Petition for Writ of Certiorari — Lavar Eady, Petitioner v. Massachusetts

No. __________

In The

Supreme Court Of The United States

____________________________________________

LAVAR EADY,

Petitioner,

v.

COMMONWEALTH OF MASSACHUSETTS

Respondent.

____________________________________________

On Petition For Writ Of Certiorari

To The Massachusetts Appeals Court

____________________________________________

PETITION FOR A WRIT OF CERTIORARI

____________________________________________

Brad P. Bennion

Counsel of Record

P.O. Box 890118

East Weymouth, Massachusetts 02189

(617) 943-6164

bradpbennion@gmail.com

September 6, 2019

QUESTION PRESENTED

Whether the Confrontation Clause prohibits a substitute state

analyst from testifying at trial as to the composition of a seized

substance obtained as evidence where (1) the substitute analyst did not

participate in the lab testing in any way and only reviewed the notes

and data upon which the initial conclusion was based, and (2) the test

was produced to prove the truth of the matter asserted, namely the

chemical composition of the substance, which is an element of the

offence.

i

Table Of Contents

QUESTION PRESENTED ........................................................................i

TABLE OF CONTENTS ...........................................................................ii

TABLE OF AUTHORITIES ....................................................................iii

A. CASE CITATIONS ..................................................................iii

B. OTHER AUTHORITIES ...........................................................v

OPINION BELOW ....................................................................................1

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

CONSTITUTIONAL PROVISION INVOLVED ......................................1

STATEMENT OF THE CASE ..................................................................1

A. INTRODUCTION .....................................................................1

B. PROCEDURAL HISTORY .......................................................3

C. STATEMENT OF FACTS ………………………….……………..4

REASONS FOR GRANTING THE WRIT ..............................................10

The Confrontation Clause Prohibits An Expert Prosecution

Witness From Testifying As To The Composition Of A Seized

Substance Obtained As Evidence Where (1) The Testifying Expert

Did Not Participate In The Lab Testing In Any Way And Only

Reviewed The Notes And Data Upon Which The Conclusion Was

Based, And (2) The Test Was Produced To Prove The Truth Of

The Matter Asserted, Namely The Chemical Composition Of The

Substance, Which Is An Element Of The Offence .................................10

CONCLUSION ........................................................................................30

APPENDIX

1.

Commonwealth v. Lavar Eady,

95 Mass. App. Ct. 1116, 125 N.E.3d 802 (2019) ...................App. 3

2.

Commonwealth v. Lavar Eady,

482 Mass. 1107 (2019) ...........................................................App. 5

3.

Transcript of 6/8/2017 (Vol. 3) pp. 31-47

Christine Tyson’s Testimony ................................................App. 6

ii

Table Of Authorities

A.

Case Citations

Armstead v. Mississippi,

196 So.3d 913 (2016) .................................................................................3

Bank Markazi v. Peterson,

136 S.Ct. 1310 (2016) ..............................................................................15

Bullcoming v. New Mexico,

564 U.S. 647 (2011) ...........................................................................13, 26

Committee for Public Counsel Services v. Attorney General,

480 Mass. 700, 108 N.E.3d 966 (2018) ...................................................18

Commonwealth v. Avila,

454 Mass. 744, 912 N.E.2d 1014 (2009) .................................................24

Commonwealth v. Charles,

466 Mass. 63, 992 N.E.2d 999 (2013) .....................................................18

Commonwealth v. Eady,

95 Mass. App. Ct. 1116, 125 N.E.3d 802 (2019) ..................................1, 4

Commonwealth v. Gibbons,

378 Mass. 766, 393 N.E.2d 400 (1979) ...................................................19

Commonwealth v. Grady,

474 Mass. 715, 54 N.E.3d 22 (2016) .............................................2, 14, 15

Commonwealth v. Greineder,

464 Mass. 580, 984 N.E.2d 804 (2013) ...................................................13

Commonwealth v. Johnson,

410 Mass. 199, 571 N.E.2d 623 (1991) ...................................................21

Commonwealth v. Rodriguez,

467 Mass. 1002, 5 N.E.3d 519 (2014) .....................................................18

Commonwealth v. Santiago,

41 Mass. App. Ct. 916, 670 N.E.2d 199 (1996) ......................................21

Commonwealth v. Scott,

467 Mass. 336, 5 N.E.3d 530 (2014) .................................................17, 18

Commonwealth v. Tanner,

45 Mass. App. Ct. 576, 700 N.E.2d 282 (1998) .......................................21

iii

Commonwealth v. Terrelonge,

42 Mass. App. Ct. 941, 678 N.E.2d 1203 (1997) ....................................15

Commonwealth v. Villanueva,

47 Mass. App. Ct. 905, 907, 711 N.E.2d 608 (1999) ..............................22

Commonwealth v. Wilson,

441 Mass. 390, 805 N.E.2d 968 (2004) ...................................................21

Crawford v. Washington,

541 U.S. 36 (2004) .................................................................12, 16, 26, 28

Davis v. Washington,

547 U.S. 813 (2006) .................................................................................16

Fourth St. Pub, Inc. v. National Union Fire Ins. Co.,

28 Mass. App. Ct. 157, 547 N.E.2d 935 (1989) ......................................21

Hollingsworth v. Mississippi,

269 So.3d 456 (2018) ................................................................................2

LaClair v. Silberline Mfg. Co.,

379 Mass. 21 (1979) ................................................................................20

Melendez–Diaz v. Massachusetts,

557 U.S. 305 (2009) .....................................................................10, 12, 16

Michigan v. Bryant,

562 U.S. 344 (2011) .................................................................................11

New Hampshire v. McLeod,

165 N.H. 42, 66 A.3d 1221 (2013) ..........................................................24

New Mexico v. Gonzales,

274 P.3d 151 (N.M.Ct.App.2012) ...........................................................24

Ohio v. Roberts,

448 U.S. 56 (1980) ...................................................................................12

U.S. v. Ayala,

601 F.3d 256 (4th Cir. 2010) ............................................................23, 27

U.S. v. Flores-Rivera,

787 F.3d 1 (1st Cir. 2015) .......................................................................19

U.S. v. Garcia,

793 F.3d 1194 (10th Cir.2015) ...............................................................23

iv

U.S. v. Hernandez,

479 Fed.Appx. 636 (5th Cir. 2012) ............................................................3

U.S. v. Johnson,

587 F.3d 625 (4th Cir.2009) .............................................................23, 24

U.S. v. McGill,

815 F.3d 846 (DC Cir. 2016) .....................................................................3

U.S. v. Mejia,

545 F.3d 179 (2d Cir. 2008) ....................................................................27

U.S. v. Ramos–Gonzàlez,

664 F.3d 1 (1st Cir. 2011) ...........................................................12, 23, 27

U.S. v. Williams,

740 F.Supp.2d 4 (D.D.C.2010) ................................................................23

Washington State v. Manion,

173 Wn.App. 610, 295 P.3d 270 (2013) ..................................................24

Williams v. Illinois,

567 U.S. 50 (2012) ...............................2, 13, 14, 15, 25, 26, 27, 28, 29, 30

Wolff v. McDonnell,

418 U.S. 539 (1974) .................................................................................25

B.

Other Authorities

U.S. Const., Amend. 6 .........................................................................1, 11

U.S. Const., Amend. 14 .....................................................................11, 25

Mass. Const., Pt. 1st, Art, 12 ..................................................................11

28 U.S.C. 1257 …........................................................................................1

G.L. c. 94C, § 31 ......................................................................................15

G.L. c. 94C, § 32A ................................................................................3, 14

Mass. Evid. Rule 602 ...............................................................................19

Mass. Evid. Rule 702 ...............................................................................20

Mass. Evid. Rule 703 .........................................................................20, 22

Fed. Evid. Rule 602 ….............................................................................19

v

Fed. Evid. Rule 702 ..................................................................................20

Fed. Evid. Rule 703 .................................................................................22

Madison, J., The Federalist Papers, No. 51 ...........................................26

Seaman, Triangulating Testimonial Hearsay: The Constitutional

Boundaries of Expert Opinion Testimony

96 Geo. L.J. 827 (2008) .......................................................................27

vi

OPINION BELOW

The memorandum and order of the Massachusetts Appeals Court

is reported at 95 Mass. App. Ct. 1116, 125 N.E.3d 802, and is reproduced

in the Appendix.1 [App. 3]. The order of the Massachusetts Supreme

Judicial Court denying the petitioner’s request for further appellate

review is reported at 482 Mass. 1107, and is reproduced in the Appendix.

[App. 5].

STATEMENT OF JURISDICTION

The order of the Massachusetts Supreme Judicial Court affirming

the petitioner’s conviction and the denial of his petition for further

appellate review entered on July 31, 2019. The petitioner seeks review

of a judgment by the highest State court in which a decision could be

had and invokes this Court’s jurisdiction under 28 U.S.C. 1257(a).

CONSTITUTIONAL PROVISIONS INVOLVED

The Sixth Amendment to the United States Constitution

provides: “In all criminal prosecutions, the accused shall enjoy the right

... to be confronted with the witnesses against him ....”

STATEMENT OF THE CASE

A.

INTRODUCTION

The facts of this case are straightforward; the police accused the

petitioner of selling narcotics based on observations and recovering a

substance believed to be an illegal drug, namely fentanyl. The substance

1 Citations to the appendix will be referred to by “App.” followed by the

page number.

1

was sent to the state lab to identify its chemical composition, which

element the government had to prove at trial. The analyst certified that

it was fentanyl, but before trial she became unavailable. A substitute

analyst was then assigned to the case. The substitute analyst reviewed

the notes and paperwork generated by the first analyst and testified at

trial as to the chemical composition of the recovered substance. [Tr. 3,

39]. The substitute chemist did not re-test the substance and could not

testify as to personal knowledge of the chemical composition of the

substance, she merely acted as a transmitter for testimonial hearsay.

This Court’s opinion in Williams v. Illinois, 567 U.S. 50 71-72

(2012) (plurality opinion), allowed testimony of an expert witness that

is based on a test the expert did not personally perform. But that holding

required that the test not be produced to prove the truth of the matter

asserted. In that case the expert testified as to a DNA test, which was

confirmatory of the identity of the perpetrator. The Massachusetts

Supreme Judicial Court, or SJC, used the holding in Willaims to hold

that a defendant’s right to confront witnesses was not violated when a

substitute analyst testified regarding the identity of substance. See

Commonwealth v. Grady, 474 Mass. 715, 724, 54 N.E.3d 22, 30 (2016).

The problem is that unlike the DNA test in Williams, the test of the

seized substance was produced to prove the truth of the matter asserted,

namely the chemical composition of the substance, which is an element

of the offence. Other circuit courts and state courts are similarly

misreading Williams, which has produced a disunity of holdings and

legal reasoning. See Hollingsworth v. Mississippi, 269 So.3d 456, 459

2

(2018) (trial court’s admission of testimony from technical reviewers

who did not personally conduct underlying drug testing did not violate

Confrontation Clause); Armstead v. Mississippi, 196 So.3d 913, 918

(2016) (allowing a forensic scientist to testify that a substance that she

did not personally test was cocaine did not violate the confrontation

clause); U.S. v. Hernandez, 479 Fed.Appx. 636, 640 (5th Cir. 2012) (not

published; testimony of drug laboratory supervisor, that government

exhibit

contained

methamphetamine

did

not

violate

right

of

confrontation, even though witness had not personally performed the

drug analysis, since witness testified from her own knowledge derived

from underlying report and was available for cross-examination).

Contrast U.S. v. McGill, 815 F.3d 846, 890 (DC Cir. 2016) (admission of

drug analysis drug reports accompanied only by testimony from

witnesses other than reports’ authors violated Confrontation Clause).

B.

PROCEDURAL HISTORY

On September 18, 2015, a Suffolk County grand jury returned an

indictment against the defendant, Lavar Eady, for one count of

distributing a Class B substance, subsequent offence, in violation of G.L.

c. 94C, § 32A(b). (Indictment No. 15-11024). The defendant pled not

guilty on September 29, 2015.

On November 19, 2015, the defendant filed a motion to suppress

evidence, with an affidavit. A motion hearing was held on September 29,

2016. The court denied the suppression motion on the record that day.

Beginning in June 2017, the parties began filing various motions

in preparation for trial. Trial commenced before Judge Wilkins and a

3

jury on June 6, 2017. On June 8, 2017, the defendant filed a motion for

a required finding of not guilty and a directed verdict of a finding of not

guilty, which were immediately denied.

On June 13, 2017, the jury returned a verdict, finding the

defendant guilty. Judge Wilkins sentenced the defendant to two years

to 2 years to 2 years and a day at MCI Cedar Junction, with three days

jail credit. The defendant filed a notice of appeal on June 20, 2017.

On May 31, 2019, the Appeals Court affirmed the defendant’s

conviction in an unpublished opinion pursuant to Appeals Court Rule

1:28 (summary disposition). See Commonwealth v. Lavar Eady, 95

Mass. App. Ct. 1116, 125 N.E.3d 802 (2019). The defendant sought

further appellate review of the decision rendered by the Appeals Court

from the Massachusetts Supreme Judicial Court. That petition was

denied on July 31, 2019. See 482 Mass. 1107 (2019).

C.

FACTS PRESENTED AT TRIAL

A group of Boston Police Officers were working drug control in the

downtown Boston area on July 21, 2015, around approximately 4:30

p.m.2 [Tr. 2, 86, 88, 151-52, 187-88; 3, 8].

Officers Patrick Byrne and Latoya Gamble, noticed the petitioner,

a bald black male wearing a white tank top and blue jeans, on Beach

Street in the Chinatown section of downtown Boston at about 4:30 pm.

[Tr. 2, 89, 189]. The officers were in a vehicle with another policeman,

2 Citations to the trial transcript will be referred to by volume number

followed by the page number.

4

Officer Linehan. [Tr. 2, 89]. Officer Byrne first observed the petitioner

with an unknown white male and an unknown female. [Tr. 2, 89-90,

190]. “They were huddled close together. Their arms appeared to be

going back and forth towards each other.” [Tr. 2, 90-91, 190]. The officers

did not see any exchange. [Tr. 2, 190-91]. The gesturing lasted “ten to

fifteen seconds,” the unknown male and female immediately separated

from Mr. Eady, walking back towards Officer Byrne’s vehicle and across

Beach Street towards Knapp Street, a small ally-way about a hundred

to hundred fifty feet long. [Tr. 2, 90-91, 191]. The pair then turned down

Knapp Street Alley an even smaller alley on the left side of the street.

[Tr. 2, 91]. At that point, all the officers of the drug unit were in the

general area. Officer Byrne was relaying to them his observations. [Tr.

2, 92-93].

Officer Pinto, another officer in the area went to Knapp Street

Alley. [Tr. 2, 92, 3, 9-10]. The officer went alone and observed two

individuals, a male and a female, approach the corner of Knapp Alley.

And once at the corner, the officer observed them place a glass tube up

to their lips and light it and smoke whatever substance was in the pipe;

passing it to one other one and it was gone. [Tr. 3, 10].

Mr. Eady continued on Beach Street toward Washington Street.

[Tr. 2, 93]. Officers Byrne and Gamble drove around the area and next

observed the petitioner about 45 minutes to an hour later on that day

down by South Station on Atlantic Ave. and Beach Street. [Tr. 2, 93, 9596, 147-48, 192-93]. They observed him interacting and/or speaking with

a white female wearing a navy-blue shirt that said Boston Sheriff or

5

Boston Sheriff’s Office. [Tr. 2, 96, 193]. The woman, Shannon Barao was

“dirty,” “disheveled,” and “had a grayish tone to her skin.” [Tr. 2, 97].

They walked diagonal across Atlantic Ave. towards the corner of East

and Atlantic Avenue. Officer Byrne was parked along Atlantic Ave. and

observed the pair walk behind his vehicle to get to East Street. At that

point Officer Byrne exited the vehicle to conduct foot surveillance of the

pair. [Tr. 2, 98]. Officer Gamble stayed in the vehicle. [Tr. 2, 194]. Once

Officer Byrne got to the corner of East and Atlantic Ave., he observed

them walking down East Street, and as they reached the area of East

Street Place and East Street, they turned towards each other or as they

were walking they then stopped and turned toward each other. The

officer observed their “arms begin moving back and forth toward each

other very briefly.” They then turned to walk back toward Atlantic Ave.

As they turned, Ms. Barao had her hand face up with her palm cupped

and appeared to be inspecting an item in her palm which she then placed

up to her mouth. [Tr. 2, 99, 107]. They walked together across Atlantic

Ave. to where they had originally started over by the food court. [Tr. 2,

106-07, 194]. Once they reached that point, Ms. Barao separated from

Mr. Eady and began walking away on Atlantic Ave. on the side of South

Station along the bus terminals towards Kneeland Street. [Tr. 2, 10607, 195].

Officer Robert Flynn, who was in South Station, was informed

about Ms. Barao and Mr. Eady, and began to head back towards Atlantic

Ave. [Tr. 2, 152-53]. After Ms. Barao separated from Mr. Eady, maybe

20 to 40 feet down the street, Officers Byrne and Flynn saw her join a

6

white male later identified as Mr. Craig Smith, and they began walking

together away from the area. [Tr. 2, 108, 153-55]. By this time all the

officers were in the area.

Mr. Eady remained in the area of South Station by the food court.

[Tr. 2, 109]. Officer Byrne observed Ms. Barao and Mr. Smith walk onto

East Street Place to the end into the alley, and behind a vehicle. [Tr. 2,

110, 156-57]. They went behind a vehicle that was parked on the left

side out of the officer’s view. [Tr. 2, 112].

As Officer Flynn reached the entrance to the alleyway, Officer

Cahill joined him and they proceeded down the alleyway. [Tr. 2, 158].

The officers briefly lost sight of them when they turned left and onto the

alleyway for “[m]aybe a minute, less than two at the most.” [Tr. 2, 158,

163]. When the officers got to the end of the alleyway they observed a

parked motor vehicle. [Tr. 2, 159]. The pair were sitting down in the

dead-end alleyway behind the parked motor vehicle. [Tr. 2, 112, 159].

Officer Flynn and Officer Cahill observed the two sitting, side-by-side

on the ground. Mr. Smith was holding an item in his mouth, it appeared

to be a small plastic bag that he was attempting to tear/rip open. The

two officers informed them that they were Boston police and instructed

Mr. Smith to put the item on the ground at which time he put placed it

into his mouth. [Tr. 2, 160-61]. Officer Flynn approached Mr. Smith and

7

grabbed his chin and told him to spit it out, at which point he did. [Tr.

2, 161]. He spat out a plastic bag of a brown tan substance.3 [Tr. 2, 182].

Mr. Smith was also in possession of a small tin cap. [Tr. 2, 161].

At no time observing the pair did Officer Flynn see Ms. Barao hand any

items to Mr. Smith. [Tr. 2, 161, 182]. Almost immediately after the two

officers approached both parties, Officers Pinto, Linehan, and Byrne

arrived at from East Street to assist.4 [Tr. 2, 163]. Mr. Smith was placed

under arrest because of outstanding warrants, and she was summoned

to Boston District Court.5 [Tr. 2, 112, 163; 3, 13].

Officers Gamble and Pinto continued observing Mr. Eady. [Tr. 2,

113, 164, 195]. The officers observed Mr. Eady waving a white T-shirt in

the air as he was looking at oncoming traffic. He then entered a white

taxi. The cab didn’t move a few feet away, when it stopped at a red light

at Atlantic Avenue and Essex Street. [Tr. 2, 113, 196]. After receiving

“some information” Officer Gamble moved to stop Mr. Eady. [Tr. 2, 113,

195]. The officer removed Mr. Eady from the cab and placed him in

handcuffs, whereupon she was joined by the other officers. Officer

Gamble gave Mr. Eady his Miranda warnings. [Tr. 2, 114-15, 196]. Mr.

3 The bag that was recovered from Mr. Smith was brought back to the

police station, where it was placed into a sealed bag, labeled and the

proper paperwork filled out so the item could be sent to the state lab for

testing. [Tr. 2, 167-68].

4 Ms. Barao and Mr. Smith were both provided Miranda warnings and

were interviewed. [Tr. 2, 112].

5 Officer Byrne testified that Ms. Barao was placed under arrest for

outstanding warrants and also for possession of heroin, and Mr. Smith

was informed he would be summoned into court and released. [Tr. 2,

112].

8

Eady then asked her why he was being arrested. She responded that he

was under arrest for distribution. [Tr. 2, 198]. Mr. Eady was sweating

to the point where he made a small puddle on the ground.6 [Tr. 2, 114,

198]. Detective Chu searched the defendant and seized $717 from the

defendant. [Tr. 2, 198-99]. After Mr. Eady was removed from the taxicab,

Officer Flynn entered and searched he backseat and recovered a T-shirt,

a cellular telephone, and a piece of mail in the name of Mr. Eady. [Tr. 2,

165-66, 199]. The defendant was taken back to the police station for

booking and again searched. [Tr. 2, 115, 165, 199].

Christine Tyson who worked for the Mass. State Police Crime Lab

as a forensic scientist testified that the plastic bag of tan powder,

without the packaging, weighed 0.09 grams of acetaminophen and

fentanyl.7 [App. 10, 16-17; Tr. 3, 32, 38-39]. No heroin was detected.

[App. 19; Tr. 3, 41]. However, Ms. Tyson did not actually test the

substance. Another lab technician named Heather Moett (phonetic),

tested the substance on August 10, 2015. [App. 13, 22, 24; Tr. 3, 35, 44,

46]. Ms. Moett had left the lab by the time of trial. [App. 13; Tr. 3, 35].

Ms. Tyson obtained Ms. Moett’s reports associated with her tests of the

substance. [App. 13; Tr. 3, 35]. Ms. Tyson merely performed a review of

all of the documents associated with Ms. Moett’s analysis. [App. 14; Tr.

3, 36]. In fact, prior to the day of trial Ms. Tyson had not seen that bag.

[App. 21Tr. 3, 43].

6 Officer Byrne testified that it wasn’t particularly hot, it was a July day,

it was warm, [Tr. 2, 115].

7 Christine Tyson’s testimony is reproduced in the Appendix.

9

Officer Robert England was qualified as an expert and provided

testimony based on his training and experience concerning individual

hand-to-hand drug transactions. [Tr. 3, 62-68].

REASONS FOR GRANTING THE WRIT

The Confrontation Clause Prohibits An Expert Prosecution

Witness From Testifying At A Jury Trial As To The Composition

Of A Seized Substance Obtained As Evidence Where (1) The

Testifying Expert Did Not Participate In The Lab Testing In Any

Way And Only Reviewed The Notes And Data Upon Which The

Conclusion Was Based, and (2) The Test Was Produced To Prove

The Truth Of The Matter Asserted, Namely The Chemical

Composition Of The Substance, Which Is An Element Of The

Offence

The first and paramount reason for granting this petition is that

the Massachusetts court system has struck new legal ground by holding

that a substitute expert who never observed or handled the seized drug,

can testify as to its chemical composition by referring to the report and

paperwork generated from another’s testing of the substance. As

discussed below this is a departure from this Court’s Confrontation

Clause jurisprudence.

In this case the Commonwealth was attempting to prove what

was seized in the bag was a Class B controlled substance, namely

fentanyl. Ms. Mowatt tested the substance by performing an “ultraviolet

visible spectroscopy test” then a gas chromatography/mass spectrometry

test. [App. 13, 16-17; Tr. 3, 35, 38-39]. And it was that second test that

revealed the presence of fentanyl. [App. 17; Tr. 3, 39]. Ms. Mowatt

created a Certificate of Analysis; which certificate was testimonial.

[App. 24; Tr. 3, 46]. See Melendez-Diaz v. Massachusetts, 557 U.S. 305,

10

310 (2009) (analysts’ certificates of analysis were affidavits within core

class of testimonial statements covered by Confrontation Clause).

By the time of trial, Ms. Mowatt had left the laboratory, [App. 13;

Tr. 3, 35], and a substitute chemist, Ms. Tyson reviewed Ms. Mowatt’s

“report,” which contained “data [] in the form of charts and graphs,” and

“notes that are associated with the evidence when they open it and

analyze it.” [App. 11; Tr. 3, 33]. Again Ms. Tyson reviewed all of “those

notes” and “the data” “to ensure that the conclusions reached on the final

report are supported by all the data in the documentation in the case

file.” [App. 11; Tr. 3, 33]. The government affirmed that Ms. Mowatt was

unavailable

which

the

petitioner

argues,

triggered

the

Sixth

Amendment’s Confrontation Clause, which gives criminal defendants

the right to confront witnesses through cross-examine, and which

forbids experts to act merely as a well-credentialed conduit for

testimonial hearsay. Confrontation extends not merely to the

conclusions reached but the means in which they were produced and to

expose biases, ineptitude, and mistakes that may have occurred. It is

fundamentally the job of any criminal defense attorney to produce

reasonable doubt principally through cross examination.

The Sixth Amendment to the Federal Constitution provides for

confrontation

and

the

Fourteenth

Amendment

renders

the

Confrontation Clause binding on the States. See Michigan v. Bryant, 562

U.S. 344, 352 (2011). The Massachusetts Constitution also contains such

a privilege. See Mass. Const., Pt. 1st, Art, 12 (“And every subject shall

have a right ... to meet the witnesses against him face to face ....”).

11

In Ohio v. Roberts, this Court severely curtailed a defendant’s

confrontation right. See 448 U.S. 56 66, (1980) (Confrontation Clause

does not bar admission of an unavailable witness’s statement against a

criminal defendant if the statement fit “within a firmly rooted hearsay

exception” or bore “particularized guarantees of trustworthiness.”) This

Court then overruled Roberts in Crawford v. Washington, 541 U.S. 36,

68 (2004). “In Crawford, ... the Supreme Court established a new

constitutional baseline: admitting testimonial statements of a witness

not present at trial comports with the Sixth Amendment only where the

declarant is unavailable, and the defendant has had a prior opportunity

to cross-examine the declarant.” U.S. v. Ramos–Gonzàlez, 664 F.3d 1, 4

(1st Cir. 2011) (quotations, footnote, ellipsis, and brackets omitted); see

Crawford, 541 U.S. at 59. Although the Court did not define what

constitutes a “testimonial” statement, it identified certain “formulations

of [the] core class of ‘testimonial’ statements,” such as;

ex parte in-court testimony or its functional equivalent—

that is, material such as affidavits, custodial examinations,

prior testimony that the defendant was unable to crossexamine, or similar pretrial statements that declarants

would reasonably expect to be used prosecutorially;

extrajudicial statements contained in formalized

testimonial materials, such as affidavits, depositions, prior

testimony, or confessions; [and] statements that 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.

Crawford, 541 U.S. at 51–52 (quotations, ellipsis, and citations omitted).

Since Crawford, this Court has released three decisions

addressing the application of the Confrontation Clause to forensictesting evidence. They are Melendez–Diaz v. Massachusetts, 557 U.S. at

12

310 (state forensic analyst’s lab report that is prepared for use in

criminal prosecution is subject to the Confrontation Clause); Bullcoming

v. New Mexico, 564 U.S. 647, 663 (2011) (Confrontation Clause does not

permit the prosecution to introduce a forensic laboratory report

containing a testimonial certification, made in order to prove a fact at a

criminal trial, through the in-court testimony of an analyst who did not

sign the certification or personally perform or observe the performance

of the test reported in the certification); and Williams v. Illinois, 567

U.S. at 71-72 (testimony of an expert witness that is based on a test the

expert did not personally perform is admissible and does not violate the

Confrontation Clause because the evidence of the third-party test was

not produced to prove the truth of the matter asserted, but merely to

provide a basis for the conclusions that the expert reached).

The Massachusetts Supreme Judicial Court, relying on Williams

v. Illinois, decided the case of Commonwealth v. Greineder, 464 Mass.

580, 595, 984 N.E.2d 804, 815-16 (2013) (Williams did not require any

change to Massachusetts rule allowing expert to testify to his or her

independent opinion even if based on data not in evidence, and

defendant’s confrontation rights were not violated by admission of

testimony of DNA expert despite expert’s reliance on the DNA test

results obtained by a nontestifying analyst).8 Greineder presented facts

8 This Court granted of defendant’s petition for writ of certiorari, then

vacated and remanded the case back to the Supreme Judicial Court for

further consideration in light of Williams v. Illinois. See Greineder v.

Massachusetts, 567 U.S. 948 (2012); Commonwealth v. Greineder, 464

Mass. 580, 581, 984 N.E.2d 804, 805 (2013).

13

similar to Williams, in that a government expert who did not perform

DNA testing was allowed to testify that the defendant’s DNA matched

DNA found on items recovered from the crime scene using on the test

results obtained by a nontestifying analyst to form the basis of that

opinion. A few years after Greineder the SJC, relying on the holdings in

Willaims and Greineder, decided Commonwealth v. Grady, which holds

that a defendant’s right to confront witnesses is not violated when a

substitute analyst testifies regarding the identity of a seized substance.

See 474 Mass. at 724, 54 N.E.3d at 30. The court reasoned that a

substitute analyst may testify as to his own opinion regarding the

composition of a tested substance, where the opinion was formed

reviewing the nontestifying analyst tests, or paperwork generated. Ibid.

Williams v. Illinois stands for the proposition that the evidence of

a third-party test is proper where it was not produced to prove the truth

of the matter asserted, but merely to provide a basis for the conclusions

that the expert reached. See 567 U.S. at 57-58 (“this form of expert

testimony does not violate the Confrontation Clause because that

provision has no application to out-of-court statements that are not

offered to prove the truth of the matter asserted.”). In Williams this

Court said that the DNA test “plainly was not prepared for the primary

purpose of accusing a targeted individual” but was merely used to

identify the perpetrator of a rape. See 567 U.S. at 84. In this case the

petitioner was charged with violating G.L. c. 94C, § 32A(b), distributing

a Class B substance. The elements of the offense of distribution of a class

14

B substance, to wit, fentanyl,9 are that (1) the substance in question was

a class B substance, namely fentanyl; (2) the defendant distributed some

perceptible amount of that substance to another person or persons; and

(3) the defendant did so knowingly or intentionally. See Commonwealth

v. Terrelonge, 42 Mass. App. Ct. 941, 942, 678 N.E.2d 1203, 1205 (1997).

The sample in this case was sent to be tested specifically to assess

whether it was illegal contraband.

In identifying the primary purpose of an out-of-court statement,

for purposes of determining whether the statement violates the

Confrontation Clause, a court is to apply an objective test. The court

looks for the primary purpose that a reasonable person would have

ascribed to the statement, taking into account all of the surrounding

circumstances. See Williams v. Illinois, 567 U.S. at 84. Here, all

surrounding facts indicate the test in this case was conducted in

preparation for trial to prove an element of the crime. The analyst that

tested the substance was required to testify, not a substitute analyst

who was merely parroting the report. The SJC’s opinion in Grady strikes

new legal ground and seriously departs from this Court’s opinion in

Williams.

When the police seized the bag of what they believed was heroin,

they did not know what the substance was. They did not do a field test,

but instead sent it to the state lab to be analyzed. Ms. Mowatt tested the

substance and through her training, experience and her actions, made a

9 G.L. c. 94C, § 31, Class B (6), classifies Fentanyl, as a synthetic opioid.

15

determination as to the composition of the substance, i.e. – fentanyl. She

then contacted the government officials, either police or the ADA, and

made a statement, either orally or by sending the certificate of analysis

stating that the substance contained fentanyl. This statement was

crucial for the government moving forward with the prosecution. After

all, had Ms. Mowatt reported that the substance contained only

acetaminophen (Tylenol), then the government could not prove the

indictment. Ms. Mowatt’s statement to police was testimonial under the

Court’s definition in Davis v. Washington, 547 U.S. 813, 822 (2006)

(“testimonial” is used in its colloquial, rather than any technical legal

sense). And according to Crawford she had to testify as to the chemical

make-up of the substance.

Ms. Mowatt had to testify and Ms. Tyson was not a suitable

substitute to prove the element of chemical composition. Just as the

Melendez-Diaz held that a certificate of analysis cannot be introduced

into evidence to prove the matter asserted, Ms. Tyson who only read the

paperwork could only repeat back what she read. No substantive

question could be put to her as she had no personal knowledge of

anything except what the report outlined. While Ms. Tyson was subject

to cross-examination, defense counsel could not ask if Ms. Tyson

tampered with the gas chromatography/mass spectrometry machines or

if the machine was in working order. Defense counsel could not ask Ms.

Tyson if she had a drug problem, or if she doctored the lab results for

any reason or had a predisposition to help the Commonwealth’s case

because of a personal belief that people indicted on drug dealing charges

16

were likely guilty, or if she actually had the credentials claimed. The

logic behind Ms. Tyson’s testimony is that a chemist can never doctor

lab notes and/or test results, never has biases, and never makes

mistakes.

Ms. Tyson was insulated from every substantive question because

while defense counsel could ask about testing and lab procedure

generally, counsel was precluded from asking about the testing and lab

procedure in this specific case. For example, defense counsel could not

ask if the drugs tested were the same as were presented into evidence

at trial. Again, confrontation must at least mean that the defense is able

to not only probe the results of testing, but means of that testing and the

tester.

Perhaps it is best that this case comes from Massachusetts, where

our court system has had to learn the hard way that state drug analysts

are not always honest. Annie Dookhan is a convicted felon who formerly

worked as a chemist at Massachusetts crime lab who admitted to

falsifying evidence, affecting up to 34,000 cases. The Supreme Judicial

Court summed up the history regarding Mrs. Dookhan, writing:

In June, 2011, allegations of misconduct at the William A.

Hinton State Laboratory Institute in the Jamaica Plain

section of Boston surfaced regarding work performed by

Annie Dookhan, a chemist who had been employed in the

forensic drug laboratory (Hinton drug lab) since November,

2003. Based on investigations conducted by the

Department of Public Health and the State police,

Dookhan was indicted on multiple counts of evidence

tampering and obstruction of justice, as well as on at least

one count of perjury and one count of falsely claiming to

hold a graduate degree, all relating to her handling and

testing of samples at the Hinton drug lab. See

Commonwealth v. Scott, 467 Mass. 336, 337–342, –––

17

N.E.3d –––– (2014); Commonwealth v. Charles, 466 Mass.

63, 64, 992 N.E.2d 999 (2013). Dookhan resigned from her

position, effective March 9, 2012, and the Hinton drug lab

was closed on August 30, 2012.

Commonwealth v. Rodriguez, 467 Mass. 1002, 1003, 5 N.E.3d 519, 520

(2014). Mrs. Dookhan pled guilty to 27 charges arising out of the

investigation, including one count of perjury, four counts of witness

intimidation,

and

eight

counts

of

evidence

tampering.

See

Commonwealth v. Scott, 467 Mass. 336, 337 n.3, 5 N.E.3d 530, 535 n.3

(2014). See also Commonwealth v. Dookhan (Suffolk County Criminal

Docket No. 2012-11155). In light of Mrs. Dookhan’s guilty pleas and the

information gathered in the course of the investigation into her

misconduct, the SJC has held that “where Dookhan signed the

certificate of drug analysis as either the primary or secondary chemist

in [a] defendant’s case, the defendant is entitled to a conclusive

presumption that Dookhan’s misconduct occurred in his case, that it was

egregious, and that it is attributable to the Commonwealth.” See

Commonwealth v. Scott, 467 Mass. at 338, 5 N.E.3d at 535.

Shortly after the Dookhan scandal, further misconduct of

evidence tampering was revealed when officials learned that state

chemist Sonja Farak stole drugs submitted to the lab for testing for her

own use, consumed drug that were required for testing, and

manipulated evidence and the lab’s computer system to conceal her

actions. See Committee for Public Counsel Services v. Attorney General,

480 Mass. 700, 726-27, 108 N.E.3d 966, 987 (2018). Her conduct has

affected thousands of additional cases. There have also come to light

18

other analysts, who have falsified credentials or have been caught in

other fabrications.

In each of these cases there were charges of government

misconduct at issue also which involved the deceptive withholding of

exculpatory evidence by members of the state Attorney General’s office,

who were duty-bound to investigate and disclose the wrongdoing.

Executive branch functionaries always seem loathed to admit such wideranging lapses, which is always a detriment to the rights of the criminal

defendant. Such functionaries are flawed people, the same as analysts

who work for the state, imperfect and subject to frailties of judgment

and action. This is a main reason the Constitution requires

confrontation.

A witness must have personal knowledge of the matter. See Mass.

Evid. Rule 602; Fed. Evid. Rule 602. See also Commonwealth v. Gibbons,

378 Mass. 766, 770, 393 N.E.2d 400, 403 (1979) (witness is competent to

testify if he or she is aware of a duty to tell the truth and has personal

knowledge of relevant facts; competency also depends on capacity of a

witness to perceive, remember, and recount his or her knowledge of the

facts); U.S. v. Flores-Rivera, 787 F.3d 1, 28 (1st Cir. 2015) (personal

knowledge of evidence can include inferences and opinions, so long as

they are grounded in personal observations and experiences). Ms.

Mowatt had personal knowledge of the chemical composition of the

substance because she tested it.

Any substitute analyst testifying as to the chemical composition

of a substance they did not analyze, is passed off as an expert giving an

19

opinion. “A witness who is qualified as an expert by knowledge, skill,

experience, training, or education may testify in the form of an opinion

or otherwise if (a) the expert’s scientific, technical, or other specialized

knowledge will help the trier of fact to understand the evidence or to

determine a fact in issue; (b) the testimony is based on sufficient facts

or data; (c) the testimony is the product of reliable principles and

methods; and (d) the expert has reliably applied the principles and

methods to the facts of the case.” Mass. Evid. Rule 702. Compare Fed.

Evid. Rule 702. Focusing on the fourth foundation requirement that the

expert apply the principles and methods to the facts of the case, must

mean that the basis of the opinion should include the factors set forth in

Section 703, namely: (a) facts observed by the witness or otherwise in

the witness’s direct personal knowledge; (b) evidence already in the

record or which the parties represent will be presented during the course

of the proceedings, which facts may be assumed to be true in questions

put to the witness; and (c) facts or data not in evidence if the facts or

data are independently admissible in evidence and are a permissible

basis for an expert to consider in formulating an opinion. See Mass. Evid.

Rule § 703, Bases of Opinion Testimony by Experts; LaClair v. Silberline

Mfg. Co., 379 Mass. 21, 32 (1979) (expert opinion must be based on either

expert’s direct personal knowledge, on evidence already in the record or

that will be presented during trial, or a combination). This requirement

means the expert witness “must have sufficient familiarity with the

particular facts to reach a meaningful expert opinion. The relevant

distinction is between an opinion based upon speculation and one

20

adequately grounded in facts.” See Fourth St. Pub, Inc. v. National

Union Fire Ins. Co., 28 Mass. App. Ct. 157, 161, 547 N.E.2d 935, 938

(1989).

This case presents a good contrast between experts. Officer

Robert England was qualified as an expert and provided testimony

based on his training and experience concerning individual hand-tohand drug transactions. [Tr. 3, 62-68]. The prosecutor went through the

officers’ training and experience with drug culture, the price per

quantity, and how the drug trade is set up. [Tr. 3, 51-56]. The prosecutor

then worked in generalized facts of this case to question the officer to

provide an opinion as to why those facts would lead him to conclude the

defendant distributed the fentanyl. [Tr. 3, 56-61]. Here the officer, who

had no personal knowledge as to the facts of this case, offered opinion

testimony on the local drug trade using facts meaningful to that expert

to help the lay jury understand evidence that may be outside of common

experience.10 There is a distinction that must be made between experts

10 “The role of an expert witness is to help jurors interpret evidence that

lies outside of common experience.” Commonwealth v. Tanner, 45 Mass.

App. Ct. 576, 581, 700 N.E.2d 282 (1998). An element of the

Commonwealth’s case in proving a charge of drug possession with intent

to distribute is whether the subject drugs, connected to a given

defendant, were for personal use or for distribution. This is not a matter

within the common experience of jurors. See Commonwealth v. Wilson,

441 Mass. 390, 401, 805 N.E.2d 968 (2004). However, such testimony

may be admitted only if it is “limited to an opinion that the hypothetical

facts were consistent with possession of [subject drugs] with the intent

to distribute.” Ibid. See Commonwealth v. Johnson, 410 Mass. 199, 202,

571 N.E.2d 623 (1991). Opinion evidence elicited from such a qualified

expert properly informs the jury of the significance of evidence

generally, and does not state an opinion as to the ultimate issue of

intent, which must be resolved by the jury (or judge as a fact finder). See

Commonwealth v. Santiago, 41 Mass. App. Ct. 916, 917, 670 N.E.2d 199

21

who help jurors interpret evidence like Officer England, and an expert

who using tools of her trade fashions evidence by testing and

formulating an opinion as to composition.

Compare the officer’s testimony with that of Ms. Tyson. She

too had specialized knowledge but there was no evidence already in

the record or that would be presented, which could be assumed to be

true in questions put to the witness. Ms. Tyson was there to testify

as to the fact of chemical composition, not to presume the drug was

fentanyl and offer an opinion as to how it was tested. In

Massachusetts facts or data not in evidence, and which are not

independently admissible are not a permissible basis for an expert to

consider in formulating an opinion.11 See Mass. Evid. Rule 703(c).

Ms. Tyson’s testimony should have been excluded.

The second reason to grant this petition is that the legal test that

has grown out of confrontation clause jurisprudence, namely the

independent-opinion or independent judgment-test appears erroneous.

Here the government portrayed the substitute analysist as having

formed an “independent opinion” based on her review of the “notes and

the documents and the data….” [App. 14; Tr. 3, 36]. As discussed further

(1996); Commonwealth v. Villanueva, 47 Mass. App. Ct. 905, 907, 711

N.E.2d 608 (1999).

11 Unlike under the Mass. Rules of Evidence where the basis of the

opinion must be independently admissible, under the federal rule the

expert may rely on facts or data that “need not be admissible for the

opinion to be admitted” and even where the “facts or data would

otherwise be inadmissible, the proponent of the opinion may disclose

them to the jury only if their probative value in helping the jury evaluate

the opinion substantially outweighs their prejudicial effect.” Fed. Evid.

Rule 703.

22

below, this test, based on inadmissible evidence fails to protect a

defendant from unscrupulous governmental actors. The Confrontation

Clause is meant to allow the fact-finder to determine the truth (or as

close to the truth as possible), through the adversarial process by

applying the pressure of questioning to a witness under oath to judge

the reaction. This is the crucible of cross-examination. But where a

substitute expert can base their opinion of the work-product of some

other expert, the petitioner is precluded from testing the underlying

basis of that conclusion through cross-examination.

In the case of U.S. v. Ramos–González, the First Circuit held that

the admission of an expert’s testimony as to contents of a drug analysis

report conducted by a non-testifying expert violated the Confrontation

Clause, and that such error was not harmless. See 664 F.3d at 5–6. But

in Ramos–González, it was only where the substitute expert failed “to

forge an independent conclusion, albeit on the basis of inadmissible

evidence” that the case was overturned based on the belief that under

such circumstances “the likelihood of a Sixth Amendment infraction is

minimal.” U.S. v. Ramos-González, 664 F.3d at 5-6. See also U.S. v.

Johnson, 587 F.3d 625, 635-36 (4th Cir.2009) (even if statements relied

upon by experts were testimonial, there was no Confrontation Clause

violation because the “expert witnesses present[ed] their own

independent judgments, rather than merely transmitting testimonial

hearsay, and [were] subject to cross-examination”); U.S. v. Ayala, 601

F.3d 256, 275 (4th Cir. 2010) (same); U.S. v. Garcia, 793 F.3d 1194, 1212

(10th Cir.2015) (same); U.S. v. Williams, 740 F.Supp.2d 4, 9-10

23

(D.D.C.2010) (an expert may testify as to independent judgment reached

by application of expert’s training and experience to testimonial

evidence); New Hampshire v. McLeod, 165 N.H. 42, 66 A.3d 1221, 1230

(2013) (same);

New Mexico

(N.M.Ct.App.2012)

(“An

v.

Gonzales,

274

expert’s

testimony

may

P.3d 151,

be

based

159

on

inadmissible evidence, and until such expert testimony crosses the line

from the formation of an independent opinion based on underlying raw

data to a reliance on the conclusions and opinions of the author of the

autopsy or a mere parroting of the report’s findings, then that testimony

is admissible subject to the rules of evidence.”); Washington v. Manion,

173 Wn.App. 610, 295 P.3d 270, 278 (2013) (testifying expert may base

his opinion on nontestifying expert’s testimonial statement, so long as

testifying expert exercised independent judgment). Cf. Commonwealth

v. Avila, 454 Mass. 744, 761-763, 912 N.E.2d 1014 (2009) (substitute

medical expert may rely on autopsy report, not to repeat its conclusions,

but to apply expertise to “underlying ‘facts or data’ contained [therein]”

[citation omitted]). As the Fourth Circuit reasoned: “As long as [an

expert] is applying his training and experience to the sources before him

and reaching an independent judgment, there will typically be no

Crawford problem. The expert’s opinion will be an original product that

can be tested through cross-examination.” U.S. v. Johnson, 587 F.3d at

635.

There is simply no discernable test to determine what is required

to form and independent opinion. And how a court, or anyone for that

matter, can tell when an expert has formed an independent opinion or

24

is parroting the paperwork read in preparation for trial is mere

soothsaying. It may be, as Justice Thomas wrote in his concurrence in

Williams, that “courts may be willing to conclude that an expert is not

acting as a ‘mere conduit[t]’ for hearsay … as long as he simply provides

some opinion based on that hearsay.” 567 U.S. at 110. But where one

envisions two substitute experts, both who read the notes and data of

the initial analyst, and who both testify; it is entirely possible that one’s

testimony will be deemed admissible and the other inadmissible for no

reason other than the whim of the court at that particular moment. Is

the test the use of the magic question, did you form an independent

opinion? or is it merely when the expert provided some opinion? And if

so, how can a defense attorney or judge know when they are merely

parroting the hearsay reports/data? Where there is no discernable test,

there is no unanimity of process and therefore there must occur a

violation of due process and equal protection of the law. See U.S. Const.,

Amend 14. See generally Bank Markazi v. Peterson, 136 S.Ct. 1310, 1327

(2016) (application of law that is arbitrary or inadequately justified may

violate the Equal Protection Clause); Wolff v. McDonnell, 418 U.S. 539,

558 (1974) (purpose of the due process clause of the Fourteenth

Amendment is to protect the individual against arbitrary governmental

action).

As touched on above, this substitute-analyst-independentconclusion test is in reality a mere house-of-cards which must fall

because it is arbitrary, but worse the test or legal theory upon which it

rests requires the supposition that the initial analysist did everything

25

correct, that that person followed procedural rules and were honest in

their analysis, and honest in the preparation of work product materials.

The government’s case rests upon the Pollyanna-ish idea that a

government analysts or government agent would never be anything but

upright and honest in their dealings with the judicial system, and never

prone to mistakes. This Court is familiar with James Madison’s

statement in The Federalist, No. 51 that “If men were angels, no

government would be necessary. If angels were to govern men, neither

external nor internal controls on government would be necessary.” With

a few edits it is also applicable here; if all analysts were perfect angels,

no cross-examination would be necessary. If such angels always provided

honest and upright analysis of data, no such controls of the judicial

process would be necessary. State analysts/experts should not be deemed

angels, they are people who err and make mistakes also.

The dissent in Williams is clearer that the plurality opinion, for

it correctly spelled out how confrontation catches such errors of analysts.

See 567 U.S. at 118-138 (Kagan, Scalia, Ginsburg and Sotomayor, JJ.,

Dissenting). The dissents’ test for confrontation is clear and correct; the

report in this case was made to establish some fact in a criminal

proceeding and “when the State elected to introduce” the substance of

the report into evidence, the analyst who generated that report “became

a witness” whom this petitioner “had the right to confront.” Williams,

567 U.S. at 123, 125 (Kagan, Scalia, Ginsburg and Sotomayor, JJ.,

Dissenting), citing Bullcoming, 564 U.S., at 664. See also Crawford, 541

26

U.S. at 51–52 (statement that declarants would reasonably expect to be

used prosecutorially).

This Commonweal’s sad history concerning Mrs. Dookhan and

Mrs. Farak show that to place such implicit trust in the chemist’s ability

to just do his/her job correctly and honestly is misguided. See Williams,

567 U.S. at 119-20 (the dissent starts off recounting a mistake in

another case where only after undergoing cross-examination, the

analyst realized she had made a mortifying error). Leaving aside any

nefarious practice on the part of Ms. Mowatt, most importantly to this

case however is that defense counsel was not able to ask Ms. Tyson if

the bag that was entered onto evidence was the same bag that was

received from the police and tested, because Ms. Tyson didn’t test it.

While Ms. Tyson went through the system for keeping track of the

samples, the lab number and barcode sticker, [App. 12, 17-18; Tr. 3, 34,

39-40], we cannot know if an error was made through mislabeling or

inattention to detail. Ms. Mowatt was the accuser as to the composition

of the substance. Ms. Tyson did little more that parrot Ms. Mowatt’s

notes and lab test results. See U.S. v. Ramos-González, 664 F.3d at 6

(admission of expert witness’s testimony as to contents of drug analysis

report conducted by a non-testifying expert violated defendant’s right of

Confrontation; expert's testimony amounted to no more than the

prohibited transmission of testimonial hearsay). See also U.S. v. Ayala,

601 F.3d at 275 (inquiry is whether “expert is, in essence, [giving an

independent judgment or] merely acting as a transmitter for testimonial

hearsay”); U.S. v. Mejia, 545 F.3d 179, 197 (2d Cir. 2008) (expert may

27

not simply “repeat[ ] hearsay evidence without applying any expertise

whatsoever” [citation omitted]); Seaman, Triangulating Testimonial

Hearsay: The Constitutional Boundaries of Expert Opinion Testimony,

96 Geo. L.J. 827, 880 (2008).

The defendant was clearly denied his right to meaningfully cross

examine the witness against him. It should be of no import that the ADA

or Ms. Tyson used the magic phrase “independent opinion.” If the

Appeals Court opinion stands, it will be an end-run around Crawford

and a snubbing of Williams. Supposing a Dookhan or Farak-like chemist

tested the substance in this case and doctored the sample(s) and/or

results, and prepared false paperwork concerning the tests, the

substitute chemist would only know what was in the report/papers

reviewed. There is nothing of substance trial counsel could have asked

the substitute analyst. As the Court wrote of the right of confrontation;

the Clause’s ultimate goal is to ensure reliability of

evidence, but it is a procedural rather than a substantive

guarantee. It commands, not that evidence be reliable, but

that reliability be assessed in a particular manner: by

testing in the crucible of cross-examination. The Clause

thus reflects a judgment, not only about the desirability of

reliable evidence (a point on which there could be little

dissent), but about how reliability can best be determined.

Crawford v. Washington, 541 U.S. at 67. “Dispensing with confrontation

because testimony is obviously reliable is akin to dispensing with jury

trial because a defendant is obviously guilty.” Id., at 62.

The problem with the independent opinion test is that the

analysis fails to understand that the substitute chemist, a state agent is

taking over from another state agent chemist who will likely and

28

naturally adopt the findings of the original employee based on the work

product because in most cases that is the easiest thing to do. The only

way to form an independent opinion is to test, or in this case re-test the

drugs. Ms. Tyson could have re-test the sample in relative short order,

where the original sample test time was 13 days. [App. 22, 24; Tr. 3, 44,

46]. Had Ms. Tyson performed such tests then her testimony would have

been valid.

The plurality opinion in Williams is convoluted and is not

providing adequate direction to lower courts. There are two new

members of this Court who can assist in refining the legal analysis of

the issue. Because this Court is going to have to continue to define its

Confrontation Clause jurisprudence and classify what is and is not

testimonial, this case provides a good vehicle to further hone the case

law.

Please take up this case.

29

Conclusion

The Massachusetts court’s rejection of standards articulated by

this Court in Williams affected the outcome of the petitioner’s case and

will no doubt continue to affect cases of other similarly situated

defendants in state and federal courts. Where the fundamental rights of

countless criminal defendants are at stake and will continue to be

compromised as a result of the confusion on this issue, the writ should

be granted and the case briefed and set down for argument.

Respectfully submitted,

Lavar Eady,

By his attorney,

//S//

Brad P. Bennion

P.O. Box 890118

East Weymouth, Massachusetts 02189

(617) 943-6164

bradpbennion@gmail.com

Counsel of Record for the Petitioner

Dated: September 6, 2019

30