CAAFLog advises that Pendergrass v. Indiana, No. 09-866, is scheduled for the 10 June case conference at the Supremes.  Here courtesy of Prof. Freidman counsel for Pendergrass and also of Melendez-Diaz and Briscoe “fame,” is the Pendergrass cert petition.  Here also is the state of Indiana’s brief in opposition to certiorari at this link.

The issue will potentially impact United States v. Blazier , 68 M.J. 544 (A. F. Ct. Crim. App. 2008) (yes, that’s the correct volume according to LEXIS), concerning whether surrogate expert testimony complies with Melendez-Diaz.   C.A.A.F. partially decided some issues, but:

[W]e order briefing from the parties, and invite briefing from the government and defense
appellate divisions from the other services, on the following:

While the record establishes that the drug testing reports, as introduced into evidence by the prosecution, contained testimonial evidence (the cover memoranda of August 16), and the defense did not have the opportunity at trial to cross-examine the declarants of such testimonial evidence,

(a) was the Confrontation Clause nevertheless satisfied by testimony from Dr. Papa? See, e.g., Pendergrass v. Indiana, 913 N.E.2d 703, 707-08 (Ind. 2009).  But see, e.g., State v. Locklear, 681 S.E.2d 293, 304-05 (N.C. 2009); or

(b) if Dr. Papa’s testimony did not itself satisfy the Confrontation Clause, was the introduction of testimonial evidence nevertheless harmless beyond a reasonable doubt under the circumstances of this case if he was qualified as, and testified as, an expert under M.R.E. 703 (noting that “[i]f of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data [upon which the expert relied] need not be admissible in evidence in order for the opinion or inference to be admitted”)?  Compare, e.g., United States v. Turner, 591 F.3d 928, 933-34 (7th Cir. 2010), and United States v. Moon, 512 F.3d 359, 362 (7th Cir. 2008), with United States v. Mejia (a.k.a. Little Chino), 545 F.3d 179, 197-98 (2d Cir. 2008).

Appellant will file a brief on the above issues no later than thirty days after the date of this opinion. Appellee will file a brief no later than thirty days after the filing of Appellant’s brief. Appellant may file a reply no later than ten days after the filing of Appellee’s brief. If the government and defense appellate divisions of the other services file
amicus curiae briefs on the above issues in support of a party, such briefs may be filed no later than ten days after that party has filed its brief. Pending receipt of the briefs, the case will remain on the docket for final decision.

United States v. Blazier, 68 M.J. 439, 443-44 (C.A.A.F. 2010).

The government filed its brief on the C.A.A.F. specified issues this week.  NIMJ has filed an amicus brief (I have abstained on that as I was trial defense counsel), I believe NACDL may have filed an amicus, but I haven’t seen the filing.