Friday, June 11th, 2021

Circuit Affirms Grant of Habeas Relief Based on Clear Confrontation Clause Violation.

In Garlick v. Lee, No. 20-1796, the Circuit (Wesley, Sullivan, and Menashi) upheld Chief Judge Colleen McMahon’s decision to grant a petition for habeas corpus relief under 28 U.S.C. § 2254.

Garlick was convicted in state court of first-degree manslaughter. At trial, an autopsy report—prepared at the request of law enforcement during an active homicide investigation—was admitted into evidence over Garlick’s objection through a witness who had not participated in the autopsy or the preparation of the autopsy report. On appeal, the First Department affirmed the conviction, concluding that Garlick’s Sixth Amendment right of confrontation was not violated because the autopsy report did not link the commission of the crime to Garlick and therefore was not “testimonial.”

On collateral review, the district court granted Garlick’s § 2254 petition because the First Department’s decision was an “unreasonable application of clearly established federal law.”

The Second Circuit affirmed. Judge Menashi’s opinion for the Court contains this key paragraph:

The Supreme Court has squarely rejected the argument that forensic reports that “do not directly accuse [the defendant] of wrongdoing,” Melendez-Diaz, 557 U.S. at 313-14, or that are only “observations of an ‘independent scientist’ made ‘according to a non-adversarial public duty,’” Bullcoming, 564 U.S. at 665 (alteration omitted), are not testimonial. There is no category of witnesses who are “helpful to the prosecution” but “somehow immune from confrontation.” Melendez-Diaz, 557 U.S. at 314. The First Department’s decision unreasonably relied on the existence of such a category. Even if a forensic report contains only “a contemporaneous, objective account of observable facts” that does not accuse a defendant, John, 27 N.Y.3d at 315, it is testimonial and the Confrontation Clause requires that the defendant be afforded the opportunity to cross-examine the declarant. Melendez-Diaz, 557 U.S. at 318-21; Bullcoming, 564 U.S. at 661-62; Crawford, 541 U.S. at 68-69.

The Circuit also held that the constitutional error was not harmless, noting that the autopsy report “was the strongest evidence in the State’s case and was not cumulative of other inculpatory evidence connecting Garlick to the victim’s death.”

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