Violation of Sixth Amendment Wrong, but Harmlessly So

Have you ever had the situation arise where the prosecution cannot produce the toxicologist who performed the analysis of the drugs in your trial, and, instead, will produce another member of the lab to testify that they have reviewed the work of the analyst and they conclude that the controlled substance is what the report says it is? Turns out such a scenario violates the defendant’s Sixth Amendment right to confrontation of witnesses.

In the case of People v Dendel, decided on August 24, 2010, Court of Appeals’ Judges Borrello and Saad, with Judge Wilder concurring, held that when the CEO of an independent laboratory (AIT Laboratories) testifies to facts in a report from another analyst at his lab, such testimony violates the confrontation clause and the United States Supreme Court’s ruling in Melendez-Diaz v Massachusetts, decided last year.
Katherine Dendel was convicted following a bench trial before the Honorable Chad Schmucker in the Jackson County Circuit Court. The prosecution theorized that the defendant had injected the decedent with a high dose of insulin, causing him to suffer hypoglycemic shock, lapse into a coma and die. The lab CEO opined, based on the analysis of others who performed the tests on the body, that the zero level of glucose in the decedent’s vitreous fluid proved he had been injected with insulin prior to his death. Judge Schmucker held, over the defense attorney’s objection, that the prosecution had laid a proper foundation for the hearsay testimony and that the toxicology results came within the business records exception. The Court of Appeals, however, after a very detailed analysis of the SCOTUS opinion in Melendez-Diaz and interpreting decisions from other jurisdictions, concluded the laboratory had been contacted for the purpose of assisting law enforcement in determining the zero glucose level. That distinction rendered this case more similar to the Melendez-Diaz decision than it was to other Michigan decisions that have found that lab reports are not testimonial. Therefore, the Court held that the trial court erred in allowing the hearsay testimony because the defendant had no ability to cross-examine the analysts who did the actual testing of the bodily fluids.

However, the analysis did not end there. The Confrontation Clause aspect of the defendant’s objection was not preserved at the trial level, however, the Court held that such an objection would have been futile because the USSC had not yet decided either Crawford or Melendez-Diaz. The Court held that the issue was reviewable as though it had been fully preserved because of fundamental fairness. Therefore, the Court was required to review the error to determine if it was harmless beyond a reasonable doubt. It was.

The defense raised at trial was that the victim died as the result of a suicide, injecting himself with insulin so that the defendant would not have to care for him any longer. This defense severely undermined the importance of the zero-glucose finding of the lab. Further facts supported this defense theory. “After defendant’s arrest, she told police detectives that Burley had injected himself with insulin. During a later interview with a police detective, defendant said, ‘That poor dear, he killed himself for me.’” The Court found that it made little difference that the fact finder heard inadmissible hearsay suggesting that the victim had been injected with insulin. Consequently, the Court concluded that the Confrontation Clause error was harmless beyond a reasonable doubt and she was not entitled to a new trial.

Nonetheless, criminal defense attorneys have been given, I believe, a powerful argument against the admission of laboratory findings unless the prosecution presents the actual analyst who performed any scientific testing that is relevant to the elements of the offense.

Remember, however, that this opinion still does not affect the admissibility of autopsy reports. The distinction there rests on the statutory obligation of the medical examiner to render an opinion in any unexpected death. Therefore, the motivation to feel pressure from law enforcement or to desire to please law enforcement does not exist. To me, it is a distinction without substance as the typical M.E. is usually motivated by his or her conversations with police investigators, but, perhaps, that is an argument to be reserved for a later date.