Friday, December 4, 2009
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S.C. to Revisit Whether Use of Scientific Reports Violates Crawford
By KENNETH OFGANG, Staff Writer
The California Supreme Court has decided to revisit a 2007 ruling that allows reports of scientific testing to be admitted in evidence without the live testimony of the expert who conducted the test.
The justices, at their weekly conference in San Francisco Wednesday, granted review in several cases raising issues that appeared settled by the high court’s decision in People v. Geier (2007) 41 Cal.4th 555.
The Geier court upheld the death sentences imposed by a San Bernardino Superior Court judge on a former soldier at Fort Irwin in San Bernardino County. Christopher Geier was convicted and sentenced in 1995 for the November 1990 slaying of a military police officer, Erin Tynan, and the February 1991 murder of Curtis James Dean.
Arguments Rejected
Among the arguments rejected by the high court was that testimony by the prosecution’s DNA expert, who opined the DNA extracted from vaginal swabs taken from Tynan matched a sample of defendant’s DNA, violated the Confrontation Clause because it was testimonial hearsay within the meaning of Crawford v. Washington (2004) 541 U.S. 36.
The defense argued that the witness should not have been allowed to state an opinion based on testing that she did not personally conduct, in a case where the person who actually did the testing did not testify. But Justice Carlos Moreno, writing for the high court, concluded that evidence generated using a standard scientific protocol will generally not be considered testimonial in the Crawford sense.
Moreno acknowledged, however, that contrary rulings had been reached in other states, and on June 25 of this year—four days before it denied certiorari in Geier—the U.S. Supreme Court ruled in Melendez-Diaz v. Massachusetts (2009) 129 S.Ct. 2527. That case held that the admission of “certificates of analysis” to prove that a criminalist had tested a substance seized from the defendant and determined it to be cocaine violated the Sixth Amendment where the criminalist did not personally testify.
Impact Considered
In orders signed by all seven justices Wednesday, the California court said it would consider how Melendez-Diaz affects the ruling in Geier.
The best known of the defendants whose convictions will get a look as a result of Wednesday’s orders is Helen Golay, one of two septuagenarian women convicted of staging the hit-and-run killings of two homeless men in order to collect on their life insurance policies.
This district’s Court of Appeal upheld the first degree murder convictions of Golay and Olga Rutterschmidt in August, rejecting challenges to Los Angeles Superior Court Judge David S. Wesley’s rulings allowing the admission of their post-arrest, custodial statements and testimony regarding the presence and quantity of prescription drugs and alcohol in the body of one of their victims.
One of the arguments in People v. Rutterschmidt (2009) 176 C.A. 4th 1047 was that the right of confrontation was violated by testimony—objected to by Golay’s counsel—by the chief laboratory director of the Department of the Coroner regarding toxicology reports showing one of the victims tested positive for drugs and alcohol. Justice Stanley Kriegler, writing for Div. Five of this district’s Court of Appeal, disagreed.
As the director had personally reviewed drug analysis reports performed by analysts under his supervision, was fully qualified to interpret and explain those reports, and offered live testimony subject to cross-examination as to the reported test results, Kriegler reasoned, no Confrontation Clause violation occurred.
The high court said it would limit its review of Golay’s conviction to that issue and left Rutterschmidt’s conviction standing.
In other conference action, the court:
•Denied requests for review and depublication in City of Claremont v. Kruse (2009) 177 Cal.App.4th 1153, holding that California’s medical marijuana law does not require cities to approve zoning for dispensaries.
This district’s Div. Two, in an Aug. 27 decision certified Tuesday for publication, affirmed Los Angeles Superior Court Judge Dan T. Oki’s injunction barring Darrell Kruse and Claremont All Natural Nutrition Aids Buyers Information Service, or CANNABIS, from operating a dispensary anywhere in the city of Claremont.
•Agreed to decide whether a Pasadena couple can be held liable, under the Occupational Safety and Health Act or on a common law failure-to-warn theory, for injuries to an employee of an unlicensed contractor who was injured while working on their roof. This district’s Div. Four held in Cortez v. Abich (2009) 177 C.A. 4th 261 that OSHA did not apply because the defendants were not the plaintiff’s employer and that there was no failure to warn because the danger was open and obvious.
•Declined to review the ruling of this district’s Div. Seven in Wences v. City of Los Angeles (2009) 177 Cal.App.4th 305 that an official reprimand issued to a police officer who displayed his weapon outside his home, in response to what he claimed was an imminent threat, affected his vested right to employment, thus triggering the independent judgment standard of judicial review.
•Agreed to decide whether a state income tax refund suit is triable by jury.
The First District’s Div. Five ruled in August that a suit by the estate of Internet entrepreneur Thomas J. Gonzalez II, claiming that it overpaid its taxes by more than $15 million, may be tried by a jury although the state’s cross-complaint claiming the estate owes penalties for late payment of the taxes is not subject to jury trial.
The case is Franchise Tax Board v. Superior Court (Gonzales) 177 Cal.App.4th 36.
•Left standing the ruling of the First District’s Div. Four rejecting a San Francisco church’s attempt to leave the Reformed Church of America rather than submit to closure over dwindling attendance. The court, noting the hierarchical structure of Presbyterian churches, held in Classis of Central California v. Miraloma Community Church (2009) 177 Cal.App.4th 750 that the local church could not change governing documents to terminate affiliation where its bylaws confirmed the superiority of the denomination’s constitution and forbade amendment without written consent.
•Denied a request for depublication of Doe v. The Roman Catholic Archbishop of Cashel & Emly (2009) 177 Cal.App.4th 209, holding that California courts lack jurisdiction over a suit against Catholic church officials in Ireland who allegedly sent a newly trained priest to the Stockton archdiocese with knowledge of his propensity to molest children.
Copyright 2009, Metropolitan News Company