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A Notorious Case, Modern Lab Realities, and a Petition for Rehearing

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The US Supreme Court opened its annual term today.  The only criminal case on the docket is confined to a narrow issue.  The orders list has only a little of interest, but there are two unusual items.

When the Supreme Court has declined to review a case, a petition to rehear that decision is usually a "Hail Mary" pass with near-zero chance of success. Today the Court asked two States to respond to such petitions, though.  The New Hampshire petition has to do with the identification issue presently before the Court in Perry v. New Hampshire.  The Florida petition comes in an exceptionally notorious case, yet it involves an everyday issue of how lab work is done in the modern era.

All murder is heinous, but if there is one kind of single-victim homicide that cries out for the death penalty above all others, it is the predatory kidnap, rape, and murder of a little girl.  Joseph Smith is such a predator.  This is the kind of case that makes some people who generally oppose capital punishment inclined to make an exception, and it tends to make hard-core opponents quiet, preferring a different case to express their opposition.
Seven years ago, 11-year-old Carlie Brucia was abducted while walking home from a friend's house.  See this page for more information on the crime.  Smith's conviction and sentence were affirmed by the Florida Supreme Court in December 2009.  Evidence against Smith included surveillance video and DNA testing of his semen on Carlie's shirt.

So who testifies on the lab test?  There is no one person who does everything.  Any DNA match will necessarily involve at least two tests.  Even for a single test, efficient lab management may mean assigning different tasks to different people.  The Florida Supreme Court noted:

In evaluating whether a Sixth Amendment violation occurred, it is essential to examine the role of the team supervisor in the evaluation of the semen sample found on the victim's shirt. During a proffer, the supervisor explained her role as the manager of a DNA-analysis team as follows:

I determine what items of [sic] exams will be conducted on which items. And I have the biologists who actually do[] the bench work for me. I then draw the conclusions, interpret their results and write the report and then testify, if needed.

When further asked to explain her duties as a team supervisor, she explained:

I manage the case, the case comes in, it gets assigned to me to be the DNA or serology manager. By that it means that I am in charge of talking with the contributors, determining what items will be worked. Then from there determining what stains will be worked. If the biologists have a question, they, you know, they can always come and talk to me about what exams to do and if further testing needs to be done.

When asked if she interprets the results of the tests conducted by the biologists on her team, the supervisor responded, "Yes, I do. I draw all the interpretations and all the conclusions based on their work--an example would be if they test for blood, they will write the results of the test, but then it is my interpretation that says blood is there on that item of evidence." (Emphasis supplied.) She also testified that this protocol is standard for the FBI serology/DNA lab.

The supervisor also explained that the biologists on her team make notes and keep records of every test that they complete on a sample, that the notes become part of the file in the case, and that she uses the notes to reach her conclusions and prepare the final report. The supervisor testified that she was the individual who compared the DNA sample taken from the victim's shirt to that of Smith and determined that these specimens matched at all thirteen relevant locations on the DNA strand. She was also the individual who calculated the probability of selecting an unrelated individual at random from the pertinent sample group who would have the same DNA profile as that found on the shirt.

Does the Confrontation Clause, as interpreted in Crawford v. Washington, require that we bring in the whole crew, so each person can testify as to each part of the total task?  That would be impractical.   Efficient operation of forensic laboratories is essential, given how important these tests are in getting to the truth and how many tests need to be done these days.  Having multiple people testify to routine matters would just bog down the system with no gain in reliability, and we know very well that in capital cases bogging down is very much part of the opposition's strategy.  The issue of a technician's work as the basis for an expert's opinion is presently before the Court in Williams v. Illinois.  Let us hope that the Court comes to a sensible conclusion.

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