over the meaning of Melendez-Diaz. And notes for example that:

In the wake of Melendez-Diaz, two state supreme courts and one federal court of appeals have held that the Confrontation Clause prohibits what might be called “surrogate” forensic testimony – that is, introducing one forensic analyst’s testimonial statement through the in-court testimony of another. In direct contrast, three state high courts have held, based on the two distinct theories the Indiana appellate courts adopted below, that introducing one forensic analyst’s testimonial statement through the in-court testimony of another does not violate the Confrontation Clause. The post-Melendez-Diaz conflict concerning surrogate forensic testimony deepens a pre-existing split over whether, as a more general matter, testimonial statements of a nontestifying witness can be introduced through the in-court testimony of an expert witness.

To illustrate the reason why it is necessary to have the actual personnel involved in testing testifying, the petition uses an issue from California. I think we can think of situations in military labs – Hastis, USACIL and its DNA testing.

Surrogate witnesses fail to address – and may actually aggravate – the problems posed by an analyst’s potential fraud, incompetence, or flawed methodology. A recent case from California vividly illustrates the point. In People v. Dungo, 98 Cal. Rptr. 3d 702 (Cal. Ct. App. 2009), rev. granted (Cal. Dec. 2, 2009) the prosecution introduced an autopsy report to prove that a certain amount of time had elapsed before the victim’s death, a hotly contested issue at trial. The medical examiner who had authored the report, however, had since been fired. He had also been forced to resign “under a cloud” from another job, and was blacklisted by law enforcement in two more counties for falsifying his credentials. Id. at 704. Finally, the examiner had been known to base his conclusions on police reports instead of forensic methods. See People v. Beeler, 891 P.2d 153, 168 (Cal. 1995); Scott Smith, S.J. Pathologist Under Fire Over Questionable Past, THE RECORD, Jan. 7, 2007, available at http://www. recordnet.com/apps/pbcs.dll/article?AID=/20070107/A_NEWS/701070311#STS=g329z7h5.134t. In light of this problematic track record, the prosecution put the medical examiner’s supervisor on the stand instead of the examiner. As the supervisor explained during the preliminary hearing, “[t]he only reason they won’t use [the examiner himself] is because the law requires the District Attorney to provide this background information to each defense attorney for each case, and [the prosecutors] feel it becomes too awkward to make them easily try their cases.” Dungo, 98 Cal. Rptr. 3d at 708 (alterations in original). The California Court of Appeal held that this surrogate testimony violated Crawford, observing that the “prosecution’s intent” had been to “prevent[] the defense from exploring the possibility that the [medical examiner] lacked proper training or had poor judgment or from testing [his] ‘honesty, proficiency, and methodology.’” Id. at 714 (quoting Melendez-Diaz, 129 S. Ct. at 2538).

So what next for court-martial cases?