No. IN THE Supreme Court of the United States. Andrew D. Tearman, Lance Corporal, United States Marine Corps, Petitioner, v.

No. IN THE Supreme Court of the United States Andrew D. Tearman, Lance Corporal, United States Marine Corps, Petitioner, v. United States of America, Respondent. On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Armed Forces PETITION FOR A WRIT OF CERTIORARI July 17, 2013 Jason R. Wareham Captain, U.S. Marine Corps Counsel of Record David C. Dziengowski Lieutenant, JAGC, U.S. Navy 1254 Charles Morris Street, SE Washington, D.C. 20374 (202) 685-7394 jason.wareham@navy.mil

i QUESTION PRESENTED The mission of the Navy Drug Screening Laboratory, San Diego, is [t]o support command readiness and force health protection by deterring illegal drug use through forensic testing, expert testimony, consultation, education, and methods development. Navy Drug Screening Laboratory, San Diego, Homepage, http://www.med.navy.mil/sites/sandiegodruglab (last visited July 8, 2013). Here, that laboratory produced a drug testing report containing, inter alia, certified chain of custody documents and internal review worksheets that were admitted into evidence against Petitioner. The question presented is: Whether the certified chain of custody documents and internal review worksheets from the Navy Drug Screening Laboratory are testimonial evidence subject to the demands of the Confrontation Clause as set forth in Crawford v. Washington, 541 U.S. 36 (2004), and its progeny?

ii TABLE OF CONTENTS QUESTION PRESENTED... i TABLE OF CONTENTS... ii TABLE OF AUTHORITIES... iv PETITION FOR A WRIT OF CERTIORARI... 1 OPINIONS BELOW... 1 JURISDICTION... 1 CONSTITUTIONAL AND REGULATORY PROVISIONS INVOLVED... 2 INTRODUCTION... 3 STATEMENT OF THE CASE... 3 REASONS FOR GRANTING THE PETITION... 7 I. Petitioner s Case Presents an Important Federal Question. It Represents the Logical Next Step in this Court s Confrontation Clause Jurisprudence... 7 II. The Lower Court s Application of the Confrontation Clause to the Drug Report Morphs this Court s Jurisprudence Into an Unrecognizable Application... 12 III. The Question Presented Significantly Impacts the Administration of Criminal Justice... 21

iii IV. This Case Presents an Excellent Vehicle to Resolve this Important Question... 23 CONCLUSION... 25 APPENDIX A, Opinion of the United States Court of Appeals for the Armed Forces in United States v. Tearman.... A1 APPENDIX B, Opinion of the United States Navy-Marine Corps Court of Criminal Appeals in United States v. Tearman... B1 APPENDIX C, Prosecution Exhibit 4, admitted over defense objection... C1

iv TABLE OF AUTHORITIES Cases Supreme Court of the United States Bullcoming v. New Mexico, 564 U.S., 131 S.Ct. 2705 (2011)... passim Crawford v. Washington, 531 U.S. 36 (2004). passim Davis v. Washington, 547 U.S. 813 (2006)... 18 Delaware v. Van Arsdall, 475 U.S. 673 (1986)... 6 United States v. Denedo, 556 U.S. 904 (2009)... 19 Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009)... passim Williams v. Illinois, 132 S.Ct. 2221 (2012)... passim United States Court of Appeals for the Armed Forces United States v. Blazier (Blazier I), 68 M.J. 439 (C.A.A.F. 2010)... 12 United States v. Blazier (Blazier II), 69 M.J. 218 (C.A.A.F. 2010)... 12 United States v. Sweeny, 70 M.J. 296 (C.A.A.F. 2011)... 9, 12 United States v. Tearman, 72 M.J. 54

v (C.A.A.F. 2013)... passim United States Navy-Marine Corps Court of Criminal Appeals United States v. Tearman, 70 M.J. 640 (N-M. Ct. Crim. App. 2012)... 1 Court of Appeals of New Mexico State v. Huettl, 2013-NMCA-038 (N.M. Ct. App. 2013)... 19 Statutes 10 U.S.C. 912a (2006)... 4, 10 28 U.S.C. 1259(3) (2006)... 1 Rules Military Rule of Evidence 803(6)... 5, 6, 14 Miscellaneous Authority Fredric I. Lederer, The Military Rules of Evidence: Origins and Judicial Implementation, 13 Mil. L. Rev. 5 (1990)... 14

vi Navy Drug Screening Laboratory, San Diego Homepage, http://www.med.navy.mil/sites/sandiegodruglab (last visited July 8, 2013)... i Navy Drug Screening Laboratory, Jacksonville, Homepage, http://www.med.navy.mil/sites/jaxdruglab/pages/defa ult.aspx (last visited July 8, 2013)... 15 Office of the Chief of Naval Operations Instruction (OPNAVINST), Department of the Navy, 5350.4D, Navy and Drug Abuse Prevention and Control (June 4, 2004)... 2, 16 Valerie J. Silverman, Note, Testing the Testimonial Doctrine: The Impact of Melendez-Diaz v. Massachusetts on State Level Criminal Prosecutions and Procedure, 91 B.U. L. Rev. 789 (2011)... 21 Capt. Daniel I. Stovall, Let Cobham Be Here : The Introduction of Drug Testing Reports in Courts- Martial Post Melendez-Diaz, 67 A.F. L. Rev. 153 (2011)... 21 Dwight Sullivan, Brady Notice for Navy Drug Screening Laboratory False Positive, CAAFLOG (Aug. 28, 2012), http://www.caaflog.com/2012/08/28/brady-notice-fornavy-drug-screening-laboratory-false-positive/... 22

vii Edward J. Ungvarsky, Remarks on the Use and Misuse of Forensic Science to Lead to False Convictions, 41 New Eng. L. Rev. 609 (2007)... 22

1 PETITION FOR A WRIT OF CERTIORARI Lance Corporal Andrew D. Tearman, United States Marine Corps, respectfully petitions for a writ of certiorari to review the decision of the United States Court of Appeals for the Armed Forces (CAAF). OPINIONS BELOW The published opinion of the CAAF appears at pages A1 through A48 of the appendix to the petition and is reported at 72 M.J. 54 (C.A.A.F. 2013). The published opinion of the United States Navy-Marine Corps Court of Criminal Appeals (NMCCA) appears at pages B1 through B14 and is reported at 70 M.J. 640 (N-M. Ct. Crim. App. 2012). JURISDICTION The CAAF issued its opinion on March 19, 2013. Petitioner sought and obtained an extension to file this Petition up to and including July 17, 2013. This Court has jurisdiction pursuant to 28 U.S.C. 1259(3).

2 CONSTITUTIONAL AND REGULATORY PROVISIONS INVOLVED The Sixth Amendment to the United States Constitution provides in relevant part: In all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him[.] U.S. Const. amend VI. Office of the Chief of Naval Operations Instruction (OPNAVINST), Department of the Navy, 5350.4D, Navy and Drug Abuse Prevention and Control (June 4, 2004) provides in relevant part: 8. Collection and Transportation of Urine Specimens... [F]or purposes of courts-martial, other disciplinary and administrative proceedings, adequate chain of custody on samples is achieved when the container is delivered to NDSL sealed without indication of tampering as annotated by the lab on the chain of custody document. (emphasis added). 12. Urinalysis Program Guidance a. Urinalysis testing shall be conducted with the full expectation that administrative or disciplinary action might result. (emphasis added).

3 INTRODUCTION The Government s certified chain of custody documents and internal review worksheets support and weight its forensic report by attesting to the use of proper procedures and the accuracy of testing results. These service-regulated forms contain signatures and initials of chemists, technicians, and other quality control personnel, who certify them inside a forensic laboratory designed to produce legally defensible results. Accordingly, these statements qualify as testimonial evidence. Over defense objection, the Government may not introduce this evidence without first calling the live declarants who made them. That is what confrontation requires, and it is the logical result of this Court s emerging Confrontation Clause jurisprudence. Here, however, the military judge admitted these statements without ordering the live testimony of the declarants. He found that, despite the stated mission and supporting regulations of the Navy Drug Screening Laboratory (NDSL), the statements did not qualify as testimonial. That was error. This case presents an opportunity to answer the important question posed by Justice Breyer in Williams v. Illinois: namely, what is the testimonial status of underlying technical statements and certifications admitted against an accused from a federal forensic laboratory? STATEMENT OF THE CASE 1. Petitioner was one of approximately forty-four

4 Marines randomly selected to participate in a unit urinalysis on July 7, 2010. His urine sample, like that of the others, was packaged and shipped to the NDSL, San Diego, for testing. During shipment, the package was damaged. A chain of custody form documented this discrepancy. Upon arrival, the NDSL assigned Petitioner s urine bottle a unique laboratory accessing number. It then screened and rescreened the sample, ultimately confirming the presence of tetrahydrocannabinol (THC), a marijuana metabolite, above the Department of Defense cutoff level. Accordingly, the NDSL sent an electronic notification of the positive result to Petitioner s command on July 16, 2010. 2. Not three months later, a military prosecutor requested the empty urinalysis bottle and all drug lab documentation relating to Petitioner s unique sample. App. B2. That documentation contained, inter alia, certified chain of custody documents and internal review worksheets. Handwritten signatures or initials of laboratory certifying officials, technicians, and quality control personnel indicating the chain of custody from collection through testing were present throughout the drug report. On the basis of this report, a single charge and specification for wrongful use of marijuana, alleged under Article 112a, UCMJ, 10 U.S.C. 912a (2006), was thereafter referred to a special courtmartial. Petitioner pleaded not guilty. 3. Prior to trial, Petitioner moved to exclude the entire report. Petitioner contended that it was

5 prepared in anticipation for use at trial. App. A6. Alternatively, Petitioner moved to exclude all nonmachine generated portions of the report on grounds that these documents presented testimonial hearsay subject to the demands of the Confrontation Clause. Id. The military judge denied the motions, holding that the entries including the chain of custody notations made by technicians of the [NDSL] in the urinalysis lab report do not constitute testimonial statements within the scope of the confrontation clause and are potentially admissible under the business records exception. Id. 4. At trial, the United States called Ms. Andrea Kaminski. Though she served as a supervisory forensic chemist and expert witness from the NDSL, she could not testify about the accessioning, initial screening, or the rescreening processes associated with Petitioner s urine specimen. She was not present for that testing. When, during her testimony, the United States offered the NDSL s drug report into evidence, Petitioner renewed his objection on Confrontation Clause grounds. But once again, the military judge denied the objection. He found that the entire report was admissible under the records of regularly conducted activity exception to hearsay found in Military Rule of Evidence 803(6). That Rule defines such records, in part, as: A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted

6 business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation.... Mil. R. Evid. 803(6). The Rule goes on to provide an illustrative list of examples, to include forensic laboratory reports and chain of custody documents. Id. But these examples do not end the matter. See infra Part II of this Petition. A panel of officer members then convicted Petitioner and sentenced him to a bad-conduct discharge and reduction in rank to pay-grade E-1. 5. On appeal, the NMCCA affirmed. That opinion is reproduced at App. B1. The NMCCA held that, except for blocks G and H on the DD Form 2624, the military judge did not err in admitting the drug report. That court relied largely on formality, reasoning that the non-machine generated documents lacked the attendant characteristics and formalities to suggest that they were affirmation[s] made for the purpose of establishing or proving some fact in a criminal proceeding. App. A9-10 (quoting App. B7). As for blocks G and H, the court found the statements contained therein to be testimonial hearsay. But the court affirmed because, in its view, under Delaware v. Van Arsdall, 475 U.S. 673 (1986), the error was harmless. 6. The CAAF granted review and affirmed. Its opinion affirming the lower court is reproduced at A1. As the CAAF observed, The language used by the Supreme Court to describe whether and why a

7 statement is testimonial is far from fixed. App. A12. No matter what formulation is chosen, however, the CAAF held that neither the chain-of-custody documents nor the internal review worksheets at issue qualify. App. A14. In a footnote, the CAAF then found this Court s Confrontation Clause jurisprudence unaltered in the aftermath of Williams v. Illinois, 132 S. Ct. 2221 (2012). Id. Chief Judge Baker, concurring in part and in the result, disagreed. I do not believe, he wrote, one can resolve this case without first addressing Williams v. Illinois.... App. A27. He then wrote, in relevant part, that the meaning of the Confrontation Clause in the context of lab reports has proven particularly vexing to the Supreme Court. App. A28. 7. This timely petition follows. REASONS FOR GRANTING THE PETITION I. Petitioner s Case Presents an Important Federal Question. It Represents the Logical Next Step in this Court s Confrontation Clause Jurisprudence. This case presents the logical next step in this Court s Confrontation Clause jurisprudence. See, e.g., Crawford v. Washington, 541 U.S. 36 (2004); Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009); Bullcoming v. New Mexico, 564 U.S., 131 S.Ct. 2705 (2011); Williams v. Illinois, U.S., 132 S.Ct. 2221 (2012) (Breyer, J., concurring).

8 Specifically, this case echoes the important question raised by Justice Breyer in Williams: How does the Confrontation Clause apply to the panoply of crime laboratory reports and underlying technical statements written by (or otherwise made by) laboratory technicians? Williams, 132 S.Ct. at 2245-46 (Breyer, J., concurring). These cases as applied here are discussed in turn. In Crawford v. Washington, this Court held that the Confrontation Clause prohibits the use of testimonial statements when the declarant is absent from court unless, of course, the defendant had a prior opportunity to cross-examine. Crawford, 541 U.S. at 59. Five years later, this Court held that a laboratory report produced to serve as evidence in a criminal trial qualified as testimonial statements. Melendez- Diaz, 557 U.S. at 321-25. Applying Crawford, production of that testimony required the production of a competent live witness to testify to the truth of the report. Id. Enter Bullcoming. There, this Court applied Crawford and Melendez-Diaz and held that the Confrontation Clause is not satisfied with just any live expert. Rather, if the prosecution seeks to admit a report that is testimonial in nature, it may not be introduced against the accused at trial unless the witness who made the statement is unavailable and accused has had a prior opportunity to confront that witness. Bullcoming, 131 S.Ct. at 2713. Most recently, in Williams, 132 S.Ct at 2239-42,

9 this Court determined that an expert witness may rely upon statements not admitted for the truth of the matter asserted without triggering the admission of those statements at trial. Pointedly, this case lays at the unsettled margins of this Court s Confrontation Clause jurisprudence. Determining whether certified chain of custody documents and internal review worksheets offered and admitted for their truth are testimonial is the next logical step in the Crawford progeny. It is the question identified by Justice Breyer in his Williams concurrence. And direction is needed from this honorable Court. Here, the trial judge admitted into evidence a forensic report from the NDSL whose stated mission is to provide urinalysis drug testing that is scientifically valid and forensically acceptable as evidence in courts of law. United States v. Sweeny, 70 M.J. 296, 303 (C.A.A.F. 2011) (internal quotations omitted). This report contained, inter alia, certified chain of custody documents and internal review worksheets testifying to the use of proper procedures and the accuracy of the results from the forensic testing process. These documents contained signatures of multiple technicians and chemists certifying the actions taken at each stage of the testing, the quality control measures reviewed, and the proper procedure that was followed. Given the stated mission of the NDSL, described supra at i, the certifications of the technicians and quality control personnel, and the fact that they were admitted for the truth of the matter asserted namely, (1) that the sample tested was Petitioner s and

10 unadulterated, (2) that the testing was done in a proper fashion, and (3) that the results were accurate, i.e., that Petitioner s sample contained THC. As a result, they qualify as testimonial hearsay. Yet, none of these technicians or chemists were produced for trial despite defense objection. In fact, the only witness the Government produced was Ms. Kaminski, an expert employed by the NDSL to oversee testing and provide testimony in courtsmartial or administrative hearings arising from the NDSL testing program. She, however, did not observe any of the process except for the final, confirmation test. Ultimately, the forensic report admitted by the military judge constituted the only evidence that Petitioner used marijuana in violation of 10 U.S.C. 912(a). The admission of these certified chain of custody documents and internal review worksheets were at the behest of the Government. But if the Government chooses to admit them, it must do so with the requisite live witnesses upon defense objection. Melendez-Diaz, 557 U.S. at 311 n.1. Further, no substitute expert may serve to support these documents other than those that prepared them. Bullcoming, 131 S.Ct. at 2713. Finally, these certifications were admitted for their truth that the process was properly followed and the veracity of the only evidence against the accused could be trusted. Cf. Williams v. Illinois, 132 S.Ct at 2239-42. Having met the Crawford progeny trifecta, the admission of

11 these certifications without the requisite live testimony of the certifying chemists and technicians was constitutional error that harmed Petitioner because he could not confront them nor their procedures and conclusions. For example, admission of these certifications without live testimony deprived Petitioner of the crucible of cross-examination to determine weaknesses or errors in the testing process. Crawford, 541 at 61. The accused was unable to test whether the signatures and certifications of the activities contained any variance in their execution. Or, whether the technician or chemist themselves had any gaps in training, potential biases, history of error, or pressure at any level to falsify. See Melendez-Diaz, 557 at 318-20 (discussing the many purposes for cross-examining a testing analyst, including the potential for manipulation and bias in forensic testing discovered by the National Academy of Sciences). Such a requirement under the Confrontation Clause would be clear if the documents in question were the actual printout of the testing result identifying a drug in Petitioner s urine. Yet, the demands of the Confrontation Clause do not lessen merely because these certifications do not contain the result of the test on its page. These certifications do a greater job than just report the result. These certifications, when admitted by the Government, support and weight the results. They serve as the combined testimony of a small but important cadre of analysts and chemists who declare that the result printed upon the final page may be trusted and may

12 serve to convict. This is the reason the Government admits these documents: to justify the result, and to weight its final accusation. If the Government opts to use these certifications to benefit its case it must also bear the burden to produce the required testimony. This is the Sixth Amendment constitutional mandate that logically flows from Crawford to Williams. Because that mandate was not followed here, this Court should grant review. II. The Lower Court s Application of the Confrontation Clause to the Drug Report Morphs this Court s Jurisprudence Into an Unrecognizable Application. The CAAF based its decision, in part, upon the case law that followed Crawford and Melendez-Diaz. See App A2. See also United States v. Blazier (Blazier I), 68 M.J. 439 (C.A.A.F. 2010) (holding that the cover page of the NDSL urinalysis report was testimonial under Melendez-Diaz but reopening the case for briefing on whether the Confrontation Clause was satisfied through the testimony of an expert uninvolved in the testing); United States v. Blazier (Blazier II), 69 M.J. 218 (C.A.A.F. 2010) (holding after further briefing that (1) a coversheet summarizing the tests and the tests results was testimonial, (2) having a surrogate expert who did not complete the test did not satisfy the Confrontation Clause requirements arising from the coversheet, and (3) an expert may rely on but not repeat testimonial hearsay of another); United States v. Sweeney, 70 M.J. 296 (C.A.A.F. 2011) (opining that, when determining whether statements are testimonial, the focus must be on the purpose of the

13 statements in the report itself, not the initial purpose for the urine collection). Thus, the relevant question is whether the statement is made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial; asked another way, would it be reasonably foreseeable to an objective person that the purpose of any individual statement in a drug testing report is evidentiary? Here, the answer is yes. The lower courts disagreed. In doing so, the CAAF parsed portions of the same exhibit into a page-by-page testimonial vs. nontestimonial comparison. That approach is flawed because it stretches the case law beyond what the Confrontation Clause can endure. This Court should not condone granting testimonial status to the inculpating, certified result of a forensic test while withholding the protections of the Confrontation Clause from the portions of the exhibit that undergird that result. 1 It bears repeating; the Government is not bound to bolster its case by admitting these internal certifications. But if it does, it cannot avoid the requirements of the 1. These documents, described in detail in footnote 2 of United States v. Tearman, 72 M.J. 54, 56 (2013) and reproduced in App. C, when admitted, are admitted to show that the NDSL testing process is proper throughout. The sample can be trusted because it has been carefully controlled and cataloged and sourced from the accused s bottle. The process can be trusted because no less than four certifying officials have reviewed the test and found it to be proper. In short, that the result is fully endorsed and weighted with the approval of the entire lab.

14 Confrontation Clause. This conclusion accords with Melendez-Diaz as it acknowledges that the Government is in control of its case but must support its case within the confines of the Confrontation Clause. 557 U.S. at 311, n.1 ( It is up to the prosecution to decide what steps in the chain of custody are so crucial as to require evidence; but what testimony is introduced must (if the defendant objects) be introduced live. ) (emphasis in original). Even assuming arguendo that a court may selectively apply the Confrontation Clause to different pages of an exhibit, the CAAF s finding concerning the primary purpose of these documents is also flawed. Much of that court s focus dwelled on the fact that these specific documents were created before the prosecution requested the documents for trial. The court used this fact to support its conclusion that these documents were mere business transactions and that no reasonable person could conclude that they would be used in a testimonial capacity. There are four problems with this analysis. First, these documents do not fit the definition of business records defined in Melendez-Diaz. And even though they facially comport with the illustrative business record exception contained in Military Rule of Evidence 803(6), no rule of evidence can erase the constitutional requirements of the Confrontation Clause. 2 Accordingly, that distinction makes no 2. Interestingly, the rule s drafter acknowledged that he drafted the laboratory exceptions at the direction of a superior officer. Fredric I. Lederer, The Military Rules of Evidence: Origins and Judicial Implementation, 130 Mil L. Rev. 5, 24

15 difference here. This Court s description of a business record as one created for the administration of an entity s affairs is inapposite to the subject documents. The subject documents are not a mere recordation of the NDSL s daily workings (maintenance records, quality control calibrations, inventory, etc.). They are sample focused. Melendez- Diaz, 557 U.S. at 324. Put differently, but for the test of Petitioner s urine, they would not exist. Secondly, these documents, admitted together with the forensic finding, help establish an elemental fact for the Government by bolstering the reliability of the finding of THC in Petitioner s sample. Id. Of course, this would be far less problematic if the documents themselves did not contain certifications. But they do. And the purpose of the laboratory is to deter illegal drug use through forensic testing. Indeed, the NDSL s sister laboratory in Jacksonville features a courtroom drama video on its home webpage. See NDSL, Jacksonville, Homepage, http://www.med.navy.mil/sites/jaxdruglab/pages/defa n.70 (1990). In his own words: I added the exception for chain of custody documents for reasons of consistency and because I believed that they were in fact proper business records. A little noticed aspect of chain of custody forms is, however, that they usually do not provide space for reports of the condition of the material being transferred and thus are not relevant on the issue of condition or contamination. Id. That is not the case here. App. C1-34.

16 ult.aspx (last visited July 7, 2013). Employing the primary purpose test articulated in Williams, 132 S. Ct. at 2243, a reasonable person would view the forensic reports produced by these laboratories, along with the chain of custody documents and internal review worksheets that support them, as existing to accuse Petitioner and secure conviction at court-martial. Third, the CAAF whistles past the regulatory intent of the Office of the Chief of Naval Operations Instruction (OPNAVINST) 5350.4D. This naval regulation concerning the drug testing program specifically mandates that personnel should operate the testing with the full expectation that it will be used later in administrative or disciplinary proceedings. 3 OPNAVINST 5350.45 para. 12a. The CAAF conflates the lack of a forensic conclusion with the lack of testimony when it determined that these documents contained no additional substantive information. App. A17-8. But just because a document does not bear the result of a test does not mean that it does not bear testimony, especially when it is admitted by the Government against an accused. The substantive, 3. In military jurisprudence, administrative or disciplinary proceedings refers to the test s usage in administrative boards, command punishment hearings, or courts-martial. While the Confrontation Clause applies only to courts-martial, this does not change the fact that all these proceedings invoke some measure of testimony such that any analyst preparing these legally defensible documents anticipates its primary purpose as evidence against an accused in a proceeding.

17 testimonial value of these documents is in undergirding the positive test result, not declaring it. Without this testimony, the defense and jurors are free to question the result as an erred result arising from mislabeling, misidentification, mishandling, or any other flaw in the forensic process. With it, they are not. The chain of custody and quality control is certified, unchallenged, and unconfronted. Finally, the CAAF s determination that the subject documents are not sufficiently formal to support an evidentiary purpose is also flawed. 4 The subject documents are sufficiently formal to trigger Confrontation Clause analysis. As in Bullcoming, even without a notarial stamp, the documents contain sufficient formalities to keep it within the testimonial orbit. See Bullcoming, 131 S.Ct. at 2717 ( [T]he absence of an oath is not dispositive in determining if a statement is testimonial. ) (internal quotations omitted). The subject documents are: (1) official governmental laboratory forms; (2) mandated by governing naval regulations; (3) oriented to the governing regulation in its headers; (4) created by a 4. Part of this flaw is the undue weight that the CAAF gave to the formality factor. Pointedly, heightened formality is not the sine qua non of testimonial statements. This factor has not been integrated into any of this Court s majority opinions. Instead, it is persuasive authority of concurrences and dissents. See, e.g., Melendez-Diaz, 557 U.S. at 329-30 (Thomas, J., concurring); Bullcoming, 131 S.Ct. at 2721 (Sotomayor, J., concurring in part); Williams, 132 S.Ct. at 2255 (Thomas, J., concurring in the judgment).

18 governmental laboratory charged with creating legally defensible results; (5) replete with personal signatures or initials of certifying technicians and quality assurance personnel who, as shown on the forms, contain the titles chemist, technician, quality control, initial laboratory certifying official, final laboratory certifying official ; and (6) computer printouts with signed quality control notations on them. App. C at 1-2, 5-7, 11-13, 17-19, 27, 29. Based on this Court s Confrontation Clause jurisprudence, the documents carry sufficient indicia of formality that, even if that factor were dispositive which it is not they would qualify as testimonial. Bullcoming, 131 S.Ct. at 2717. To hold otherwise would allow the Government to circumvent confrontation through designed informality. Id. ( Reading the Clause in this implausible manner, the Court noted, would make the right to confrontation easily erasable. ) In sum, the CAAF s undue reliance on this marginal factor to deny Petitioner his protections under the Confrontation Clause is contrary to this Court s jurisprudence. 5 5. By looking to the formality of a statement, we do not trea[t] the reliability of evidence as a reason to exclude it. Post, at 2725 (Kennedy, J., dissenting). Although in some instances formality could signal reliability, the dissent's argument fails to appreciate that, under our Confrontation Clause precedents, formality is primarily an indicator of testimonial purpose. Formality is not the sole indicator of the testimonial nature of a statement because it is too easily evaded. See Davis v. Washington, 547 U.S. 813, 838, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006) (Thomas, J., concurring in judgment in part and

19 Respectfully, the CAAF s approach to this case highlights the confusion courts have and will continue to have when applying this Court s emerging Confrontation Clause jurisprudence to ripe controversies. 6 This confusion is certainly not limited to the rough justice of the military justice system. See United States v. Denedo, 556 U.S. 904, 918 (2009) (Roberts, C.J., with whom Scalia, J., Thomas, J., Alito, J., join, concurring in part and dissenting in part). Justice Breyer s question concerning the status of certifications actually admitted against accused in support of forensic testing will undoubtedly test federal and state courts alike in coming litigation. See State v. Huettl, 2013- NMCA-038 cert. granted, 300 P.3d 1182 (N.M. Ct App. 2013) (Vigil, J., concurring in part, dissenting in part) ( I first note that the case law addressing whether the work of a non-testifying expert has been admitted and considered as substantive evidence in a dissenting in part). Nonetheless formality has long been a hallmark of testimonial statements because formality suggests that the statement is intended for use at trial. As we explained in Bryant, informality, on the other hand, does not necessarily indicate... lack of testimonial intent. 562 U.S., at, 131 S.Ct., at 1160. The dissent itself recognizes the relevance of formality to the testimonial inquiry when it notes the formality of the problematic unconfronted statements in Sir Walter Raleigh's trial. Post, at 2726 2727 (opinion of Kennedy, J.). Bullcoming, 131 S.Ct. at 2721, n.3 (Sotomayor, S., concurring in part). 6. In footnote 6, the CAAF admits avoiding Williams s various opinions except to note that there was no majority opinion by this Court. App. A14 n.6.

20 jury trial is extremely limited. The majority fails to cite to any applicable authority, and I have only found two cases, both of which predate Melendez Diaz, Bullcoming, and Williams. ). The lower court in this case actually voiced its confusion at the state of the law in this area. [I]t is not clear what these cases mean or should mean with respect to materials generated as part of the Department of Defense s ongoing random urinalysis program. That answer depends on how, and whether, one gets to a majority of five on the Supreme Court. It also depends on which Supreme Court case one cites, and then, which text is applied. There is persuasive authority to support almost any position. App. A28 (Baker, C.J., concurring). Chief Judge Baker underscored the source of the confusion for inferior federal and state courts as they apply this Court s recent case law and discover the critical gap presented here. This Court s guidance is needed, therefore, to understand a legal practice increasingly relying upon newer and greater forensic and scientific evidence. A common sense application of the Confrontation Clause can close this gap and settle the aforesaid confusion. The rule is a simple one: should the Government bolster its case through the admission of testimonial statements, offered to support the accuracy of a forensic result, the Government then

21 incurs the manageable burden to produce the declarants who advanced this critical testimony. Such a rule accords with footnote 1 of Melendez-Diaz and the remainder of this Court s Crawford progeny. This case presents an appropriate opportunity to settle the matter. III. The Question Presented Significantly Impacts the Administration of Criminal Justice. Not much has changed since this Court decided Melendez-Diaz. Forensic laboratory reports play an ever-increasing role in military and civilian criminal trials. Cf. Capt. Daniel I. Stovall, Let Cobham Be Here : The Introduction of Drug Testing Reports in Courts-Martial Post Melendez-Diaz, 67 A.F. L. Rev. 153 (2011); Valerie J. Silverman, Note: Testing the Testimonial Doctrine: The Impact of Melendez-Diaz v. Massachusetts on State Level Criminal Prosecutions and Procedure, 91 B.U. L. Rev. 789, 794 (March 2011) (noting the rise in prosecutorial use of forensic reports, including DNA analysis, fingerprint examination, controlled substance identification, and blood alcohol tests[.] ) The number of cases where prosecutors employ this evidence seems to only increase. Accordingly, scientists who screen and rescreen samples, and then certify the procedures and ultimate results, have become the new standard bearers in circumstantial cases like this one. So too have their technicians and quality control personnel. Without these later personnel properly storing, handling, testing, and then verifying and certifying

22 the subject samples, expert conclusions cannot be rendered. This Court identified these potential witnesses just four years ago. See Melendez-Diaz, 557 U.S. at 322 n.1. Granting review of this case will shed much needed light on their status at trial. And given the still-growing usage of forensic reports, myriad courts and trial practitioners throughout the land will be impacted. Furthermore, the laboratories that produce these forensic reports suffer from the inescapable flaw that flows from the human condition error. Poor protocols, to include an unfortunate lack of standard operating procedures, and a troubling propensity towards prosecutorial bias, see Edward J. Ungvarsky, Remarks on the Use and Misuse of Forensic Science to Lead to False Convictions, 41 New Eng. L. Rev. 609, 618 (2007), contribute to these errors. In fact, less than one year ago, the subject NDSL reported a false positive from its lab. Dwight Sullivan, Brady Notice for Navy Drug Screening Laboratory False Positive, CAAFLOG (Aug. 28, 2012), http://www.caaflog.com/2012/08/28/bradynotice-for-navy-drug-screening-laboratory-falsepositive/. Here, at least one discrepancy was noted on the chain of custody form (damage to the shipping container). When the military judge denied Petitioner the opportunity to cross-examine the witnesses who bore testimony against him, he prevented the exploration of this and other relevant issues related to chain of custody and internal review documents that the Government elected to introduce into evidence. See Melendez-Diaz, 557 U.S.

23 at 322 n.1. Applying the crucible of crossexamination to these laboratory technicians and quality personnel will dampen future attempts to try an accused via affidavit. This result maximizes the right to confrontation, further militating in favor of review. IV. This Case Presents an Excellent Vehicle to Resolve this Important Question. Certiorari should be granted in this case for the additional reason that the laboratory drug report here typifies the drug reports presented in cases litigated throughout the country. Specifically, the certified chain of custody documents and internal review worksheets are similar to the ones offered in civilian, federal and state cases. There, like here, experts have no choice but to rely on the certified work of fellow laboratory technicians and quality control personnel. There, like here, the forms on which these laboratory officials certify are generated by a governmental agency designed to produce legally defensible results. That this case springs from the military justice system should not, then, dissuade this honorable Court from granting review on an issue that equally affects the civilian criminal justice system. Furthermore, Justice Breyer observed the lack of clarity these documents possess vis-à-vis the Confrontation Clause: How does the Confrontation Clause apply to crime laboratory reports and underlying technical statements made by laboratory technicians? Williams, 132 S.Ct. at 2246 (Breyer, J., concurring) (emphasis added). Here, the question

24 presented affords this Court the opportunity to provide clarity on that crucial question. Because of its recurring nature, it should be answered forthwith. Id. at 2248 (Breyer, J., concurring) ( Answering the underlying general question just discussed, and doing so soon, is important. ) (emphasis added). Finally, this case presents an excellent vehicle to address this question because the issue was preserved at each stage of the litigation. Before trial commenced, defense counsel objected to the certified chain of custody documents and internal review worksheets. That objection was renewed and continued when the United States called its expert during trial on the merits. Two lower courts have since addressed this issue, with the CAAF signaling the need for further guidance from this Court. All these reasons counsel in favor of review.

25 CONCLUSION For the foregoing reasons, the petition for a writ of certiorari should be granted. Respectfully submitted, Jason R. Wareham Captain, U.S. Marine Corps Counsel of Record David C. Dziengowski Lieutenant, JAGC, U.S. Navy 1254 Charles Morris Street, SE Washington, D.C. 20374 (202) 685-7394 jason.wareham@navy.mil