Jorge CorreaThere’s this pesky thing called the US Constitution, and sometimes there’s a price to be paid when it’s subverted.
That’s what is happening in New Mexico, where a convicted murderer serving a life term won a new trial because a DNA prosecution expert in the prosecution’s case testified via Skype, denying the defendant Truett Thomas’ Sixth Amendment rights to confront witnesses in court, according to the New Mexico Supreme Court.
The case against Thomas began in 2010 when Albuquerque police discovered Guadalupe Ashford’s body behind a trash can in a small parking lot.
The woman was assaulted and sustained significant head injuries, “including lacerations, skull fractures and a dislodged tooth.” Police found blood on the scene that didn’t match the woman’s and ran it through the Combined DNA Index System (CODIS) database, which matched the defendant.
The defendant denied he knew the woman.
More than two years after his arrest, he went to trial.
But the state’s forensic analyst who had originally tested the blood found at the crime scene had moved away from New Mexico.
The defense attorney initially said there was no “problem” with two-way Skyping of the expert at trial but then altered course as the trial approached. Prosecutors did not subpoena the expert to appear based on defense counsel’s initial statement that Skype would “work,” and the judge allowed it to happen.
A local jury subsequently convicted the defendant of murder and kidnapping.
The New Mexico Supreme Court tossed the kidnapping charges, saying the evidence didn’t support the charge.
The state’s top court reversed the murder conviction because of the Skype testimony and ordered a new trial.
The unanimous New Mexico Supreme Court ruled: (PDF)
The expert witness who testified via Skype was the only APD forensic scientist analyst who had actually performed measurements on the DNA samples in this case. Her involvement in the case was significant, and she testified to the results of the measurements she performed.
The DNA profiles were offered as the sole evidence that implicated Defendant in this crime. We conclude that there is no reasonable possibility the testimony of the absent forensic analyst did not influence the verdict and accordingly that the error was not harmless.
The court noted in its Friday ruling that the US Supreme Court said that the Confrontation Clause in the Constitution was not absolute and had ruled in 1990 that a child abuse victim could testify over one-way closed circuit television while physically located in a room separate from the judge, the jury, and the defendant who could hear and see the testimony.
The nation’s top court found that lack of face-to-face confrontation was OK when “necessary to further an important public policy and only where the reliability of the testimony is otherwise assured.” In 2004, the US Supreme Court ruled that testimony from an absentee witness can only be admitted if the person is unavailable “and only where the defendant has had a prior opportunity to cross-examine.”
The New Mexico Supreme Court, meanwhile, noted that “The United States Supreme Court has never adopted a specific standard for two-way video testimony, but we doubt it would find any virtual testimony an adequate substitute for face-to-face confrontation” because of the DNA analyst being inconvenienced.
“Inconvenience to the witness is not sufficient reason to dispense with this constitutional right,” a unanimous New Mexico Supreme Court ruled.
What’s more, the state’s top court said that the US Supreme Court in 2002 rejected a proposal to amend the Federal Rules of Criminal Procedure to allow unavailable witnesses to testify via two-way video, the court noted.
The New Mexico top court said a retrial on the murder charges does not amount to double jeopardy because there was sufficient evidence to sustain a conviction, despite the Sixth Amendment violation.
Defendant argues that the jury verdict was inherently speculative because the DNA evidence did not adequately prove that Defendant was the killer and because some hallmarks of deliberate intent, such as motive or careful planning, were missing.
There was sufficient evidence to allow a trier of fact to reasonably infer that it was Defendant who killed Ashford. Physical evidence containing a full DNA profile matching Defendant was found on Ashford’s body in semen on her thigh and under the fingernails of her right hand, and also on the paver stone presumed to be the murder weapon.The jury was informed that unidentified DNA was also present and was alerted in closing arguments to consider the possibility that another person or other people could have been involved.