The Court’s Civil Rights and Criminal Cases

By Noah Rosmarin

The Court again this term vindicated criminal defendants’ rights under the Confrontation Clause, while also (again) creating significant obstacles to civil rights suits by those accused of crimes.  Somewhat surprising was the Court’s decision affirming a lower court Eighth Amendment decision requiring California significantly to reduce its prison population.

The Confrontation Clause Case

The old adage that politics makes for strange bedfellows applies equally to constitutional law, as Justices Ginsburg, Sotomayor and Kagan teamed up with Justices Scalia and Thomas to extend Constitutional protections for criminal defendants.  In its recent decision in Bullcoming v. New Mexico, 131 S.Ct. 2705 (2011), the United States Supreme Court applied its earlier holding in Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009) to reverse a DUI conviction from the State of New Mexico.  In so doing, the Court rejected the prosecutor’s attempt to admit a blood-alcohol concentration (“BAC”) test result through a surrogate witness in lieu of testimony from the lab technician who performed the test and certified the lab report.  The Bullcoming case involved a drunk-driving prosecution in which the prosecutor  – at the eleventh hour – decided not to call the lab technician who performed the forensic blood alcohol test and certified the BAC report (the lab technician was put on unpaid leave shortly before trial).  The prosecution attempted to admit the lab report through a surrogate witness who purportedly was familiar with the testing process and lab procedure.

The US Supreme Court rejected the prosecutor’s use of a surrogate witness and ruled that the admission of the lab report without testimony from the lab technician who performed the test and drafted/certified the BAC report violated the Confrontation Clause.  In light of the Melendez-Diaz decision, which was decided while the Bullcoming case was pending before the New Mexico Supreme Court, the lab report was clearly testimonial in nature, “rendering the affiants ‘witnesses’ subject to the defendant’s right of confrontation under the Sixth Amendment.”  Bullcoming v. New Mexico, 131 S.Ct. at 2712.   In affirming the admission of the BAC report at trial, the New Mexico Supreme Court sought to distinguish this case from Melendez-Diaz by down playing the role of the lab analyst, essentially comparing his role to that of a scrivener.  Id. at 2713.  The New Mexico Supreme Court reasoned that the BAC report could be admitted through testimony from a surrogate witness from the lab who could provide “expert testimony” concerning lab procedures, the testing process, the machine used to test the blood-alcohol levels, and who would be subject to cross-examination.  Id.  This argument failed to pass constitutional scrutiny, according to the Supreme Court, for several reasons.  First, the Court emphasized the important need for the lab analyst to testify about how the BAC test was performed, citing the legitimate concern for human error in performing the tests and certifying the results.  Id. at 2711, Fn. 1 (citing reports that 93% of errors in laboratory tests for BAC levels are human errors that occur either before or after machines analyze samples, with Amici citing that in Colorado alone there have been at least 206 flawed blood-alcohol readings over a three year span).  In addition, the surrogate witness could not convey what the lab analyst who performed the test at issue “knew or observed about the events his certification concerned, i.e., the particular test and testing process he employed”,  id. at 2715, nor did the State claim that the lab analyst was unavailable.  Id. at 2716.

Finally, the Supreme Court ruled unequivocally that the BAC reports, like the lab reports in Melendez-Diaz, were testimonial and subject to the Confrontation Clause’s protections.  Id. 2716-17 (in “ all material respects, the laboratory report in this case resembles those in Melendez-Diaz).

A “Single” Brady Violation Will Not Support A Civil Rights Remedy

In Connick v. Thompson, 131 S.Ct. 1350 (2011), Justice Kennedy joined the reliable conservative bloc (the Chief Justice and Justices Scalia, Thomas and Alito) to hold that a “single” Brady violation, see Brady v. Maryland, 373 U.S. 83 (1963), apparently however egregious, is insufficient to support a civil damages remedy.

John Thompson spent 18 years in prison, 14 on death row, before his innocence – and prosecutorial misconduct – was established a month before he was to be executed.  Thompson was convicted in 1987 of murder and a later armed robbery.  The prosecutors withheld both eyewitness description of the murderer that did not match Thompson and blood from the armed robbery assailant that was not Thompson’s – in fact, the blood sample was removed from the police property room when Thompson’s attorney inspected the physical evidence.  Thompson, denied critical exculpatory evidence despite his Brady requests, was convicted of both crimes.

There were four prosecutors, working together, directly involved in Thompson’s Louisiana convictions, and one actually confessed to another that he had intentionally suppressed the blood evidence.  Despite the overwhelming evidence of prosecutorial misconduct, Louisiana retried Thompson for the murder.  The jury, seeing the evidence withheld at Thompson’s first trial, deliberated only 35 minutes before finding him not guilty.  In Thompson’s subsequent civil suit, the jury specifically found that the prosecutor’s office withheld exculpatory evidence and that Thompson’s rights were infringed by the office’s deliberate indifference to establishing policies and procedures consistent with Brady.  The jury awarded Thompson damages of $14 million.

It is hard to imagine a case where the violation of the accused’s rights was more pervasive or more was at stake – Thompson was saved from execution only by his own investigator’s literal last-minute discovery of one part of the suppressed evidence.  But Justice Thomas, writing for the five-member majority (the Chief Justice and Justices Scalia, Kennedy and Alito), held that the prosecutor’s office could not be liable without proof, in effect, of a pattern of similar constitutional violations by untrained employees.  Moreover, the majority held, four reversals of convictions by the Louisiana courts for Brady violations in the ten years before Thompson’s trials was insufficient to put the prosecutor’s office on notice of the need for proper training.  And see Kyles v. Whitley, 514 U.S. 419 (1995) (this same prosecutor’s office failed to disclose various exculpatory evidence in another capital case).

The fact is that the Brady violations in Thompson’s cases “were not singular and they were not aberrational,” as Justice Ginsburg wrote, 131 S.Ct. at 1384, and this case would seem to demonstrate that this Court – unless Justice Kennedy changes his mind – is unwilling in the extreme to deter Brady violations, all too common as they are, by imposing real civil remedies.

Prison Overcrowding

And in a refreshing development, Justice Kennedy, writing for himself and the more liberal bloc (Justices Ginsburg, Breyer, Sotomayor and Kagan), affirmed the judgment of the three-judge district court ordering a substantial reduction in the California prison population within two years.  Brown v. Plata, 131 S.Ct. 1910 (2011).  California, the majority found, had tolerated serious constitutional violations in its prison system for years, caused by substantial overcrowding, and the only feasible remedy left to remedy these Eight Amendment violations was a court-ordered reduction of the prison population.

California’s prisons were designed to house about 80,000 inmates, but the population was twice that size at the time of two class action lawsuits, one representing prisoners with serious mental illness not receiving minimal adequate care, and the other representing inmates with other serious medical problems.  The three-judge district court found, and the majority affirmed, by clear and convincing evidence, see 18 U.S.C. sec. 3626(a)(3)(E) (the Prison Litigation Reform Act of 1995), that prison overcrowding was the primary cause of the deprivations of the prisoners’ basic Eighth Amendment rights, and that the long-standing deprivations could only be redressed by a reduction of the prison population.  Additionally, the Court found, California’s prison population could be reduced by about 50,000 inmates without adversely affecting public safety by, for instance, diverting low-risk offenders to community programs.

Underlying the Court’s affirmance of the three-judge district court was its clear recognition that, in light of California’s massive fiscal problems, and the extraordinary time that had passed since the constitutional violations were first acknowledged (16 years in the case of the prisoners denied minimally adequate mental health services), there was no practical possibility that California could address the violations short of significantly reducing the prisoner population.  Nor, the Court made clear, was there any reason to believe that California would or even could honor past promises, including, for instance, to build additional prison facilities.

Brown v. Plata is an important case, though perhaps the underlying situation there, and California’s fiscal crisis, are extreme.  But the fact is that many states are in fiscal extremis, this is unlikely to change soon, and fiscal considerations can motivate good criminal justice policy (consider the defeat of death penalty efforts in Massachusetts).  This case, again showing the importance of one man – Justice Kennedy – is a weight on the right side of the scale.

Noah Rosmarin is an attorney at Adkins, Kelston & Zavez.