MICHAEL E. WILLIAMS, PETITIONER V. UNITED STATES OF AMERICA

   No. 89-735

   In The Supreme Court Of The United States

   October Term, 1989

   On Petition For A Writ Of Certiorari To The United States Court Of
Military Appeals

   Brief For The United States In Opposition

            TABLE OF CONTENTS
   Question Presented
   Opinions below
   Jurisdiction
   Statement
   Argument
   Conclusion

                            OPINIONS BELOW

   The opinion of the Court of Military Appeals (Pet. App. 7a-11a) is
reported at 28 M.J. 484.  The opinion of the Air Force Court of
Military Review (Pet. App. 1a-6a) is not yet officially reported.

                             JURISDICTION

   The judgment of the Court of Military Appeals was entered on
September 8, 1989.  The petition for a writ of certiorari was filed on
November 7, 1989.  The jurisdiction of this Court is invoked under 28
U.S.C. 1259(3) (Supp. V 1987).

                          QUESTION PRESENTED

   Whether petitioner made an adequate factual showing that an expert
toxicologist consultant was necessary to his defense that he did not
use cocaine.

                               STATEMENT

   Petitioner, a member of the United States Air Force, was tried by a
general court-martial at McGuire Air Force Base in New Jersey.  He was
convicted of the wrongful use of cocaine, in violation of Article 112a
of the Uniform Code of Military Justice (UCMJ), 10 U.S.C. 912a.  He
was sentenced to confinement for nine months, a bad conduct discharge,
forfeiture of $150 pay for nine months, and a reduction in rank.  The
convening authority approved the findings, reduced the forfeiture to
$150 for one month, and otherwise approved the sentence.  The Air
Force Court of Military Review affirmed the findings and sentence.
The Court of Military Appeals limited its discretionary review to one
question and affirmed.  /1/

   1. On January 9, 1987, petitioner and other members of his unit
provided urine samples at McGuire Air Force Base for a random
urinalysis test.  Tr. 140-141, 271.  The samples were sent by
registered mail to the Air Force drug detecting laboratory at Brooks
Air Force Base in Texas.  Tr. 153-154.  Tests at the Brooks laboratory
and follow-up tests at the Center for Human Toxicology, a civilian
laboratory, disclosed the presence of the cocaine metabolite in
petitioner's urine.  Tr. 186, 195;  PXs 4, 5.  On April 30, petitioner
was charged with the wrongful use of cocaine.

   2. On August 26, petitioner asked the convening authority to
appoint a Dr. John Whiting, a civilian forensic expert, as an expert
consultant for the defense at government expense pursuant to Rule for
Courts-Martial 703(d), Manual for Courts-Martial, United States --
1984 (Manual).  AX 3 Attachment 1.  In his request, petitioner stated
that "(t)he government evidence in (the) case consists of scientific
radioimmunoassay, gas chromotagraphy, and mass spectrometry test
results." Ibid.  Petitioner claimed that he needed Dr. Whiting as a
defense consultant because "(t)he reliability of these testing
procedures as well as the accuracy of the results are material isues.
Without the assistance of an expert trained in these scientific
procedures, the defense cannot adequately prepare to litigate these
issues." Ibid.  The convening authority denied petitioner's request
without comment on September 9.  AX 3;  Pet. App. 2a.

   Before trial, the defense filed another motion asking to have Dr.
Whiting appointed as an expert defense consultant.  Tr. 20;  AX 3.
Petitioner noted that the government intended to call Dr. Naresh Jain,
a civilian forensic toxicologist, to testify at trial about the
urinalysis testing procedures.  /2/ Petitioner asked for Dr. Whiting
in order to obtain "his expert review of the forensic validity of
Brooks and Center for Human Toxicology Standing Operating Procedures,"
and to "consult() with defense counsel in the interview and cross
examination of prosecution expert witnesses." AX 3, at 1.  Expert
assistance was necessary for the defense, petitioner claimed, because
defense counsel did not "hold degrees or (have) scientific training in
forensic toxicology." Ibid.  See also id. at 2.  Petitioner said that
he had contacted Dr. Whiting and that Dr. Whiting could be available
to testify at trial.  Id. at 1.

   The trial judge held a hearing on the motion, at which Dr. Jain
testified.  Dr. Jain said that he did not test petitioner's urine
sample and that he was retained by the government to testify about the
chain of custody, the integrity of petitioner's sample, and the
urinalysis test procedures used to determine whether there was
evidence of drug use.  Dr. Jain also said that he was available to
consult with the defense, and that he would inform the defense of any
irregularities in the test procedures and that he had done so in other
cases in the past.  He noted that, based on his study of the matter,
he would testify that the urinalysis procedures used in this case were
forensically valid.  Dr. Jain testified on cross-examination that some
other experts, including Dr. Whiting, might prefer to use a testing
method other than those used in this case, but that no expert in the
field would criticize the testing procedure used in this case as being
inaccurate.  Tr. 21-43.

   Dr. Jain explained that the gas chromotagraphy/mass spectrometry
urinalysis test could use either the chemical ionization testing
method or the electron impact testing method.  Dr. Jain testified that
he knew of at most three experts, including Dr. Whiting, who preferred
the electron impact test, which was not performed on petitioner's
urine sample, to the chemical ionization procedure, which was used to
test petitioner's urine.  At the same time, according to Dr. Jain,
those experts would not say that the chemical ionization procedure
used in this case was inaccurate.  In fact, Dr. Jain testified that no
expert had ever criticized the chemical ionization procedure as being
inaccurate.  Tr. 34-37.  The chemical ionization test procedure had
been used for ten years on thousands of samples, and the results from
that procedure had always been corroborated by other procedures,
including the electron impact test method.  In Dr. Jain's words,
"(n)ot a single scientist in this world has published any information
saying that chemical ionization can result in erroneous answers." Tr.
41.  Dr. Jain said that the chemical ionization method was sensitive
to very small samples, but that the equipment involved in that
procedure was the "most expensive" available.  Ibid.  Dr. Jain added
that another test, the radioimmunoassay test, was also performed on
petitioner's urine sample.  Ibid.

   After the hearing, the defense reiterated its claim that it was
entitled to an expert consultant, because defense counsel had no
training in forensic toxicology, even though the defense at trial
would be that petitioner had never used cocaine.  Tr. 44.  /3/

   The trial judge denied the motion and made detailed findings of
fact and conclusions of law.  Tr. 53-56, 66;  AX 5.  The judge found,
inter alia, that defense counsel's questions of Dr. Jain during the
hearing reflected "a most impressive base of knowledge of an
familiarity with the procedures used in performing urinalysis,
including the calibration of the equipment," that defense counsel "is
obviously knowledgeable of the (urinalysis testing) methods other than
those used by (the Department of Defense)," and that defense counsel
had prior experience in urinalysis cases, including at "least one
prior case where Dr. Jain was the expert witness." Tr. 55.  The court
also concluded that "the science or technology involved in this case
is not the issue," ibid., and that "(t)he real issues" were whether
the tested urine sample came from petitioner and whether the
laboratories followed proper procedures during their tests.  Tr. 56.
"Those issues do not impact the reliability of the underlying science
involved.  Neither does the availability of tests other than the one
employed." Ibid.  Concluding that "there has not been a demonstrated
need for a consultant from outside government resources," the judge
denied the defense request to have Dr. Whiting appointed as a defense
expert at government expense.  Ibid.  After unsuccessfully attempting
to find a government expert who could serve as a defense consultant,
/4/ the trial judge ruled that Dr. Jain was an adequate substitute
because he was not "biased," nor did he "favor() any side." Tr. 76.

   Dr. Jain testified during the government's case-in-chief.  Defense
counsel conducted an extensive cross-examination, Tr. 198-225,
227-229, 237-238, and did not renew the request for an expert
consultant at the completion of Dr. Jain's testimony or at the close
of the government's case-in-chief, Tr. 238-239.  Petitioner
subsequently testified in his defense at trial.  He denied using
cocaine, but he offered no explanation for the presence of the cocaine
metabolite in his urine sample.  Tr. 277-281.

   3. The Air Force Court of Military Review affirmed.  Pet. App.
1a-6a.  It rejected petitioner's claim that the trial court erred by
denying the defense request for an expert consultant.  Id. at 4a-5a.
The court found that petitioner's "requests for an expert consultant
did not state specifically, or even generally, in just what capacity
such expert would be utilized," id. at 4a, and the court concluded
that the defense request was "predicated" on the belief that an expert
"would be nice to have in the event that something developed" before
or during trial, id. at 4a-5a.  The court also held that, in light of
defense counsel's knowledge of the urinalysis testing processes (as
shown by his cross-examination of Dr. Jain), the denial of the
requested consultant did not prejudice petitioner.  Id. at 5a.

   4. Petitioner then sought review in the Court of Military Appeals.
Petitioner raised in his petition seeking review before that court the
question whether he was entitled to a expert consultant at trial, but
the Court of Military Appeals declined to grant review on that
question.  Instead, that court limited its grant of review to the
validity of an instruction, Pet. App. 8a, and found that the
instruction was not plain error, id. at 8a-11a.

                               ARGUMENT

   Petitioner contends that the trial judge denied him access to a
qualified expert consultant in violation of the Due Process Clause and
this Court's decision in Ake v. Oklahoma, 470 U.S. 68 (1985).  That
claim lacks merit.  Petitioner did not make a sufficient showing that
an expert consultant was necessary for his defense.  The trial judge
therefore did not err in denying petitioner's application to have a
private consultant appointed at government expense.  /5/

   In Ake v. Oklahoma, this Court held that when an indigent defendant
demonstrates to the trial judge that his sanity at the time of the
crime is to be a significant factor at his trial, the State must
provide the defendant with access to a competent psychiatrist who will
conduct an appropriate examination and assist in the preparation and
presentation of the defense.  470 U.S. at 83.  The rationale
underlying the decision in Ake was that psychiatric evidence can be so
important in a case that turns on the defendant's mental state that
the assistance of a psychiatrist may be crucial to the defendant's
ability to marshal a defense.  Id. at 80.  Without such assistance, an
indigent defendant may be so disabled from mounting an effective
defense that "the risk of an inaccurate resolution of sanity issues is
extremely high." Id. at 82.

   The military justice system has faithfully applied the principles
of Ake.  As the court of military review explained, Pet. App. 4a,
under military law a servicemember accused of a crime has an equal
opportunity to obtain expert assistance, even on questions other than
a defendant's sanity at the time of the crime, if he can show why such
assistance is relevant and necessary to a significant issue in his
case.  See, e.g., United States v. Toledo, 25 M.J. 270, 276 (C.M.A.
1987);  United States v. Garries, 22 M.J. 288, 290 (C.M.A. 1986),
cert. denied, 479 U.S. 985 (1986);  United States v. Mustafa, 22 M.J.
165, 168-169 (C.M.A.), cert. denied, 479 U.S. 953 (1986);  Art. 46,
UCMJ, 10 U.S.C. 846;  Rule 703(d), Rules for Courts-Martial;  Mil. R.
Evid. 702, Manual.  Compare Ake, 470 U.S. at 83.  Indeed, the military
courts have taken Ake considerable farther than this Court, since they
have held that the principles of Ake are applicable even in the
absence of any proof of indigency on the part of the accused.  See
United States v. Mustafa, 22 M.J. at 168-169.

   Contrary to his claim, petitioner was not denied any relief to
which he was entitled under Ake.  Unlike the defendant in Ake, who was
denied the assistance of an independent psychiatrist, petitioner had
the benefit of an independent toxicological examination of his urine
sample by a neutral civilian laboratory, the Center for Human
Toxicology.  /6/ To be sure, that laboratory confirmed the presence of
the cocaine metabolite in petitioner's urine, and that finding did not
support petitioner's claim of innocence.  But Ake does not guarantee a
defendant the assistance of an expert who will reach a conclusion that
pleases the defendant.  Ake guarantees only that an indigent defendant
in a case raising a serious issue as to which expert assistance is
necessary have access to a competent expert "who (is) not beholden to
the prosecution," 470 U.S. at 83, 85, to conduct any necessary
examinations and assist the defense.  The government has no obligation
to supply the defendant with a series of experts until the accused
finds one who will support his defense.  Id. at 79, 83.

   Petitioner claims that an independent defense expert is necessary
since the only defense that a servicemember can present when charged
with narcotics use based on a urinalysis test is a defense that
challenges "the urinalysis results" or the "validity of an
urinalysis," and that the assistance of an expert toxicologist is
crucial to such a defense.  Pet. 7.  /7/ That contention is flawed in
several respects.  In the first place, a defendant can always try to
show that, due to a flaw in the chain of custody or a mistake in the
laboratory procedures used in his case, a positive urinalysis test
result cannot fairly be attributed to drug use.  Neither defense
requires the assistance of a toxicologist.  An attorney is well
equipped to challenge the government's proof that the tested urine
sample is the one taken from the defendant, or to question whether a
laboratory followed the correct procedures in testing the defendant's
sample.  Moreover, a defendant who believes that a positive urinalysis
result is due to his unknowing ingestion of a substance that turned
out to contain narcotics can so testify at trial, with or without
supporting character witnesses, but certainly without the need for a
defense toxicologist.

   Petitioner asserts that it is "(c)ommon knowledge among military
judge advocates" that "there are several qualified experts that
question the validity of the Department of Defense (DOD) urinalysis
testing program, especially when testing for cocaine." Pet. 7.  A
defense toxicologist is therefore necessary, petitioner argues, in
order to mount an attack on the ability of the DOD urinalysis
procedures to detect the cocaine metabolite in urine.  In particular,
petitioner asserts that Dr. Whiting would have supported that claim,
and that the trial court thus erred in denying his request to have Dr.
Whiting made a defense expert.

   Petitioner, however, failed to make the necessary factual showing
to support such a claim in the trial court.  Petitioner asserted that
the reliability of the urinalysis testing procedures and the accuracy
of the test results would be material issues in his case, but he
proffered no factual support whatever for those assertions in his
request to the convening authority, in his pretrial motion, or at the
pretrial hearing.  The only evidence presented at the pretrial hearing
on this issue came from Dr. Jain, and far from supporting petitioner's
claim, Dr. Jain's testimony undermined it.  Dr. Jain said that
although Dr. Whiting preferred a different test from the one used in
petitioner's case, Dr. Whiting would not say that the test used in
petitioner's case was unreliable.  Moreover, petitioner did not make a
proffer of any contrary testimony that he expected Dr. Whiting to
provide, even though petitioner had contacted Dr. Whiting nearly two
months before trial, AX 3 Attachment 1, nor did petitioner cite any
scientific journal or literature of any type that would support his
claim.  /8/ (In fact, petitioner has cited no such material in his
certiorari petition.) Under these circumstances, there is no merit to
petitioner's claim that Dr. Whiting's assistance or testimony would
have supported his innocence.

   In sum, petitioner failed to carry his burden under Ake.  If the
reliability of the urinalysis tests performed by the Brooks laboratory
and the Center for Human Toxicology was a significant issue in the
case, it was incumbent upon petitioner to spell out that claim.  Since
petitioner offered nothing more than the vague and unsubstantiated
assertion that the urinalysis procedures were unreliable, the trial
court did not err by declining to appoint Dr. Whiting as a defense
expert.  See, e.g., Caldwell v. Mississippi, 472 U.S. 320, 323 n.1
(1985);  Stephens v. Kemp, 846 F.2d 642, 646-650 (11th Cir.), cert.
denied, 109 S. Ct. 189 (1988);  Moore v. Kemp, 809 F.2d 702, 712 (11th
Cir. 1987) (en banc), cert. denied, 481 U.S. 1054 (1987);  United
States v. Tornowski, 29 M.J. 578, 581 (A.F.C.M.R. 1989);  United
States v. Fontenot, 26 M.J. 559, 562 (A.C.M.R.), pet. granted other
grounds, 27 M.J. 460 (1988), hearing held, 28 M.J. 262 (1989).

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted

   KENNETH W. STARR

      Solicitor General

   JOE R. LAMPORT

      Col., OJAG, USAF

   ROBERT E. GIOVAGNONI

      Col., OJAG, USAF

   TERRY M. PETRIE

      Maj., OJAG, USAF Appellate Government Counsel Government Trial
      and Appellate Division

   JANUARY 1990

   /1/ The Court of Military Appeals limited its review to the
question whether petitioner was prejudiced by an instruction given by
the trial judge to the court-martial panel.  Pet. App. 8a.

   /2/ In a military prosecution for the wrongful use of drugs based
on the results of a urinalysis test, the government must use expert
testimony to explain the laboratory test results.  United States v.
Murphy, 23 M.J. 310 (C.M.A. 1987);  United States v. Harper, 22 M.J.
157 (C.M.A. 1986).

   /3/ In response to a question from the bench whether the defense
was seeking a consultant or a witness, the defense replied, "A
consultant, your Honor, except in the event that the doctor testifies
to something on direct examination which I haven't heard yet, I will
then have a rebuttal witness who can testify in rebuttal to the
government's case in chief." Tr. 44. See also Tr. 69-70.

   /4/ Before ruling on the motion, the trial judge directed the
government to determine whether there were any expert military
personnel available to substitute for Dr. Whiting.  Tr. 48.  The
prosecutor made an inquiry, and after the judge made his ruling the
prosecutor indicated that he was trying to determine whether other
experts were available.  Tr. 57-58.  Defense counsel suggested that
the prosecutor should ask the convening authority whether Dr. Whiting
should be appointed.  Tr. 58-59.  The trial was recessed while the
prosecutor checked with the convening authority about Dr. Whiting.
Tr. 59.  When the trial reconvened, the prosecutor said that two
persons at the Brooks laboratory were available for the defense.  The
defense objected to their use on the ground that they suffered from a
conflict of interest, because they had conducted the tests on
petitioner's urine sample.  Tr. 59-61.  Regarding Dr. Whiting, the
government said that the convening authority was not available, but
that the staff judge advocate would recommend that the request be
denied and that the government would offer Dr. Jain as an adequate
substitute.  Tr. 62.  Defense counsel did not consider Dr. Jain to be
an adequate substitute and wanted the consultant to be able to serve
as a potential defense witness.  Tr. 67-68.  Relying on his earlier
findings, the trial judge found that the government had made "an
earnest search" for a government expert, Tr. 67, and denied trial
defense counsel's request for a military expert consultant, holding
that Dr. Jain was an adequate substitute.  Tr. 72, 76.

   /5/ It is also not clear that the question presented in the
certiorari petition is subject to review in this Court.  The statutes
authorizing this Court to review by a writ of certiorari the judgments
of the Court of Military Appeals, 28 U.S.C. 1259(3) (Supp. V 1987) and
10 U.S.C. 867(h)(1), restrict this Court's certiorari jurisdiction to
"decisions" of the Court of Military Appeals.  Section 867(h)(1)
further provides that this Court may not review by certiorari "any
action of the Court of Military Appeals in refusing to grant a
petition for review." The Court of Military Appeals has the statutory
right, which it exercised in this case, to limit its decision in any
case to less than all of the issues urged by a defendant.  10 U.S.C.
867(d).  Since the Court of Military Appeals accepted for review only
an instructional issue and did not grant review on the question
presented in the certiorari petition, there is a question whether that
court rendered a "decision()" on the question that petitioner has
presented in his petition, and whether the court's refusal to accept
that question constituted an "action" of that court "in refusing to
grant a petition for review" within the meaning of 10 U.S.C.
867(h)(1).  Those issues do not require an answer in this case,
however, since the question presented in the certiorari petition does
not warrant review by this Court in any event.

   /6/ The trial judge also appointed Dr. Jain to assist the defense
after finding that he was not a partisan witness.  In some cases, the
assistance required by Ake can be satisfied by the appointment of a
government expert to help the defense understand complex scientific
evidence.  That is particularly true when the field in question is
less subject to the type of uncertainty that is characteristic of
psychiatry, the subject matter involved in Ake.  See Stephens v. Kemp,
846 F.2d 642, 650 (11th Cir.) (ballistics expert), cert. denied, 109
S. Ct. 189 (1988);  McKinley v. Smith, 838 F.2d 1524, 1530 (11th Cir.
1988) (pathologist).  Urinalysis testing would also appear to be one
of those areas.

   /7/ At trial, petitioner also claimed that expert assistance was
necessary because defense counsel lacked any training in forensic
toxicology.  Petitioner has not renewed that claim in this Court, and
it lacks merit in any event.  Defense counsel has the obligation to
educate himself about the relevant scientific field in order to show
that expert assistance is necessary to the defense.  Stephens v. Kemp,
846 F.2d at 646-647;  Moore v. Kemp, 809 F.2d 702, 712 (11th Cir.) (en
banc), cert. denied, 481 U.S. 1054 (1987).  What is more, as the
record shows and as the trial judge colorfully put it, defense counsel
was "no rookie to urinalysis cases." Tr. 44.  The court of military
review found that defense counsel's cross-examination of Dr. Jain
revealed that counsel had "much more than a rudimentary understanding
(of) the processes used in urinalysis testing and in interpreting the
technical test results." Pet. App. 5a.

   /8/ Petitioner had ample opportunity to make that showing.
Petitioner knew almost two months before trial that the government
intended to call Dr. Jain as a witness, see Tr. 2;  AX 3;  the
government made discovery materials, including the laboratory
procedures and results, known to the defense before trial, see Tr. 64;
 the government made Dr. Jain available to the defense before the
pretrial hearing, see Tr. 23, 74;  and defense counsel conceded that
he had an adequate opportunity to review the laboratory procedures and
results and to discuss them with Dr. Jain before the hearing, Tr. 74.
A liberal discovery policy, like the one used in the military justice
system, helps to show that petitioner had the tools to explain why a
defense expert was necessary for his case.  See Moore v. Kemp, 809
F.2d at 712 n.10.