MERAS

Barry L. Morris, Walnut Creek, CA, for the petitioner-appellant.

Kamala D. Harris, Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Brian G. Smiley, Supervising Deputy Attorney General, Daniel B. Bernstein, (argued), Deputy Attorney General, Office of the California Attorney General, Sacramento, CA, for the respondents-appellees.

Before: ALEX KOZINSKI, Chief Judge, CARLOS T. BEA, Circuit Judge, and ROBERT W. GETTLEMAN, District Judge. [*]

Opinion by Chief Judge KOZINSKI; Concurrence by Judge BEA.

KOZINSKI, Chief Judge:

Edward L. Meras, a California state prisoner, appeals the district court's order denying his petition for a writ of habeas corpus. He claims that testimony introduced during his trial violated his Sixth Amendment right to confrontation. He's probably right, but he loses anyway.

Intruders broke into Richard Peabody's home, stabbed him multiple times and stole property. Soon after, police found a bloodstained pair of blue jeans in Meras's apartment. Criminalist Jennai Lawson performed DNA analysis on the blood and produced a lab report concluding that it was Peabody's. Lawson testified at Meras's first trial, which ended in a hung jury.…

Opinion by Chief Judge KOZINSKI; Concurrence by Judge BEA.

OPINION

Edward L. Meras, a California state prisoner, appeals the district court’s order denying his petition for a writ of habeas corpus. He claims that testimony introduced during his trial violated his Sixth Amendment right to confrontation. He’s probably right, but he loses anyway.

Background

Intruders broke into Richard Peabody’s home, stabbed him multiple times and stole property. Soon after, police found a bloodstained pair of blue jeans in Meras’s apartment. Criminalist Jennai Lawson performed DNA analysis on the blood and produced a lab report concluding that it was Peabody’s. Lawson testified at Meras’s first trial, which ended in a hung jury. She was busy during Meras’s second trial, so the state called her supervisor, Jill Spriggs, to testify to the contents of her report. Meras objected that Lawson’s report was hearsay, and introducing it through Spriggs would violate his right to confront witnesses against him. The court overruled the objection, holding that the report was admissible under the business records exception to the hearsay rule, and allowed Spriggs to testify to its contents:

The jury found…

concurring in part and concurring in judgment:

I join the great majority of Chief Judge Kozinski’s opinion, because it clearly comes to the correct conclusion under the deferential standard of review we are required to apply under AEDPA. But I *1191 cannot join the portions of the opinion at the beginning and the end where the majority ventures to determine, in what sounds to me very much to be de novo review, that Meras’s constitutional rights were “probably” violated. See Op. 1186; 1190. Under 18 U.S.C. § 2254 (d), we must determine only whether the California courts unreasonably applied federal law as determined by the Supreme Court. Raising the issue whether Meras’s rights were actually violated is not part of this case. I therefore do not join the panel majority in its observation that Meras’s constitutional Confrontation Clause rights were “probably” violated.

1.

As a matter of current constitutional law, it is clear after Melendez-Diaz that DNA reports like the one at issue here are “testimonial statements,” and so a defendant has a Sixth Amendment right to confront in open court whoever carried out the test, arrived at the result, and prepared the report proffered as…