(CN) - Forensics testimony "probably" violated a man's right to confront his accuser, the 9th Circuit ruled Monday, but his appeal came too late to overturn.
After an initial trial ended in a hung jury, a second jury convicted Edward Meras for robbery, burglary and assault with a deadly weapon.
Criminalist Jennai Lawson testified in the first trial about a pair of bloody jeans that investigators found in Meras' apartment, which she tested for DNA and matched to the alleged victim.
Since Lawson was unavailable to testify in the second trial, however, lab supervisor Jill Spriggs stepped in. Meras objected unsuccessfully, arguing that the lab report, as presented by Spriggs, amounted to hearsay and violated his right to confront his accuser.
Meras's appeal also proved futile, and the California Supreme Court refused to consider the case. Meras then filed an unsuccessful habeas petition, which he appealed to the 9th Circuit.
A three-judge panel of the federal appeals court in San Francisco begrudgingly affirmed dismissal of Meras' petition Monday.
"He claims that testimony introduced during his trial violated his Sixth Amendment right to confrontation," Chief Judge Alex Kozinski wrote for the court. "He's probably right, but he loses anyway."
The panel noted that things might have turned out differently if Meras appealed earlier. As it is, however, Meras' petition came too late to capitalize on recent Supreme Court precedent.
In Bullcoming v. New Mexico, decided in June 2011, the justices ruled that New Mexico had violated a man's constitutional right to confront his accuser when it failed to call the lab worker who had actually certified the blood alcohol concentration report in the case.
Meras was also too late to cite the high court's 2009 decision of Melendez-Diaz v. Massachusetts, which requires a live witness to testify about the truthfulness of a lab report.
"We therefore have a case here where the state court probably committed constitutional error, but we are not free to correct it," Kozinski wrote. "The error could have been brought before the Supreme Court in a correctable posture, had Meras filed a cert petition after the California Supreme Court denied review in 2005. The case would have arrived at the court nearly two years before Melendez-Diaz, and it's possible the court would have granted cert and decided in Meras's case that forensic lab reports are testimonial."
That conclusion is debatable, however, as "the court did not decide until 2011, in Bullcoming, that the right to confrontation could be satisfied only by the live testimony of a declarant," he added.
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