Neil Gorsuch and Sonia Sotomayor Have Started Teaming Up to Protect Criminal Defendants

Side by side images of Supreme Court Justices Sonia Sotomayor and Neil Gorsuch.
Supreme Court Justices Sonia Sotomayor and Neil Gorsuch Photo illustration by Slate. Photos by Chip Somodevilla/Getty Images.

On April 1, 2015, Vanessa Stuart crashed into Tiffany Howell’s car outside Daphne, Alabama, killing her. Prosecutors charged Stuart with criminally negligent homicide and driving under the influence. At trial, the evidence of Stuart’s intoxication was conflicting. Four hours after the crash, a nurse drew Stuart’s blood, and the state submitted a lab report finding her blood-alcohol level to be .174, well above the legal limit. But the nurse testified that Stuart did not appear drunk and had no odor of alcohol. The case thus centered on the reliability of the state’s lab report, so Stuart’s lawyer attempted to call to the stand Belicia Sutton, the technician who signed it. But prosecutors declined to make her available. Instead, they produced a lab supervisor who began his job after Sutton tested Stuart’s blood. The jury convicted Stuart, and she was sentenced to 18 months in prison.

None of this sat well with Justices Neil Gorsuch and Sonia Sotomayor. On Monday, the unlikely duo teamed up to raise a red flag over Stuart’s case, criticizing their colleagues for declining to reverse Stuart’s conviction. In a sharp opinion joined only by Sotomayor, Gorsuch wrote that the Supreme Court should affirm the right of defendants like Stuart to cross-examine forensic analysts who produce the evidence used to convict them. He’s absolutely right. And it’s distressing that no other justice joined his full-throated defense of this basic constitutional right.

The Sixth Amendment guarantees all criminal defendants the ability “to be confronted with the witnesses against him.” In 2009’s Melendez-Diaz v. Massachusetts, the Supreme Court ruled that a lab technician who produces a report used to convict a defendant qualifies as a “witness” who must be made available for cross-examination. Writing for the court, Justice Antonin Scalia noted, correctly, that forensic analysis is frequently flawed; most defendants’ only hope of challenging forensic evidence is to interrogate the technician to reveal their “lack of proper training or deficiency in judgment.” Two years later, the court held in Bullcoming v. New Mexico that the state cannot provide “surrogate testimony” by some other lab tech: The person who produces a forensic report, Justice Ruth Bader Ginsburg wrote for the court, is the person who must take the stand.

Both decisions splintered the court along unusual ideological lines. In Bullcoming, Ginsburg and Scalia joined with Justices Clarence Thomas, Elena Kagan, and Sotomayor to uphold the Sixth Amendment. Justice Stephen Breyer, meanwhile, joined the remaining conservative justices (Samuel Alito, Anthony Kennedy, John Roberts) in dissent. The dissenters argued that it was pointless and impractical, a “hollow formality,” to demand the cross-examination of every analyst. In a later opinion, Breyer even created a flowchart purporting to illustrate the difficulties of calling every forensic “witness” to the stand.

In the years since Bullcoming, however, the Scalia/Ginsburg approach to the Confrontation Clause has proved startlingly prescient. A series of crime lab scandals have revealed that forensic analysts can easily manipulate evidence to secure convictions. One lab tech, Annie Dookhan, falsified tens of thousands of reports with the goal of getting drug users “off the streets.” Another, Sonja Farak, regularly stole drug samples and conducted analyses while high. Combined, Dookhan and Farak tainted about 42,000 convictions in Massachussetts. The Massachusetts Supreme Judicial Court has since overturned 47,612 charges in about 29,000 different cases, with more to come.

Meanwhile, we’ve also seen crime lab scandals in California, Florida, Ohio, Oregon, Maryland, New Jersey, and Texas. There is a very real possibility that hundreds of thousands of drug convictions in the United States were secured on the basis of tainted forensic evidence.

Unfortunately, the Supreme Court began retreating from the Confrontation Clause just as it became clear what a vital role it served to keep forensic labs accountable. In 2012’s Williams v. Illinois, a plurality of the court held that an expert witness could testify about a lab report even if the tech who produced it did not take the stand. Williams divided 4–1–4, and it is essentially impossible to glean a rule from its four separate opinions. Thomas was the source of the muddle. He condemned the plurality’s decision and agreed with Scalia, Ginsburg, Sotomayor, and Kagan that lab techs are generally subject to the Confrontation Clause. But he insisted that they are only obligated to testify when their reports have “formality and solemnity”—that is, when they are “a sworn [or] a certified declaration of fact.” A lab report sworn to before a notary public, or affixed with some official certificate, triggers the Confrontation Clause. A report with no certificate of accuracy does not.

On Monday, Gorsuch bemoaned the confusion wrought by Williams and rejected Thomas’ arcane, rigid test. He noted that the lower courts have struggled to understand the decision, questioning whether it even serves as precedent. What rule, after all, should they follow? Five justices—Thomas, Scalia, Ginsburg, Sotomayor, and Kagan—held that lab techs are still subject to the Confrontation Clause. But Thomas embarked on his own esoteric adventure rather than join any opinion. And the plurality launched an attack on Bullcoming that a majority of the court rejected.

Gorsuch proposed seizing upon Vanessa Stuart’s case to cut through the haze. A “routine postarrest forensic report like the one here,” he wrote, plainly triggers the protections of the Sixth Amendment. Gorsuch seemed to reject Thomas’ strange “formality and solemnity” principle and embrace a common-sense understanding of the Sixth Amendment: If a lab tech produces a report that might help secure a conviction, she must take the stand at trial. Because Belicia Sutton did not testify at Stuart’s trial, Gorsuch wrote, “the engine of cross-examination was left unengaged, and the Sixth Amendment was violated.”

It’s encouraging to see Gorsuch continue Scalia’s legacy as a champion of the Confrontation Clause. And it’s unsurprising that Sotomayor joined him: The justice is perhaps the court’s fiercest defender of the rights of the accused. An alliance between Gorsuch and Sotomayor could mirror the Scalia-Ginsburg partnership that led the court to reinvigorate the Confrontation Clause in the first place. Criminal justice issues do not always split the court along partisan lines, and Gorsuch’s libertarian streak gives him a deep (if selective) skepticism of government power. Dookhan and Farak were not isolated incidents. And the ability of future defendants to uncover forensic manipulation may depend upon Gorsuch and Sotomayor’s ability to convince their colleagues that the Confrontation Clause means what it says.