Second Circuit: Autopsy Report Is ‘Testimonial’ for Confrontation Clause Purposes, Habeas Relief Granted
by Dale Chappell
The U.S. Court of Appeals for the Second Circuit affirmed the grant of habeas corpus relief to a New York state prisoner, finding that his Sixth Amendment right of confrontation was violated when evidence against him in an autopsy report was introduced at trial through an expert witness who had nothing to do with the autopsy or preparation of the report testified for the State at trial on the veracity of the report. The Court ruled that the state court’s conclusion that the report was nontestimonial was contrary to clearly established federal law and unreasonable.
In November 2011, a surveillance video implicated a woman who took part in a beating and stabbing of a man in the Bronx that resulted in the victim’s death. The woman then pointed the finger at James Garlick, who law enforcement said stabbed the man in the heart. Law enforcement at the scene determined this was a homicide and called for the medical examiner’s office to perform an autopsy, which was done by Dr. Katherine Maloney with Dr. James Gill and two homicide detectives present. The autopsy confirmed the cause of death was a perforated heart from a stabbing. An autopsy report was filed and delivered to the district attorney’s office for prosecution purposes, and Garlick was arrested for the murder.
At trial, neither Maloney nor Gill took the stand for the introduction of the autopsy report into evidence. Instead, Dr. Susan Ely with the medical examiner’s office took the stand for that purpose, despite the fact she had nothing to do with the autopsy or the preparation of the report. The defense objected on Sixth Amendment grounds, but the trial court, relying on New York case law, ruled that it was “proper to allow a witness to testify to the contents of an autopsy” even if the witness wasn’t involved in the autopsy or the preparation of the report by characterizing the report as a “business record” and that it was not “testimonial” since it did not directly accuse Garlick of the crime.
The State relied heavily on the autopsy report to prove Garlick was the person who stabbed the victim. He was convicted of first-degree manslaughter and sentenced to 20 years in prison. His appeals were all denied.
In 2018, Garlick filed a habeas corpus petition in the U.S. District Court for the Southern District of New York under 28 U.S.C. § 2254. He again argued that his Confrontation Clause right was violated when the trial court allowed a different expert witness to testify about the autopsy report that was used to convict him. The district court agreed with Garlick and granted his petition, and the State appealed. On appeal, the State argued that the U.S. Supreme Court has never held that an autopsy report is “testimonial,” so the state court’s decision was reasonable. And the federal court had no authority to grant habeas relief. The Second Circuit rejected those arguments.
Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), a federal court cannot grant habeas corpus relief unless the state court’s decision in denying relief “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). As the Second Circuit has previously instructed, a “principle is clearly established Federal law for § 2254(d)(1) purposes only when it is embodied in a Supreme Court holding, framed at the appropriate level of generality.” Washington v. Griffin, 876 F.3d 395 (2d Cir. 2017). In other words, the Supreme Court’s holding doesn’t have to be exactly on-point with the facts, as long as the general rule can equally apply to the case. Additionally, the standard is not whether the state court’s decision was merely wrong but whether the state court’s ruling “was unreasonable—a substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 465 (2007).
The Court noted that the “clearly established law” at issue in the present case is the “Supreme Court’s Confrontation Clause precedents.” As such, the Court examined a collection of the three most relevant Confrontation Clause cases.
In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court held that a tape-recorded statement to police, regardless of its “indicia of reliability,” is inadmissible without an opportunity for cross-examination of the declarant. In that case, the defendant’s wife gave a recorded statement to law enforcement, and it was used against him even though she was exempt from cross-examination due to the martial privilege. The Crawford Court identified three “core class[es] of testimonial statements” under the Confrontation Clause: (1) “pretrial statements that declarants would reasonably expect to be used prosecutorially”; (2) extrajudicial statements “contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions”; and (3) statements that would lead an “objective witness” to believe they would be used later at trial. The Crawford Court explained that the reliability of testimonial statements may be determined only “by testing in the crucible of cross-examination.”
The Supreme Court applied the holding in Crawford to forensic reports in Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), in which the Court ruled that certificates attesting to laboratory analysis of suspected controlled substances fall “within the core class of testimonial statements” that defendants must be afforded an opportunity for cross-examination. In Melendez-Diaz, three certificates confirming that substances obtained from the defendant’s person was cocaine were admitted into evidence over the defendant’s objection that he didn’t have the opportunity to cross-examine the analysts who performed the testing. The Court agreed and explained that the certificates were “quite plainly affidavits” and a “solemn declaration of affirmation made for the purpose of establishing or proving some fact.” Id. Importantly, the Court further explained that the certificates were “functionally identical to live, in-court testimony, doing precisely what a witness does on direct examination.” Id. The Court ruled that unless the State could show that the analysts were unavailable to testify and that the defendant had a prior opportunity to cross-examine them, the certificates were inadmissible. Id.
Notably, the Court rejected the State’s argument that public or business records constitute an exception to the Confrontation Clause, explaining that documents may not be admitted without the chance for cross-examination if “the regularly conducted business activity is the production of evidence for use at trial” or if they reflect “matters observed by police officers and other law-enforcement personnel” in criminal cases. Id.
The Supreme Court reaffirmed that forensic reports are testimonial statements, even if they are prepared by analysts who purportedly serve as “mere scrivener[s]” of machine-generated results, and thus inadmissible without confrontation. Bullcoming v. New Mexico, 564 U.S. 647 (2011). Citing Melendez-Diaz, the Bullcoming Court explained that a document created “for an evidentiary purpose” and “made in aid of a police investigation” is testimonial.
In light of the foregoing U.S. Supreme Court case law, the Court ruled that the state court decision was an unreasonable application of clearly established federal law. The autopsy and preparation of the report were performed to aid an active police investigation, and the circumstances surrounding the report would lead an objective witness to “believe that the [report] would be available for use at a later trial.” Crawford. The report was used at trial to establish that it was Garlick, rather than Rivera, who caused the death of the victim. Thus, the Court declared “our conclusion is clear: the autopsy report is testimonial and was erroneously admitted without an opportunity for cross-examination.”
The Court next turned to the issue of whether the state court application of clearly established federal law was unreasonably applied. Under the AEDPA, the Court explained that the determinative question is not simply whether the state court’s determination was incorrect but “whether that determination was unreasonable,” which is “a substantially higher threshold.” Schriro.
In ruling that the autopsy report was nontestimonial and could be introduced into evidence without confrontation, the state court relied on People v. Freycinet, 892 N.E.2d 843 (N.Y. 2008), and its progeny supporting that position, the Court observed. However, that line of state court decisions “contradicts clearly established Supreme Court precedent,” the Court stated. In fact, the “Supreme Court has squarely rejected the argument that forensic reports” that don’t directly accuse the defendant of wrongdoing, Melendez-Diaz, or that are only observations of an independent scientist, Bullcoming, are not testimonial, the Court explained. The Court chided that there is “no category of witnesses who are ‘helpful to the prosecution’ but “somehow immune from confrontation.’” Melendez-Diaz. Thus, the Court held that the state court ruling that the autopsy report was nontestimonial and admissible without confrontation was an unreasonable application of clearly established Supreme Court precedent and that the erroneous admission of the autopsy report was not harmless.
Accordingly, the Court affirmed the district court’s grant of habeas corpus relief. See: Garlick v. Lee, 1 F.4th 122 (2d Cir. 2021) .
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