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Tuesday, September 29, 2009

Ind. Decisions - "Supreme Court upholds conviction of South Bend molester"; some comments on Melendez-Diaz' application in Indiana

The ILB has had a number of entries on the case of Richard Pendergrass v. State of Indiana, involving the confrontation clause and crime lab reports and the SCOTUS June 25th decision in Melendez-Diaz v. Mass.

Our Court decided Pendergrass in a 3-2 split on Sept. 24th - here is the ILB summary. Yesterday Alicia Gallegos reported in the South Bend Tribune:

SOUTH BEND — A majority of Indiana Supreme Court justices have ruled against a convicted child molester who claimed evidence presented in his case violated his Sixth Amendment rights.

The decision comes on the heels of a recent controversial Supreme Court case that ruled lab technicians must appear in court, rather than send affidavits only.

The local case centers on 40-year-old Richard Pendergrass, of South Bend, who was convicted of child molesting in 2007 for impregnating a female relative. * * *

[D]uring Pendergrass' trial, he objected to the court admitting documents detailing the DNA analysis, insisting that without the actual lab technicians, the paperwork was hearsay.

The protest related to the recent ruling of Melendez-Diaz v. Massachusetts, a case in which drug affidavits deeming a substance to be cocaine were ruled as insufficient evidence. Instead, the historic case ordered lab technicians be in court to back up their claims and be present for cross-examination.

In the Pendergrass case, the prosecution did present live testimony from two lab experts, one who supervised the lab that conducted the report and another who had specific knowledge of DNA.

But Pendergrass argued the actual lab tech should have testified.

In their 11-page ruling, three of five justices found that Pendergrass had the chance to confront witnesses who were directly involved in the analysis, unlike the Melendez-Diaz case, who "confronted none at all."

The judges ruled the witnesses who testified had personal knowledge of the DNA results and were competent to address challenges to the tests.

Two other justices, however, dissented, finding that the Melendez-Diaz precedent points in a different direction.

"The record is clear that it was (the lab technician) who examined the aborted fetus specimen and buccai swabs taken from (the victim)," the dissenting opinion reads. "But (she) was never subjected to the rigors of cross-examination on either the examination she performed, the testing she conducted, or the results she researched."

(To clarifiy, Pendergrass was argued before our Supreme Court on Oct. 9, 2008, the SCOTUS did not finally decide Melendez-Diaz until the end of this term, June 25, 2009, followed by the Indiana Court's Pendergrass ruling on Sept. 24th.)

A related case, Ricky L. Jackson, decided by the Court of Appeals on Aug. 12, 2008, has been pending transfer to the Supreme Court. As reported on the transfer listed posted yesterday, transfer was finally denied, with all justices concurring, on Sept. 24th, the same day as of the Pendergrass opinion.

The ILB has asked Joel Schumm, IU-Indy law prof, for his comments on all this. His response:

What appeared to be a pretty straightforward requirement that defendants have a right to confront the person who prepared a lab report (instead of simply relying on the report as a hearsay exception) has proven more nuanced. In Pendergrass the State called a DNA laboratory supervisor instead of the technician. The majority found this sufficient based on language from Melendez-Diaz, explaining that the right to confrontation “does not mean that everyone who laid hands on the evidence must be called,” which it concludes leaves discretion with the prosecution on which evidence to present. “The laboratory supervisor who took the stand did have a direct part in the process by personally checking [the technician’s] test results,” the majority reasoned.

After reading Pendergrass, I was surprised to see the unanimous denial of transfer in Jackson. Usually the court will sort through the nuances of big issues in separate opinions issued on the same day. (For example, when it decided Anglemyer, it issued two other opinions on the same issue on the same day in McDonald and Windhorst.) Jackson held that calling a supervisor was insufficient because he had performed none of the tests and only the technician could testify “whether she correctly followed each step in the testing process.”

Jackson is difficult to reconcile with the majority opinion in Pendergrass. Indeed, I think the Pendergrass dissent (by Justice Rucker, joined by Justice Boehm) has the stronger argument and is consistent with Jackson: “Although a supervisor might be able to testify to her charge’s general competence or honesty, this is no substitute for a jury’s first-hand observations of the analyst that performs a given procedure; and a supervisor‘s initials are no substitute for an analyst’s opportunity to carefully consider, under oath, the veracity of her results.”

The bottom line: the State should call the technician—not a supervisor—and avoid the uncertainty of a reversal if the testing scenario is found closer to Jackson than to Pendergrass—or if Pendergrass does not withstand later SCOTUS review.

Posted by Marcia Oddi on September 29, 2009 10:33 AM
Posted to Ind. Sup.Ct. Decisions