IN THE CASE OF
UNITED STATES, Appellee
Richard J. ISRAEL Jr., Airman First Class
Crim. App. No. 34877
ERDMANN, J., delivered the opinion of the Court, in which GIERKE, C.J., CRAWFORD, EFFRON, and BAKER, JJ., joined.
For Appellant: Captain David P. Bennett (argued); Colonel Beverly B. Knott, Major Terry L. McElyea, Captain Antony B. Kolenc, and Captain James M. Winner (on brief).
For Appellee: Captain Stacey J. Vetter (argued); Colonel LeEllen Coacher, Lieutenant Colonel Robert V. Combs, and Major Michelle M. Lindo (on brief); Lieutenant Colonel Gary F. Spencer.
Military Judge: James L. Flanary
This opinion is subject to editorial correction before final publication.
Judge ERDMANN delivered the opinion of the Court.
First Class Richard J. Israel Jr. entered a plea of not guilty to a
specification alleging wrongful use of cocaine in violation of Article
Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 912a (2000). He was tried and convicted by members at a
general court-martial and sentenced to a bad-conduct discharge,
six months, forfeiture of all pay and allowances, and a reduction in
E-1. The convening authority approved
the findings and sentence and they were affirmed by the Air Force Court
Criminal Appeals in an unpublished decision.
A defendant’s right
under the Sixth Amendment to cross-examine witnesses is violated if the
military judge precludes a defendant from exploring an entire relevant
Base Collection Procedures
The MacDill Drug Testing Program Manager, Mr. Mahala, testified regarding the standard procedures for the collection of urine during a drug sweep and that those procedures were
followed to collect
Prior to the defense counsel’s cross-examination of Mr. Mahala, the military judge addressed a motion in limine filed by the government that asked “that the defense counsel be precluded from presenting evidence on cross of Mr. Mahala, as well as be precluded from any mention at all of the Drug Demand Urinalysis’ untestable rates ... from MacDill Air Force Base.” In opposition to the motion, the defense argued that because an untestable sample indicates that something has gone awry in the collection or shipping process, this evidence would be probative with respect to “what the local lab did or did not do correctly for the month of June and for the month of March ... just prior to and just after the sample which was given in May.”
The military judge excluded the evidence, finding that it was “irrelevant because what we’re focusing on is this particular instance of the collection process. I don’t think that the trial counsel has opened the door up to ... a general assault ... on the entire testing process forever, or within the first few months before or after.”
Dr. Haley testified as an expert witness regarding the procedures used at the Brooks Laboratory for testing urine samples for cocaine: an immunoassay test is run on all samples; those samples that test positive undergo a second immunoassay test; if that second test is positive, the sample is tested a third time using the more intricate and more thorough gas chromatography/mass spectrometry (GC/MS) testing process. With regard to the GC/MS confirmation test, Dr. Haley testified that it is “considered the gold standard in drug testing[,]” and that it is an accurate test.
Dr. Haley walked the court through
the document containing the test reports for
Dr. Haley concluded that in her opinion the test produced “valid results[,]” and that the urine tested was produced by the accused and tested positive for cocaine. On cross-examination, Dr. Haley testified that it is possible that “[s]ome mistakes will go undetected, but there are many precautions set up to catch those that would result in a report going out.”
Prior to the cross-examination of
Dr. Haley, a session pursuant to Article 39(a), UCMJ, 10 U.S.C. §
(2000), was held to address certain evidence that the defense sought to
introduce during cross-examination.
During closing arguments, trial counsel reinforced the “gold standard” theme of the Government’s case. He stressed the reliability of the urinalysis testing process, characterizing it as the “best,” the “Mercedes” of drug testing and that “every precaution was taken” to ensure its accuracy “and every precaution was met.” Trial defense counsel attempted to impeach the processes used by the laboratory by noting the possibility that mistakes were made and arguing that “you can’t report a mistake you didn’t find.” On rebuttal, the Government again stressed the presumption of regularity inherent in the standard procedures of the laboratory.
A defendant’s Sixth Amendment right
to confront the witnesses against him is violated where it is found
trial judge has limited cross-examination in a manner that precludes an
line of relevant inquiry. See
We find that while the military judge correctly excluded much of the offered evidence, he abused his discretion in excluding evidence of the MacDill untestable rates, the Brooks Quality Control Report regarding an unacceptable calibrator, and the August 2, 2000, false-positive blind quality control sample. We further find that these errors were not harmless beyond a reasonable doubt.
MacDill Untestable Rates
Mr. Mahala testified on
cross-examination that he did not have any direct recollection of
Evidence of these irregularities
could have been used to attack Mr. Mahala’s testimony that the standard
procedures always were followed and those procedures were reliable. Because this evidence of irregularities in
the collection process was closely related in time to the collection of
Dr. Haley testified regarding the standard procedures used at the Brooks Laboratory for testing urine samples for cocaine. She described the standard calibration procedures and other quality control measures taken by the lab with regard to both the machines used in the testing process and the testing process as a whole.
In May 2001 there was a failed run
of the testing process because of an unacceptable calibrator. The calibration error was caught and the test
in that case was rerun. There was also a
calibration error in the batch that contained
The evidence in question concerned a
calibration error that occurred in May 2001, the same month in which
In those cases where the Government relies on the general reliability of testing procedures, evidence related to the testing process that is closely related in time and subject matter to the test at issue may be relevant and admissible to attack the general presumption of regularity in the testing process. We therefore find that the military judge abused his discretion in excluding this evidence.
False-Positive Blind Quality Control Sample
Barbara Rohde was the aliquoter on
the batch that had produced this false positive and while her name
the chain of custody for
In United States v. Jackson, 59
M.J. 330 (C.A.A.F. 2004), this Court dealt with the same report as the
While a period of nine months between a laboratory error and the testing process may well be too remote in other cases, under the circumstances of this case it is not. The reliability of the testing process will always be relevant in drug test cases to establish the admissibility of the test results. Where the Government goes well beyond establishing reliability and raises the bar by characterizing the testing process as a “Mercedes” and that the process is the “gold standard” in drug testing, it opens the door to a broader time frame during which laboratory errors may be relevant to challenge the testing process. For this reason, we find that the military judge abused his discretion in excluding this report.
Remaining Allegations of Error
Errors by Ms. Solis
In May 1997 Ms. Solis, who is an
employee of the Brooks Laboratory, inadvertently annotated a negative
as positive on a report.3
Dr. Haley testified that Ms. Solis was involved with verifying
We conclude that the military judge
did not abuse his discretion in excluding evidence of the May 1997
error by Ms.
Solis. The only connection claimed by
trial defense counsel with regard to this evidence was that Ms. Solis
involved both in the earlier error and with
Incident Involving Mr. Hatzis
In November 1999 there was an incident in which Mr. Hatziz made a testing error and then deliberately falsified documents to cover up that error. Following the discovery of this misconduct, a report called a “Retention Times Summary Report” was added to the standard litigation package. Defense counsel sought to introduce this information to explain why the “Retention Times Summary Report” was included in the litigation package even though nothing in that report was at issue at trial.
The military judge did not abuse his
discretion in excluding evidence of misconduct by Mr. Hatzis that
November 1999. This incident was not
Log Book Errors
To test Dr. Haley’s knowledge about lab procedures and possible security breaches at the laboratory, the defense sought to introduce evidence of an April 2001 incident in which individuals were allowed to access areas of the Brooks Laboratory without escorts or were not properly logged into or out of the lab. During the Article 39(a) hearing, Dr. Haley stated that her only knowledge regarding those incidents related to some entries on a log where cleaning crew members were logged in but not properly logged out. She did not remember that any of the incidents involved the storage room where specimens were kept, but only the room where papers were kept.
Evidence of minor errors in the log book that did not concern the area where the samples were tested or stored is neither probative of nor relevant to the reliability of the testing process. Accordingly, we find that the military judge did not abuse his discretion in excluding this evidence.
Where an error
constitutes a violation of the defendant’s constitutional rights, we
reverse unless the “error was harmless beyond a reasonable doubt.” Bahr, 33 M.J. at 231 (quoting Van
Presenting the possibility that the
positive result from the urinalysis test was unreliable was
possibility of a positive
result from an error
in the test ... is the worst nightmare of every good servicemember and
of serious concern to the judicial system.”
The decision of the United States Air Force Court of Criminal Appeals is reversed. The finding and sentence are set aside and the record of trial is returned to the Judge Advocate General of the Air Force. A rehearing is authorized.
1 The Government did introduce the testimony
WHETHER APPELLANT WAS DENIED MEANINGFUL CROSS-EXAMINATION OF KEY GOVERNMENT WITNESSES IN VIOLATION OF THE SIXTH AMENDMENT WHERE THE MILITARY JUDGE PREVENTED TRIAL DEFENSE COUNSEL FROM CONFRONTING THE WITNESSES WITH MATERIAL IMPEACHMENT EVIDENCE.