Petition for Writ of Certiorari — Rosemary L. Decosimo, Petitioner v. Tennessee

NO.

In the Supreme Court of the United States

ROSEMARY L. DECOSIMO,

v.

STATE OF TENNESSEE,

Petitioner,

Respondent.

On Petition for Writ of Certiorari to the

Tennessee Supreme Court

PETITION FOR WRIT OF CERTIORARI

GERALD H. SUMMERS

Counsel of Record

BENJAMIN L. MCGOWAN

MARYA L. SCHALK

SUMMERS, RUFOLO, & RODGERS, P.C.

735 Broad Street, Suite 800

Chattanooga, TN 37402

(423) 265-2385

jsummers@summersfirm.com

Counsel for Petitioner

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i

QUESTIONS PRESENTED

Whether the right to a fair trial guaranteed by the

Sixth Amendment and right to due process under the

Fifth and Fourteenth Amendments of the United

States Constitution were violated by Tennessee Code

Annotated section 55-10-413(f)(2017) which awarded

the Tennessee Bureau of Investigation $250 for every

chemical test it conducted that led to a conviction?

Whether there is a standard of impartiality

required by the right to a fair trial under the Sixth

Amendment and the right to due process under the

Fifth and Fourteenth Amendments of the United

States Constitution that is applicable to forensic

scientists working for law enforcement agencies?

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . i

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . v

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . 3

A. FACTUAL BACKGROUND AND

RELEVANT TRIAL EVIDENCE . . . . . . . . . . 4

B. PROCEEDINGS ON APPEAL . . . . . . . . . . . . 8

REASONS FOR GRANTING THE PETITION . . . . 9

I. WHETHER THE RIGHT TO A FAIR TRIAL

GUARANTEED BY THE SIXTH AMENDMENT

AND RIGHT TO DUE PROCESS UNDER THE

FIFTH AND FOURTEENTH AMENDMENTS

OF THE UNITED STATES CONSTITUTION

ARE VIOLATED BY TENNESSEE CODE

ANNOTATED SECTION 55-10-413(f)(2017),

WHICH AWARDED THE TBI $250 FOR

EVERY CHEMICAL TEST IT CONDUCTED

IN A DUI CASE THAT LED TO A

CONVICTION? . . . . . . . . . . . . . . . . . . . . . . . . . 12

iii

II. WHETHER THERE IS A STANDARD OF

IMPARTIALITY REQUIRED BY THE RIGHT

TO A FAIR TRIAL UNDER THE SIXTH

AMENDMENT AND RIGHT TO DUE

PROCESS UNDER THE FIFTH AND

FOURTEENTH AMENDMENTS OF THE

UNITED STATES CONSTITUTION THAT IS

APPLICABLE TO FORENSIC SCIENTISTS

WORKING FOR LAW ENFORCEMENT

AGENCIES? . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

APPENDIX

Appendix A Opinion in the Supreme Court of

Tennessee

(August 23, 2018) . . . . . . . . . . . . . App. 1

Appendix B Opinion in the Court of Criminal

Appeals of Tennessee

(February 6, 2018) . . . . . . . . . . . App. 49

Appendix C Order in the Criminal Court for

Hamilton County, Tennessee

(December 11, 2014 ) . . . . . . . . . App. 98

Appendix D TCA § 55-10-413 (2017) . . . . . . App. 130

Appendix E 28 U.S.C. § 1257 . . . . . . . . . . . . App. 137

Appendix F TCA § 16-3-201 . . . . . . . . . . . . App. 138

Appendix G Judgment & Addendum in the

Criminal Court for Hamilton County,

Tennessee

(March 8, 2017) . . . . . . . . . . . . App. 140

iv

Appendix H State Listing - Expert Contingent

Fees . . . . . . . . . . . . . . . . . . . . . App. 143

v

TABLE OF AUTHORITIES

CASES

Aetna v. Life Ins. Co. v. Lavoie,

475 U.S. 813 (1986) . . . . . . . . . . . . . . . . . . . . . . 31

Almeida-Sanchez v. U.S.,

413 U.S. 266 (1973) . . . . . . . . . . . . . . . . . . . . . . 12

Brown v. Vance,

637 F.2d 272 (5th Cir. 1981) . . . . . . . . . . . . . . . 25

Caperton v. A.T. Massey Coal Co., Inc.,

556 U.S. 868 (2009) . . . . . . . . . . . . . . . . . . . 25, 26

City of Memphis v. Hargett,

414 S.W. 3d 88 (Tenn. 2013) . . . . . . . . . . . . . . . 15

City, County of Denver v. Board of Assessment

Appeals, 947 P.2d 1373 (Colo. 1997) . . . . . . . . . 27

Clark v. Jeter,

486 U.S. 456 (1988) . . . . . . . . . . . . . . . . . . . . . . 15

Connally v. Georgia,

429 U.S. 245 (1977) . . . . . . . . . . . . . 10, 19, 23, 30

Crowe v. Bolduc,

334 F.3d 124 (1st Cir. 2003) . . . . . . . . . . . . . . . 29

Daubert v. Merrell Dow Pharmaceuticals,

509 U.S. 579 (1993) . . . . . . . . . . . . . . . . 23, 24, 25

Dupree v. Malpractice Research, Inc.,

445 N.W.2d 498 (Mich. Ct. App. 1989) . 27, 28, 30

Ex parte Va.,

100 U.S. 339 (1880) . . . . . . . . . . . . . . . . . . . . . . 14

vi

First Nat’l Bank v. Malpractice Research,

688 N.E. 2d 1179 (Ill. 1997) . . . . . . . . . . . . . . . . 27

Fisher v. Univ. of Tex.,

570 U.S. 297 (2013) . . . . . . . . . . . . . . . . . . . . . . 15

Indiana Union Traction Co. v. Pheanis,

85 N.E. 1040 (Ind. Ct. App. 1908) . . . . . . . . . . . 27

Irvin v. Dowd,

366 U.S. 717 (1961) . . . . . . . . . . . . . . . . . . . . . . 32

Kerry v. Din,

135 S. Ct. 2128 (2015) . . . . . . . . . . . . . . . . . . . . 15

Larkin v. Dedham Medical Associates, Inc.,

93 Mass. App. Ct. 661 (Mass. Ct. App. 2018) . . 29

McCullen v. Coakley,

134 S. Ct. 2518 (2014) . . . . . . . . . . . . . . . . . . . . 16

In re Murchison,

349 U.S. 133 (1955) . . . . . . . . . . . . . . . . . . . . . . 15

Reed v. Town of Gilbert,

135 S. Ct. 2218 (2015) . . . . . . . . . . . . . . . . . . . . 15

Rochin v. California,

342 U.S. 165 (1952) . . . . . . . . . . . . . . . . . . . . . . 25

State v. Larkin,

443 S.W.3d 751 (Tenn. Crim. App. 2013) . . . . . 14

State v. Livesay,

941 S.W.2d 63 (Tenn. Crim. App. 1996) . . . . . . 20

Sutherlin v. White,

71 Va. Cir. 184 (Va. Cir. 2006) . . . . . . . . . . . . . 27

vii

Swafford v. Harris,

967 S.W.2d 319 (Tenn. 1998) . . . . . . . . . . . . . . . 28

Tagatz v. Marquette Univ.,

861 F.2d 1040 (7th Cir. 1988) . . . . . . . . . . . . . . 28

Tumey v. Ohio,

273 U.S. 510 (1927) . . . . . . . . . . . . . . . . . . passim

Ward v. Village Of Monroeville,

409 U.S. 57 (1972) . . . . . . . . . . . 10, 19, 22, 23, 30

Washington v. Glucksberg,

521 U.S. 702 (1997) . . . . . . . . . . . . . . . . . . . . . . 15

Winston v. Lee,

470 U.S. 753 (1985) . . . . . . . . . . . . . . . . . . . . . . 16

CONSTITUTIONS AND STATUTES

U.S. Const. amend. V . . . . . . . . . . . . . . . 1, 10, 12, 19

U.S. Const. amend. VI . . . . . . . . . . . . . 1, 2, 10, 12, 19

U.S. Const. amend. XIV . . . . . . . . . . . . . 2, 10, 12, 19

28 U.S.C. § 1257 . . . . . . . . . . . . . . . . . . . . . . . . . 1, 11

Ky. Rev. Stat. Ann. §189A.050(2) . . . . . . . . . . . . . . 10

Nev. Rev. Stat. Ann. §484C.510(1) . . . . . . . . . . . . . 10

N.C. Gen. Stat. §7A-304(a)(7) . . . . . . . . . . . . . . . . . 10

Tenn. Const. Art. I, §8 . . . . . . . . . . . . . . . . . . . . . . . . 2

Tenn. Const. Art. I, §9 . . . . . . . . . . . . . . . . . . . . . . . . 1

T.C.A. §16-3-201 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

T.C.A. §40-30-102(a) . . . . . . . . . . . . . . . . . . . . . . . . . 9

viii

T.C.A. §55-10-402(a)(1)(B) . . . . . . . . . . . . . . . . . . . . 7

T.C.A. §55-10-413 (2017) . . . . . . . . . . . . . . . . . passim

T.C.A. §55-10-419 (2005) . . . . . . . . . . . . . . . . . . . . . 12

T.C.A. §55-10-419 (2012) . . . . . . . . . . . . . . . . . . . . . . 2

Vt. Stat. Ann. tit. 23 §1210(i) . . . . . . . . . . . . . . . . . 10

RULES

Tenn Sup. Ct. R. 8 . . . . . . . . . . . . . . . . . . . . . . . . . . 28

RPC 3.4(h) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

OTHER AUTHORITIES

ANSI-ASQ National Accreditation Board,

Governing Principles of Professional

Responsibility for Forensic Service Providers

and Forensic Personnel (Nov. 3, 2016),

https://anab.qualtraxcloud.com/ShowDocumen

t.aspx?ID=6732 . . . . . . . . . . . . . . . . . . . . . . . . . 29

David E. Bernstein, Article: Expert Witnesses,

Adversarial Bias, and the (Partial) Failure of the

Daubert Revolution, 93 Iowa L. Rev. 451 (2008)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 30, 32

Crime in Tennessee, Statewide Statistics,

https://www.tn.gov/tbi/divisions/cjisdivision/recent-publications..html . . . . . . . . . . . . 9

2017 DUI statistics, https://crimeinsight.tbi.tn.gov/

insight.tbi.tn.gov/public/View/dispview.aspx?R

eportId=50 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

ix

Roberta K. Flowers, Article: What You See Is What

You Get: Applying the Appearance of

Impropriety Standard to Prosecutors, 63 Mo. L.

Rev. 699 (1998) . . . . . . . . . . . . . . . . . . . . . . . 20, 31

George C. Harris, Article: Testimony for Sale: The

Law and Ethics of Snitches and Experts, 28

Pepp. L. Rev. 1 (2000) . . . . . . . . . . . . . . . . . . . . 29

Steven Lubet, Article: Expert Witnesses: Ethics and

Professionalism, 12 Geo. J. Legal Ethics 465

(1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Kayla Marie Mannucci, Framed by Forensics:

Fulfilling Daubert’s Gatekeeping Function by

Segregating Science from the Adversarial Model,

39 Cardozo L. Rev. 1947 (2018) . . . . . . . . . . 17, 18

Notes: Contingent Fees for Expert Witnesses in

Civil Litigation, 86 Yale L.J. 1680 (1977) . . . . . 31

Jeffrey J. Parker, Note: Contingent Expert Witness

Fees: Access and Legitimacy, 64 S. Cal. L. Rev.

1363 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Mark R. Patterson, Conflict of Interest in Scientific

Expert Testimony, 40 Wm. & Mary L. Rev. 1313

(1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Restatement 3d of the Law Governing Lawyers . . 28

Christopher Tarver Robertson, Article: Blind

Expertise, 85 N.Y. U. L. Rev. 174 (2010) . . 31, 32

Dr. Cyril Wecht, Transcript: The Role of the

Forensic Scientist in Maintaining Integrity in

the Criminal Justice System, 52 S. Tex. L. Rev.

459 (Spring 2011 Symposium) . . . . . . . . . . . . . 26

1

OPINIONS BELOW

The opinion of the Tennessee Supreme Court is

published at 2018 Tenn. LEXIS 471. See Pet. App. A.

The opinion of the Tennessee Court of Criminal

Appeals is published at 2018 Tenn. Crim. App. LEXIS

85. See Pet. App. B. A copy of the trial court’s Order

denying the initial Motion to Dismiss is Appendix C to

the petition. See Pet. App. C.

JURISDICTION

The opinion and judgment of the Tennessee

Supreme Court was entered on August 23, 2018. Pet.

App. A. This Court has jurisdiction pursuant to 28

U.S.C. § 1257. Pet. App. E. The Tennessee Supreme

Court had jurisdiction pursuant to Tennessee Code

Annotated section 16-3-201. Pet. App. F.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fifth Amendment to the United States

Constitution provides in relevant part: “No person shall

be held to answer for a capital, or otherwise infamous

crime, unless on a presentment or indictment of a

Grand Jury . . . nor be deprived of life, liberty, or

property without due process of law[.]”

The Sixth Amendment to the United States

Constitution1 provides in relevant part: “In all criminal

1

Article I, section 9 of the Tennessee Constitution provides similar

protection stating in relevant part: “That in all criminal

prosecutions, the accused hath the right to be heard by himself and

his counsel; to demand the nature and cause of the accusation

against him . . . to meet witnesses face to face, to have compulsory

process for obtaining witnesses in his favor, and in prosecutions by

2

prosecutions, the accused shall enjoy the right to a

speedy and public trial, by an impartial jury of the

State and district wherein the crime shall have been

committed . . . to be confronted with the witnesses

against him, to have compulsory process for obtaining

witnesses in his favor, and to have the Assistance of

Counsel for his defence.”

The Fourteenth Amendment to the United States

Constitution2 provides in relevant part: “No State shall

make or enforce any law which shall abridge the

privileges or immunities of citizens of the United

States; nor shall any State deprive any person of life,

liberty, or property, without due process of law, nor

deny to any person within its jurisdiction the equal

protection of the laws.”

The relevant portion of subsection (f) of Tennessee

Code Annotated section 55-10-413 (2017)3 is reproduced

at Petition Appendix D. See Pet. App. D.

indictment or presentment, a speedy public trial, by an impartial

jury of the county in which the crime shall have been committed,

and shall not be compelled to give evidence against himself.”

2

Article I, section 8 of the Tennessee Constitution provides similar

protection in relevant part: “That no man shall be taken or

imprisoned, or disseized of his freehold, liberties or privileges, or

outlawed, or exiled, or in any manner destroyed or deprived of his

life, liberty, or property, but by the judgment of his peers or the

law of the land.”

3

This statute has been amended by the Tennessee Legislature as

a result of the challenge in this case. The contested part of the

statute was in effect from 2013 through May 20, 2018. Prior to

2013, the statute was codified under 55-10-419 (2012). See State

v. Rosemary L. Decosimo, No. E2017-00696-SC-R11-CD, 2018

Tenn. LEXIS 471, at *4, n.2 (providing the history of the statute

challenged). Pet. App. A.

3

STATEMENT OF THE CASE

Petitioner Rosemary L. Decosimo entered a plea of

nolo contendere to driving under the influence (DUI)

per se based on a blood alcohol level of .08% or greater

with the reservation of a certified question of law. The

parties agreed that the issue in the certified question

was dispositive on appeal. Pet. App. A.

At issue in the certified question of law was the

constitutionality of Tennessee Code Annotated section

55-10-413(f)(2017), which had been challenged in a

Motion to Dismiss, Supplement, and Memorandum

filed on behalf of more than 20 defendants. The trial

court, sitting en banc with the county’s three criminal

court judges, denied the Motion to Dismiss in a joint

opinion prior to entry of Petitioner’s plea. Pet. App. C.

Following the entry of the trial court’s denial,

Petitioner sought an interlocutory appeal but it was

denied by the Tennessee Court of Criminal Appeals

and the Tennessee Supreme Court. A new trial judge

was appointed in the Petitioner’s case. He adopted the

trial court’s previous order when asked to reconsider

the denial of the Motion to Dismiss. Pet. App. A.

Petitioner entered a nolo contendere plea reserving a

certified question on the constitutionality of the

statute. Pet. App. G.

Pursuant to the plea agreement, the trial court

sentenced Petitioner to eleven months and twenty nine

days, all suspended except 48 hours. Pet. App. G. In a

3-0 decision, the Tennessee Court of Criminal Appeals

reversed the trial court and found in favor of the

Petitioner by declaring Tennessee Code Annotated

4

section 55-10-413(f) unconstitutional and in violation of

due process. Pet. App. B.

In a 5-0 decision, the Tennessee Supreme Court

reversed the judgement of the Tennessee Court of

Criminal Appeals and reinstated the judgment of the

trial court. Pet. App. A.

A. FACTUAL BACKGROUND AND

RELEVANT TRIAL EVIDENCE

Petitioner was arrested and charged with driving

under the influence on August 18, 2012. She consented

to providing a blood sample upon her arrest. She,

along with twenty-two other defendants, filed a Motion

to Dismiss to challenge the constitutionality of

Tennessee Code Annotated section 55-10-413(f). The

Motion was heard before the three Hamilton County

Criminal Court judges sitting en banc. Pet. App. A.

The parties submitted written stipulations of fact

prior to the hearing on the Motion to Dismiss which

included that: (1) Each of the defendants was charged

with DUI, vehicular assault, and/or vehicular homicide;

(2) Each defendant provided a breath or blood sample

to law enforcement; (3) The blood samples were sent to

the Tennessee Bureau of Investigation (TBI) Forensic

Services Division where they were tested for the

presence of alcohol or other intoxicant; (4) TBI forensic

scientists are routinely called as witnesses to testify

regarding the testing process, equipment, results, and

other matters relating to chemical analysis of the blood

and breath evidence; (5) Written reports may be

admitted into evidence; (6) Each defendant, if

convicted, was subject to certain fees under the

challenged statute, including the BADT (Blood Alcohol

5

or Drug Concentration Test) and BAT (Blood Alcohol

Concentration Test) fees, to be paid as part of his or her

court costs; (7) No BADT or BAT fee is charged where

a case is dismissed, a not guilty verdict is returned, or

where a defendant pleads to a non-DUI related offense;

and (8) By statute, the BADT and BAT fees are

collected by the court clerk for the applicable court and

are paid ultimately to the TBI where they are used for

all TBI agency operational costs as permitted by

statute. Pet. App. B.

The testimony of TBI Director, Mark Gwyn, before

a Senate Judiciary Committee of the Tennessee

General Assembly on February 11, 2014, was entered

as an exhibit to the Motion to Dismiss. TBI Director

Gwyn testified that the BADT fee was originally $100,

but in 2010, it was increased to $250 per conviction,

because the TBI had a financial shortfall and was going

to be faced with having to shut down labs or charge

local law enforcement for testing. Director Gwyn

testified that by increasing the fee, the TBI was able to

avoid “lay[ing] off forensic scientists” and able to avoid

charging law enforcement for testing. Director Gwyn

estimated that eight special agent positions and eight

special agent/forensic scientist positions “were in

jeopardy” if the BADT fee had not been increased. Pet.

App. A.

Director Gwyn provided the following statistics on

revenue generated under the statute from the BADT

fees for blood testing from 2009 to 2012:

• 2009 – Revenue $999,000 and Expenses:

$750,000

• 2010 – Revenue $1,011,000 and Expenses:

$690,000

6

• 2011 – Revenue $1,500,000 and Expenses:

$1,400,000

• 2012 – Revenue $2,500,000 and Expenses:

$1,500,000

Pet. App. A.

Petitioner presented evidence about a TBI forensic

scientist, Agent Bayer, who had been fired for

switching two blood samples which resulted in a person

with a blood alcohol content of .01% being charged with

vehicular homicide based on another person’s blood

alcohol content of 0.24%. As a result of that case, the

TBI retested 2,827 blood samples through an

independent out-of-state laboratory. For the majority

of the retests, the BAC was the same or slightly higher

on the new test than in Agent Bayer’s tests. However,

43 tests showed a slightly lower BAC than Agent

Bayer’s result. Pet. App. B.

Two defense attorneys testified as witnesses.

Attorney Raymond W. Fraley, who had handled over

2000 DUI cases, stated that judges and prosecutors

relied heavily on the accuracy of the TBI’s test results

and that these test results influenced whether a

defendant would fight the case or enter a plea. Fraley

stated that cross-examination of a forensic scientist

was not an adequate safeguard because 85% of DUI

cases settled before trial. Pet. App. B.

Attorney Lloyd Levitt testified that he had handled

over 1000 DUI cases and that the Official Alcohol

Report from the TBI was “the driving factor in any DUI

case.” Pet. App. A.

7

Additional evidence showed other cases in which the

TBI tests had been incorrect. The first was a blood test

on Michael Barrett Dorne, who had a blood alcohol

level of .23% according to the TBI test. A retest showed

that the level was a .17%. See T.C.A. §55-10402(a)(1)(B) (providing for enhanced penalties when

BAC is .20% or higher). The second was the blood test

of Heatherly Dawn Fischer, which showed a BAC of

.09% according to the TBI test but a .07% on the

independent lab test. The third example of an

inaccurate result was in a Hamilton County case

wherein the official alcohol report for Joseph Tyler

Gallant, reported the BAC to be .21%. The report did

not reveal that the test involved serum blood, rather

than whole blood, making the actual blood test result

.18%. (Vol. II, p. 146-153).4

On behalf of the 23 defendants involved in the

Motion to Dismiss, counsel argued that the appearance

of impropriety and potential for bias were sufficient to

challenge the statute’s constitutionality and the system

as a whole and acknowledged he was not presenting

evidence of actual bias for each defendant. Pet. App. A.

In a joint opinion by the three criminal court judges,

the Motion to Dismiss was denied, but defendants were

granted the right to have a jury instruction given

concerning the financial incentive the BADT fee

created for the TBI to obtain convictions. Pet. App. A.

Following the appointment of a new trial judge to

the Petitioner’s case, the trial court was asked to

reconsider the ruling on the Motion to Dismiss and

additional evidence was presented. Records from the

4

These exhibits are part of the appellate record.

8

Tennessee Department of Revenue showing the BADT

fees collected by the TBI from 2005 to 2016 were

admitted into evidence. The following table shows the

fees collected by the TBI during that twelve year

period, totaling more than $22 million:

Year

2005

2006

2007

2008

2009

2010

2011

2012

2013

2014

2015

2016

TOTAL

BADT Collection

$138,437.90

$794,822.83

$1,011,324.52

$1,019,760.76

$970,221.02

$989,049.49

$2,018,651.25

$2,655,556.39

$3,005,840.02

$3,145,794.60

$3,306,940.32

$3,003,571.80

$22,059,970.90

Pet. App. B.

B. PROCEEDINGS ON APPEAL

Petitioner challenged the constitutionality of

Tennessee Code Annotated section 55-10-413(f) in a

certified question following entry of a nolo contendere

plea to DUI. Pet. App. B. The issue on appeal was

whether a statute which awarded the TBI a $250 fee

for each case in which a conviction was obtained using

one of its tests violated due process or the right to a fair

trial. Pet. App. G. On February 6, 2018, the Tennessee

Court of Criminal Appeals reversed the judgment of

the trial court and found the statute to be

9

unconstitutional. Pet. App. B. The State of Tennessee

sought an Application for Permission to Appeal to the

Tennessee Supreme Court, which was granted. On

August 23, 2018, the Tennessee Supreme Court

reversed the judgment of the Court of Criminal

Appeals and reinstated the judgment of the trial court.

Pet. App. A.

REASONS FOR GRANTING THE PETITION

The impact of this case is not limited to a single

DUI defendant. Between 2005 and 2017, there were

more than 336,0005 arrests for DUI in the State of

Tennessee from which the TBI had the potential to

perform a chemical test and the potential to be paid for

a conviction in each case. It is unknown how many of

those cases are still pending.6

The Tennessee Supreme Court has decided an

important question of federal law that has not been,

but should be, settled by this Court: whether a fee paid

to a forensic scientist’s laboratory that is contingent

upon convicting a defendant creates an appearance of

impropriety, impartiality, or potential for bias so

egregious that it violates due process and right to a fair

trial. See Sup. Ct. R. 10(c). The question of whether a

statute which provides for paying a contingent fee to a

5

DUI statistics for the years of 2005-2016 can be found under

Crime in Tennessee under Statewide Statistics at

https://www.tn.gov/tbi/divisions/cjis-division/recent-publications.

.html. DUI statistics for 2017 can be found at https://crime insight

.tbi.tn.gov/public/View/dispview.aspx?ReportId=50

6

Tennessee Code Annotated section 40-30-102(a) provides that the

statute of limitations for obtaining post-conviction relief is within

one year of the judgment becoming final.

10

forensic scientist upon obtaining a conviction violates

the Fifth, Sixth, and Fourteenth Amendments of the

United States Constitution has not been decided by

this Court. This Court also has never addressed or set

a standard for impartiality required of a forensic

scientist working for a state lab in a criminal case or

determined if paying forensic scientists a contingency

fee creates an incentive for partiality, which makes a

trial fundamentally unfair.

Tennessee is not the only state with a statute that

pays forensic scientists for alcohol testing only when

the results lead to a conviction. See Ky. Rev. Stat. Ann.

§189A.050(2) (providing that a $45 fee (12% of $325) is

to be paid to the State Police Forensic Laboratory for

each person convicted of DUI); Nev. Rev. Stat. Ann.

§484C.510(1) (providing that upon conviction if a

chemical test is performed, the defendant must pay $60

as a fee for chemical analysis); N.C. Gen. Stat. §7A304(a)(7) (providing that a $600 fee is to be paid to the

state Department of Justice for support of the

Laboratory in each case wherein a conviction is

obtained and a test is performed); Vt. Stat. Ann. tit. 23

§1210(i) (providing that person convicted of DUI must

pay a $60 fee to be deposited to the Blood and Breath

Alcohol Testing Special Fund).

The Tennessee Supreme Court found that the

United States Supreme Court cases of Tumey v. Ohio,

273 U.S. 510 (1927), Ward v. Village Of Monroeville,

409 U.S. 57 (1972), and Connally v. Georgia, 429 U.S.

245 (1977), which announced neutrality standards for

individuals exercising a judicial or quasi-judicial

authority, could not be extended to TBI forensic

scientists, despite having a duty to be neutral in

11

conducting their scientific testing, to produce results

based solely on scientific processes, and to conduct

testing free from any influence or possible bias towards

a certain outcome. Pet. App. A.

Tennessee Code Annotated section 55-10413(f)(2017) that is drawn into question in this appeal

is repugnant to the Constitution. 28 U.S.C. § 1257. The

statute created an expert witness contingency fee that

was paid only upon the conviction of a defendant. Such

expert witness contingency fees have been rejected by

states across the country as bad policy. An expert

witness working on behalf of the State and prosecution

that has an interest in the outcome of a case, because

payment is contingent upon obtaining a conviction,

cannot be said to comport with the principles of a fair

trial or due process.

This case presents a particularly compelling reason

why this Court should address the issue before it. This

issue is not limited to the Petitioner’s case. It applies to

all DUIs in the State of Tennessee, wherein a chemical

test was performed, from 2005 until May 20, 2018. It

also could apply to DUIs in other states, including but

not limited to, Kentucky, Nevada, North Carolina, and

Vermont. Every case in which a chemical test was

performed by a TBI forensic scientist and a conviction

was obtained, the TBI directly received either $100

(prior to 2010) or $250 (2010 and after). Additionally,

if the Tumey line of cases is inapplicable to forensic

scientists, there is no standard for lower courts to apply

in addressing the impartiality of forensic scientists.

Therefore, this Court should grant this Petition to

address this extremely important constitutional issue.

12

I. WHETHER THE RIGHT TO A FAIR TRIAL

GUARANTEED BY THE SIXTH AMENDMENT

AND RIGHT TO DUE PROCESS UNDER THE

FIFTH AND FOURTEENTH AMENDMENTS

OF THE UNITED STATES CONSTITUTION

ARE VIOLATED BY TENNESSEE CODE

ANNOTATED SECTION 55-10-413(f)(2017),

WHICH AWARDED THE TBI $250 FOR EVERY

CHEMICAL TEST IT CONDUCTED IN A DUI

CASE THAT LED TO A CONVICTION?

Tennessee Code Annotated section 55-10413(f)(2017) created a constitutional violation in every

DUI case in which a chemical test was performed.

Chief Justice Jeffrey Bivens of the Tennessee Supreme

Court stated at oral argument that “I don’t think you

are going to get many folks that are going to argue with

you that it [the challenged statute] stinks to high

heaven.”7 The $250 fee that was paid to the TBI for

every DUI conviction violated a defendant’s due process

rights and right to a fair trial under the Fifth, Sixth,

and Fourteenth Amendments to the United States

Constitution. Just as “no Act of Congress can authorize

a violation of the Constitution[,]” neither can an act of

a state legislature. See Almeida-Sanchez v. U.S., 413

U.S. 266, 272 (1973).

The fee under Tennessee Code Annotated section

55-10-413(f) was first adopted in 2005, at which time

the fee was $100 to cover the cost of the blood test

itself. See T.C.A. §55-10-419(2005). In 2010, the fee

was increased to $250 and was acknowledged by the

TBI as an effort to offset costs and budget shortfalls far

7

https://tncourts.gov/courts/supreme-court/arguments/2018/05/31/

state-tennessee-v-rosemary-l-decosimo at 32:36.

13

exceeding and unrelated to the testing costs. TBI

Director Gwyn testified before the Tennessee General

Assembly that, “[ i]n 2008, we were faced with some

pretty deep cuts, cuts that would have at least caused

us to do one of two things: [w]e would’ve had to shut

down some disciplines with[in] our crime laboratory, or

we would’ve had to start charging local law

enforcement for testing.” Pet. App. A. By increasing

the fee to $250, Director Gwyn stated that the TBI

avoided “lay[ing] off forensic scientists” and avoided

passing the cost of the forensic testing “back onto local

law enforcement [who] could not pay it at the end of the

day.” Pet. App. A.

Neither the prosecuting authority nor law

enforcement remitted payment if there was an

acquittal or dismissal, meaning the TBI was paid only

for testing in cases if there was a conviction. If a

defendant was not convicted, the TBI was not paid the

$250 fee. The fee did not go to the state general fund

but went directly to the TBI, who became reliant on

this fee as part of its annual budget. TBI forensic

scientists had a direct pecuniary interest and a

financial incentive to obtain convictions. From 2005

through 2016, the TBI collected more than $22 million

from this fee. Pet. App. A.

The trial court found that this statute created a

“contingent-fee-dependent system” but did not find a

due process violation. Pet. App. C. The Tennessee

Court of Criminal Appeals reversed the trial court and

held that §55-10-413(f) was unconstitutional and

violated due process. Pet. App. B. In response to the

Tennessee Court of Criminal Appeals’ decision, the

Tennessee Legislature remedied the statute by making

14

the fee go to the state’s general fund and not to the

TBI. The Tennessee Legislature was then commended

by the Tennessee Supreme Court in its decision for

taking action to change the statute:

[W]e acknowledge that the General Assembly

could have devised a “more felicitous way” to

provide funding. . . Indeed, the Legislature has

now done just that by amending the BADT fee

statute, effective May 21, 2018. We applaud this

timely action by the Legislature to eliminate the

grounds on which the defendant based her claim

of a statutory appearance of impropriety and her

constitutional challenge.

Pet. App. A; see T.C.A. § 55-10-413(f)(2018).

Due process applies to all three branches of

government. See Ex parte Va., 100 U.S. 339, 347

(1880) (providing that a “State acts by its legislative, its

executive, or its judicial authorities. It can act in no

other way. The constitutional provision, therefore,

must mean that no agency of the State, or of the

officers or agents by whom its powers are exerted, shall

deny to any person within its jurisdiction the equal

protection of the laws”). “[O]ur judicial system

recognizes significantly more due process protections in

criminal cases than in civil cases.” State v. Larkin, 443

S.W.3d 751, 799 (Tenn. Crim. App. 2013). “[T]he

overarching concern in criminal prosecutions is that

the defendant not be convicted except upon being

afforded the due process of law, including the right to

a trial that is fundamentally fair.” Id. at 800. “A fair

trial in a fair tribunal is a basic requirement of due

process. Fairness of course requires an absence of

actual bias in the trial of cases. But our system has

15

always endeavored to prevent even the probability of

unfairness.” In re Murchison, 349 U.S. 133, 136 (1955).

There are two categories of implied rights protected

by the Due Process Clause: (1) “fundamental rights,

which cannot be taken away at all absent a compelling

state interest” and (2) “not-so-fundamental rights,

which can be taken away so long as procedural due

process is observed.” Kerry v. Din, 135 S. Ct. 2128,

2137 (2015). The first step in any substantive due

process analysis is to determine the constitutional

interests at stake. Washington v. Glucksberg, 521 U.S.

702, 722 (1997). Depending on whether the asserted

interest is a fundamental constitutional right, the

Court must apply either strict scrutiny or rational

basis review to determine when the government has

exceeded its authority and violated due process. Clark

v. Jeter, 486 U.S. 456, 466 (1988).

The impermissible contingent-fee-dependent system

under this statute interferes with the fundamental

right of a criminal defendant to a fair trial. Therefore,

to survive strict scrutiny, the State must demonstrate

two things: (1) that the burden on the right to a fair

trial is justified by a compelling state interest; and

(2) that the statute is narrowly tailored to achieve that

state interest. Reed v. Town of Gilbert, 135 S. Ct. 2218,

2232 (2015); City of Memphis v. Hargett, 414 S.W. 3d

88, 102 (Tenn. 2013). A regulation does not qualify as

narrowly tailored if there are any workable alternative

means of achieving the state interest. City of Memphis,

414 S.W.3d at 102-103; see also Fisher v. Univ. of Tex.,

570 U.S. 297, 312 (2013) (“reviewing court must

ultimately be satisfied that no workable race-neutral

16

alternatives would produce the educational benefits of

diversity”).

Courts have recognized that states have an interest

in maintaining forensic testing operations to provide

reliable data for use in the prosecution of crimes that

depend upon the amount of alcohol or drugs in the

body. See, e.g., Winston v. Lee, 470 U.S. 753, 763

(1985). Assuming such an interest would qualify as a

compelling state interest, section 55-10-413(f) was not

narrowly tailored to serve that interest for two reasons.

First, the State never attempted to meet its burden

of demonstrating the absence of less intrusive

alternatives to the contingency-fee-dependent structure

of Tennessee Code Annotated section 55-10-413(f). That

alone compels the conclusion that the statute fails to

meet strict scrutiny. See McCullen v. Coakley, 134 S.

Ct. 2518, 2524 (2014) (“To meet the narrow tailoring

requirement, . . . the government must demonstrate

that alternative measures . . . would fail to achieve the

government’s interests”).

Secondly, there are readily available alternatives

that impose less of a burden on a criminal defendant’s

right to a fair trial by removing the incentive for bias

that the statute created. Whether due process is

violated by an arbitrary legislative action is not a

question that exists in a vacuum; it is gauged by

whether there exist other viable alternatives that

would not compromise constitutional rights. The

unconstitutionality here could have been fixed if the

fees had been deposited into the state general fund or

if the statute de-incentivized any conflict by requiring

that the counties, state prosecutor’s offices, or local law

enforcement also be required to pay the $250 statutory

17

fee in the event of acquittals or dismissals. Here, the

existence of obvious, constitutionally neutral, and

readily available alternatives were available.

Jury trials have become the exception in criminal

cases. In our criminal justice system, the majority of

cases end in guilty pleas, rather than trials, making

the right to confront and cross-examine TBI forensic

scientists an ineffective remedy to address the systemwide legislative action that codified a conflict of

interest and impacted tens of thousands of cases

statewide annually for over thirteen years.

Giving a jury instruction or allowing for crossexamination of forensic scientists does not provide a

sufficient safeguard or remedy under strict scrutiny.

In many DUI cases, the blood or breath test results

may be the most compelling evidence against a

defendant. Additionally, jurors often see scientific

evidence as unimpeachable even when challenged.

“The content of an expert’s testimony is significant

because juries attach heightened value to scientific

evidence, incorrectly believing it is infallible.” Kayla

Marie Mannucci, Framed by Forensics: Fulfilling

Daubert’s Gatekeeping Function by Segregating

Science from the Adversarial Model, 39 Cardozo L.

Rev. 1947, 1950 (2018) Neither of these “remedies”

can cure the fair trial or due process violations of

having an interested forensic scientist with an

incentive toward conviction. At a certain point, expert

evidence has to be inadmissible for lack of impartiality.

This should be that point.

Independent testing by defendants also does not

provide protection against these violations to due

process and fair trial. Independent testing as a

18

safeguard impermissibly shifts the burden to the

defendant. Independent testing can also be expensive

and cost prohibitive. See Id. at 1961 (The majority of

felony defendants are indigent with limited resources

and cannot afford to present their own expert

testimony at trial). The Tennessee Court of Criminal

Appeals rejected independent testing as a solution:

[I]ndependent testing is not an adequate

safeguard because it impermissibly shifts the

burden of proof from the State to the

defense. Because the State has the duty to

pursue truth and justice, it has the obligation to

provide an accurate, unbiased BAC result, not a

result that is deemed correct until disproved by

the defendant. Under the scenario suggested by

the State, the defendant is forced to obtain an

independent test, to pay for an attorney to

defend him, and to hire an expensive expert to

challenge the BAC result in order to do what an

unbiased TBI forensic scientist should have done

from the beginning.

Pet. App. B.

The legislature has amended the statute to direct

any fees collected to go to the general fund, and TBI no

longer gets a fee only upon a conviction. However, the

constitutional rights of the Petitioner and all

defendants who had chemical testing performed by a

TBI forensic scientist, who had an incentive toward

conviction, remain without a remedy for the

unconstitutional statute and contingent-fee-dependent

system under which their blood/breath testing results

were produced. Tennessee Code Annotated section 5510-413(f) created an obvious injustice that rendered the

19

trial process fundamentally unfair. Suppression of the

chemical test and dismissal of this case are the only

remedies under strict scrutiny that can be applied for

these violations of the fundamental right to a fair trial

and right to due process.

II. WHETHER THERE IS A STANDARD OF

IMPARTIALITY REQUIRED BY THE RIGHT

TO A FAIR TRIAL UNDER THE SIXTH

AMENDMENT AND RIGHT TO DUE

PROCESS UNDER THE FIFTH AND

FOURTEENTH AMENDMENTS OF THE

UNITED STATES CONSTITUTION THAT IS

APPLICABLE TO FORENSIC SCIENTISTS

WORKING FOR LAW ENFORCEMENT

AGENCIES?

The United States Supreme Court has given

direction on the impartiality required of judicial actors

in a trilogy of cases that addressed due process

concerns when a person in a judicial position received

a fee which could have affected the judge’s impartiality.

See Tumey v. Ohio, 273 U.S. 510 (1927); Ward v.

Village of Monroeville, 409 U.S. 57 (1972); and

Connally v. Georgia, 429 U.S. 245 (1977).

However, if that impartiality test is limited to the

judicial branch and not extendable to forensic scientists

as found by the Tennessee Supreme Court, then what

is the standard of impartiality for a forensic scientist

working at a state crime lab? What standard can be

applied to address concerns that an interest or possible

bias exists that could tempt a scientist to disregard his

or her own neutrality? The Tumey line of cases is a

reasonable starting place for applicable standards for

a forensic scientist tasked as an expert witness who

20

performs the chemical analysis on the most important

piece of evidence in a DUI case – the blood alcohol

content.

TBI forensic scientists have a pecuniary interest,

creating a potential for bias, which is unacceptable for

any expert witness who is expected to be neutral. The

role of the forensic scientist doing blood alcohol testing

is unique in that the one piece of evidence for which she

is responsible is case determinative in almost every

DUI. See State v. Livesay, 941 S.W.2d 63, 64 (Tenn.

Crim. App. 1996) (“It is difficult to overstate the

importance of evidence of blood alcohol content in DUI

prosecutions . . . any compromise of the accuracy of

such a test ‘is a crucial consequence, given the

importance of scientific evidence in DUI cases’”).

Forensic scientists are expert witnesses cloaked as

impartial and neutral scientific experts. Their function

is to determine a disputed fact – the blood alcohol

content of a defendant’s blood at the time of arrest –

and, therefore scientists act in an almost quasi-judicial

capacity as well. Compare Roberta K. Flowers, Article:

What You See Is What You Get: Applying the

Appearance of Impropriety Standard to Prosecutors, 63

Mo. L. Rev. 699, 728 (Summer 1998) (discussing the

quasi-judicial role of a prosecutor).

The Tennessee Court of Criminal Appeals in finding

the statute unconstitutional recognized the interests of

forensic scientists and made four important

conclusions. First, “[t]his fee system, which was

created by the legislature at the urging of the TBI,

creates a mechanism whereby the TBI forensic

scientists have a pecuniary interest in BADT fees in

the form of continued employment, salaries,

21

equipment, and training within the TBI.” Secondly,

TBI forensic scientists “who engage in the objective

testing of blood samples to determine a defendant’s

BAC, are expected to be neutral and unbiased,” much

like judicial actors. Thirdly, “[t]he close relationship

between the BADT fees and the operational expenses

of the TBI creates a scenario closely akin to an expert

witness contingency fee, which the Tennessee Supreme

Court has held to be void because it encourages bias.”

Lastly, “[w]hile TBI forensic scientists are obviously

employees of a state law enforcement bureau, they

must serve as objective, independent experts in order

to protect the integrity of the criminal justice system”

much like judicial actors. Pet. App. B.

This Court should address whether Tumey can

apply to forensic scientists and settle this important

question of federal law and constitutional protections.

If Tumey does not extend beyond judicial actors, there

is a specific and critical need for this Court to address

(1) the standard that should apply to forensic scientists

working in state crime labs and (2) if there is any

impropriety with forensic scientists and state crime

labs being paid contingency fees.

The first in the trilogy of Supreme Court cases is

Tumey v. Ohio, 273 U.S. 510 (1927). In Tumey, an

Ohio statute permitted a liquor violation to be tried

before the village mayor who was an executive officer.

Any fine imposed was divided between the State and

the city. The important part of the 9-0 decision by

Chief Justice Taft held that when the mayor convicted

a defendant, he “received fees and costs . . . in addition

to his salary.” Tumey 273 U.S. at 531-32. The

defendant in Tumey had been denied due process

22

under the Fourteenth Amendment because the mayor

had a “direct personal pecuniary interest in convicting

the defendant.” Tumey, 273 U.S. at 523. TBI scientists

also have a direct pecuniary interest – their interest is

continued employment.

In Tumey v. Ohio, wherein the mayor was acting in

a judicial capacity, the United States Supreme Court

rejected the argument that judges would carry out

their duties and could perform their duties without risk

of injustice simply because of who they were. Tumey,

273 U.S. at 532. Therefore, it would be inconsistent to

say the same thing for forensic scientists or to argue

that scientists are not likely to succumb to the

temptations of bias simply because they are scientists.

The second case in the trilogy of cases to be

considered was Ward v. Village of Monroeville, 409

U.S. 57 (1972). In 1972, the holding from Tumey was

re-iterated in Ward where a state statute authorized

mayors to sit as judges on ordinance violations and

traffic offenses. The fees produced from the mayor’s

court accounted for a substantial portion of the

municipal revenues, and even though the mayor’s

salary was not augmented by those sums, the Court

still concluded that a “forbidden temptation” was

present “when the mayor’s executive responsibilities for

village finances may make him partisan to maintain

the high level of contribution from the mayor’s court.”

Ward, 409 U.S. at 60.

The dissent in Ward pointed out that the mayor had

no direct personal financial stake in the outcome of

cases before him, but the majority still held that said

procedure violated due process. Ward, 409 U.S. at 62

(White, J. dissenting). Similarly, even though the TBI

23

forensic scientists do not directly receive a portion of

the $250 fee, having the funds to pay the TBI scientists’

salaries (just like the mayor’s salary in Ward) was

dependent on having the funding provided directly to

the TBI by the fees under Tennessee Code Annotated

section 55-10-413(f). This is exactly what TBI Director

Gwyn testified to before the Tennessee General

Assembly: that forensic scientists’ jobs were “in

jeopardy” and the increased fee made it possible to

avoid “lay[ing] off forensic scientists.” Pet. App. A.

The third in the trilogy of cases is Connally v.

Georgia, 429 U.S. 245 (1977). In Connally, the

Supreme Court addressed the constitutional

impropriety of a fee system whereby Georgia

magistrates were compensated a set fee of $5 for the

issuance of each search warrant, but not paid any fee

for denied applications. In its analysis, the Court

recalled a line of cases in which a financial interest of

the adjudicating official – either in fees paid directly to

that individual or in revenue generated to the

municipality for which they worked – was tethered to

the outcome of a criminal matter under consideration.

Connally, 429 U.S. at 247-50. Ruling that such a

process violated a defendant’s due process right to a

neutral and detached hearing officer, the Court in

Connally vacated the conviction on due process

grounds. Id. at 251.

Other than Tumey and its progeny, this Court has

left standards for impartiality of experts unaddressed.

In Daubert v. Merrell Dow Pharmaceuticals, this Court

set the standard for the admission of expert testimony.

509 U.S. 579, 585 (1993). “Expert evidence can be both

powerful and quite misleading because of the difficulty

24

in evaluating it.” Id. at 595. “[U]nder the Rules [of

Evidence,] the trial judge must ensure that any and all

scientific testimony or evidence admitted is not only

relevant, but reliable.” Id. at 589. Although Daubert

provides some guidance, it does not address

impartiality or the issues raised here with regard to

forensic scientists working for state labs who produce

scientific findings on the most important piece of

evidence in a DUI case while being paid for the testing

only if a conviction is obtained.

The Court in Daubert provided five factors that are

relevant to determining if expert testimony is scientific

and well–supported knowledge: (1) whether the

particular scientific theory “can be (and has been)

tested,” (2) whether the theory “has been subjected to

peer review and publication,” (3) the “known or

potential rate of error,” (4) the “existence and

maintenance of standards controlling the technique’s

operation,” and (5) whether the technique has achieved

“general acceptance” in the scientific or expert

community. Id. at 593-94. The Court made it clear,

however, that its list of factors was not exhaustive. Id.

at 593. “Notably absent from this list is any mention of

the possible biases or conflicts of interest of the expert.”

Mark R. Patterson, Conflict of Interest in Scientific

Expert Testimony, 40 Wm. & Mary L. Rev. 1313, 1319

(1999). Impartiality and potential bias are most

certainly necessary considerations when assessing the

reliability of an expert’s work.

Because criminal cases involve life and liberty,

something more stringent than Daubert is needed to

protect against the bias and interest of forensic

scientists working in state crime labs. “In each case[,]

25

‘due process of law’ requires an evaluation based on a

disinterested inquiry pursued in the spirit of science.”

Rochin v. California, 342 U.S. 165, 172 (1952). How to

address biases and conflicts of interest of experts

(forensic scientists) in criminal cases is an issue of

constitutional magnitude, greater than what Daubert

addressed, that should be addressed by this Court.

The application of the Tumey line of cases may

seem to be a novel application to forensic scientists but

this Court has provided no other guidance as to the

neutrality requirements or propriety of contingency

fees for forensic scientists who act as the sole judges of

the most critical piece of evidence in DUI cases.

Tumey and Ward [did] not require proof of

actual judicial prejudice or of a direct pecuniary

interest in the outcome of particular cases. The

test is whether a fee system presents a “possible

temptation to the average man as a judge to

forget the burden of proof required to convict the

defendant, or which might lead him not to hold

the balance nice, clear and true between the

State and the accused.”

Brown v. Vance, 637 F.2d 272, 282 (5th Cir. 1981)

(quoting Tumey, 273 U.S. at 532). “Every procedure

which would offer a possible temptation to the average

man as a judge to forget the burden of proof required to

convict the defendant, or which might lead him not to

hold the balance nice, clear and true between the State

and the accused, denies the latter due process of law.”

Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. 868,

878 (2009) (quoting Tumey, 273 U.S. at 532).

26

In Tumey, the “Court held that the Due Process

Clause required disqualification ‘both because of [the

mayor’s judge’s] direct pecuniary interest in the

outcome, and because of his official motive to convict

and to graduate the fine to help the financial needs of

the village.’” Caperton, 556 U.S. at 878. Looking at

this fee in the aggregate - $22 million from 2005 to

2016 paid to the TBI - makes this case quite significant

and extreme. Yet, even the individual $250 fee is

sufficient to call into question the potential bias of the

TBI in each case. The fine in Tumey was just $12, yet

required disqualification. A fee of $12 in 1927 equates

to approximately $172.90 today, which is less than the

$250 fee at issue.8

“Most forensic scientists work for government crime

labs and are part of the prosecution team. Therefore,

they naturally identify with the prosecutor’s goal of

convicting a particular defendant.” David E. Bernstein,

Article: Expert Witnesses, Adversarial Bias, and the

(Partial) Failure of the Daubert Revolution, 93 Iowa L.

Rev. 451, 456 (2008). Prosecutors are “expected to

behave in a biased—although not improperly

biased—manner, whereas the expert must remain

objective and independent, both in fact and in

appearance.” Jeffrey J. Parker, Note: Contingent

Expert Witness Fees: Access and Legitimacy, 64 S. Cal.

L. Rev. 1363, 1371–72 (1991) (footnote omitted); see

also Dr. Cyril Wecht, Transcript: The Role of the

Forensic Scientist in Maintaining Integrity in the

Criminal Justice System, 52 S. Tex. L. Rev. 459, 460

(Spring 2011 Symposium) (“Forensic scientific

investigation must be an objective, independent

8

See https://www.bls.gov/data/inflation_calculator.htm.

27

endeavor. We are not part of the armamentarium of the

prosecutor’s office. We are not an extension of the

prosecutor’s office.”).

Our criminal justice system tolerates partiality and

bias on the part of non-expert witnesses, such as

accomplices, informants, and whistleblowers. The

TBI’s forensic scientists are none of these, but occupy

the role of an expert witness. Any payment for TBI’s

services – as expert witnesses - that is contingent upon

the outcome of litigation is both unethical and contrary

to public policy. See Sutherlin v. White, 71 Va. Cir. 184,

188 (Va. Cir. 2006) (“Indeed, maintaining the

independence of an expert witness is the chief reason

why the common law has long recognized that an

expert may not be paid with a contingency fee”);

Indiana Union Traction Co. v. Pheanis, 85 N.E. 1040,

1041 (Ind. Ct. App. 1908) (“An expert whose fee is

contingent upon the result of the suit is an interested

witness”).

Paying a forensic scientist only if a conviction is

secured is a contingent fee. There should be no

differentiation whether the fee goes directly to the

scientist or if it goes to her employer. See e.g. City,

County of Denver v. Board of Assessment Appeals, 947

P.2d 1373, 1379 (Colo. 1997) (concluding that rule

prohibiting contingency fees extended to corporations

when an employer received a contingent fee for the

testimony of their salaried employees); First Nat’l Bank

v. Malpractice Research, 688 N.E. 2d 1179, 1185 (Ill.

1997) (finding that contingent fee contract in which

consultant company provided experts in medical

malpractice cases was contrary to public policy);

Dupree v. Malpractice Research, Inc., 445 N.W.2d 498,

28

498-99 (Mich. Ct. App. 1989) (affirming decision that

contingent fee contracts were void and unenforceable

involving organizations engaged in the business of

providing expert witnesses).

Whether by statute, rule, or common law, “virtually

every jurisdiction” in the U.S. ensures the reliability of

scientific testimony or evidence, in part, by prohibiting

the payment of contingency fees to expert witnesses.

See Steven Lubet, Article: Expert Witnesses: Ethics

and Professionalism, 12 Geo. J. Legal Ethics 465, 477

(1999) (citing Tagatz v. Marquette Univ., 861 F.2d

1040, 1042 (7th Cir. 1988), and Swafford v. Harris, 967

S.W.2d 319, 323 (Tenn. 1998)); see also Restatement 3d

of the Law Governing Lawyers, §117 (“A lawyer may

not offer to pay to a witness any consideration . . .

(2) contingent on the content of the witness’s testimony

or the outcome of the litigation”).

In Tennessee and nearly every state in this

Country, there are rules prohibiting lawyers from

paying, offering to pay, or acquiescing in the payment

of compensation to a witness contingent on the content

of his or her testimony or the outcome of the case. See

Pet. App. H9; see also Tenn. Sup. Ct. R. 8, RPC 3.4(h).

The statute at issue here does exactly what is

prohibited by all the rules: it pays the TBI a $250 fee

contingent upon obtaining a conviction. It would be

unethical in all states in this Country for a lawyer to

pay such a fee to the forensic scientist. Pet. App. H.

Therefore, to permit legislation to do what lawyers

cannot ethically do, shows a fundamental need for a

change to such a law and implicates due process and

9

Petition Appendix H contains a list of citations to professional

rules by State.

29

fundamental fairness rights. See also Crowe v. Bolduc,

334 F.3d 124, 132 (1st Cir. 2003) (“The majority rule in

this country is that an expert witness may not collect

compensation which by agreement was contingent on

the outcome of a controversy. That rule was adopted

precisely to avoid even potential bias”).

The ANSI-ASQ National Accreditation Board, which

sets accreditation standards for labs and scientists,

provides a specific standard also prohibiting

contingency fees. The standards instruct: “Do not

accept or participate in any case on a contingency fee

basis or in which they have any other personal or

financial conflict of interest or an appearance of such a

conflict.” ANSI-ASQ National Accreditation Board,

Governing Principles of Professional Responsibility for

Forensic Service Providers and Forensic Personnel p. 2,

#7 (Nov. 3, 2016).10

“The rule that expert witnesses may not collect

contingent fees relates to a concern that contingent fees

will improperly induce expert witnesses to provide

outcome-oriented testimony.” Larkin v. Dedham

Medical Associates, Inc., 93 Mass. App. Ct. 661, 669

(Mass. Ct. App. 2018). “As a general rule, payments to

witnesses in return for testimony are considered

unethical and illegal.” George C. Harris, Article:

Testimony for Sale: The Law and Ethics of Snitches

and Experts, 28 Pepp. L. Rev. 1, 1 (2000).

The substantive due process claim at issue does not

require specific prejudice to the defendant, which is

why this case is a challenge to the system as a whole.

10

Available at https://anab.qualtraxcloud.com/ShowDocument.aspx

?ID=6732

30

See e.g. Connally, 429 U.S. 245 (no individual prejudice

is necessary in challenging constitutional impropriety

of fee system that governed the issuance of warrants);

Ward, 409 U.S. 57 (no showing of actual bias or

prejudice to defendant, but fee system found

unconstitutional nonetheless). Even in the absence of

actual bias, courts have recognized that allowing

contingency payments to expert witnesses engenders

the appearance of bias, thereby “threaten[ing] the

integrity of the judicial system.” Dupree v. Malpractice

Research, Inc., 445 N.W.2d 498, 500 (Mich. Ct. App.

1989).

Testimony of forensic scientists is problematic for

several reasons: (1) each jurisdiction typically has just

one forensic laboratory, and the absence of competition

reduces the incentive to perform well, (2) labs depend

on police departments for their budgets, which

naturally leads to the desire to please the department,

even at the cost of honesty and thoroughness,

(3) quality control is weak at most forensic labs,

(4) forensic scientists often know what result they are

“supposed to reach,” which can lead to unconscious bias

in interpretation of results, (5) scientists who perform

a particular test also interpret the results, reducing the

odds that anomalies will be discovered, and (6) the

structure of the forensic science system means that

bias, or even fraud, is likely to go undiscovered. David

E. Bernstein, Article: Expert Witnesses, Adversarial

Bias, and the (Partial) Failure of the Daubert

Revolution, 93 Iowa L. Rev. 451, 460 (2008).

Science, not a financial interest, should be the only

driving force behind the results obtained in a blood

alcohol test. It is for this reason that such elaborate

31

pains are taken in the scientific community (e.g.,

double-blind testing, randomized sampling, peer

review, independent verification) to guard against

potential or implicit bias. The fact that errors or

manipulations have occurred in the past is proof of the

fact that it could happen again and could go

undetected. See Christopher Tarver Robertson, Article:

Blind Expertise, 85 N.Y. U. L. Rev. 174, 188 (2010) (“It

is not usually the case that compensation bias causes

experts to fabricate favorable opinions from whole

cloth, but it can nudge them to shade their views and

‘draw more favorable qualitative conclusions’ from

their findings than they otherwise would”).

“[T]o perform its high function in the best way,

‘justice must satisfy the appearance of justice.’” Aetna

v. Life Ins. Co. v. Lavoie, 475 U.S. 813, 825 (1986). If

the public sees the process as unjust or unfair, it will

believe it is so and lose confidence in the governmental

system. Flowers, Article: What You See Is What You

Get: Applying the Appearance of Impropriety Standard

to Prosecutors, 63 Mo. L. Rev. at 733. In the criminal

context, therefore, it makes sense that the ban on

contingent fees is absolute. See Notes: Contingent Fees

for Expert Witnesses in Civil Litigation, 86 Yale L.J.

1680, 1684 n.12 (1977) (noting that “policy

considerations in criminal litigation have led to a

prohibition of all contingent fees”).

The public’s confidence in the judicial system

requires a system wherein forensic scientists are not

biased or subjected to outside influences that raise

questions as to whether results may be influenced or

reached because of anything other than reliable

scientific testing.

Appearance of fairness is an

32

essential consideration in evaluating the quality of any

justice system. “One of the rightful boasts of Western

civilization is that the State has the burden of

establishing guilt solely on the basis of evidence

produced in court and under circumstances assuring an

accused all the safeguards of a fair procedure.” Irvin v.

Dowd, 366 U.S. 717, 729 (1961) (Frankfurter, J.

dissenting).

The United States has an adversarial system in

which litigants seek and obtain their own experts.

However, in much of the rest of the world, the system

that is used is an inquisitorial system in which the

courts appoint the experts. See Christopher Tarver

Robertson, Article: Blind Expertise, 85 N.Y. U. L. Rev.

174, 178 (2010). In Great Britain and in parts of

Australia, forensic laboratories are independent of law

enforcement rather than arms of the prosecution like

they are in the United States. See David E. Bernstein,

Article: Expert Witnesses, Adversarial Bias, and the

(Partial) Failure of the Daubert Revolution, 93 Iowa L.

Rev. 451, 462 (2008). Independent labs are paid to

perform the work, regardless of whether a conviction is

obtained. Id.

Petitioner is not suggesting that the inquisitorial

model is a better model than the adversarial model we

have in this Country. However, independent labs and

independent scientists seem to be an ideal goal for any

system of justice wherein due process and fundamental

fairness are cornerstones - an ideal that is reached only

by paying labs and forensic scientists for reliable

scientific findings and not simply for a specific

outcome. The complete independence of laboratories

from law enforcement goes beyond what is being asked

33

in this case. Instead, Petitioner is arguing that

forensic scientists and the labs they work for should

not be paid a contingent fee based on obtaining

convictions which can lead to bias and impartiality.

The evidence of problems, mistakes, and errors in

the TBI’s testing was introduced not to assert that

there has been wholesale abuse and manipulation by

the TBI. Instead, it was meant to underscore the

vulnerability of scientific evidence to subtle, sometimes

imperceptible, advertent and inadvertent

manipulation. The Tennessee Legislature has fixed the

system going forward by amending the statute, but the

Petitioner and other defendants hurt along the way

have not had the violations of their constitutional

rights addressed. A contingent-fee-dependent system

creating a financial incentive to ensure convictions

cannot stand. This case has exposed a system in which

the potential for bias existed and wherein the

appearance of impropriety was great.

The following four principles: (1) the impartiality

required of forensic scientists in their role as expert

witnesses; (2) the financial independence required of

expert witnesses; (3) the prohibition of any appearance

of impropriety in a criminal case; and (4) the

presumption in favor of excluding expert proof that is

constitutionally suspect necessitates that there be a

standard to address the issues raised in this case.

Application of Tumey to forensic scientists, or

alternatively a new standard for impartiality

applicable to forensic scientists in criminal cases

involving experts employed at state laboratories, is

needed to insure the Petitioner’s (and all similarly

situated defendants) right to a fair trial and due

34

process. Requiring impartiality of forensic scientists

will help to insure that the public’s confidence in the

judicial system is not eroded but remains strong.

CONCLUSION

For the reasons, given above, the petition for a writ

of certiorari should be granted.

Respectfully submitted,

Gerald H. Summers

Counsel of Record

Benjamin McGowan

Marya Schalk

SUMMERS, RUFOLO, & RODGERS, P.C.

The James Building

735 Broad Street, Suite 800

Chattanooga, TN 37402

Tel: 423/265-2385

Fax: 423/266-5211

jsummers@summersfirm.com

bmcgowan@summersfirm.com

mschalk@summersfirm.com

Counsel for Petitioner