Supreme Court Justices to consider out-of-state lab testing

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If a Wisconsin defendant on trial for two sexual assaults cannot cross-examine the out-of-state lab analyst who prepared his underlying DNA profiles, have his constitutional rights under the Confrontation Clause been violated?

In a consolidated case still in the briefing stage before the Wisconsin Supreme Court, State v. Richard Lavon Deadwiller, 2010 AP 2363/64, the defendant argues that a Wisconsin state crime lab analyst who testified about information in DNA tests farmed out to Dallas, Texas lab Orchid Cellmark did not satisfy constitutional muster.

“[The Wisconsin analyst] testified substantively as to the end results of Orchid Cellmark’s determination of DNA typing,” Deadwiller stated. “He had no involvement in preparation of materials, but was just acting as a conduit for Cellmark’s work and results.”

But as long as these testing results do not rise to the level of “testimony,” there is no violation of the Confrontation Clause, according to the state, which noted that experts throughout Wisconsin regularly give testimony based upon facts generated by other experts.

Deadwiller seeks to distinguish this case from a 2012 U.S. Supreme Court case, Williams v. Illinois, 132 S.Ct. 2221, which also involved genetic testing by Cellmark. That case was cited as binding by the Wisconsin Court of Appeals when it affirmed the trial court’s jury verdict.

Case history

According to court testimony, defendant Richard Deadwiller lured Kristina Stevens of Milwaukee County into an open field early one morning in July 2006, where he struck and then sexually assaulted her.

In the second case, Deadwiller was alleged to have enticed Chantee Oliver down a flight of stairs near a public transportation stop. Court testimony indicated that Deadwiller sexually assaulted the girl after striking her in the head.

Both women were seen at treatment centers soon after their assaults, and the state sent evidence swabs to Orchid Cellmark, a company that had been approved by the Wisconsin State Crime Lab for “backlog case work.”

Although the swabs were forwarded at different times, the state lab received results, which included electrophoreticgram results and report documentation, for both back from Cellmark by June 2007.

The Cellmark DNA profile information allegedly was reviewed by state lab analyst Ron Witucki and found to be of sufficient quality to put both profiles into the state database. Each generated a “hit” on Deadwiller.

After that, police obtained a DNA sample from Deadwiller and another genetic profile was performed, which also was a match for the defendant. However, the original Cellmark swab materials were not retested for either case.

In March 2008, the state filed a motion asking the court to admit all Cellmark DNA evidence for both the Stevens and Oliver cases through the Witucki’s testimony. Court records showed this included the report and electrophoreticgram information from Dallas, Texas, the new DNA from Deadwiller, the Wisconsin lab’s own testing results and Witucki’s opinion as to whether the biological materials were a match in both the Stevens and Oliver assaults.

The state’s motion was granted, over defense objection, and a jury found Deadwiller guilty of two counts of sexual assault. He was sentenced to 20 years on each count: 15 years initial confinement and 5 years extended supervision, to run consecutively.

On appeal, Deadwiller insisted he was denied his right to confrontation under the constitution, suggesting that Witucki merely funneled Cellmark’s completed testimony before the jury, failed to sufficiently review Cellmark’s underlying DNA work and provided “substantive” evidence of the Dallas Texas lab’s results that specifically implicated Deadwiller.

“Witucki specifically names the defendant by name as having been the match from the Orchid Cellmark DNA profile of two victims,” Deadwiller said.

The appellate court denied Deadwiller’s appeal for relief, relying on the U.S. Supreme Court’s decision in Williams.

In both cases, forensic analysts for each state testified to the results of the DNA profiling, without participation from any Orchard Cellmark employee.

The high court’s decision in Williams was not unanimous: four justices each concurred on two separate grounds, with a fifth judge rejecting the plurality reasoning in both opinions, but still affirming the conviction.

Deadwiller asserts that the appellate court erred when it deferred to the Williams and suggested that, if read correctly, Williams actually supported Deadwiller’s position.

Deadwiller asked the court to find an earlier U.S. Supreme Court case, Bullcoming v. New Mexico, 131 S.Ct. 2705 (2011) to control. That is a DWI case where a second lab analyst who had not tested or certified evidence testified on behalf of the state.

In Bullcoming, the testifying analyst was very familiar with his own lab’s testing procedures and protocols but the state failed to present further information as to the nature of the testing analyst unavailability and the analyst was not made available earlier. The U.S. Supreme Court concluded that testimony from a second analyst was hearsay and thus inadmissible.

Deadwiller stated the Williams case was not on point for several reasons. First, Justice Samuel Alito in his plurality opinion suggested that forensic evidence presented in a bench trial such as Williams might not be permissible in a jury trial, due to possible jury confusion and instruction difficulties.

Deadwiller was convicted by a jury, the defense noted, with no additional jury instructions or clarification give to prevent juror confusion.

Also, Deadwiller claimed the evidence presented in Williams was not used substantively, which was different in his own case.

Finally, Deadwiller alleges that Witucki had no independent knowledge of Cellmark’s testing procedures or evaluations, had never visited the Dallas facility, and was not present for either lab preparation or testing of the materials, thus preventing the defendant from effective cross-examination of Cellmark’s underlying activities.

The state argued that Williams could not be more on point, however, and that Deadwiller’s reliance on Bullcoming was misapplied.

“For different reasons,” said the state, “these justices [in Williams] agreed that a DNA profile report prepared by a private, out-of-state lab was not testimonial under the Confrontation Clause.”

Alito also properly distinguished the Bullcoming decision, according to the state, when he noted the underlying analyst in Bullcoming wrote the “equivalent of affidavits made for the purpose of proving the guilt of a particular criminal defendant at trial.”

“Viewed objectively,” Alito concluded, “the Cellmark objective was not to inculpate Williams or create new trial evidence.”

This is similar to the events that occurred around the obtaining and testing of Deadwiller’s genetic information by Cellmark, the state said.

Furthermore, Bob Witucki was very familiar with the general protocols and lab procedures of Cellmark, according to the state, and Deadwiller’s DNA profile “matched on all 13 genetic locations we tested for.”

“When Orchid Cellmark applied to bid out on the contract, they sent us their protocols,” according to the state. “Their lab is accredited by the same agency our lab is.”

So at trial, the state concluded, given that Witucki’s testimony “passed the standards for admissibility set by both Justice Alito and Justice Thomas,” there should be no reason to find the Williams case anything less than binding at the Wisconsin Supreme Court.