state court decision to the contrary was contrary to clearly established cases those clearly established cases in our case the appellate division came up with a rule that a profile generated from the swab of the defendant's cheek standing alone shed no light on the issue of the defendant's guilt in other words it was not basically accusatory were also said did not standing alone link him to that crime that is those are words almost exactly from the melendez diaz decision saying that that rule is rejected by the supreme court the court said that a rule that that forensic testing of drugs is not testimonial because it's not that's very similar to what bill coming said it as a business record but but definitely admissible and certified and signed the fact that analysts that created statements within that did not did not sign it does not render it any less a certified report it cannot be that you can avoid the implications of the writ of the confrontation clause by having someone other than the analyst sign the report into evidence for use against the defendant and state and yet then not be allowed to get to cross examine those analysts who should be required to be made available for cross examination all the analysts who did the testing who manipulated the evidence itself every single analysts every single analyst and the reason for that is what so one analyst wouldn't be sufficient one knowledgeable analysts would be sufficient in your perhaps your honor which is not our case if there were an analyst who who dogs the whole analytic process from start to finish and observe everything that happened perhaps that analyst would be able to testify again i'm not conceding that that's necessarily true i could imagine that that would be lawful that certainly was not our case the fact that o c n meets chooses to use a of of analysts does not deprive the defendant of the right to cross examine cross examine them if you have an analyst who is participated in part of that process for example and say extraction and is knowledgeable about the rest of the process that person in your view it's not sufficient for that person to testify or or what if what if the labeling was wrong and what was tested was was incorrect  points out that switches of samples occur and so we need the person who did the labeling we need the person who opened the packages we need the person who did the controls at any stage of the process something could go wrong in the profile could be incorrect and so  know the right to cross examine witnesses that are called against him by the state i guess i have and this is may not be strictly relevant to the competition analysis but i have some worry that creating incentives to structure labs in a way that occurred here in ninety seven percent probably of cases the cases plead out there is no need for any any you know there's no burden on the on the state to bring bunch of people to the court when there's no trial for the few trials that occur a buckle swab is easily the defendant's blood testified at trial whereas here you've got the yacht off who worked at the lab that did all of the a d n a profile testing and she of course wrote the report comparing the d n a profiles developed from the crime scene and the book recalls waba of a defendant isn't that different from the william situation distinction without a difference your honor the young author had no direct knowledge she was relying on the accuracy of the people who work for her office but nonetheless that she had no view of or was not occurring as a result that she was similarly situated to testify analyst in williams i'd like to point out that even under williams we we would we would actually win this case because this the facts of this case are a subset of the facts of the of of the primary purpose test as an on see it in a bowl coming bowl coming said that the primary purpose is for use at trial the dissenters from ball coming set in williams if the primary person purpose is for use at trial against arrest a defendant we have the arrest a defendant we have the evidence introduced at trial unlike in williams and we have a certification by the  unlike in williams you know in in williams right and i guess in your position there are five justices in williams who held that's statements about a d n a profile developed for  good morning your honors william branigan of the office of richard a brown for the respondent may please the court your honors the supreme court has never held that the introduction of uncertified lab reports violates the confrontation cla quoted from the subsections d and e which pertain to basically to d n a in paternity test so that's that's separate from what happened here here this is just somebody from the o c and me saying that these were these are true copies these a profile generated from the swab of the defendant's cheek standing alone shed no light on the issue of the defendant's guilt in the absence of the experts testimony that it matched the profile derived from the crime scene evidence close williams in your view your honor first where the appellate division was was coming from was dealing with a very fractured opinion so the plurality in williams can support that meaning the they do not  necessary testimony was was going to trial the sworn to testimony was given a trial and williams like the sworn to testimony was given a trial in this case so in light of the of the opinion the the second the second apartment decision was reasonable under those circumstances used you've got the justice thomas who says in his concurrence that the d n a profile test that was introduced was introduced for its truth and that's of huge that's shared by the four dissenting judges and so if that's correct and if i'm incorrect please correct me then didn't them a majority of the corn and lawyers reject the appellate division certification in that case that's why you don't have a five vote majority there that that five votes meaning the idea that thomas said this was this was this was hearsay brought in for its truth and the fact of the four  dissenters said that did not create a majority in that case otherwise williams would have gone a different way and we'd be in a different position here the the fact is that was a fractured opinion and if you want to discern something from from that opinion what you can discern is that these were uncertified lab reports and that the only sworn to testimony was was given a trial so the second apartment couldn't rely on him again i should say something different i should say that the it was reasonable not to rely on on a counting of five votes from basically someone who joined the majority in saying that these were these were admissible and with the dissenters who said that it was not admissible that that that there was no reason for them to do so and they were rational in saying that the what was key was that the sworn testimony was was given a trial and that that the the  the the buccal swab analysis alone basically said nothing and it did in this case it was there was there was basically raw material that was produced there was a set of lab notes there was a set of graphs and the testifying analyst who perform the testing i'm not saying that that's the case but let's just say for the sake of argument is there any other evidence admitted the tie the defendant to the crime scene you're out of the if you're asking whether the the air here would have would have been harmless but for the the the testimony i'd have to say i know that the there were there were there were certainly well the defendant was caught through his d n a in each of these three cases there was a a match in the in the national database and then the and then and that that match arguably could have come in under some under some exception but as far as what was admitted trial the key evidence was was the match th not the the the notes contained in the report were produced to perry stages of various stages the testing process by computers ok some were produced by computers the the only the only sort of vacation was produced later to say that these to say how the records were stored maintain and produce the regular course of business so the there there was no there was no solomon ised process as somebody sitting down saying results to render how could you just explain what you meant by that we understand how this process works ok well practically your honor what happens is that the that the samples so we have the recovered samples in this case we're really talking well as well as well as what was recovered but at each stage there's processing done to prepare the material to go into a machine there is basically i think a laser function in the machine that that will  hit the the sample and then produce basically what is the raw data in that comes out of the computer i think there's additional computer work done but that is basically it so that the the analysts who are producing this at each pa e could have no no possible knowledge of what the outcome of their of their processing would would be  if if if it's a question about how we apply williams given the fractured nature nature of that that opinion if we were to determine that that five justices of the of the court held that the d n a profile that a d n a profile is testimonial evidence regulated by the confrontation clause how do we apply williams first you use both and i think the answer is looking at all of the the opinion to use both meaning they have to have both of those things meaning a primary purpose and and the solemnity so in this case you can see that there that basically really there is no primary purpose according to the plurality so that's how the court should hold but the the the issue the disjointed nature of the issue goes towards the reasonable application so one reason lapp location would  statements were made by somebody who intended for their particular testimony to come into court and that that court was and that that statement was was formalized under this case but the fact that it's fractured goes towards the state the fact that fact that it's fractured should lead to more deference to the state courts in interpret in this so when you have a case like williams that is almost identical in nature of the facts to the state court case in the  apply as they did in this case they should be shown deference honor as the the certification was such that that in the evidence could be introduced into evidence i mean the statement could be introduced into evidence it cannot be that d o c m e was allowing statements to be introduced that it exception for hearsay purposes it's not a declaration by the analysts themselves taken particular steps and then accurate well it isn't in that in that sense but it but it cannot be that oh say me is is permitted  to put a business record before the court and and knowing that there are in accuracies or that the people didn't follow the procedures they said they followed in those statements that said i don't think we even need to a cation because if you look at the williams dissenters i mean the williams plurality they were embracing the the rule that we relied on from coal coming there were eight judges that say in a targeted suspect case like ours where it's its truth unlike williams that that you know that evidence must be subject to cross examination it's clearly established in three different cases you can't really use williams at all because as this court said in james there is no discernible rule that comes from it but you can look to it to discern what the court was saying as a whole and we know that williams did not undo all coming and one does