876 F.3d 395
2d Cir.2017Background
- Kenneth Washington was convicted in New York of multiple burglaries, assaults, and sexual offenses based largely on DNA matches from three crime scenes to a DNA profile in the New York State DNA Index and a buccal swab taken after his arrest.
- OCME analysts produced case files for the buccal swab and crime‑scene items; Natalyn Yanoff, an OCME Level‑Three criminalist, testified she reviewed raw data, compared profiles, and concluded the profiles matched Washington.
- The prosecution admitted OCME case files (including the buccal‑swab file) as business records; Washington did not call the specific analysts who performed initial testing and challenged admission on Confrontation Clause grounds.
- New York Appellate Division affirmed, holding the DNA profile from the swab, standing alone, did not link Washington to the crimes and that the testifying expert performed the critical analysis by comparing profiles.
- Washington sought federal habeas relief arguing admission of the buccal‑swab file (with coworkers’ notations) violated Melendez‑Diaz and Bullcoming; the district court denied relief and granted a COA; the Second Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether admission of OCME buccal‑swab case file violated the Sixth Amendment Confrontation Clause | Washington: unsworn analysts’ notations in the file are testimonial; inability to cross‑examine them violated Melendez‑Diaz/Bullcoming | State: file admitted as business records; testifying expert (Yanoff) reviewed raw data and gave independent opinion, so no Confrontation violation | Court: Affirmed denial of habeas — Washington failed to show state court unreasonably applied Supreme Court precedent under AEDPA |
| Whether Melendez‑Diaz/Bullcoming compel live testimony of each analyst who touched the sample | Washington: those cases require confrontation when lab materials are used to prove guilt, so each analyst who generated results must testify | State: Melendez‑Diaz/Bullcoming concern formalized, sworn certificates; where work is divided and an expert testifies from raw data, confrontation may not apply (Williams) | Held: Supreme Court has not clearly established that every analyst must testify; reasonable jurists could disagree; AEDPA precludes relief |
| Whether uncertified business‑record certification converts notes into testimonial affidavits | Washington: a custodian’s business‑record certification formally attests to lab notes, making them testimonial | State: certification is a traditional foundation for business records and does not automatically render internal notations testimonial | Held: Certification does not transform routine lab notations into formal testimonial material for Confrontation Clause purposes under existing Supreme Court law |
| Whether case is controlled by Williams v. Illinois (fractured opinions) | Washington: Williams did not change Bullcoming/Melendez‑Diaz rule for targeted‑suspect scenarios | State: Williams (plurality and concurrence) supports distinction for divided‑labor labs and nonformalized records; uncertainty exists | Held: Because Williams produced fractured opinions and the law is unsettled, Appellate Division’s decision was not an unreasonable application of clearly established law under AEDPA |
Key Cases Cited
- Crawford v. Washington, 541 U.S. 36 (2004) (Confrontation Clause bars admission of out‑of‑court testimonial statements absent opportunity for cross‑examination)
- Melendez‑Diaz v. Massachusetts, 557 U.S. 305 (2009) (lab certificates can be testimonial affidavits requiring live testimony)
- Bullcoming v. New Mexico, 564 U.S. 647 (2011) (report of blood‑alcohol analysis was testimonial; surrogate testimony insufficient)
- Williams v. Illinois, 567 U.S. 50 (2012) (fractured decision addressing when lab reports and divided‑labor DNA testing are testimonial)
- Harrington v. Richter, 562 U.S. 86 (2011) (AEDPA standard: federal habeas relief only for unreasonable state‑court applications of clearly established federal law)