IN THE CASE OF
UNITED STATES, Appellee
v.
Richard J. ISRAEL Jr., Airman First Class
No. 04-0217
Crim. App. No. 34877
Argued
Decided
ERDMANN, J., delivered the opinion of the Court, in which
GIERKE, C.J.,
CRAWFORD, EFFRON, and BAKER, JJ., joined.
Counsel
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.
Airman
First Class Richard J. Israel Jr. entered a plea of not guilty to a
specification alleging wrongful use of cocaine in violation of Article
112a,
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,
confinement for
six months, forfeiture of all pay and allowances, and a reduction in
grade to
E-1. The convening authority approved
the findings and sentence and they were affirmed by the Air Force Court
of
Criminal Appeals in an unpublished decision.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
area of
cross-examination.
BACKGROUND
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.”
Laboratory
Procedures
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
Prior to the cross-examination of
Dr. Haley, a session pursuant to Article 39(a), UCMJ, 10 U.S.C. §
839(a)
(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.
DISCUSSION
A defendant’s Sixth Amendment right
to confront the witnesses against him is violated where it is found
that a
trial judge has limited cross-examination in a manner that precludes an
entire
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
collecting
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
On
Barbara Rohde was the aliquoter on
the batch that had produced this false positive and while her name
appears on
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
one
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
specimen
as positive on a report.3
Dr. Haley testified that Ms. Solis was involved with verifying
the test
results from
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
was
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
occurred in
November 1999. This incident was not
related to
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.
Prejudice
Where an error
constitutes a violation of the defendant’s constitutional rights, we
will
reverse unless the “error was harmless beyond a reasonable doubt.” Bahr, 33 M.J. at 231 (quoting Van
Arsdall, 475
Presenting the possibility that the
positive result from the urinalysis test was unreliable was
“The
possibility of a positive
result from an error
in the test ... is the worst nightmare of every good servicemember and
a cause
of serious concern to the judicial system.”
DECISION
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
from a
friend of
2 We
granted review
of the following issue:
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.
3 The
defense also argued that another employee of the laboratory, Dr. Papa,
was
involved in both tests. Dr. Papa’s role
in the earlier test, however, was unrelated to the error that occurred.