Washington v. Griffin
OPINION, Concurring, by judge RAK, FILED. [15-3831]
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KATZMANN, Chief Judge, concurring:
Mindful of AEDPA’s “intentionally difficult [standard] to meet,” Woods v.
Donald, 135 S. Ct. 1372, 1376 (2015) (internal quotation marks omitted), I concur
in full with the Court’s opinion. I write separately to raise a pragmatic suggestion
for future prosecutions. Given the Supreme Court’s fractured disposition in
Williams and the New York Court of Appeals’ recent holding in People v. John, 27
N.Y.3d 294 (2016), legal and practical issues related to the testimonial use of
DNA test results in criminal trials are sure to remain. Although the John Court
settled on the requirement that, in that case, “a single analyst, particularly the
one who performed, witnessed or supervised the generation of the critical
numerical DNA profile” would suffice for the purposes of the Confrontation
Clause, id. at 314, serious concerns remain about whether crime labs have
properly stored, extracted, and labeled DNA samples, particularly where a single
lab contains and tests samples from the victim, the crime scene, and the accused,
see, e.g., Williams v. Illinois, 567 U.S. 50, 118-19 (2012) (Kagan, J., dissenting).
One approach to addressing these concerns is to spend years litigating
every instance a DNA profile is offered at trial in order to determine whether or
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not the Confrontation Clause is implicated. I suggest what I think is an easier and
more efficient route. For cases scheduled for trial, the prosecution could order
that a defendant’s DNA sample be collected and tested again and supervised by
an analyst who is prepared and qualified to testify. This approach mirrors the
recommendation of the National Research Council Committee on DNA Forensic
Science, which has stated that “[t]he ultimate safeguard against error due to
sample mixup is to provide an opportunity for retesting,” and that “[i]n most
cases, it is possible to retain portions of the original evidence items and portions
of the samples from different stages of the testing.”1 The National Institute of
Justice has likewise found that “[a]ny probative biological sample that has been
stored dry or frozen, regardless of age, may be considered for DNA analysis,” 2
and the Innocence Project in fact has utilized DNA testing of preserved evidence
National Research Council, The Evaluation of Forensic DNA Evidence 81 (1996), available
U.S. Department of Justice, Office of Justice Programs, National Institute of Justice,
DNA Evidence: Basics of Identifying, Gathering and Transporting (Aug. 9, 2012),
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in every one of its over 350 DNA exonerations.3 Thus, where law enforcement
officers have properly preserved forensic evidence, it would be feasible for the
DNA to be retested under the supervision of an analyst who is qualified and
prepared to testify at trial.
The supervising analyst need not conduct every step of the process herself.
Instead, by supervising the process, she could personally attest to the extraction
and correct labeling of the sample, that a proper chain of custody was
maintained, and that the DNA profile match was in fact a comparison of the
defendant’s DNA to that of the DNA found on the crime scene evidence.4 Such
testimony would assuage Confrontation Clause concerns, and, because the vast
majority of criminal defendants plead guilty, only a small share of the DNA
reports would need to be retested.
Innocence Project, Preservation of Evidence, www.innocenceproject.org/preservation-ofevidence (last visited Oct. 25, 2017).
Ideally, the analysts should not be informed that the testing is for the purpose of
providing evidence at trial. Where this is not feasible, cross-examination of the
supervising analyst would alleviate any concern that there was intentional mishandling
of the sample. Of course, the prospect of cross-examination might incentivize more
defendants to go to trial. I find this unlikely, however, because the defendant would not
know at the time of plea negotiations whether the Government intended to retest the
DNA sample (and would therefore call the additional analyst at trial).
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The State might retort that such testing and testimony would be unduly
expensive, requiring additional time and resources to conduct a DNA test anew
and provide a testifying analyst at trial. Those costs, it seems to me, are far
outweighed not only by the additional assurance provided by the defendant’s
opportunity to cross-examine, but also by the exorbitant costs in both time and
resources implicated by a defendant’s subsequent appeal challenging the denial
of such an opportunity.
Consider the case history here. Washington appealed his conviction on
Confrontation Clause grounds first to the Appellate Division of the New York
Supreme Court, see People v. Washington, 968 N.Y.S.2d 184 (2d Dep’t 2013), and
then to the New York Court of Appeals, which declined to hear his case, see
People v. Washington, 22 N.Y.3d 1091 (2014). He then filed a habeas petition in
federal court, which was first denied by the district court, see Washington v.
Griffin, 142 F. Supp. 3d 291 (E.D.N.Y. 2015), and has now, nearly two years later,
been denied by this Court. This process has involved a half-decade of litigation,
countless hours of attorney manpower, and the dedication of four different
courts at both the state and federal level. Simply testing a second buccal swab
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sample would have rendered such litigation wholly unnecessary.
To be sure, the analysts conducting the second test might make a mistake.
But if DNA testing is so fickle that we cannot reasonably expect a second test to
produce accurate results, this is an indictment of DNA evidence as a whole
rather than the narrow solution of retesting. Moreover, retesting is likely to
produce more reliable results than the first time around. The supervising analyst
would be physically present during the most error-prone portions of the
analysis, would review the findings of the individual analysts at the end, and
could utilize any additional measures adopted by the original crime lab, such as
running two tests to confirm the results. The probability that the second test
would have a higher risk of error than the first accordingly seems marginal.
DNA evidence has greatly enhanced the State’s ability to investigate
crimes and identify suspects, while also exonerating many wrongly convicted of
crimes they did not commit. As with any rapidly developing technology,
however, its adoption has sometimes outstripped the law’s capacity to oversee
its judicious use. Such failure may not always result in a constitutional violation,
but it does warrant careful consideration and pragmatic policy modifications
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where feasible. I am hopeful that going forward, prosecutors will endeavor
where possible to make an analyst available at trial who was involved firsthand in
the handling and testing of DNA, even if that may sometimes require the testing
of a second sample from a defendant scheduled to stand trial. It is far better for
all involved — the prosecution, the court, and the accused — that the defendant
has the opportunity to challenge DNA evidence at trial, rather than years later on
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