United States v. Garcia
Hot off the presses, a new 4th Circuit Court of Appeals case vacates and remands the convictions against “Donny” Garcia, a unlucky defendant who the Government prosecuted for drugs. Bunches and bunches of drugs. Heroin, to be precise. Hence, the Google Images picture of a poppy field. Clever, huh? To secure its conviction, the Government used an FBI agent, Agent Dayton, to testify to the “coded language” used in the voluminous wiretaps the Government secured, but too she was an investigator in this particular case. As the Government, both federal and state, is wont to do, it will parade a cop into the courtroom, have that cop designed as an “expert” and then funnel all amounts of hearsay into the case under the guise of “expert testimony.” The Court here said that was reversible error. The Court specifically pointed to her conflating her expert and fact testimony, particularly her reliance on her knowledge of the investigation as supporting her coding interpretations, her failure to apply her methodology reliably, and her failure to state on the record an adequate foundation for her interpretations. This is good stuff for criminal defense lawyers, as it offers some blueprint for how to challenge this kind of testimony in the future. The Court also relied on the now seminal case of Crawford v. Washington, a SCOTUS case which reconfigured Confrontation Clause analysis in the law, and stated that this kind of error would improperly provide an end run around Crawford. The Court referred to all of this as “gilding of the expert witness lily.” So, in all, a very useful case for defendants who challenge the Governments use of “experts” who just happen to be “experts” in the defendant’s own actions. This has been a problem for a long time, so maybe this case will be a game-changer.