Ganthier v. Superintendent, Green Haven Correctional Facility

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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Evans Ganthier,

Petitioner, MEMORANDUM & ORDER

23-CV-414 (NRM)

-against-

Superintendent,

Green Haven Correctional Facility

Respondent.

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NINA R. MORRISON, United States District Judge:

In this action, a petition for writ of habeas corpus under 28 U.S.C. § 2254,

Petitioner Evans Ganthier seeks relief from a conviction imposed after he was

convicted by jury verdict of murder in the second degree and sentenced to an

indeterminate prison term of 25 years to life. Ganthier alleges, among other things,

that the state court unreasonably applied federal law when it rejected his claim that

admission of an autopsy report over his objection violated his rights under the

Confrontation Clause in the Sixth Amendment to the United States Constitution,

because the author of that report was not produced for cross-examination at trial.

For the reasons that follow, the petition is GRANTED with respect to his

Confrontation Clause claim. Ganthier’s conviction is VACATED, and his case is

REMANDED for a new trial.

OVERVIEW

In September 2013, Petitioner Evans Ganthier was convicted upon jury verdict

of murder in the second degree in the County Court of Suffolk County. People v.

Ganthier, 149 N.Y.S.3d 225, 227 (N.Y. App. Div. 2021). He was subsequently

sentenced to an indeterminate term of 25 years to life in prison.

The crime of conviction occurred in December 2009, after Rebecca Koster died

in Ganthier’s presence. At trial, the defense denied that Ganthier killed Koster or

otherwise caused her death. However, in pretrial interviews with police, Ganthier

admitted that — in what he claimed was a panicked effort to avoid being wrongly

accused of murdering Koster — he tried to obscure the identity of Koster’s corpse, by

cutting off certain identifying features after she died and attempting to burn her

remains. For these reasons, the central dispute at trial was Koster’s cause of death.

The prosecution alleged Koster died by stab wounds inflicted by Ganthier while she

was still alive. By contrast, Ganthier argued that Koster was intoxicated, slipped

and fell in his garage, and died from an apparent head injury shortly thereafter, and

that all the knife wounds identified at autopsy were inflicted post-mortem.

After Koster’s body was discovered, investigation led law enforcement to

Ganthier; fingerprints from duct tape used to bind Koster’s body matched Ganthier’s

prints, video from a bar showed Koster speaking with Ganthier that day, and phone

records showed that Ganthier called Koster that day and disconnected his phone

during the time Koster had disappeared. Police arrested Ganthier, and he agreed to

be interviewed. Ganthier admitted to cutting parts of Koster’s body and burning her

remains but denied killing her. He told police that Koster started gagging and

foaming at the mouth while in his car, and that when they arrived at his home, she

then tripped in his garage and began bleeding profusely. He claimed that he then

carried her back to his car and began driving her to the hospital, but when she died

in his car along the way, he panicked, worrying about what would happen if he, a

Black man, arrived at the hospital with the body of a deceased white woman. He

then cut parts of her body to conceal her identity and burned her remains.

Despite these admissions, law enforcement dropped the charges initially

brought against Ganthier and released him on December 15, 2009 — pending the

outcome of Rebecca Koster’s autopsy. In January 2010, Dr. Ira Kanfer of the

Connecticut Office of the Medical Examiner completed the autopsy, concluding that

the final cause of Koster’s death was a “stab wound of [the] abdomen” and the final

manner of death was “homicide.” In February 2010, Ganthier was re-arrested and

charged with Koster’s murder.

Dr. Kanfer’s autopsy report became the centerpiece of Ganthier’s trial. But

even though Dr. Kanfer was still employed as an associate medical examiner at the

time of trial, he did not testify about his findings. Instead, the prosecution offered

the surrogate testimony of his former supervisor, Dr. Harold Wayne Carver, who

formed his opinions based on the findings and observations in Dr. Kanfer’s autopsy

report. Dr. Carver testified that Koster suffered five sharp force injuries while alive,

including a stab wound to the liver and four wounds to the neck. He further

interpreted the x-rays in Koster’s autopsy materials as showing a “C” shape that

indicated that air was sucked in due to the neck injuries, making them fatal.

Ganthier objected to this testimony and to the admission of Dr. Kanfer’s report,

arguing that presenting such evidence without affording him the right to cross-

examine Dr. Kanfer violated the Sixth Amendment’s Confrontation Clause.

The Court agrees. This result is compelled by well-settled Supreme Court

caselaw that predated Ganthier’s trial, particularly Melendez-Diaz v. Massachusetts,

557 U.S. 305 (2009), and Bullcoming v. New Mexico, 564 U.S. 647 (2011). And it is

further guided by the Second Circuit’s more recent application of those same

precedents in Garlick v. Lee, 1 F.4th 122 (2d Cir. 2021). In Garlick, an autopsy report

prepared at the request of law enforcement was admitted over the defendant’s

Confrontation Clause objection through a witness who had not participated in the

autopsy nor in preparation of the autopsy report. Id. at 125. The Second Circuit held

that admission of the report over the defendant’s objection was an unreasonable

application of clearly established federal law as determined by the United States

Supreme Court and granted habeas relief.

Here, as in Garlick, admission of Dr. Kanfer’s report through Dr. Carver’s

testimony, over the objection by Ganthier, clearly violated the Confrontation Clause.

Moreover, the error was not harmless. The cause of Koster’s death was the primary

issue in dispute at trial, and the prosecution relied heavily on Dr. Kanfer’s report,

whose findings were presented in detail through Dr. Carver’s testimony, to prove its

case in chief and discredit Ganthier’s alternative theory of Koster’s death.

Ganthier also raises ineffective assistance of counsel claims for certain alleged

failures of his trial counsel, including, in particular, counsel’s decision not to call a

retained former Suffolk County chief medical examiner as an expert witness in

support of his theory that Koster died accidentally. Because the Court grants relief

from Ganthier’s conviction under the Confrontation Clause, however, it does not

reach his ineffective assistance of counsel claims.

FACTUAL AND PROCEDURAL HISTORY

I. Koster’s Death

In the early morning hours of December 4, 2009, petitioner Evans Ganthier

and the young woman he was eventually convicted of murdering — 24-year-old

Rebecca Koster — met at a bar in Patchogue, New York called Butcher Boys. Tr.

8/1/2013, 441:13–25, ECF No. 7-27.1 Prior to arriving at Butcher Boys, Koster had

smoked marijuana with a friend at Koster’s home, Tr. 7/30/2013, 227:17–23, ECF No.

7-25, and later at a bar called Kelly’s Bar, she consumed a shot of tequila and two

glasses of wine. Id. at 232:6–16. Koster left Kelly’s Bar and drove with her boyfriend

and two friends to Butcher Boys, where they arrived at 2:15 a.m. Tr. 8/1/2013, 381:1–

19; Tr. 7/30/2013, 293:4–7. At Butcher Boys, Koster walked over to Ganthier, the two

began talking and laughing, and they eventually exchanged phone numbers. Tr.

8/1/2013, 441:13–25; see also Tr. 7/30/2013, 295:8-10.

1 Pincites for trial transcripts refer to the internal pagination of those

transcripts. All other pincites refer to the pagination generated by the Official Court

Electronic Document Filing System (CM/ECF).

Video recordings from Butcher Boys’ security system showed Koster exiting

the bar at 3:03 a.m. Tr. 7/30/2013, 294:1–5. One of the friends who drove her to

Butcher Boys drove her home, with another friend and Koster’s boyfriend Dan Mayer

in the car. Tr. 8/1/2023, 389:2–7. Ganthier left Butcher Boys in a separate vehicle.

Id. at 389:8–14. Koster arrived home at approximately 3:30 a.m. Id. at 391:5–7. The

friend who drove Koster home testified that Koster appeared fine, whereas Mayer

testified that Koster was “a little wobbly” and that he helped her to her door. Tr.

8/1/2013, 391:10–12; Tr. 8/26/2013, 1266:20–1267:5, ECF No. 7-40.

It is undisputed that later that night, Ganthier drove to Koster’s home, picked

her up in his car, and began driving her to his home. See Tr. 8/19/2013, 984:7–12,

ECF No. 7-36. What happened next — specifically, whether Ganthier stabbed Koster

to death, or whether she died accidentally in his presence after falling and sustaining

a serious head injury — was the issue the jury was asked to resolve at Ganthier’s

murder trial.

In a series of voluntary interviews with police detectives after Koster’s body

was found on December 4, 2009, Ganthier gave the following account. According to

Ganthier, as he drove, Koster suddenly began to “gag” and “foam from the mouth.”

Tr. 8/20/2013, 3:20–23, ECF No. 7-37.2 He drove her to his home to get her a glass of

2 Ganthier did not testify at trial. However, he waived his Miranda rights and

gave a series of voluntary interviews to detectives after Koster’s body was found.

Detective Philip Frendo testified about many of Ganthier’s statements at trial. See

Tr. 8/19/2013, 962:1–963:25. Ganthier’s trial defense — that Koster died accidentally

in his presence, and that he altered her corpse and attempted to conceal her death

out of a “panicked” fear he would be wrongfully accused of killing her — was

water, but as they were walking through his garage, Koster tripped on dumbbells, hit

her head on the concrete garage floor, and began bleeding from her head. Id. at 3:23–

4:6, 7:22–23. Ganthier carried her into his car and began driving to the hospital, but

Koster died along the way. Id. at 8:4–8.

Ganthier told detectives that he “panicked,” terrified of what would happen if

he, a Black man, arrived at the hospital with the body of a deceased white woman.

Tr. 8/20/2013, 10:13–17. Ganthier claimed he then drove back to his house, washed

his hands, and ultimately wrapped Koster’s body in plastic and in a gray photo

backdrop. Id. at 8:9–22. He placed her body in the back of his truck, drove to the

Port Jefferson Ferry, and took the ferry to Connecticut. Id. at 8:22–9:1.

Ganthier then took a number of gruesome steps to try and conceal Koster’s

identity. He cut off Koster’s toes, fingertips, hair, piercings, and tattoos. Tr.

8/20/2013, 16:9–17:6. After staying briefly at a motel, he found a dark road, placed

Koster’s body on the side of the road, and lit it on fire. Id. at 10:21–11:15. He then

drove back to New York. Id. at 11:13–16.

Koster’s family filed a missing persons report on December 4, 2009. Tr.

7/30/2013, 334:19–335:14, 356:23–357:2. While Koster was still believed to be

missing, Ganthier noticed that he had received a series of messages on his own phone

from people asking about Koster, and he realized her family had his phone number.

Tr. 8/20/2013, 13:4–9. To “point the focus in a different direction,” Ganthier, who had

consistent with his pretrial statements to detectives about Koster’s death and his

subsequent actions. See id. at 984:8–985:10.

taken possession of Koster’s phone, texted Koster’s mother from Koster’s phone,

pretending to be Koster herself and claiming that Koster’s boyfriend, Dan Mayer, was

essentially holding Koster captive. Id. at 13:9–15, 28:11–19. Ganthier then broke

Koster’s phone and discarded the pieces around Long Island. Id. at 13:15–17, 28:20–

22. Ganthier also bought cleaning supplies and paint and cleaned and painted his

garage, including in the area where he claimed Koster had fallen and bled from her

head. Id. at 12:5–17, 28:20–24.

II. Charges and Initial Arrest

Koster’s body was eventually found on the evening of December 4, 2009. At

approximately 7:15 p.m., a man observed a fire as he turned onto a road in

Connecticut. Tr. 7/24/2013, 108:1–109:4, ECF No. 7-21. When he realized it appeared

to be a human body in flames, he called 911. Id. at 110:9–111:17. A resident trooper

arrived on the scene around 7:26 p.m., and afterward, the fire chief arrived. Tr.

7/25/2013, 124:10–14, 128:3–7; 130:3–17, ECF No. 7-22.

According to the trooper, “it was obvious it was a death that needed to be

investigated, something that major crime would typically investigate.” Tr. 7/25/2013,

141:4–7. The trooper told the fire chief to extinguish the fire but cautioned him that

it was a crime scene so that the fire chief would be weary of damaging evidence. Id.

at 130:3–131:2. The Connecticut Eastern District Major Crime Unit then “took over

responsibility for the investigation.” Id. at 140:2–11. Staff from the Connecticut

Office of the Chief Medical Examiner (“OCME”) arrived and removed the decedent’s

body at 12:15 a.m. the next morning. Id. at 162:13–163:9. The autopsy occurred that

day, December 5, 2009, with detectives present. Tr. 7/26/2013, 24:4–24, ECF No. 7-

23. One of these detectives explained at trial that his “function at the morgue that

day” was “to collect evidence.” Id. at 24:22–24. Ultimately, dental records identified

the body as Koster’s. People v. Ganthier, 149 N.Y.S.3d 225, 227 (N.Y. App. Div. 2021);

Tr. 8/8/2013, 485, 945, ECF No. 7-31; see Mem. of Law in Support of Pet. (“Pet’r

Mem.”) 5, ECF No. 4.

After further investigation — which included an analysis of fingerprints on

duct tape used to bind Koster’s body being matched to Ganthier, Tr. 7/31/2013, 52:17–

21, 54:14–23, 59:1–60:12, ECF No. 7-26, and video from Butcher Boys showing Koster

speaking with Ganthier early in the morning on December 4, 2009, Tr. 7/30/2013,

290:4–295:10; Tr. 8/19/2013, 950:21–23 — Ganthier was arrested on December 14,

2009 around 8:30 a.m. on charges related to Koster’s murder. Tr. 8/19/2013, 957:21–

25. Ganthier waived his Fifth Amendment privileges and was interviewed at length

by police. Ganthier, 149 N.Y.S.3d at 227. The next day, however, December 15, 2009,

police dropped the charges against Ganthier and released him. Tr. 8/20/2013, 51:3–

4. At trial, Detective Frendo explained that the murder charges against Ganthier

were “withdrawn”; Detective Frendo’s supervisor instructed him to withdraw the

charges because “[t]he Connecticut Medical Examiner’s Office, they were waiting for

their toxicological results before they made a final determination of the cause and

manner of death.” Id. at 50:24–51:18.

III. Autopsy and Report

Dr. Ira J. Kanfer, M.D., Associate Medical Examiner for the Connecticut

OCME, performed Koster’s autopsy on December 5, 2009, and issued his final autopsy

report in January 2010. Autopsy Report 1–5, ECF No. 14. Initially, Dr. Kanfer listed

the cause of death and manner of death as “pending.” Id. at 5. He then amended his

report on January 19, 2010, to list the final cause of death as “stab wound of abdomen”

and the final manner of death as “homicide.” Id.

In the report, Dr. Kanfer set forth an array of detailed observations and

scientific findings from his examination of Koster’s body. These included, inter alia,

a section on “evidence of injury”:

There is a stab wound of the left lobe of the liver, which is approximately

1.5 cm in greatest dimension. Associated with the stab wound is

approximately 200 cc of fluid blood in the abdominal cavity. In addition,

there are four defects of the neck with no underlying hemorrhage of the

soft tissues and no injury to the vital organs of the neck. The toes and

fingers are not identified and there is burning of the distal extremities.

The nose and ears are not identified.

Autopsy Report at 1. Under his observations of Koster’s head and brain, Dr. Kanfer

wrote that “[t]here is no evidence of subdural or subarachnoid collections of blood.

There is no evidence of skull fracture.” Id. at 2. He noted the specimens taken for

toxicological analysis, id. at 3, and listed his “Autopsy Findings” as “multiple sharp

force injuries.” Id. at 4.

Under his finding of the final manner of death, Dr. Kanfer certified that “[t]his

is a true statement of the postmortem findings upon the body of Rebecca Eladia

Koster,” signing the form with the date January 19, 2010. Autopsy Report at 5. The

autopsy report materials also included a toxicology report dated January 13, 2010,

id. at 6, a receipt of evidence sheet indicating that a detective received three pieces of

evidence from the autopsy performed on December 5, 2009, id. at 8, as well as

photographs and an x-ray taken. See Resp’t letter dated 1/16/2025, submitting photos

and an x-ray under seal, ECF No. 15. The autopsy file also included a dental

identification completed by Dr. Kanfer’s colleague, Chief Medical Examiner Dr.

Harold Wayne Carver, finding that the body belonged to Koster. Autopsy Report at

7.

IV. Ganthier’s Rearrest

On February 8, 2010, after the final autopsy report was completed, Ganthier

was rearrested and charged with Koster’s murder. Tr. 8/20/2013, 58:23–59:6, 60:16–

23.

Ganthier again agreed to be interviewed by the police, and provided additional

details about what he claimed had occurred on the night Koster died and his own

actions in the days that followed. See Tr. 8/20/2013, 67:7–72:4; Tr. 8/21/2013, 4:14–

15:17. The interrogating officer told Ganthier that, according to the Connecticut

OCME, Koster did not have head injuries that could have caused her death, that she

was negative for drugs that would have caused her death, and that the cause of death

was a stab wound to her liver, Tr. 8/20/2013, 69:14–21. Yet Ganthier denied stabbing

Koster while she was alive, and also denied inflicting any post-mortem knife wounds

in the area of her liver. Id. at 69:22–70:18. He told police that while he was cutting

off Koster’s hair, the point of the knife went into her neck, but that he did not intend

to cut her neck. Tr. 8/21/2013, 13:10–18, ECF No. 7-38. He stood by his claim that

Koster had, after having gagged and foamed at the mouth in his car, tripped on 50-

pound dumbbells in Ganthier’s garage and hit her head, and that he began to drive

her to the hospital while she was still alive but that she died along the way. Id. at

8:14–9:19. He maintained that he “panicked” and drove back to his house with her

corpse, but that he did not kill her. Id. at 9:22–23. He further insisted that he only

used a knife to cut Koster’s body post-mortem, when he tried to cover up her death,

and that he had not stabbed her nor inflicted any other sharp injuries to her while

she was alive. Id. at 9:22–23, 12:15–13:21, 15:18–23.

V. Trial

Ganthier’s jury trial began on July 9, 2013. See Tr. 7/9/2013, ECF No. 7-13.

At trial, there was no dispute that Ganthier was the last person to see Koster alive

on December 4, 2009; that she died in his presence; and that he took extensive

measures to cover up her death and deflect suspicion from himself in the days that

followed. Instead, the disputed issues for the jury to resolve were Koster’s actual

cause and manner of death.

The prosecution argued that Koster died from stab wounds to her neck and

liver, inflicted by Ganthier. See, e.g., Tr. 8/28/2013, 18:9–11, ECF No. 7-43. The

defense argued that the People had failed to prove that any of Koster’s stab wounds

were pre-mortem injuries inflicted by Ganthier, and that the cause of death was

actually blunt force trauma — consistent with Ganthier’s claim to police that Koster

tripped and fell in his garage, and that the “stab wounds” to Koster’s neck cited by

prosecutors were actually post-mortem injuries from Ganthier’s panicked efforts to

conceal the identity of Koster’s corpse. See, e.g., Tr. 8/27/2013, 1309:18–19, 1385:23–

1395:6, ECF No. 7-41.

A. Initial Discussion of Autopsy Report During Trial

Counsel for both parties initially discussed the People’s intent to admit Dr.

Kanfer’s autopsy findings through the testimony of a surrogate witness on August 8,

2013. On that date, Assistant District Attorney Janet Albertson indicated that she

intended to call the Connecticut Chief Medical Examiner, Dr. Harold Wayne Carver,

as the People’s sole witness regarding the autopsy performed on Rebecca Koster’s

remains. See Tr. 8/8/2013, 465:13–17. However, Dr. Carver had neither attended nor

performed the autopsy; his role in the pretrial investigation into Koster’s death was

limited to conducting a dental identification. Id. at 465:14–21.

Dr. Kanfer, the Associate Medical Examiner who actually performed the

autopsy and authored the final report, was still employed at OCME at the time of

Ganthier’s trial. See Tr. 8/8/2013, 536:21–538:4. While the state court record is not

clear as to Dr. Kanfer’s availability to testify, there are some indications in the record

that he may have scheduled a vacation3 during some portion of Ganthier’s

3 ADA Albertson told the trial court that Dr. Kanfer was on vacation “for a lot

of the month” of August. Tr. 8/23/2013, 1239:17-24. However, Dr. Carver, who was

employed by the Connecticut OCME on a retiree per diem basis and had served as

the Chief Medical Examiner just two weeks prior to his testimony, Tr. 8/8/2013,

469:8–17, testified that he did not know of any vacation that Dr. Kanfer had

scheduled in August 2013. Id. at 536:21-538:4.

approximately seven-week-long trial.4 There is no indication in the record, however,

that Dr. Kanfer was ever asked to (re)schedule his vacation to accommodate the trial

schedule, nor whether the People ever sought to reset the trial date to permit Dr.

Kanfer to testify if he had a conflict. See Tr. 8/23/2013, 1239:17–20, ECF No. 13.

Instead, ADA Albertson simply informed the Court that she intended to elicit Dr.

Carver to “lay[ ] a business record foundation for the autopsy report and the autopsy

findings” by Dr. Kanfer and to offer his own opinions, based on what he reviewed in

the autopsy file, as to Koster’s cause and manner of death. Tr. 8/8/2013, 465:14–

466:24.

Prior to calling Dr. Carver, Albertson briefly summarized for the record

portions of a prior, unrecorded exchange between counsel and the trial court

regarding the autopsy report and Dr. Carver’s surrogate testimony. (At oral

argument before this Court on January 14, 2025, counsel for Petitioner and

Respondent agreed that this exchange occurred at some unknown earlier point in

time, and was likely done in the trial judge’s chambers without a court reporter

present.) Outside the presence of the jury, Albertson stated that “[t]he case law, [as]

I believe we have already discussed, in New York is clear that there is no hearsay”

issue with admitting the autopsy report in Dr. Kanfer’s absence, provided that a

foundation is laid to show that the autopsy report is a “business record.” Tr. 8/8/2013,

4 Jury selection began on July 9, 2013, and the parties gave their opening

statements on July 24, 2013. Tr. 7/9/2013, 7:3–8:8 (beginning of jury selection); Tr.

7/24/2013, 32:11–14 (beginning of opening statements). The jury issued its verdict on

August 29, 2013. Tr. 8/29/2013, 1556:7–14, ECF No. 7-44.

465:22–466:8. Albertson also asserted that the Supreme Court’s decision in Crawford

v. Washington, 541 U.S. 36 (2004), posed no barrier to the admission of the report

even if Dr. Kanfer was not produced for cross-examination; she asserted that under

“the case law” virtually the entire autopsy report could come in as “a business record,”

as long as “the opinion of the pathologist who did the autopsy” was redacted. Tr.

8/8/2013, 466:9–15. She also maintained that a surrogate OCME witness such as Dr.

Carver could testify to his own opinions based on the “factual record” in the report.

Id. at 466:12–15. Again referencing the earlier, unrecorded chambers discussion,

Albertson stated that Ganthier’s “counsel would prefer, while he has no objection to

[Dr. Carver’s] testimony coming in, that the reports not be admitted into evidence,

but they can obviously be referred to for their factual material.” Id. at 466:16–21.

Albertson concluded by informing the trial court that she would be offering

photographs and x-rays taken by Dr. Kanfer into evidence but would not seek to

admit the autopsy report itself — and would instead have Dr. Carver testify about

the so-called “factual” findings in the report. Tr. 8/8/2013, 466:25–467:10; see also

Tr. 8/23/2013, 1240–1241 (in subsequent exchange over defense objection to

admission of autopsy report, Albertson references a prior “lengthy discussion” during

which “counsel for the defense did not want the autopsy report to go into evidence,”

but ultimately “agreed upon review of the case law that, as did the Court, that [sic] it

would be admissible and the witnesses could testify from the facts therein”).

B. Dr. Carver’s Testimony and Admission of the Full Autopsy Report

At trial on August 8, 2013, the prosecutor laid a foundation for the admission

of Dr. Kanfer’s autopsy report — through Dr. Carver — as a business record. Tr.

8/8/2013, 483:15–484:12. She then proceeded to elicit extensive testimony from Dr.

Carver about the findings and observations that Dr. Kanfer had made during the

autopsy, as well as his own scientific opinions based on Dr. Kanfer’s report,

photographs, and x-rays. Id. at 484:13–485:5. For example, Dr. Carver testified that

Dr. Kanfer had identified a “stab wound” to the left of Koster’s midline that was

inflicted while she was alive, and that this particular stab wound caused injury to her

liver. Id. at 491:19–492:3. Dr. Carver “knew that the wound to the liver occurred

when [Koster] had a beating heart” because Dr. Kanfer’s autopsy revealed that the

wound “bled into the belly cavity.” Id. at 492:16–18.

Dr. Carver further testified that Dr. Kanfer’s autopsy had identified four stab

wounds to Koster’s neck area. Tr. 8/8/2013, 492:9–14, 493:24–494:1. The x-ray in the

autopsy file showed “air in the right side of the heart,” which Dr. Carver described as

“a rare but very bad complication of cutting the veins in the neck.” Id. at 493:10–13.

The air that Dr. Carver observed in the right side of Koster’s heart in the x-ray,

showed up as a “dark C-shaped mark,” what “radiologists call . . . a C sign.” Id. at

494:2–495:2. That air, according to Dr. Carver, can ultimately stop blood circulation

and cause death. Id. at 493:18–23.

Dr. Carver could not determine whether the liver stab wound or the neck stab

wounds identified in the autopsy occurred first, “[b]ecause the one to the liver didn’t

bleed a great deal into the belly cavity.” Tr. 8/8/2013, 495:7–12. In Dr. Carver’s view,

the apparent stab wound to the liver would be a fatal injury if not treated, even if

Koster did not have stab wounds to the neck. Id. at 496:14–18. The injuries to

Koster’s neck could be fatal due to the sucking in of air Dr. Carver discussed earlier.

Id. at 496:23–497:9. Dr. Carver also relied heavily on the autopsy findings to rebut

the defense’s theory that Koster died from accidental blunt force trauma. He told the

jury that, per the autopsy, there was no indication that Koster had suffered a

significant head injury. Id. at 497:10–498:11. He then opined that a head injury did

not cause or contribute to Koster’s death. Id. at 498:12–15.

Moving to the toxicology portion of the autopsy materials, Dr. Carver testified

that the “basic drug screen” included in Dr. Kanfer’s autopsy report came back

negative. Tr. 8/8/2013, 501:18–22. In that screen, the toxicology lab associated with

the medical examiner’s office had tested for drugs including cocaine, morphine,

heroin, opiate painkillers, synthetic painkillers, “almost all of the antidepressant

medications and the anti-psychotic medications,” and “some of the heavy-duty

tranquilizers.” Id. at 499:9–14, 500:23–501:11.

After a break during Dr. Carver’s direct examination, the Court addressed

Ganthier’s trial counsel on the record, stating, “before the doctor testified there was

an agreement between the parties that the autopsy written report would not go into

evidence. You have a different application on that point now?” Tr. 8/8/2013, 504:11–

23. Defense counsel stated, “Based upon the testimony of this witness, who did not

conduct the autopsy, had nothing whatsoever to do with it other than the dental

identification, I’m asking that the entire autopsy report with the toxicology report go

into evidence.” Id. at 504:24–505:5. Upon the prosecutor’s consent, the trial court

admitted the full report into evidence. Id. at 506:12–24.

On cross-examination, Dr. Carver testified that he did not review the

individual procedures in the toxicology that was completed, only the reported results.

Tr. 8/8/2013, 546:22–23. Dr. Carver acknowledged that Dr. Kanfer’s report stated

that there were no soft tissue injuries from the defects to Koster’s neck and that Dr.

Carver’s theory about the potential link between the wounds to her neck area and the

cause of her death came from Dr. Carver’s interpretation of the x-rays included in Dr.

Kanfer’s autopsy file. Id. at 576:13–577:10. Dr. Carver also acknowledged that Dr.

Kanfer, according to his autopsy report, did not document any disease in nor injuries

to Koster’s heart. Id. at 580:15–581:13. He further acknowledged that the liver

injury documented by Dr. Kanfer could be interpreted as a fracture instead of a stab

wound. Tr. 8/9/2013, 620:2–14, ECF No. 7-32.

On re-direct examination, Dr. Carver was asked to elaborate on the basis for

his opinion that Koster was stabbed in her liver area. He explained that, in his view,

a stab wound could have reached Koster’s liver without harming other organs if

Koster was bent over when stabbed, Tr. 8/9/2013, 657:11–658:2, and that his opinion

remained that the injury to her liver was a sharp force, not blunt force, injury. Id. at

659:11–660:11. However, on re-cross examination, Dr. Carver acknowledged that he

could not rule out the possibility that the liver injury documented by Dr. Kanfer was

caused by blunt force trauma rather than a sharp instrument. Id. at 672:12–18.

C. Confrontation Clause Objection

After Dr. Carver testified, but before the jury was charged, defense counsel

William J. Keahon lodged a formal objection to the admission of the autopsy report

and to Dr. Carver’s surrogate testimony. He informed the Court, “My client has asked

me to indicate to the Court that he believes his constitutional rights have been

violated because they never produced Dr. Kanfer, who did the autopsy and is the

individual that claims that there was a stab wound to the abdominal area.” Tr.

8/23/2013, 1238:10–16.

ADA Albertson did not argue that the defendant’s objection had been waived

by his counsel’s earlier concessions. Instead, she responded, “[T]hat’s not a violation

of the defendant’s constitutional rights. The autopsy report is a business record and

was admitted to the Court as such and it stands on its own.” Tr. 8/23/2013, 1238:22–

1239:1. According to Albertson, the prosecution was “under no obligation in and of

itself to produce . . . [D]octor [Kanfer].” Id. at 1239:2–5. And “[w]ith regard to

Crawford [v. Washington],” “I think the law is clear, and we discussed it in chambers

and I produced the case law regarding those issues. And in New York it is still that

an autopsy is considered a business record and as long as the appropriate foundation

is laid, which it was, it is admissible as such.” Id. at 1239:25–1240:7 (emphasis

supplied). Albertson noted that, before Dr. Carver testified about the report and

before the autopsy report was admitted into evidence, she “had produced the

appropriate case law and said that the record should go into evidence with the opinion

of the autopsy and doctor redacted, the opinion of cause and manner of death,” which

“is not part of the business record.” Id. at 1240:8–17. The prosecutor explained,

“[w]hat makes it a business record essentially is the factual material that is contained

in the autopsy and the accompanying autopsy files, photographs and x-rays.” Id. at

1240:18–21. Again referencing an earlier, “lengthy discussion” in the judge’s

chambers on the issue, the prosecutor stated that “counsel for the defense did not

want the autopsy report to go into evidence as a business record, but agreed upon

review of the case law that, as did the Court, that it would be admissible and the

witnesses could testify from the facts therein.” Id. at 1240:21–1241:2. Ganthier’s

trial counsel responded that he felt constrained to make this earlier concession

because, as he then understood the law, “I had no legal basis to make an objection to

prevent that autopsy report from going in and I wanted, once it was going in, I wanted

it to go in as a complete document because it was totally in contrast to Dr. Carver’s

testimony in major respects. I make this application today because my client

requested that I do.” Id. at 1241:14–21.

On August 26, 2023, the trial court denied the defense’s Confrontation Clause

objection on the merits. See Tr. 8/26/2013, 1246:17–20 (“The defendant’s application

claiming a denial of his constitutional rights as a result of People’s failure to call Dr.

Kanfer is denied.”). The court “agree[d] with the People that they have complete

discretion in who they will prove . . . their case with and what witnesses they will use

to do that.” Id. at 1245:22–1246:1. The Court further noted that “the autopsy report

in this case was admitted as a business record subject to the redaction of the medical

examiner’s opinions concerning cause and manner of death.” Id. at 1246:3–7. In the

trial court’s view, “[u]nder such circumstances the autopsy report was admitted under

a recognized exception to the hearsay rule and did not violate the defendant’s right

to confrontation.” Id. at 1246:7–11.

D. Summation and Verdict

In his closing, Ganthier’s counsel told the jury that “[t]here’s one [disputed]

issue in this case. It’s cause of death.” Tr. 8/27/2013, 1309:18–19. Defense counsel

devoted an extensive portion of his time to the details of Dr. Carver’s testimony on

both direct and cross-examination. See Tr. 8/27/2013, 1306:18–1308:22, 1310:15–

1311:9, 1311:22–1312:17, 1313:21–1319:1, 1337:14–1339:15, 1348:22–1350:4,

1372:22–1401:22; Tr. 8/28/2013, 1413:9–1470:16, 1471:23–1473:18, ECF No. 7-42.5

He repeatedly urged the jury to find at least reasonable doubt based on the evidence

that the wound to Koster’s liver may have been from blunt force trauma, not from a

stab wound. See, e.g., Tr. 8/27/2013, 1401:1–22; Tr. 8/28/2013, 1438:16–19. And he

repeatedly attacked as flawed the opinions Dr. Carver had offered about an apparent

stab wound to Koster’s liver, and about the neck wound(s) that Dr. Carver tied to an

allegedly fatal air bubble in Koster’s heart. See, e.g., Tr. 8/27/2013, 1306:8–12,

1306:17–25, 1380:6–18.

5 The transcript for Ganthier’s trial on August 28, 2013 is split into two parts

and comprises two separate ECF filings. ECF Nos. 7-42, 7-43. The pagination for

the first transcript is from pages 1403–1531, ECF No. 7-42, and the pagination for

the second transcript is from pages 1–58. ECF No. 7-43. The trial transcript for

August 29, 2013 resumes with its pagination beginning on page 1532. ECF No. 7-44.

The defense also argued that it was “impossible” for a knife to enter Koster’s

abdomen in the location identified in the autopsy and proceed to injure her liver

without also lacerating or cutting other organs in Koster’s body along the path to her

liver. Tr. 8/27/2013, 1317:13–1318:15. Trial counsel challenged Dr. Carver’s

explanation for the absence of such injuries in Dr. Kanfer’s autopsy report, i.e., Dr.

Carver’s claim that the organs along the path to the liver could “move around” and

remain unharmed. Id. at 1318:16–23. Finally, the defense invoked various

procedures that, counsel claimed, should have been followed by Dr. Kanfer while

performing the autopsy but were not. See, e.g., id. at 1395:12–20.

In the People’s summation, the prosecutor also relied heavily on the autopsy

report and Dr. Carver’s testimony to prove its theory as to cause and manner of death:

that Koster died, not from a drug overdose and/or injuries during a fall, but from stab

wound(s) inflicted by Ganthier while she was alive. See, e.g., Tr. 8/28/2013, 18:9–11.

The medical evidence, ADA Albertson argued, proved that there was no head injury

and that Koster “did not fall down and hit her head.” Id. at 11:11–13. She also

submitted that the toxicology analysis included in Dr. Kanfer’s autopsy records

proved that Koster’s death was unrelated to drug or alcohol use, disproving

Ganthier’s claim to detectives that she “started to gag and foam” at the mouth while

in his car and suffered a fall shortly after she got to his house. Id. at 11:14–13:6. She

further argued that if Koster was moving while struggling with Ganthier during the

stabbing, her organs could have moved, explaining why organs along the path from

the entry point of the alleged stab wound to the injured liver were unscathed. Id. at

23:16–24:13.

The prosecutor also urged the jury to focus on what Dr. Carver had testified

was a “C-sign” in the x-ray taken by Dr. Kanfer (but which was not discussed in Dr.

Kanfer’s report), which the People claimed was the result of air in Koster’s heart from

a sharp force injury to a neck vein, causing her death. Tr. 8/28/2013, 40:8–22. She

then told the jury, “And that X-ray that’s in [evidence], you can see it, if you have any

medical background at all, I think one of you was a nurse, that C he’s talking about,

that slight little bit, that’s very easy to miss on autopsy, and I bet Kanfer did miss it.”

Id. at 40:13–17 (emphasis supplied).

Defense counsel did not object to the prosecutor’s appeal to a juror’s “medical

background.” Tr. 8/28/2013, 40:14–15. Nor did he request the court give an

admonition or specific curative instruction. However, the trial court later provided a

general instruction reminding jurors not to draw upon any “special expertise” in their

deliberations that an “average person” might not have. Tr. 8/28/2013, 1485:21–

1486:19.

On August 29, 2013, the jury returned a verdict of guilty on the sole charge of

second-degree murder. Tr. 8/29/2013, 1553:18–1556:8. Judgment was entered on

September 30, 2013. Ganthier, 149 N.Y.S.3d at 227. The trial court sentenced

Ganthier to an indeterminate sentence of 25 years to life in prison. Tr. 9/30/2013,

20:25–21:5, ECF No. 7-45.

VI. CPL 440.10 Motion

While Ganthier’s direct appeal was pending, on February 16, 2018, Ganthier

moved to vacate his conviction pursuant to Section 440.10 of New York’s Criminal

Procedure Law (“CPL”). Pet’r CPL 440.10 Mot. (“Pet’r Mot.”) 1, ECF No. 3-9. In the

motion, Ganthier argued that defense counsel had violated his right to effective

assistance of counsel under the Sixth Amendment and the New York State

constitution by unreasonably failing to call a qualified, available expert on the issue

of cause of death. Affirmation of Jonathan I. Edelstein, Pet’r Mot. (“Edelstein Aff.”)

¶ 53, ECF No. 3-9. That expert, Dr. Charles V. Wetli, was the former Chief Medical

Examiner of Suffolk County, New York — i.e., the county in which Ganthier was

charged and tried for Koster’s murder — and had been retained by the defense prior

to trial. Id. ¶¶ 39–40. In his 440 motion, Ganthier (now represented by new counsel),

submitted that Dr. Wetli “was prepared to rebut the autopsy report and . . . provide[]

the jury with an alternative and more scientifically valid conclusion concerning the

cause of death,” but that trial counsel “inexplicably chose not to call Dr. Wetli to the

stand,” even though Dr. Wetli’s testimony would have “conclusively refute[d] the

prosecution’s theory of how Ms. Koster died.” Id. ¶ 4; see also id. ¶ 53 (arguing

cumulative impact of failure to call Dr. Wetli with other purported errors by trial

counsel).

With the motion, Ganthier attached an affirmation by Dr. Wetli. Affirmation

of Dr. Charles V. Wetli (“Wetli Aff.”), ECF No. 3-9. Dr. Wetli had more than 30 years

of experience as a medical examiner and forensic pathologist, including 11 years as

the Chief at OCME in Suffolk County. Id. ¶ 1. He affirmed that “prior to trial, Mr.

Ganthier’s attorney consulted with me and shared with me the autopsy report and

other relevant medical records.” Id. ¶ 2. “After reviewing Mr. Ganthier’s case prior

to trial,” Dr. Wetli “offered to testify on his behalf but was never called as a witness.”

Id. ¶ 3. Dr. Wetli stated that, “[h]ad [he] been present during Dr. Carver’s testimony,

[he] could have advised Mr. Ganthier’s counsel on how to cross-examine him more

effectively” and “could have rebutted Dr. Carver’s testimony in a number of respects.”

Id. ¶ 3.

Specifically, Dr. Wetli attested that he “could have rebutted Dr. Carver’s

opinion that sharp force injuries to the victim’s neck were the cause of death.” Wetli

Aff. ¶ 4. He would have testified, inter alia, that “[t]he post-mortem chest X-ray was

of poor quality and, contra Dr. Carver, no conclusion can be made about whether air

was in the victim’s heart,” id. ¶ 5; that “[t]he liver injury is not a sharp force injury

(i.e., stab wound) as Dr. Carver testified” and instead “is a blunt force injury,” id. ¶

6; that “the photographic documentation of the injuries in this case, particularly those

of the neck and abdomen, is dismal and cannot support the conclusion regarding

cause of death,” id. ¶ 7; that “the absence of a wound track from the abdomen to the

liver rules out a stab wound to the liver,” id. ¶ 8 (emphasis in original); that the blood

loss suffered by Koster “is not sufficient to cause death,” id. ¶ 9; and, that “[t]he

toxicology testing conducted on the victim was inadequate.” Id. ¶ 11.

In its response, Respondent cited the “spirited cross-examination” of Dr.

Carver by Ganthier’s trial counsel, and the “countervailing facts” he elicited that

“tended to disprove a stabbing death” even without Dr. Wetli’s testimony.6 Resp’t

CPL 440 Mem. (“Resp’t Mem.”) 2, ECF No. 3-12. Respondent further argued that

whether to call Dr. Wetli “was complicated by the prosecutor’s prior relationship with

that witness” which “intimated knowledge of [Wetli’s] strengths and weaknesses on

both direct and cross-examinations.” Id. Although Respondent did not point to any

specific information that ADA Albertson might have used to undermine Dr. Wetli’s

credibility, nor any “weaknesses” known to her that she would have exploited on

cross, its response hypothesized that their prior professional relationship could have

affected Wetli’s “willingness to steadfastly adhere to his opinions” had he testified.

Id.

Respondent also submitted an affirmation from Ganthier’s trial counsel

William Keahon, stating that he had made a strategic decision not to call Dr. Wetli

to testify. Affirmation of William J. Keahon (“Keahon Aff.”), Resp’t Mem., ECF No.

3-10. Keahon affirmed that he “used the information provided by Dr. Wetli to cross-

examine Dr. Wayne Carver” and that he “believed that Dr. Carver’s performance

during cross-examination totally lacked credibility.” Id. ¶ 7. Keahon further stated

that he “did not call Dr. Wetli to testify for the defense because he would have been

6 Ganthier brought this case against the Superintendent of Green Haven

Correctional Facility, where Ganthier is incarcerated, as the “authorized person

having custody of petitioner.” 28 U.S.C. § 2254 Pet., ECF No. 1 at 1. While the

Superintendent of Green Haven Correctional Facility is the respondent as a technical

matter, because the District Attorney of Suffolk County represents the

Superintendent, prosecuted Ganthier, and later defended his conviction and sentence

in state post-conviction proceedings, the Court shall refer to the Suffolk County

District Attorney’s Office as “Respondent” in this opinion.

subjected to an equally thorough cross-examination” by the prosecutor, who “had

called Dr. Wetli to testify for the People when he was the Suffolk County Medical

Examiner and was aware of his strengths and weaknesses as a witness.” Id. ¶ 8.

Keahon concluded that he “believed that [his] cross-examination [of Dr. Carver]

would be presented better than calling Dr. Wetli as a witness” and that “[g]iven how

poorly Dr. Carver testified on cross-examination, [he] believe[d] [he] made a

reasonable tactical decision.” Id. ¶ 9.

The state trial court denied Ganthier’s CPL 440 motion on May 31, 2018.

People v. Ganthier, No. 443-2010 (N.Y. Sup. Ct., Suffolk Cnty.), ECF No. 3-12 at 4.

Ganthier sought leave to appeal, but the Appellate Division denied leave on

September 13, 2018. People v. Ganthier, No. 2018-07953 (N.Y. App. Div. 2018), ECF

No. 3-15 at 1.

VII. Appellate Division Ruling on Confrontation Clause Claim

The Appellate Division denied Ganthier’s direct appeal on June 2, 2021. Its

opinion considered, but rejected, Respondent’s claim that Ganthier had waived his

objection to Dr. Carver’s testimony and the admission of Dr. Kanfer’s autopsy report

at trial, finding that “[c]ontrary to the People’s argument, the defendant’s contention

that his right of confrontation was violated is sufficiently preserved for appellate

review inasmuch as the issue was ‘expressly decided’ by the trial court in response to

the defendant’s application.” Ganthier, 149 N.Y.S.3d at 228 (citations omitted). The

court went on to find, however, that Ganthier’s contention that the trial court’s

admission of the autopsy findings and report in Dr. Kanfer’s absence violated the

Sixth Amendment’s Confrontation Clause was “without merit.” Id. On the merits,

the Appellate Division distinguished between what it characterized as the “non-

opinion” and “opinion” findings in the report. Id. As to the former, the court found

that “[t]he non-opinion portion of the autopsy report was non-testimonial in nature,”

citing a series of New York state court decisions including People v. Freycinet, 892

N.E.2d 843 (N.Y. 2008), and People v. John, 52 N.E.3d 1114 (N.Y. 2016). Id. As for

the report’s “opinion” portion, the Court noted that Dr. Kanfer’s “unredacted opinion

was admitted at the express request of the defendant’s counsel.” Id. The New York

Court of Appeals denied Ganthier leave to appeal the Appellate Division’s decision on

October 25, 2021. People v. Ganthier, 176 N.E.3d 668 (Table) (N.Y. 2021).

VIII. Instant Petition

On January 20, 2023, Ganthier, through counsel, filed the instant petition

under 28 U.S.C. § 2254, asserting claims for relief under the Sixth Amendment’s

Confrontation Clause and its guarantee of the right to effective assistance of counsel.

On April 26, 2023, Respondent filed the state court record with this Court, along with

a memorandum of law in opposition to the petition. Ganthier filed a reply brief on

July 13, 2023. On July 26, 2023, in the wake of the Supreme Court’s decision in

Smith v. Arizona, 602 U.S. 779 (2024), the Court gave the parties leave to file

supplemental briefing regarding the significance, if any, of that decision to Ganthier’s

Confrontation Clause claim. On August 15 and August 16, 2024, Ganthier and

Respondent filed supplemental briefing on that issue.

On January 14, 2025, this Court held oral argument on the petition with

counsel for both parties. On January 16, 2025, Respondent supplemented the record

by filing certain photos and x-rays from the autopsy under seal. This opinion follows.

LEGAL STANDARD

The Antiterrorism and Effective Death Penalty Act (“AEDPA”) “imposes a

‘highly deferential standard for evaluating state-court rulings.’” Renico v. Lett, 559

U.S. 766, 773 (2010) (quoting Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997)). To

grant habeas relief, the federal court must find that the state courts’ adjudication of

the habeas claim “resulted in a decision that 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).7 The Supreme Court

has stated that “clearly established federal law” for purposes of the statute “refers to

the holdings, as opposed to the dicta, of this Court’s decisions as of the time of the

relevant state-court decision.” Williams v. Taylor, 529 U.S. 362, 412 (2000).

For claims adjudicated on the merits, “a federal habeas court may not grant

relief simply because it concludes in its independent judgment that the relevant state-

court decision applied clearly established federal law erroneously or incorrectly.

Rather, that application must also be unreasonable.” Williams, 529 U.S. at 365. The

7 Alternatively, the federal court must find that the state courts’ adjudication

of the claim “resulted in a decision that was based on an unreasonable determination

of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C.

§ 2254(d)(2). Here, however, Petitioner does not argue that he is entitled to relief on

that ground.

requirements set forth by AEDPA are strictly construed and, by design, erect a

substantial barrier to federal habeas relief. These rules are founded upon the

principle that “[s]tate courts are adequate forums for the vindication of federal rights”

and are “presumptively competent[ ] to adjudicate claims arising under the laws of

the United States.” Burt v. Titlow, 571 U.S. 12, 19 (2013) (internal quotation marks

and citation omitted).

If the Court finds that the state court unreasonably applied clearly established

federal law, it then queries whether that error was harmless. “[B]ecause of the

deference we afford to state courts, we find an error harmless unless it had

substantial and injurious effect or influence in determining the jury’s verdict.”

Alvarez v. Ercole, 763 F.3d 223, 232–33 (2d Cir. 2014) (internal quotation marks

omitted); see Brecht v. Abrahamson, 507 U.S. 619, 623, 637–38 (1993).8 If the error

was not harmless, the Court must award the petitioner habeas relief.

DISCUSSION

Ganthier argues that the state courts’ rejection of his Confrontation Clause

claim regarding (1) the admission of the autopsy report without the testimony of its

8 As discussed in the section of this opinion on harmless error (Discussion III.),

whether the error had “substantial and injurious effect or influence in determining

the jury’s verdict” is the test applied where, as here, the state appellate court did not

issue a holding on whether the alleged error it evaluated was harmless. Cf. Brown v.

Davenport, 596 U.S. 118, 127, 136 (2022) (holding that where the state court did issue

a ruling on harmlessness, the federal habeas court must consider both whether the

error had a substantial and injurious effect or influence in determining the jury’s

verdict and whether every fairminded jurist would agree that the error was

prejudicial).

author, Dr. Kanfer, and (2) the surrogate testimony of Dr. Carver, who did not

conduct the autopsy yet testified in considerable detail about Dr. Kanfer’s methods

and findings, was an unreasonable application of clearly established federal law,

namely, Crawford v. Washington, 541 U.S. 36 (2004), and its progeny. Pet’r Mem. at

26–36. In particular, Ganthier argues that the state court’s denial of his claim cannot

be reconciled with the Supreme Court’s decisions in Melendez-Diaz v. Massachusetts,

557 U.S. 305 (2009), and Bullcoming v. New Mexico, 564 U.S. 647 (2011), each of

which were decided prior to Ganthier’s 2013 murder trial. Pet’r Mem. at 26–36.

Ganthier submits that the trial court and the Appellate Division improperly applied

New York’s “business records” exception to the hearsay rule rather than Supreme

Court precedent, which, he argues, makes clear that the Confrontation Clause bars

the admission of forensic reports that contain precisely the kinds of scientific

observations and findings found in Dr. Kanfer’s autopsy report — as well as

“surrogate testimony” about those findings — unless the report’s author is produced

for cross-examination. Id.

Ganthier also argues that the state courts unreasonably denied his ineffective

assistance of counsel claims. He focuses, in particular, on trial counsel Keahon’s

failure to call his previously-retained expert witness — former Suffolk

County Chief Medical Examiner Dr. Charles Wetli — to rebut Dr. Carver’s testimony

and provide affirmative support for the defense’s theory that Rebecca Koster suffered

an accidental death due to blunt force trauma from a fall in Ganthier’s home. Pet’r

Mem. at 36–48. He argues that, even accounting for the considerable deference that

must be given to trial counsel’s decisions and the state court’s assessment of counsel’s

performance, Keahon’s failure to call Dr. Wetli was not supported by any reasonable

strategic judgment and severely prejudiced the defense case. Id. at 45–48. In

addition, he cites the cumulative impact of three additional alleged errors by trial

counsel: (1) Keahon’s elicitation of damaging testimony from Dr. Carver about an out-

of-court opinion by a non-testifying doctor (Dr. Gill) with whom Dr. Carver had briefly

conferred about the autopsy findings; (2) Keahon’s failure to object when the

prosecutor in summation referred to one of the jurors being a nurse and urged that

juror to apply her “medical background” to evaluate the expert testimony about the

decedent’s x-ray; and (3) Keahon’s failure to object when the prosecutor referred to

him as a “courtroom bully” in summation. Id. at 39–48.

For the reasons set forth below, the Court finds that Ganthier is entitled to

habeas relief on his Confrontation Clause claim. In this respect, the Court’s analysis

is guided in significant part by the Second Circuit’s grant of habeas relief in the highly

analogous case of Garlick v. Lee, 1 F.4th 122 (2d. Cir. 2021). In Garlick, the Circuit

found that the New York courts unreasonably denied the petitioner relief from his

murder conviction after improperly relying on earlier state-court decisions that

(mis)categorized autopsy reports as non-testimonial “business records” outside the

scope of the Confrontation Clause. Id. at 133–34. As the Garlick court noted, these

state-court precedents — some of which the New York Court of Appeals has itself

recognized are no longer good law, and which the Appellate Division similarly relied

upon to deny relief to Ganthier — simply cannot be reconciled with the Supreme

Court’s core holdings in Crawford, Melendez-Diaz, and Bullcoming. Id. at 136. For

largely the same reasons detailed in Garlick, the state courts clearly misapplied these

precedents in rejecting Ganthier’s Confrontation Clause claim.

Nor is there any merit to Respondent’s contentions that Ganthier’s trial

counsel waived this claim on his behalf, and that any error was harmless. With

respect to waiver, Ganthier’s Confrontation Clause objection was clearly made and

preserved at trial before the case was submitted to the jury, as the Appellate Division

itself found before denying the claim on its merits. Ganthier, 149 N.Y.S.3d at 228.

And at a murder trial where there was no dispute that Ganthier was alone with

Rebecca Koster when she died, where the primary — and arguably only — disputed

issue was the cause of her death, and where the autopsy findings were essential to

the jury’s resolution of that dispute, the admission of Dr. Kanfer’s autopsy report and

Dr. Carver’s surrogate testimony about its findings and conclusions was in no way

harmless.

Accordingly, since Ganthier is entitled to a new trial based on the state’s

violation of his rights under the Confrontation Clause, the Court need not and does

not decide whether Ganthier is also entitled to relief on grounds of ineffective

assistance of trial counsel, both as to his individual claims and the cumulative impact

of trial counsel’s alleged errors.

I. Confrontation Clause Violation

The Court first considers whether the admission of Dr. Kanfer’s autopsy report

and Dr. Carver’s testimony about its contents, without the production of Dr. Kanfer

as a witness, violated Ganthier’s Confrontation Clause rights. Because under

AEDPA the Court must assess whether the state court’s rejection of Ganthier’s

Confrontation Clause claim was an unreasonable application of clearly established

federal law at the time of the state court’s adjudication of his claim, the Court begins

by discussing U.S. Supreme Court precedent in effect prior to the state court

proceedings.

A. Supreme Court Precedent

The Sixth Amendment to the U.S. Constitution provides that “[i]n all criminal

prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses

against him.” U.S. Const. amend. VI. The Supreme Court has held that the

admission of “testimonial statements of a witness who did not appear at trial” would

violate the Sixth Amendment’s Confrontation Clause, “unless [that witness] was

unavailable to testify, and the defendant had had a prior opportunity for cross-

examination.” Crawford, 541 U.S. at 53–54. The Confrontation Clause specifically

applies to testimonial hearsay, which refers to out-of-court testimonial statements

offered to establish the truth of the matter asserted. See id. at 59 n.9; see also Davis

v. Washington, 547 U.S. 813, 823 (2006) (describing “testimonial hearsay” as the

“primary object” of the Sixth Amendment and describing the Clause’s limitation to

testimonial hearsay as “so clearly reflected in the text of the constitutional provision”

that it “must fairly be said to mark out not merely its ‘core,’ but its perimeter”). Thus,

to determine whether an accused’s Confrontation Clause rights are implicated, the

Court must determine whether the out-of-court statements in question — Dr.

Kanfer’s autopsy report, and Dr. Carver’s testimony about its contents — are

testimonial hearsay.

In Davis, the Supreme Court held that statements given during police

interrogation are testimonial “when the circumstances objectively indicate that there

is no . . . ongoing emergency, and that the primary purpose of the investigation is to

establish or prove past events potentially relevant to later criminal prosecution.” 547

U.S. at 822 (emphasis supplied). The Supreme Court returned to the “primary

purpose” language in Michigan v. Bryant, finding that out-of-court statements for

which circumstances objectively indicated that the “primary purpose of the

interrogation” was “to enable police assistance to meet an ongoing emergency” were

non-testimonial and that their admission therefore did not violate the Confrontation

Clause. 562 U.S. 344, 349 (2011) (quoting Davis, 547 U.S. at 822).

Most relevant to Ganthier’s claim are two cases in the Crawford line in which

the Supreme Court considered whether forensic reports qualified as “testimonial”

under the Confrontation Clause and whether, without violating the Sixth

Amendment, a trial court may admit such reports into evidence even where

prosecutors did not produce the analyst who authored them for cross-examination.

See Melendez-Diaz, 557 U.S. at 307; Bullcoming, 564 U.S. at 652.

In Melendez-Diaz, which predated Ganthier’s trial by four years, the Court

found that a crime laboratory’s “certificates of analysis” that purported to show that

substances seized by law enforcement contained cocaine fell within the “core class of

testimonial statements” covered by the Confrontation Clause. 557 U.S. at 310

(quoting Crawford, 541 U.S. at 51). The Court identified the certificates as “quite

plainly affidavits” — one of the examples cited in Crawford — because they were “a

solemn declaration or affirmation made for the purpose of establishing or proving

some fact.” Melendez-Diaz, 557 U.S. at 310; see also id. at 329–30 (Thomas, J.

concurring). Indeed, the Court readily found that the certificates were “made under

circumstances which would lead an objective witness reasonably to believe that the

statement would be available for use at a later trial.” Melendez-Diaz, 557 U.S. at 311

(quoting Crawford, 541 U.S. at 52). Among other reasons, this was because, under

Massachusetts law, “the sole purpose of the affidavits was to provide prima facie

evidence of the composition, quality, and the net weight of the analyzed substance.”

Id. (internal quotation marks omitted). The Court also flatly rejected the State’s

argument that the authors of drug-analysis certificates were not “accusatory”

witnesses who were not subject to confrontation because (according to the State) they

did not “directly accuse petitioner of wrongdoing,” since their testimony was arguably

“inculpatory only when taken together with other evidence linking petitioner to the

contraband.” Id. at 313. As the Court explained, even though the analyst’s testimony

proved only “one fact necessary for [the defendant’s] conviction — that the substance

he possessed was cocaine” — the analyst was not “somehow immune from

confrontation.” Id. at 313.

Two years later, in Bullcoming, the Supreme Court considered whether

another forensic laboratory report — one that certified, based on “machine-generated

test results,” that a defendant’s blood-alcohol concentration was above the level

needed to convict him for aggravated driving while intoxicated — was testimonial.

564 U.S. at 647, 651. The Court found that “Melendez-Diaz left no room for [the]

argument” that it was non-testimonial. Id. at 663. Though the State argued that the

forensic laboratory report in Bullcoming fell outside the core class of testimonial

hearsay because it was “unsworn,” whereas the certificates in Melendez-Diaz were

“sworn to before a notary public,” the Court rejected that distinction. Bullcoming,

564 U.S at 664 (quoting Melendez-Diaz, 557 U.S. at 311). For the blood-alcohol

reports in Bullcoming, like the certificates of analysis in Melendez-Diaz, were

generated only after “a law-enforcement officer provided seized evidence to a state

laboratory required by law to assist in police investigations.” Id. at 664 (internal

citations omitted). And in both cases, the forensic laboratory report was created after

an analyst tested evidence and produced a certificate with the results in a formalized,

signed document labeled as a “report.” Id. at 664–65.

Bullcoming also made clear that the Confrontation Clause precludes

prosecutors from offering a testimonial hearsay statement contained in a forensic

report through a different expert witness who did not perform the underlying analysis

nor author the report itself — what the Court referred to as impermissible “surrogate

testimony.” 564 U.S. at 652. In Bullcoming, instead of calling the author of the

forensic laboratory analysis report on the defendant’s blood alcohol concentration, the

State called a different analyst “who was familiar with the laboratory’s testing

procedures, but had neither participated in nor observed the test on [the defendant’s]

blood sample.” Id. at 651. This violated the defendant’s Confrontation Clause rights.

Id. at 652. The Court held that where “the prosecution [ ] introduce[s] a forensic

laboratory report containing a testimonial certification — made for the purpose of

proving a particular fact — through the in-court testimony of a scientist who did not

sign the certification or perform or observe the test reported in the certification,” that

“surrogate testimony . . . does not meet the constitutional requirement” of the Sixth

Amendment. Id. Indeed, even though prosecutors in Bullcoming had argued that

the author of the report “simply transcribed the resul[t] generated by . . . [a] machine”

and was a “mere scrivener,” the Court held that the Confrontation Clause nonetheless

required the State to produce the report’s author for cross-examination, either at trial

or in pretrial proceedings. Id. at 659–60.

B. Garlick v. Lee: Applying Supreme Court Precedent to Grant Habeas Relief

A habeas court may only award relief under § 2254(d)(1) if it finds that a

petitioner’s state court proceedings “resulted in a decision that 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)

(emphasis supplied). Thus, even a decision of the Second Circuit with strong factual

and legal parallels to Ganthier’s is not the sort of “precedent” that would strictly

control this Court’s analysis in virtually all other contexts. Nevertheless, Ganthier

relies heavily on the Second Circuit’s opinion in Garlick, 1 F.4th at 125, to support

his Confrontation Clause claim — and with good reason. For even if Garlick does not

directly control the outcome of the instant case, the Circuit’s application of Crawford,

Melendez-Diaz and Bullcoming to hold that a habeas petitioner was entitled to relief

based on the erroneous admission of an autopsy report at his murder trial is highly

instructive here.

In Garlick, the Second Circuit concluded that the New York courts violated

clearly established federal law by (1) allowing the admission of an autopsy report at

Garlick’s murder trial without requiring prosecutors to produce the analyst who

conducted the autopsy and prepared the report, and (2) permitted a surrogate witness

from the New York City Office of the Chief Medical Examiner to “lay[ ] a foundation”

for admission of the report as a “business record” and then to testify about its

contents. Garlick, 1 F.4th at 126–28. Writing for a unanimous panel, Judge Menashi

found that the New York courts clearly violated Garlick’s right to cross-examine the

medical examiner who conducted the autopsy and prepared the report, as that right

was clearly established by the Supreme Court’s decisions in Melendez-Diaz and

Bullcoming.

In addition, the Garlick court found that the New York courts plainly erred in

relying on a test adopted in earlier state-court decisions to determine whether a

forensic report is “testimonial” within the meaning of the Sixth Amendment,

including, inter alia, People v. Freycinet, 892 N.E.2d 843 (N.Y. 2008), and People v.

John, 52 N.E.3d 1114 (N.Y. 2016) — each of which the Appellate Division also relied

upon to deny Ganthier’s Confrontation Clause claim. Ganthier, 149 N.Y.S.3d at 228.

As Garlick explained, the test applied by the New York courts in Freycinet and its

progeny is an unreasonable application of federal law, because it “contradicts clearly

established Supreme Court precedent.” 1 F.4th at 135–36.9 Specifically, the state

courts’ reliance on those New York state precedents “to conclude that Garlick’s right

of confrontation was not violated because the report, which [did] not link the

commission of the crime to a particular person, was not testimonial” could not be

reconciled with “clearly established Supreme Court precedent” that predated

Garlick’s 2011 murder trial. Garlick, 1 F.4th at 136. Indeed, in the wake of Garlick,

the New York Court of Appeals has now expressly recognized that “Freycinet’s . . .

framework for determining the testimonial nature of evidence does not survive

Melendez-Diaz and Bullcoming.” People v. Ortega, 227 N.E.3d 302, 308 (N.Y. 2023)

9 In John, the New York Court of Appeals held that a defendant’s Sixth

Amendment right to confrontation was violated when the prosecution introduced

DNA reports into evidence to show that the defendant’s DNA was found on a gun he

was charged with unlawfully possessing, when the prosecution failed to “produce[ ] a

single witness who conducted, witnessed or supervised the laboratory’s generation of

the DNA profile from the gun or defendant’s exemplar.” 52 N.E.3d at 1115. In dicta,

however, the New York Court of Appeals stated that its holding did not mean the

court was “retreating from [its] prior decisions holding that, given the primary

purpose of a medical examiner in conducting autopsies, such redacted reports . . . are

not testimonial.” Id. at 1128.

In Freycinet, the case the Second Circuit described as the predecessor to John,

the New York Court of Appeals held that an autopsy report redacted to eliminate the

autopsy doctor’s opinions was non-testimonial and could be discussed through a

doctor who did not author the report, because the report “was very largely a

contemporaneous, objective account of observable facts” and “did not directly link

defendant to the crime” but instead was “concerned only with what happened to the

victim, not with who killed her.” 892 N.E.2d at 843.

But these decisions conflicted with clearly established federal law. For as the

Garlick Court explained, the Supreme Court has unequivocally held that “forensic

reports that ‘do not directly accuse [the defendant] of wrongdoing’” or that are

“observations of an ‘independent scientist’ made ‘according to a non-adversarial

public duty’” are not inherently non-testimonial. 1 F.4th at 136 (first quoting

Melendez-Diaz, 557 U.S. at 313–14 (alteration in original); and then quoting

Bullcoming, 564 U.S. at 665).

(holding that autopsy reports at issue were testimonial and that introduction of

autopsy reports through surrogate testimony of doctor who did not perform the

autopsy violated Confrontation Clause).

Applying those precedents, the Garlick court found that the contents of the

absent analyst’s autopsy report were unquestionably “testimonial.” 1 F.4th at 133–

34. It did so for several reasons. First, “[a]s in Melendez-Diaz and Bullcoming, law

enforcement provided seized evidence — the victim’s body — to a state laboratory

required by law to assist in police investigations.” Id. at 134. The preparations for

this autopsy occurred at a detective’s request, with preliminary documents reflecting

OCME’s conversation with that detective; the autopsy itself was performed with two

detectives present; and, after completing the autopsy, the physician “promptly”

notified law enforcement of her autopsy findings, who then dropped charges against

one suspect and initiated a murder charge against Garlick. Id. The final report was

then delivered to the district attorney’s office in the Bronx. Id. The Court thus found

that “any objective witness . . . would have expected that the statements contained in

the report would be used in a later prosecution.” Id.

Second, in Garlick, “[j]ust as in Melendez-Diaz and Bullcoming, the medical

examiner ‘prepared a certificate concerning the result’ of the examination that was

‘formalized’ in a signed document.” 1 F.4th at 134. The autopsy report had “[f]urther

indications of the report’s solemnity,” including its formal title, its affixation with the

OCME seal, a certification by the physician that she performed the autopsy at the

date and time indicated, and initials and “draft” and “final” dates on the autopsy

report. Id. Finally, the autopsy report was “used extensively at trial for the purpose

of proving key facts — including, notably, that it was Garlick, rather than [an

alternate suspect] who caused the victim’s death.” Id.10

C. Application to Ganthier’s Case

Under Supreme Court precedent that existed at the time of the state court

adjudication, the state court’s finding that Dr. Carver’s surrogate testimony and the

admission of Dr. Kanfer’s full autopsy report did not violate the Confrontation Clause

was an erroneous and unreasonable application of federal law.

Both Melendez-Diaz (2009) and Bullcoming (2011) were decided well before

Ganthier’s 2013 trial. Those decisions made clear that Ganthier’s Confrontation

Clause rights were violated by the introduction of Dr. Kanfer’s autopsy report —

10 The Second Circuit in Garlick further noted that John’s apparent reliance

on a Second Circuit case — United States v. James, 712 F.3d 79, 95 (2d Cir. 2013) —

as support for the view that redacted autopsy reports are non-testimonial was

misplaced. Garlick, 1 F.4th at 135 n.7. In James, the Second Circuit held that the

autopsy report at issue in that case was not testimonial, and therefore did not trigger

Confrontation Clause concerns when its author did not testify, where it was not

argued that the autopsy was “anything other than routine,” where there was “no

suggestion” that anyone involved in the autopsy suspected the decedent had been

murdered or that the autopsy “would be used at a criminal trial,” where the autopsy

was completed “substantially before any criminal investigation into [the decedent’s]

death had begun,” and where there was no testimony elicited that law enforcement

was ever notified that the decedent’s death was suspicious or that “any medical

examiner expected a criminal investigation to result from it.” 712 F.3d at 98–99. The

Second Circuit in Garlick noted that “James did not hold that autopsy reports do not

‘link the commission of the crime to a particular person’” and that “[n]or did James

hold that such linkage determines whether a statement is testimonial.” Garlick, 1

F.4th at 135 n.7 (quoting John, 52 N.E.3d at 1128). The Second Circuit noted that

instead, “James cautioned that Melendez-Diaz and Bullcoming ‘cast doubt on any

categorical designation of certain forensic reports as admissible in all cases.’” Id.

(quoting James, 712 F.3d at 88).

including what the Appellate Division characterized as the “non-opinion” portions of

that report — without the production of Dr. Kanfer for cross-examination. And the

Second Circuit’s application of the Supreme Court’s precedents in Garlick applies

squarely to Ganthier’s case, providing clear guidance to this Court on how to evaluate

the merits of his Confrontation Clause claim. Applying Melendez-Diaz and

Bullcoming, the state courts clearly erred in holding that Dr. Kanfer’s report was

non-testimonial and could be independently admitted as a “business record.”

1. Indicia of Formality

Dr. Kanfer’s autopsy report was plainly among the “formalized testimonial

materials” that “‘fall within the core class of testimonial statements’ governed by the

Confrontation Clause.” Melendez-Diaz, 557 U.S. at 329–30 (Thomas, J. concurring)

(quoting White v. Illinois, 502 U.S. 346, 365 (1992)). The autopsy report was a signed

document, Autopsy Report at 5; created on OCME letterhead with what appears to

be the OCME or State of Connecticut insignia from that time, id. at 1; included a

certification by Dr. Kanfer that he performed the autopsy on Koster at the date and

time written, id.; and included a signature by Dr. Kanfer following his final finding

on the cause of death and manner of death under the text, “This is a true statement

of the postmortem findings upon the body of Rebecca Eladia Koster.” Id. at 5. Those

characteristics mirror the “indications of . . . solemnity” that the Second Circuit

identified in the autopsy report in Garlick. 1 F.4th at 134.

Moreover, in Melendez-Diaz, the Supreme Court made clear that even if

certain records “qualify as traditional official or business records” that may

“ordinarily be admitted at trial despite their hearsay status,” if those records are

made in “the production of evidence for use at trial,” they still implicate an accused’s

Confrontation Clause rights. 557 U.S. at 321 (internal citations omitted). Thus, even

at the time the trial court considered Dr. Kanfer’s autopsy report, the question was

not whether the autopsy report would fit within an exception for the prohibition

against hearsay, as the prosecution argued at trial, but rather whether the report

was testimonial and therefore impacted Ganthier’s Confrontation Clause rights

under the Sixth Amendment. Similarly, in Bullcoming, the Court held that a blood-

alcohol analysis report was testimonial where “a law-enforcement officer provided

seized evidence to a state laboratory required by law to assist in police

investigations,” an analyst “tested the evidence and prepared a certificate concerning

the results of [the] analysis,” and the certificate was “‘formalized’ in a signed

document.” 564 U.S. at 665 (quoting Davis, 547 U.S. at 837, n.2). Here, too, Dr.

Kanfer’s report was formalized in a document on official letterhead and included a

certification and signature by Dr. Kanfer. Autopsy Report at 1, 5. Even if the

autopsy report may in other contexts qualify as a “business record,” under the

Confrontation Clause, the key inquiry is whether it was created in connection with

“the production of evidence for use at trial,” which, as discussed below, it clearly was.

Melendez-Diaz, 557 U.S. at 321.

2. Circumstances Surrounding the Preparation of the Report

Alongside its indicia of formality, the autopsy report had a “primary purpose”

of proving facts used to advance the prosecution’s case at trial, see Bryant, 562 U.S.

at 358, and was created “under circumstances which would lead an objective witness

reasonably to believe that the statement[s] would be available for use at a later trial,”

making it a testimonial statement for purposes of the Confrontation Clause.

Melendez-Diaz, 557 U.S. at 311.

This is so for several reasons. First, the final autopsy report clearly informed

law enforcement’s charging decisions in Ganthier’s case. In Garlick, law enforcement

did not pursue charges against one suspect and initiated them against another after

receiving the final autopsy report. 1 F.4th at 134. In Ganthier’s case, Detective Philip

Frendo testified that the original murder charge brought against Ganthier was

“withdrawn” — even after Ganthier admitted, in his first voluntary interview with

police, that Rebecca Koster had died in his presence and that he had covered up her

death — while law enforcement waited for the Connecticut OCME to complete the

autopsy and issue a final report. Tr. 8/20/2013, 50:24–51:18. Only after the report

was finalized and Dr. Kanfer opined (1) that the cause of death was “stab wound of

abdomen” and (2) that the manner of death was “homicide” did law enforcement re-

initiate murder charges against Ganthier. Autopsy Report at 5; Tr. 8/20/2013, 58:23–

59:6, 60:16–23, 69:14–21.

Second, just as in Garlick, “[a]s intended, the autopsy report was used

extensively at trial for the purpose of proving key facts.” 1 F.4th at 134 (first citing

Crawford, 541 U.S. at 40–41; then citing Bullcoming, 565 U.S. at 655–66). The

Garlick Court noted that the prosecution “used the autopsy report in its opening and

closing statements” and used its “conclusions on the manner and cause of death to

eliminate [one suspect] as a potential cause of the victim’s death and to prove

Garlick’s intent to cause serious physical injury.” 1 F.4th at 134. Similarly, at

Ganthier’s trial, the prosecution relied heavily on the autopsy report, and Dr.

Carver’s testimony based on the scientific findings and clinical observations detailed

in the report, in opening arguments, see Tr. 7/24/2013, 59:2–7, 59:21–60:18, 61:8–12,

62:23–63:7, 76:21–77:21, 82:13–83:4, 83:8–15, 84:17–20, as well as throughout its

summation. See Tr. 8/28/2013, 11:7–20, 12:1–16:11, 17:24–30:24, 31:7–32:1, 32:13–

19, 37:1–3, 40:6–41:2. Critically, Ganthier did not deny that he was the last person

to see Koster alive, nor that he had used a knife to cut away portions of Koster’s

corpse and attempted to set it on fire in what Ganthier claimed was a panicked effort

to avoid a wrongful murder charge. Instead, his defense at trial turned on his claim

that she died from blunt force trauma, and specifically (as he maintained in his

earlier interviews with police) that she died after gagging and foaming at the mouth

and then tripping and falling in his garage. See Tr. 8/27/2013, 1309:18–19 (defense

summation) (“There’s one issue in this case. It’s cause of death”). For this reason,

Dr. Kanfer’s autopsy report, and Dr. Carver’s testimony detailing the autopsy’s

findings, were the literal cornerstone of the prosecution’s claim that Koster died

because of stab wounds inflicted by Ganthier while she was still alive, and not from

an overdose or accidental head injury.

Finally, as in Garlick, “[t]he autopsy was performed in the presence of . . .

detectives.” 1 F.4th at 134. During Koster’s autopsy, detectives investigating her

death were present while the autopsy occurred, took photographs, and obtained

evidence from her corpse. Tr. 7/26/2013, 24:11–28:18. These facts further underscore

why any objective witness would “believe that the [autopsy report] would be available

for use at a later trial.” Crawford, 541 U.S. at 52 (citation omitted).

To be sure, there are some differences between the facts in Garlick and those

in Ganthier. But none are material under the Confrontation Clause. For example,

in Garlick, the Second Circuit noted that “law enforcement provided [the] seized

evidence — the victim’s body — to a state laboratory required by law to assist in

police investigations.” Garlick, 1 F.4th at 134. Here, the Court is not aware of

evidence in the state record that law enforcement provided Koster’s body to the

Connecticut OCME or directed OCME to retrieve the body. Instead, though a crime

unit “t[ook] overall responsibility . . . for this particular investigation,” Tr. 7/25/2013,

140:2–11, staff from OCME arrived and removed the decedent’s body themselves. Id.

at 162:13–163:9. Additionally, in Garlick, “[p]reparations for the autopsy commenced

at [a detective’s] request,” 1 F.4th at 134, and there is no such evidence here.

Those minor factual distinctions do not change the fact that here, just as in

Garlick, Koster’s “autopsy was performed in aid of an active police investigation,” 1

F.4th at 134, and the circumstances in total “would lead any objective witness to

‘believe that the [report] would be available for use at a later trial.’” Id. (quoting

Crawford, 541 U.S. at 52). When a trooper arrived on the scene after a man called

911 and reported a body on fire (later confirmed to be Koster’s), he subsequently told

the fire chief to extinguish the fire but cautioned him that it was a “crime scene.” Tr.

7/25/2013, 125:12–16, 130:3–131:2. The Connecticut Eastern District Major Crime

Unit then “t[ook] overall responsibility” for the investigation. Id. at 140:2–11. That

night, staff from OCME arrived and removed the decedent’s body at 12:15 a.m. Id.

at 162:13–163:9. The autopsy occurred that day, with detectives present. Tr.

7/26/2013, 24:4–24. One of the detectives testified at trial that his “function at the

morgue that day” was “to collect evidence.” Id. at 24:22–24. As the trooper who

arrived at the scene himself testified, “it was obvious it was a death that needed to

be investigated, something that major crime would typically investigate.” Tr.

7/25/2013, 141:4–7.11

3. “Opinion” Testimony

Respondent argues that Dr. Carver did not provide “a mere recitation of

conclusions drawn by Dr. Kanfer” but rather “provide[d] his independent opinion” on

the cause of Koster’s death, and so, even if the autopsy report were testimonial, it

was not error for the state court to allow the report into evidence. Resp’t Mem. at 16–

11 Respondent also argues that the autopsy report was not testimonial because

the autopsy was performed pursuant to the office’s medical examiner’s independent

duty to investigate certain deaths, and not for proving facts at trial. Mem. of Law in

Opp’n to Pet. (“Resp’t Mem.”) 14–15, ECF No. 8-1. But the U.S. Supreme Court

squarely rejected that argument in the context of blood-alcohol analysis reports —

specifically the argument that such reports “were simply observations of an

‘independent scientis[t]’ made ‘according to a non-adversarial public duty,’” — in

Bullcoming. 564 U.S. at 664 (quoting Bullcoming respondent’s brief). Indeed, as the

Second Circuit confirmed in Garlick, “[t]hus, even ‘observations of an independent

scientist made according to a non-adversarial public duty’ are testimonial if made in

aid of a police investigation or if it were reasonably known that the observations

would be available for use at a later trial.” 1 F.4th at 132 (quoting Bullcoming, 564

U.S. at 664 (internal quotation marks and alterations omitted in original)).

17. But that argument is foreclosed by U.S. Supreme Court precedent that predates

Ganthier’s trial.12

In Bullcoming, the Supreme Court made clear that the “surrogate testimony”

of a witness who provides his or her own assessment of the statements contained in

a forensic report authored by another, absent analyst violates the Confrontation

Clause. 564 U.S. at 652. Indeed, Bullcoming involved a report whose underlying

method of forensic analysis was far less subjective and nuanced than the autopsy at

issue here — it concerned a blood-alcohol analysis report, which was created using

“gas chromatograph machines to determine [blood alcohol concentration] levels.” Id.

at 654. Nevertheless, the Supreme Court relied on the facts that the machines

12 On this point, Respondent chiefly relies on the Second Circuit’s decision in

United States v. James, 712 F.3d at 79, in which the Court found that it was not error

for a trial court to have allowed an OCME deputy chief medical examiner to testify

on a report of an autopsy that she had not done herself. Id. at 97, 99. As a preliminary

matter, James was decided before Garlick, which is the more recent Second Circuit

decision on the question of whether an autopsy report can be introduced through the

surrogate testimony of a physician who did not author the report. More

fundamentally, the actual holding in James was not that a non-author witness can

testify about an autopsy report they did not author because the report merely forms

the basis for their independent opinions. Instead, James held that the autopsy report

in that case was not testimonial and therefore did not implicate the Confrontation

Clause as a threshold matter. Id. at 97–99. The James Court relied on the facts that

neither defendant in the case argued that the autopsy in question was anything other

than routine; that “there is no suggestion that . . . anyone else involved in this autopsy

process suspected that [the decedent] had been murdered and that the medical

examiner’s report would be used at a criminal trial”; and, that the autopsy report was

completed some six months before any criminal investigation into the decedent’s

death occurred. Id. Not only do those facts quickly distinguish James from the

circumstances surrounding Dr. Kanfer’s autopsy report, but they also underscore that

the Second Circuit did not find in James that it never violates the Confrontation

Clause when an expert who did not complete an autopsy testifies to their opinions

stemming from their review of the report.

utilized by the analyst “require[ ] specialized knowledge and training,” and involve

“several steps,” during which “human error can occur.” Id. The Court flatly rejected

the State’s argument that — because the author-analyst “simply transcribed the

resul[t] generated by . . . [a] machine” and was a “mere scrivener” — the non-author’s

surrogate testimony satisfied the Confrontation Clause rights of the accused. Id. at

659–60.

If running blood-alcohol concentration tests through gas chromatograph

machines “requires specialized knowledge and training,” and “several steps” in which

“human error can occur,” undoubtedly so, too, does the far more involved and complex

process of conducting an autopsy of a human corpse. Bullcoming, 564 U.S. at 654.

Critically, the Bullcoming Court emphasized that surrogate testimony could not

elucidate what the author-analyst “knew or observed about the events his

certification concerned, i.e., the particular test and testing process he employed,” nor

could the surrogate testimony “expose any lapses or lies on the certifying analyst’s

part.” Id. at 661–62. Thus, even where Dr. Carver’s opinions were different than Dr.

Kanfer’s, those opinions relied on “the events [Dr. Kanfer’s] certification concerned,”

and the Confrontation Clause demands Ganthier be provided an opportunity,

through cross-examination, to “expose any lapses or lies on [Dr. Kanfer’s] part.” See

id.

For all of these reasons, the state court’s holding that admission of Dr. Kanfer’s

autopsy report in Dr. Kanfer’s absence and through the surrogate testimony of Dr.

Carver did not violate Ganthier’s Confrontation Clause rights was 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).

II. Waiver of Confrontation Clause Claim

Having found that the State violated the Confrontation Clause at Ganthier’s

trial, the Court now turns to Respondent’s argument that, through his trial counsel,

Ganthier “waived any confrontation claim.” Resp’t Mem. 10–12; see also Suppl. Mem.

of Law in Opp’n to Pet. (“Resp’t Suppl. Mem.”) 3–5, ECF No. 12. It is well established

that “defense counsel may waive a defendant’s Sixth Amendment right to

confrontation where the decision is one of trial tactics or strategy that might be

considered sound.” United States v. Plitman, 194 F.3d 59, 64 (2d Cir. 1999). Here,

however, the Court finds that no such waiver occurred.

The state-court record that forms the basis of Respondent’s waiver argument

is far from clear given that critical portions of the trial court’s consideration of this

issue were not recorded. However, the Court finds that the most reasonable inference

from those portions of the trial record that are available appears to be the following:

Ganthier’s trial counsel initially did object to the admission of the report and to Dr.

Carver’s testimony but was ultimately persuaded, in an off-the-record chambers

discussion, by the prosecutor’s claim that under New York law, the defense “had no

legal basis to make an objection to prevent that autopsy report from going in[.]” Tr.

8/23/2013, 1241:14–21.13 Yet, as noted supra, defense counsel’s initial concession

13 As noted earlier, the initial chambers colloquy between counsel and the trial

judge on this critical issue was not recorded or transcribed. Yet ADA Albertson

appears to have resulted from an incomplete or erroneous understanding of “the case

law” by the prosecutor and trial court in this chambers colloquy — specifically, one

that was based on now-invalidated precedent by the New York Court of Appeals that

was in direct conflict with the Supreme Court’s decisions in Melendez-Diaz and

Bullcoming. And it was only after Dr. Carver testified in detail about Dr. Kanfer’s

autopsy that defense counsel asked for the full report to come into evidence, so that

he could cross-examine Dr. Carver about certain discrepancies between his testimony

and the report itself. Tr. 8/23/2013, 1241:14–21. Finally, at his client’s own request,

and before the case went to the jury, defense counsel did lodge a formal and complete

objection, under the Confrontation Clause, to Dr. Carver’s testimony and the autopsy

report’s admission. Id. at 1238:10–16. Notably, the trial court made no finding that

the objection was waived by defense counsel’s earlier concessions or positions.

Instead, the court simply denied Ganthier’s Confrontation Clause objection on the

merits. Tr. 8/26/2013, 1245:22–1246:20.

This Court has no difficulty finding that Ganthier’s trial counsel did not waive

his client’s Confrontation Clause claim. Most critically, the New York Appellate

subsequently noted, on the record, that defense counsel had made clear in that earlier

discussion that the defense “did not want the autopsy report to go into evidence”

before being persuaded to change course. Tr. 8/23/2013, 1240:21–1241:2. Combined

with the renewed and complete objection to the report’s admission that counsel made

at his client’s request prior to the close of trial, this was clearly sufficient to preserve

Ganthier’s claim. See, e.g., Anderson v. Branen, 17 F.3d 552, 556–57 (2d Cir. 1994)

(finding that even where counsel “fail[s] to object on [the]record” to a jury instruction

at trial, the claim of error is not waived “where the party’s position has previously

been made clear to the trial court and it was apparent that further efforts to object

would be unavailing”).

Division on Ganthier’s direct appeal of his conviction held that Ganthier’s objection

to the admission of the autopsy report was preserved at trial. Ganthier, 149 N.Y.S.3d

at 228 (“Contrary to the People’s argument, the defendant’s contention that his right

of confrontation was violated is sufficiently preserved for appellate review inasmuch

as the issue was ‘expressly decided’ by the trial court in response to the defendant’s

application.” (quoting N.Y. Crim. Proc. Law § 470.05[2])). This Court cannot and will

not disturb the state court’s determination that Ganthier cleared the procedural bar

necessary for a merits ruling on his Confrontation Clause claim. For it is well settled

that “procedural default for failure to comply with a state procedural requirement

bars habeas review only when the state court rendering the judgment clearly and

expressly states that its judgment rests on a state procedural bar.” Galdamez v.

Keane, 394 F.3d 68, 77 (2d Cir. 2005); see also DeBerry v. Portuondo, 403 F.3d 57, 66

(2d Cir. 2005) (“[A] waiver on which the state court did not explicitly rely will not bar

our review of the merits of a claim.”).

After finding Ganthier’s Confrontation Clause claim sufficiently preserved and

not waived, the Appellate Division proceeded to consider and then deny the claim on

the merits. See Ganthier, 149 N.Y.S.3d at 228 (finding that “the defendant’s

contention [that his Confrontation Clause rights were violated] is without merit.”)

As its merits holding, the Court explained that “[t]he non-opinion portion of the

autopsy report was non-testimonial in nature” and that “the unredacted opinion was

admitted at the express request of the defendant’s counsel.” Id.14

Respondent argues that the Appellate Division’s statement that “the

unredacted opinion was admitted at the express request of the defendant’s counsel”

should be interpreted as at least a partial waiver — that is, that Ganthier waived any

Confrontation Clause violation arising from the admission of the so-called “opinion”

portions of the report, i.e., its ultimate findings as to Koster’s “cause of death.” But

Respondent’s interpretation ignores the fact that the quoted language was part of the

Appellate Division’s merits analysis of Ganthier’s Confrontation Clause claim, which

the Appellate Division had already — and explicitly — found was preserved.

Ganthier, 149 N.Y.S.3d at 228. And to the extent Respondent otherwise argues that

Ganthier waived his objection to the so-called “opinion” portions of the report (or the

Appellate Division’s decision may be read to so find), Ganthier is still entitled to

habeas relief under the Confrontation Clause, for two reasons.

First, Respondent’s distinction between “opinion” and “non-opinion” portions

of the report is one that simply does not exist under clearly established Supreme

14 The Appellate Division here cited People v. Freycinet, 892 N.E.2d 843 (N.Y.

2008)). Freycinet involved an autopsy report that was “redacted to eliminate [the

doctor’s] opinions as to the cause and manner of the victim’s death” and “was received

in evidence over defendant’s Confrontation Clause objection.” 892 N.E.2d at 843. The

New York Court of Appeals identified “[t]he only issue on this appeal” as “whether

the redacted version of [the] autopsy report was ‘testimony’ as that term is used in

Crawford.” Id. The New York Court of Appeals held that the report was non-

testimonial. Id. As noted previously, the New York Court of Appeals has effectively

overruled Freycinet, recognizing that Freycinet’s framework for assessing whether

evidence was testimonial cannot be reconciled with Melendez-Diaz and Bullcoming.

Ortega, 227 N.E.3d at 308, 311.

Court precedent. In Bullcoming, the U.S. Supreme Court effectively collapsed any

hypothetical distinction between “factual” and “opinion” portions of expert reports,

because only an author-analyst could testify to what they “knew or observed about

the events his certification concerned, i.e., the particular test and testing process he

employed,” and the testimony of a surrogate analyst could not “expose any lapses or

lies on the certifying analyst’s part.” 564 U.S. at 661–62. Instead, as the Court

recently reaffirmed in Smith v. Arizona, for testimonial statements, “factual

assertions” that “[i]f believed true” would “lead the jury to credit the opinion” of the

testifying expert, fully implicate the Confrontation Clause. 607 U.S. at 796.

Other sections of Bullcoming make clear that the Confrontation Clause does

not distinguish between “facts” and “opinions” contained in a forensic report. For

example, the Bullcoming Court noted that “[m]ost witnesses . . . testify to their

observations of factual conditions or events, e.g., ‘the light was green,’ ‘the hour was

noon.’” 564 U.S. at 660. The Court queried whether — if one police officer observed

the address of a home above the front door or a radar gun readout — another officer

could testify to that information in court “so long as that officer was equipped to

testify about any technology the observing officer deployed and the police

department’s standard operating procedures.” Id. at 660. The answer, the Court

stated, was “emphatically ‘No.’” Id. (citing Davis, 547 U.S. at 826). Even though the

Court held that the author-analyst certified more than a machine-generated number,

it underscored that “the comparative reliability of an analyst’s testimonial report

drawn from machine-produced data does not overcome the Sixth Amendment bar.”

Id. at 661. Instead, “the analysts who write reports that the prosecution introduces

must be made available for confrontation even if they possess ‘the scientific acumen

of Mme. Curie and the veracity of Mother Teresa.’” Id. (quoting Melendez-Diaz, 557

U.S. at 319–20, n.6). Thus, whether a surrogate witness is testifying to ultimate

“opinions” or mere “data,” the author-analyst must be produced to satisfy the

accused’s right to confrontation. Surrogate testimony by another analyst who

understands the procedures used to generate the data, clinical observations, or other

findings in the report will not suffice.

Indeed, in Ganthier’s case, the entire autopsy report could fairly be described

as scientific “opinions.” And Dr. Carver, as a surrogate witness for the absent Dr.

Kanfer, relayed far more about the autopsy than just Dr. Kanfer’s ultimate “cause of

death” conclusion. As discussed further in Section III., infra, Dr. Carver relied

heavily on Dr. Kanfer’s own interpretations and observations of Koster’s corpse.

Those observations included Dr. Kanfer’s measurement of the stab wound to Koster’s

liver, Tr. 8/8/2013, 492:1–3, 570; Autopsy Report at 1; Dr. Kanfer’s observation of

bleeding in Koster’s belly cavity, Tr. 8/8/2013, 492:16–18; Autopsy Report at 4; Dr.

Kanfer’s observations of Koster’s head, skull, and brain, Tr. 8/8/2013, 497:10–498:15;

Autopsy Report at 2; Dr. Kanfer’s observations (or lack thereof) of the ligament near

Koster’s liver, Tr. 8/8/2013, 524:11–525:13; and the toxicological results and x-rays

included in Dr. Kanfer’s final autopsy report. Tr. 8/8/2013, 493:10–495:2, 496:23–

497:4, 501:3–22, 511:3–512:3; Autopsy Report at 6.

Second, even assuming arguendo that Ganthier waived his objection to the

“opinion” portions of the autopsy report, there is no basis for this Court to reconstruct

the scope of that waiver. There is nothing in the trial court record that indicates what

portions of the report were considered “opinion” or “non-opinion.” At oral argument,

the parties could not provide a version of the report with any redactions, or confirm

which part of the report may have been redacted before Dr. Carver testified. The

parties’ collective assumption was that the only “opinion” portion of the report that

was initially excluded from trial was the final “cause of death” section on page 5,

which is but one part of a single page in the 11-page autopsy report — but the parties

agreed that the state court record does not definitively answer that question.15 Thus,

even if this Court construed the Appellate Division decision as finding a “waiver” by

Ganthier’s trial counsel to the “opinion” portion of the report, the purported waiver

would only attach, at most, to the relatively short and cabined final cause of death

section. Yet Dr. Carver’s expert testimony discussed at great length and in extensive

detail numerous other portions of the autopsy report and the autopsy materials.

Thus, even assuming this Court were to agree with Respondent that defense counsel

had partially waived his client’s Confrontation Clause claim with respect to the

“cause of death” finding on page 5 of the report, Ganthier would still be entitled to

15 The autopsy report filed by Respondent is 11 pages, including certain

attachments to Dr. Kanfer’s report. Autopsy Report at 1–11. Additionally,

photographs and x-rays, not counted in those 11 pages, were part of the autopsy

report materials.

habeas relief based on the substantial Confrontation Clause violations caused by

admitting the remainder of the report and Dr. Carver’s testimony.

In sum, this Court finds that Ganthier did not waive his objection to the

introduction of Dr. Kanfer’s autopsy report, nor to Dr. Carver’s testimony about the

numerous scientific findings made by Dr. Kanfer. The Supreme Court made clear

well before Ganthier’s trial that both the so-called “opinion” and “non-opinion”

sections of this report are all testimonial statements. The Appellate Division found

his complete objection to the report and its contents was preserved, and the record

reflects that Ganthier clearly lodged that objection, which the trial court denied on

the merits.

III. The Confrontation Clause Violation Was Not Harmless

Having held that Ganthier did not waive his Confrontation Clause objection to

Dr. Kanfer’s autopsy report, and that the introduction of that report without Dr.

Kanfer’s testimony was a violation of those rights, the Court must next determine

whether the constitutional error was harmless. It was not.

Because the state appellate court reviewing Ganthier’s conviction held that

there was no constitutional error and did not issue an alternative holding on whether

the alleged error was harmless, see generally Ganthier, 149 N.Y.S.3d (2021), this

Court applies the test in Brecht v. Abrahamson to determine if the error was

harmless: whether the error “had substantial and injurious effect or influence in

determining the jury’s verdict.” 507 U.S. at 623, 637. That test applies “[b]ecause of

the deference we afford to state courts[.]” Alvarez, 763 F.3d at 232–33.16 The Brecht

standard “asks only whether a federal habeas court itself harbors grave doubt about

the petitioner’s verdict.” Brown v. Davenport, 596 U.S. 118, 136 (2022).

Under this test, the Supreme Court has outlined certain factors that can

determine whether an error is harmless, “includ[ing] the importance of the witness’

testimony in the prosecution’s case, whether the testimony was cumulative, the

presence or absence of evidence corroborating or contradicting the testimony of the

witness on material points, the extent of cross-examination otherwise permitted, and,

of course, the overall strength of the prosecution’s case.” Delaware v. Van Arsdall,

475 U.S. 673, 684 (1986).

Where improperly admitted evidence “clearly bore on an essential issue” or was

otherwise “crucial to the prosecution’s case,” the error is not harmless. Hernandez v.

McIntosh, --- F. 4th ----, 2025 WL 2025555, at *15–16 (2d Cir. July 21, 2025) (holding

that improper jury instruction regarding defendant’s statements to law enforcement

satisfied the Brecht standard where case “hinged entirely” on defendant’s alleged

confessions to murder, jury sent three notes relating to those statements, and

16 In contrast, where, unlike here, the state court does make a merits

determination on harmless error, that “qualifies as an adjudication on the merits

under AEDPA,” and a federal court in evaluating the habeas petition applies a two-

part standard. Brown v. Davenport, 596 U.S. at 118, 127. First, the court must query

whether the error had a “substantial and injurious effect or influence in determining

the jury’s verdict,” which is the test laid out in Brecht v. Abrahamson, 507 U.S. at

619, 637. See Brown, 596 U.S. at 127. Second, the court must query whether the

AEDPA standard has been met — whether “every fairminded jurist would agree that

the error was prejudicial,” Brown, 596 U.S. at 136, that is, whether “every fairminded

jurist would harbor at least a reasonable doubt that the error was harmless.”

Hernandez v. McIntosh, --- F. 4th ----, 2025 WL 2025555, at *14 (2d Cir. July 21, 2025).

prosecution’s case relied on credibility of statements); Raheem v. Kelly, 257 F.3d 122,

142 (2d Cir. 2001) (holding that improperly admitted identification testimony was not

harmless because it bore on identity of shooter and prosecution offered no other

evidence tying defendant to alleged crime); cf. Perkins v. Herbert, 596 F.3d 161, 177–

78 (2d Cir. 2010) (holding evidence improperly admitted in violation of Confrontation

Clause was harmless because evidence was cumulative of strong and properly

admitted evidence, including explicit oral confession from defendant). The centrality

of improperly introduced evidence to a prosecution’s case, including the extent to

which it is featured in opening and closing arguments, can contribute to a finding

that the error was not harmless. Brown v. Keane, 355 F.3d 82, 92 (2d Cir. 2004)

(holding 911 call admitted in violation of defendant’s Confrontation Clause rights was

not harmless because “prosecutor explicitly argued to the jury in her summation that

the 911 tape corroborated the officers’ testimony” that defendant fired gun, “trial

judge’s charge to the jury expressly called attention to the tape,” and 911 tape “was

the only disinterested evidence on th[e] crucial issue” of whether defendant fired gun).

Other Courts of Appeals have found Confrontation Clause errors non-harmless in

similar circumstances. See, e.g., Issa v. Bradshaw, 904 F.3d 446, 460 (6th Cir. 2018)

(holding that introduction of statements in violation of Confrontation Clause was not

harmless in part because statements were “important to the prosecution’s case,”

evidenced by the prosecution’s use of the statements in summations and prosecution’s

characterization of statements as “the cornerstone of this . . . investigation,” and

because statements were “the only direct evidence” implicating defendant in murder

for hire); Brumley v. Wingard, 269 F.3d 629, 646 (6th Cir. 2001) (holding not harmless

admission of videotaped deposition in violation of Confrontation Clause because

deposition was “the key piece of evidence” and deponent was the prosecution’s

“principal witness” (internal quotation marks omitted)); Shaw v. Collins, 5 F.3d 128,

132–33 (5th Cir. 1993) (holding not harmless admission of videotaped testimony in

violation of Confrontation Clause because testimony “was the linchpin in the State’s

case”).

At Ganthier’s trial, both the autopsy report and Dr. Carver’s testimony about

the report unquestionably “bore on [the] essential issue” in dispute — Koster’s cause

of death — and were “crucial to the prosecution’s case.” Raheem, 257 F.3d at 142.

Relying on the report, Dr. Carver testified that the cause of Koster’s death was

stabbing, and offered a detailed rebuttal to the defense’s theory that Koster died from

blunt force trauma caused by an accidental fall and possible drug overdose. Dr.

Carver’s “opinions” were inextricably based on the report’s observations, findings,

and conclusions in myriad ways. For example, Dr. Carver testified that Koster

sustained a single stab wound of 1.5 centimeters to her liver, based on the autopsy

report’s finding that “[t]here is a stab wound to the left lobe of the liver, which is

approximately 1.5 cm in greatest dimension.” Tr. 8/8/2013, 492:1–3, 570; Autopsy

Report at 1. He testified that he was confident that the liver injury occurred while

Koster was alive, relying on the autopsy report’s statement that there was bleeding

in Koster’s belly cavity. Tr. 8/8/2013, 492:16–18; see Autopsy Report at 4 (noting

amount of fluid blood within the stomach). He testified that Koster’s neck injuries

were fatal and occurred prior to Koster’s death, because of the depiction of air (the

“C-sign”) he observed in the autopsy x-rays. Tr. 8/8/2013, 493:10–495:2, 496:23–

497:4. He testified that Koster did not suffer a significant head injury, relying on the

autopsy report’s “short laundry list of things you would want to know to make that

diagnosis” and its indication that those signs were absent, including no notes of skull

fractures or swelling of Koster’s brain. Tr. 8/8/2013, 497:10–498:15; see Autopsy

Report at 2 (listing observations from Koster’s head and brain). He testified that

Koster’s liver injury was not an “in-between blunt injur[y]” that could occur from a

trauma like falling on dumbbells because the autopsy report did not indicate damage

to the neighboring ligament.17 Tr. 8/8/2013, 524:11–525:13. Finally, he testified that

the toxicological results were negative for cocaine, OxyContin, Vicodin, and heroin,

and that her blood alcohol level content was not higher than 0.02, relying on the

toxicology results in the autopsy report. Tr. 8/8/2013, 501:3–22, 511:3–512:3; see

Autopsy Report at 6.

Here, as in other cases where Confrontation Clause errors were not found

harmless, the prosecutor “explicitly argued to the jury in her summation,” Brown,

355 F.3d at 92, that the report and Dr. Carver’s testimony refuted Ganthier’s defense

theory about Koster’s accidental death and proved the prosecution’s claim that

Ganthier caused her death by stabbing her. See, e.g., Tr. 8/28/2013, 11–16, 19–31,

40, 50; see Issa, 904 F.3d at 460 (citing prosecution use of evidence in summation in

17 On cross-examination, Dr. Carver acknowledged that it was possible for a

blunt force trauma to the liver to occur without damaging the ligament near the liver.

Tr. 8/9/2013, 640:6–641:4.

harmless error analysis). Though the prosecution also argued that the circumstantial

evidence of how Ganthier sought to obscure and dispose of Koster’s body, and

Ganthier’s actions to divert attention away from him by texting Koster’s family,

showed consciousness of guilt, the autopsy report remained the People’s key evidence

on Koster’s cause of death. And as the jury learned at trial, the police dropped the

charges against Ganthier after his initial arrest pending the results of the final

autopsy report — even though he had already admitted to cutting, burning, and

disposing of Koster’s body — which further reflects the centrality of the autopsy

findings to Ganthier’s prosecution on murder charges.

Lest there be any question whether the introduction of the report “had a

substantial and injurious effect or influence in determining the jury’s verdict,”

Alvarez, 763 F.3d at 232–33, the Second Circuit’s harmless error analysis in Garlick

is directly on point. For in Garlick, as here,

[t]he unreasonably erroneous admission of the autopsy report at

Garlick’s trial was not harmless. At trial, the State . . . heavily relied on

it in its opening and closing statements. . . . No other medical evidence

was offered at trial to establish the cause and manner of the victim’s

death. . . . 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.

Dr. Ely, who did not conduct or even participate in the autopsy, could

not testify with respect to the procedures and methods that were

followed in reaching its conclusions or to the qualifications of the

examiner. Even rigorous cross-examination of Dr. Ely could not have

adequately revealed any defects in the autopsy’s methods, conclusions,

and reliability.

1 F.4th at 136.

For these reasons, Ganthier has met his burden of showing that the violation

of his Confrontation Clause rights at trial was not harmless, and he is entitled to

relief from his conviction.

Finally, because the Court grants relief and a new trial on Ganthier’s

Confrontation Clause claim, it need not and does not reach his alternative ground for

relief: that he was denied effective assistance of counsel when, inter alia, his trial

counsel failed to present the former Chief Medical Examiner of Suffolk County as a

defense witness to provide affirmative support for the defense’s cause-of-death

theory.

* * *

This Court recognizes that granting habeas relief will reopen this tragic case

more than a decade after a Suffolk County jury convicted Evans Ganthier of Rebecca

Koster’s murder. It will no doubt cause additional pain to Koster’s survivors, and if

the case proceeds to a second trial, impose additional burdens on the courts and

taxpayers of Suffolk County. That impact cannot be understated here, where Koster’s

loved ones have already suffered not just her untimely death, but also have long lived

with the knowledge of how Ganthier covered up her death in the days that followed.

For while Ganthier has long denied that he murdered Ms. Koster and claims that he

panicked after she died accidentally in his presence, he has admitted that he failed

to report her death, knowingly misled her family about her whereabouts, and

mutilated her corpse in a failed attempt to disguise her identity.

Nevertheless, the right to confront witnesses at a criminal trial is one of our

nation’s bedrock constitutional guarantees. As the Supreme Court has repeatedly

underscored, it protects not only individual defendants who may be wrongly accused,

but the integrity of our adversarial system of justice.

The Court also finds itself compelled to note that this result was not inevitable.

Dr. Kanfer, who performed the autopsy, was alive, well, and still employed by the

OCME at the time of Ganthier’s trial in July and August 2013. Although the lead

prosecutor told the Court that it was her understanding that Dr. Kanfer had a

vacation planned for at least some portion of the month of August, his supervisor,

then Chief Medical Examiner Dr. Harold Wayne Carver, testified that he was

unaware of any vacation, illness, or other reason why Dr. Kanfer was unavailable to

testify directly about his own autopsy findings. In any event, rather than seek a brief

adjournment or leave to take Dr. Kanfer’s testimony out of order to avoid a conflict

with his vacation plans (if any), the prosecution instead took an impermissible end-

run around the Confrontation Clause. Perhaps prosecutors incorrectly believed that

a redacted version of the autopsy report could be introduced as a “business record”

under New York law notwithstanding Supreme Court precedent to the contrary, and

made a strategic determination that Dr. Carver, who observed what he claimed were

certain indicia of pre-mortem stab wounds that were not noted in Dr. Kanfer’s report,

would be more likely than Dr. Kanfer to persuade the jury that Koster’s death was a

homicide. Or perhaps they did not want to burden themselves, the trial court, or

other witnesses with a brief adjournment of the trial date once Dr. Kanfer’s alleged

scheduling conflict came to light. Regardless, the prosecution’s decision to proceed

without the testimony of the person who performed Rebecca Koster’s autopsy, and to

instead rely on a surrogate witness who played no role in it, was a clear violation of

Supreme Court precedent and infected Ganthier’s trial with serious constitutional

error. And it leaves this Court with no choice but to vacate Ganthier’s conviction and

order a new trial.

CONCLUSION

For the reasons outlined herein, Ganthier’s claim for habeas relief under the

Sixth Amendment’s Confrontation Clause is GRANTED. This matter is remanded to

the Supreme Court of Suffolk County for a new trial.

SO ORDERED.

/s/ Nina R. Morrison

NINA R. MORRISON

United States District Judge

Dated: August 26, 2025

Brooklyn, New York