On November 27, 2013, the Supreme Court handed down a merit decision in this case. Read the analysis here.
On May 7, 2013, the Supreme Court of Ohio heard oral argument in the case of State v. Daniel Arden Keck II, 2011-0686. The issue in this case is whether the Confrontation Clause prohibits the state from introducing statements of a nontestifying forensic analyst through the in-court testimony of a third party expert who did not perform or observe the laboratory analysis on which the statements are based.
Daniel Keck was convicted of a variety of sex crimes and kidnapping, stemming from the alleged sexual molestation of a number of teen and pre-teen boys he was mentoring through a church organization called the “Royal Rangers.”
At trial, the state submitted as evidence the DNA of Keck and five of the alleged victims. BCI agent Mark Losko took the swabs, and generated the DNA profiles or “graph readouts.” Agent Kristen Slaper created the DNA profiles for the unknown substances collected mostly from Keck’s bedroom, then did the comparison between her findings and Losko’s findings. It was Slaper’s analysis that connected the defendant to the crimes. Slaper testified at trial, but Losko did not. Keck argued that because his counsel could not cross-examine Losko, he was deprived of his rights of confrontation. The trial court allowed Slaper’s testimony over the defendant’s objection. On appeal of this issue, the Fourth District Court of Appeals held that there was no Confrontation Clause violation. Read the oral argument preview of this case here.
At Oral Argument
When the trial court allowed the admission of Slaper’s testimony, it also entered the substance of Losko’s findings, which gave Keck the right to cross examine Losko. Depriving Keck of the right to confront and cross-examine Losko deprived him of the right to a fair trial.
Losko tested the known samples of the DNA—the DNA profiles that he generated from oral swabs he took from Keck and from the alleged victims. He generated a known profile so that he could clearly state that Keck’s DNA generates this type of profile. Those are testimonial findings. Slaper’s matching and methodology cannot be done without Losko’s initial evaluation and analysis, and Keck has the right to cross-examine both.
Keck also argued that Ohio can and should provide greater protection for confrontation rights under its constitution than exist under the federal constitution.
This case is almost indistinguishable from Williams v. Illinois, in which the U.S. Supreme Court allowed this type of DNA evidence in and found no Confrontation Clause violation.
All Losko did in this case was create a graph from a series of DNA swabs that he was given. He made no match of any DNA sample to the defendant. Losko’s creation of the samples from the donors was nontestimonial activity. All he did is take a known sample, and run it through a machine, which generated a graph, based on a series of numbers from those who submitted DNA. He just generates profiles, which are essentially neutral. Losko is not a witness against the defendant. Slaper is the witness against the defendant because she matched the DNA generated from the known samples and the DNA generated from the crime scene. Her work was not simply a conduit for someone else’s work. It was her testimony that implicated Keck.
Even if the Court were to find a Confrontation Clause violation, the verdict in the case would still stand, because the DNA evidence related only to one alleged victim. There was more than sufficient evidence of other types to sustain the convictions. And there is no reason the Court should find greater protection under the Ohio constitution than exists under federal law.
What Was on Their Minds
From the very beginning of the defense argument, Justice Lanzinger and Chief Justice O’Connor really pushed defense counsel hard on exactly what Losko and Slaper did.
Didn’t Losko just generate raw data, asked Lanzinger? Was Losko involved in actually matching the raw data with the defendant, or was that the evaluation that was done later by Slaper? Must the state always bring in not only the witness who explains what it all means, but anyone who generated the raw data, who participated in any way in the test the jury eventually hears about? It clearly would be different if a third party had tried to testify as to what was in Slaper’s report, she commented later.
Mirroring that line of questions, the Chief asked if every technician that processed the original DNA swab would have to be brought in to testify in court about the establishment of that DNA profile in that data bank before the actual lab professional could get on the stand and talk about his or her processing of the crime scene DNA and his or her matching of that DNA to the bank?
Defense counsel answered yes to both questions, to the obvious skepticism of both justices.
Not Offered for the Truth?
The Chief commented that Losko’s findings weren’t being offered for the truth that there is a match with the crime scene. He had nothing to do with that—it was Slaper who did that, and she was subject to cross examination.
What is Happening Elsewhere
Justice O’Donnell noted, as he so often does, that at least five other states (of which New York is one) have not found any Confrontation Clause violation under similar circumstances. When Chief Justice O’Connor later asked defense counsel to distinguish this case from New York’s, he simply couldn’t, and suggested either that Ohio offer more protections under its own constitution, or go with Justice Kagan’s dissent in Williams v. Illinois.
The Neutrality Theory
In a key question of the day (one of many), the Chief asked, wasn’t Losko conducting a neutral activity here—just processing swabs and coming up with a profile, not doing any matching to samples from the crime scene? Losko’s findings really have no intrinsic value until Slaper provides her findings?
And Justice Lanzinger added that Losko wasn’t doing any testimonial work—his findings could exonerate as well as inculpate someone. The only matching comes from Slaper.
Without Slaper’s testimony, was there anything incriminating about the profile, asked Justice O’Donnell? Couldn’t the profile just as easily support a not guilty as a guilty verdict?
The Testimonial/Non-Testimonial Distinction
How is it not testimonial when a lab technician takes a sample of anything and creates a DNA profile and says this sample belongs to this citizen, asked Justice O’Neill? How has the right to confront that lab technician not been compromised?
If the Court were to find a constitutional violation because of the admission of the evidence, does the verdict still stand, asked Justice O’Neill?
If the Court were to agree that there was a Confrontation Clause violation, surely the defendant would not be exonerated, said the Chief. Wasn’t there much testimony from the other victims who corroborated each other? Multiple sources of evidence of Keck’s molestation?
Wasn’t there overwhelming evidence against the defendant, Justice French also asked?
Greater Protection Under the Ohio Constitution?
Justice Lanzinger asked if Ohio should provide greater protection for confrontation than is required under federal constitutional law. The prosecutor said no. Defense counsel said yes. Neither provided any reason whatsoever for their answer.
Justice Kagan’s dissent in Williams v. Illinois
Justice Pfeifer talked about this for awhile, suggesting her dissent made a great deal of sense to him. He described it as saying that the U.S. Supreme Court has been all over the place with its Confrontation Clause jurisprudence, and has been fairly illogical in its ultimate outcomes. Still, he mused later, that even under her test the testimony in this case would still stand. (We’d get all nine votes in this case, replied the prosecutor.)
The Case Comes to A Complete Stand-Still. The Stipulated Report.
Near the beginning of his argument, the prosecutor was describing exactly what it was that Losko did. He stated that Losko did examine one piece of evidence—a cutting from a white bedsheet– and developed a DNA profile found from a sperm stain on that sheet. He did one comparison on this, which came back from someone other than Keck. The defense stipulated to this report to get into evidence the finding that the sperm did not belong to the defendant. Slaper then testified from this stipulated report, which is why there is no confrontation clause issue in this case.
This brought the case to a screeching halt.
Chief Justice O’Connor (to the prosecutor):
“So you are saying our analysis should stop at the fact that the sample, graph and report generated by Losko were stipulated to by the defense, and therefore were in evidence, unchallenged, which gave Slaper a free rein to use that information in what she did which was matching the crime scene DNA with the contents of this stipulated report?”
“So we don’t have to get into the issue of whether Losko’s actual creation of these samples from the donors is nontestimonial activity?”
Answer-“I don’t believe you do.”
Justice O’Donnell then asked if the case should be dismissed as improvidently accepted, and the prosecutor said the state would not be opposed to such an outcome. O’Donnell later asked, if the court were to decide this case on non-constitutional grounds because of the stipulation, what law should it write? (prosecutor’s answer—that there was no Confrontation Clause violation.)
The minute defense counsel got up for his rebuttal, the Chief asked him to address the stipulated report issue. Honestly, I found his answers incoherent, and the Chief really pressed him hard. He was clearly very flustered. I think he was saying there were two different reports, and that the defense never stipulated to the one connecting Keck’s DNA to the crime scene DNA. The amicus brief in support of the state makes this clearer than either of the parties did. And nothing in the appeals court decision suggests any such significant stipulation. The rebuttal seemed painfully long.
“The stipulated report did not have your client’s profile in it?”
“I don’t think so, but the record could prove me wrong.”
“But that is the crux here—if they stipulated to your client’s profile in that report then you stipulated to something you are arguing was a constitutional violation.”
“I don’t think the stipulation was that report.”
“You are suggesting the prosecutor is mistaken as to what was stipulated and what the findings were with respect to the DNA profile that was generated which id’s your client?”
“I believe there is confusion as to what was stipulated.”
How it Looks from the Bleachers.
To Professor Bettman
Painful. Really painful. Defense counsel was never able to get out from under water.
If the defense did stipulate to the report containing Losko’s findings pertinent to Keck’s guilt, the case could well be dismissed as improvidently accepted. If not, shame on the prosecutor for making it sound like that is what happened, and shame on defense counsel for not knowing or being able to clarify exactly what did happen.
Assuming the case does go forward on the Confrontation Clause issue, a clear majority is going to find against the defense, probably on a neutrality theory. The Chief and Justice Lanzinger really led the charge on this. The Court is likely to find that Losko’s work was just ministerial and neutral, and that any outcome-determinative matching was done by Slaper. Or as the court of appeals put it, Losko just generated raw data that Slaper then analyzed.
Only Justice O’Neill didn’t seem to be buying the state’s argument.
I happen to agree with Justice Kagan in her dissent in Williams v. Illinois that the U.S. Supreme Court’s Confrontation Clause jurisprudence is a mess. For all the prosecution’s reliance on Williams in this case, as Kagan points out, although five justices in that case found no Confrontation Clause violation in the admission of the report there at issue, there was no agreement whatsoever on why.
The Ohio Supreme Court has favored the prosecution in these Confrontation Clause matters, but not always correctly. In 2007, in State v. Crager, (written by then-Justice O’Connor) , the high court held that records of scientific tests are not “testimonial” under Crawford v. Washington, and that a criminal defendant’s constitutional right to confrontation is not violated when a qualified expert DNA analyst testifies at trial in place of the DNA analyst who actually conducted the testing. (syllabus paragraphs 1 and 2)(interestingly, before the substitute DNA analyst testified in Crager, it was BCI agent Mark Losko who provided the foundation testimony.) Crager was ultimately vacated (but not reversed) by the U.S. Supreme Court in light of its decision in Melendez-Diaz v. Massachusetts, and sent back to the Ohio Supreme Court to reconsider in light of that ruling. In September of 2009, the high court vacated the original trial court judgment in Crager, and sent the case back to the trial court “for a new trial consistent with Melendez-Diaz.”
But I digress. I’m calling this one for the state. And I should add that I think the argument about greater protection under the Ohio Constitution for confrontation rights will go nowhere, because defense counsel never provided a single reason for why it should. Just saying it should be so doesn’t make it so. Plus thanks largely to Justice Scalia, the federal protections in this area are pretty rigorous.
To Student Contributor Greg Kendall
The Court seems to agree with the state. Chief Justice O’Connor especially does not believe that Losko’s lab work presents any kind of confrontation issue because his work did not actually link Keck to the evidence at the crime scene. The Court seems willing to go along with other states which have held that this does not raise a confrontation issue and that the question is already settled. The Court also clearly believes that any error was harmless because of the overwhelming evidence against the defendant.