The McShane Firm recently appealed to have a DUI case heard in front of the Supreme Court of the United States.
Commonwealth v. Yohe – The firm once again finds itself involved with the Supreme Court of the United States. We recently filed a petition in the High Court for Writ of Certiorari. This is the case where we argued the NMS labs Henry-Ford-Assembly-line-like forensic science method violates the 6th Amendment’s Confrontation Clause.
We presented the following question:
The United States Constitution’s Sixth Amendment guarantees criminal defendants the right to a fair trial – including the right to confront “witnesses” against them. Here, the government introduced a forensic toxicology report via a “witness” who reviewed and confirmed laboratory analysts’ work – but did not perform, observe, or have any personal connection with the analysis. Does a “witness” who reviews and confirms others’ work violate the Confrontation Clause” In other words, who is the “witness” against the defendant?
At trial, the government did not present the particular witness from NMS Labs who physically conducted the accused’s blood analysis. Instead, the government and NMS presented only the PhD who reviewed the data generated by the particular witness. Trial counsel, the McShane Firm’s own Attorney Shawn Dorward, timely objected—making a complete proffer to preserve the Confrontation Clause error. Attorney Dorward carefully preserved his objection under both federal and state law. The trial court overruled the objection and allowed the “surrogate” witness to testify in lieu of the particular witness. Despite Attorney Dorward’s best efforts, the Judge disagreed with Dorward at trial and returned a guilty verdict for the BAC count, but found the accused not guilty of DUI: General Impairment. Never losing sight of the Constitutional harm, Attorney Dorward again asserted error in a well-written post-sentencing motion and accompanying legal memorandum. Sometimes, judges change their minds. And, upon reviewing the “surrogate’s” testimony and the presented arguments, the trial court agreed the government violated the accused’s Constitutional rights.
At the time this all happened, the trial court was bound by the case Commonwealth v. Barton-Martin, which held that a violation of confrontation required the charge at issue to be dismissed. Despite the binding precedent of Barton-Martin, the trial court ordered a new trial as the remedy. Knowing that remedy to be in error in that the proper remedy under Barton-Martin was vacating and discharging the defendant of the conviction, Attorney Dorward filed a motion for reconsideration with the trial court for the remedy. A hearing was scheduled for this motion; however, prior to the court date the government sought appeal of the grant of the new trial. Thus, the government became the appellant. The McShane Firm, LLC became the appellee.
After receiving briefs a three justice panel of the Superior Court disagreed with the trial court and overturned the grant of the new trial. In essence the three justices in the Superior Court, in a published opinion, held the testimony of the “surrogate” was sufficient Confrontation for the accused. Attorney Dorward then enlisted the help of Attorneys Justin McShane and Josh Auriemma to perfect a petition for allowance of appeal to the Pennsylvania Supreme Court. Typically, Pennsylvania’s highest court grants very few of these requests for appeal—but the court granted it here. The Court wanted to help guide the issue and hear the lawyers on both sides argue the issue.
On that appeal to the Pennsylvania Supreme Court, several organizations wrote amicus briefs—“friends of the court”—including: the National College for DUI Defense Attorneys (NCDD); the Pennsylvania Association of Drunk Driving Defense Attorneys (PADDDA); the Pennsylvania Association for Criminal Defense Lawyers (PACDL); and the Philadelphia Defender Association.
Ultimately, after the Court received briefs from the accused, the government, and the interested organizations, the case went to oral argument. Attorney Dorward argued the case before the Pennsylvania Supreme Court. Sadly, the Pennsylvania Supreme Court affirmed the Superior Court’s decision. Following the Pennsylvania Supreme Court’s affirmation, The McShane Firm, LLC went to the mat. With the hard work of Attorneys Justin McShane, TC Tanski, and Shawn Dorward as well as Richard Roberts, a law student intern, the firm drafted and filed a Petition for Certiorari with the United States Supreme Court.
This case has been officially re-listed for conference on May 15, 2014.
Now that we’ve filed the Petition, it’s up to the United States Supreme Court to either deny the petition or grant it. Once a Petition is granted by the High Court, briefs are filed and arguments are presented.