which was the statutory minimum for a conviction in this case was introduced through the testimony of timothy grows and grows was no more involved which was the test the court laid out and in grim substance he didn't weigh it himself he didn't review any data to determine whether or not her conclusion about the weight was correct because there was no data to review indeed he admitted that he didn't actually know how much the substance weighed what he said was that a sample reported out to be point one gram could be anywhere between point one and point one nine grams nine so to the extent the gross reached any conclusion at all in this case about the weight of this substance he did it by reading alison smith's report and that's simply not allowed even under graham's interpretation  of what bill coming stands for and what the confrontation clause requires so it is a difficult argument because you've got to establish clearly this is clearly established and yet there's been him out there in the courts as to applying will coming coffer in the lab supervisor signing context yes your honor and we have a separate argument and i realize that this panel's bound by the the grim independent verification he has your honor about her her son who test separate conclusion that the substance was cocaine but at no point does he express an opinion that it would point one gram he's very careful signing the report describes it as one gram he did your honor he signed the report as the technical reviewer he also signed it as the administrative reviewer right and he explained what the two differences were and he explained what his technical review was he was very clear about the data he reviewed he said he reviewed the data from the cobalt sinai test that was the color test and he reviewed the data from the g e c m s test and based on those he did testify that he this clearly established by full coming this is a difficult area we would hold the following but if that's an accurate description that doesn't get he is really well made made made more difficult your honor by the the fifth circuit the panel decision  different from graham and the district court judge did recognize that this was a significant difference they were arguing both issues that with respect to the conclusion that it was cocaine it was not admissible yes we agree that underground that's that's incorrect we think graham is wrong but we agree that under graham that that testimonial statement that it was cocaine was admissible but even under grimm the separate testimonial statement that it would point one grant which was essential in order to convict mr jenkins in this case and give him a life without parole sentence but that separate testimonial statement gross had no involvement whatsoever he didn't weigh it he didn't observe the wayne all he did was read it work weigh that particular sample we know how they determined the weight that they weigh it they put it on the scale that the state has implicitly conceded as much but when they've argued that but they've argued that he's sufficiently involves because he could be cross examined regarding the accuracy and calibration of the laboratory scales and because he will be very very stingy in what clearly established yes your honor and in this case to be clear what about like kennedy's descend i'm sure it sounds like you know this inside now so when i say these things you'll know immediately yes there is a prior concurrence and of course the satire concerns they all seem to be saying we just haven't really yet dealt with lab supervisors it's just it's hard there are implications we just haven't sorted well i think it's interesting i mean this goes to whether or not grimm is correctly decided but i would think it would i don't think it does matter because what here's what it was it was what the grimm court said grim court said the supreme court has not clearly established what degree of involvement with the forensic testing is required of an in court witness offered to prove a particular fact in a testimonial certification beyond what was deemed insufficient ball coming to  clear our claim is that the decision in this case was contrary to in that the mississippi supreme court encountered a set of facts that was materially indistinguishable from ball come in and reach the wrong conclusion the more coming fact that the supervisors as you know i think that the question then would be is that a material distinction and the answer is no i think the question we have to ask is what did that signature me when he signed that piece of paper what was he certifying with his signature that he'd gone back and looked at the materials in the file to determine that that was an appropriate analysis in the nothing in the file looks out of the ordinary he did and then that certification his technical review all of his testimony explains to us that that technical review and his independent conclusion was that the substance was cocaine but he didn't conduct a technical review of her conclusion that it weighed point one gram nor could he explain to us what a technical review is when you got me why it matters because it's ok under the statute it doesn't matter it doesn't have to be point one gram cocaine it can be it can be any to ten to poor amount of cocaine right at all when the point one gram so it does long as the object itself wastes more than point one gram it doesn't matter if there's some measure of just a tiny speck of coke a isn't that right absolutely either and that's the issue he didn't weigh the substance this isn't a purity question this was a question is how much did the substance way the report states that it weighs point one in other words alison smith reported in her report that this substance weighs point one gra no question that that's a testimonial statement it's been introduced to prove a fact in essential back and mr jenkins trial let's say even something as obvious as way something choirs of old people people to questions about whether or not graham was wrongly decided because the question then is which one of those statements are testimonial i think that's the best way to understand that that sub question that kennedy talks about would allow a lot of flap determinations to one no you're right and i think that that's where the mistake was in terms of the district court's decision and graham and i know grimm isn't in front of you know that decision the holden and grimm in the district court the district or granite h syndrome was that bill coming requires that the person who did the testing appear yeah and that's not that's not what we think that the constitution requires what the constitution requires is that if in out of court testimonial statement from one person is admitted into trial and the defendant has a right to cross examine that person that's been the clearly established law since crawford was decided since we got rid of ohio versus roberts that's not the law grimm says that you can admit one scientists out of court testimonial statement through another scientist in other words you get two scientists for the price of one that's what happened  ginsburg gave in her opinion for the court and i'll point out that despite the fact that justice so tomorrow concurring opinion and she fully joined justice ginsburg's opinion for the court it was not a  officer other than the one who saw the number on the house or the gun present the information in court so long as that officer was equipped to testify about any technology the observing officer deployed and the police department standard operating procedures the court says as our president makes plain the answer is emphatically no and just a sort of mire agrees with that analysis explicitly in her concurring opinion that's all that  this witness was able to do with respect to wait you read a report in which allison smith presumptively recorded the readout of a scale into her report and he was prepared as the is to be cross examined about the calibration of the scales and the standard dr operating procedures if we read the transcript to at least allow for the possibility that he had formed an independent opinion would you then it depends on how you determine that independent opinion there's a suggestion in the district court opinion that he reached an independent opinion based on his knowledge of the standard operating procedures become tells us that that's no that's not enough the fact that he knows that you know they are around down their weight reported that at point one two will be a weight that shows up on the scale as point one two will be reported as point one is not sufficient that's clear from bull come in that this this witness is exactly the same with respect to weight as both come and he did sign the report as the technical review but his technical review by definition was limited to the cocaine he explained that what a technical review was was a review to make sure that the data in the file supports the conclusions on the report and then he explained that the data in the file in this case came from the color test the cobalt i assign it as your position is the supervisor would only be able to testify if they had independently done the exact  present preventing the prosecution from wheeling a scale in front of the jury and and weighing it in court this is a fairly straightforward one i mean the notion that you can piggyback two tests on the back of one technical review  consider this example imagine in a murder case there's a lab report that includes both blood test results and d n a test results and they were performed by one analyst and a technical reviewer does a technical review of the blood test results that they then admit the full report that includes the d n a results and the blood test results because he did a technical review of the blood test results i think the answer to that is clearly no and there good morning your honour's my name is bridget davis and i'm a special assistant attorney general with the mississippi attorney general's office i have here with me seated at counsel table darryl and i'm here today on behalf of the respondents apple e s requesting that first the law regarding application of the confrontation clause to testimony by a supervisor or a reviewer in a crime laboratory is not clearly established as a result the decision of the mississippi supreme court was not contrary disagreement among the courts regarding bull coming to support the conclusion that the law is not clearly established and the fact that a member of the dissenters in this case of the supreme court level did they say the dissenting position was th an agreement on the case that that's an indication that the law is not clearly established in this in this situation but you don't recall whether they labeled it is clearly established or not not not essential to your position and b b a big paused a minute before you answer because well as it descends to the logical inference i withdraw as if your position rests on his dissenting position then jenkins his argument might be right and i apologize i just because he signs it it could be is that just around the confrontation caused problems he signs it and he can get in any statement and opinion of hurt i think that the key is here is the technical review that he performed that he verified but he didn't verify the weight so that can't be the key well he he verified that you know what your records say that's an important point you just said he verified what's the record what he says he testified on direct appeal that the results of the analysis where the evidence the mission contained cocaine and the amount of point one gram and then he further testified just because he's qualified to talk about some hearsay isn't an exception to the confrontation i don't agree if you disagree i mean i think that in this particular situation him being an expert the expert that he was as the lab supervisor the technical reviewer that it qualified him in the case to testify as to what he did therefore at the time of trial he was the witness against jenkins the difficulty for me is looking at the record it isn't exactly clear that people refined what it was when he said i signed in my opinion it's point one maybe it's there if he just said i did it because smith told me i did it that was it i don't see how being a supervisor gets him anywhere yeah i think it's just the fact that it's not that the title but it is the actual review that he performed at the signing and well his involvement in the case that he he doesn't have no connection whatsoever in this is the type of case as the magistrate judge pointed out that this is the case that was contemplated by just a start and i warned her concurrence because here we have  the testifying witness is the supervisor technical reviewer who has a personal albeit maybe limited connection but again it's a matter of degree it doesn't say that he had to  record when you use a service like connected to involved with what is the clearest statement by him in the record what that meant as to wait i think that  said that the lab has a test quanta taishan that the the lab doesn't perform that under mississippi law they're just required to prove that the entire amount of the substance or a mixture arresting officer brennan just really unclear who did the waiting but i think that because he did have a limited connection to the testing as the technical reviewer and as the supervisor that that  satisfied the right to confrontation in this case because he was the witness against mr jenkins at trial if we disagreed is there almost is argument here really you didn't present it because in closing argument a lot of people were pointing to gross well i think that this is subject to a harmless error and now it would be but you didn't argue that did you in that maybe because you're telling us candidly that the closing argument for the harmless error in this case would be the fact that chris was accepted as an expert without objection at the time that was on testimony because of cruise of an essential element of the case then it's you know we had a confrontation earlier today and the issue was can you throw out the testimony all together and still meet the elements  discussion of the fact that under the rules of evidence that an expert is allowed to testify based on materials that he's reviewed for which he lacks firsthand knowledge of it at that point it becomes a question of the weight of the evidence and weight and that the confrontation clause wouldn't have been triggered based on that i think that would be the harmless and alternative basis for argument to make me no basis for his expert opinion but i  here because this is a b s case we can't get past the fact that this is the law is not clearly right that's your best argument by far your harmlessness said if in my opinion it's a difficult road  but them i get i think that would be in the alternative assuming that there was error but again here i just because the law is not clearly establ d as the court held in ground that when the prosecution introduces a forensic laboratory report containing a testimonial start of a cation made for the purpose of proving a particular fact the  cannot do so through the in court testimony of a technical reviewer who signed the report and was more involved in the testing in the report than was the witness and bull coming and i think that the key here is just that the law is not clear so i think that the mississippi supreme court decision but consider the merits of jenkins sixth amendment claim and rejected that it cannot be said that it was a decision that was contrary to that he correctly concluded that jenkins case is the type of case contemplated by justice sotomayor as i mentioned earlier this is a case in which the person testifying is a supervisor of you or someone with someone else with a personal all be a limited connection to the scientific tests at issue and while it's true that the two of these cases share certain similarities there are massive differences between the two  here a lab report was entered into evidence the report the primary analyst who physically conducted the testing was not called it a witness but you can't stop there with the comparison and the analysis in this case the i think that the argument is there that he did review all of her work for the he verified the resort results and certified the findings by signing the final report as the technical review and show that this case is materially distinguishable from bull coming and in this case gross reached his own conclusions and he was in fact the witness against jenkins at trial the district court recognized that quite the only significant depth difference between this case and graham's was that the weight was at issue in the prosecution of jenkins and it was not in ground however the facts so remained that the testifying witnesses in both cases were technical reviewers they were supervisors who perform procedural conducted technical reviews and had the same level of involvement in the analyses and preparation of the report that was the district court do you have anything further i want anything else i would just point out that the district judge further cited your decision laboratory testified as an expert that a personal connection to the scientific testing and actively reviewed the results of the forensic analyst testing and signed off on the report therefore the supervisor was allowed to  procedures which was similar in this case and i think finally just generally speaking taking a cow to a rigid approach in a categorical rule to the confrontation clause cases  i think it carries severe practical drawbacks it leaves no meaningful solution where the analysts no longer work at the lab or have died as did happen here it's not really true you could run a scale into the courtroom i mean there are lots of other are there person could have tested it themselves back at the lab and had a record of it invited the other person in to watch it from the expert on the other side if they wanted to there are so many of the things you can do that is not that is not true here i think that it can't always be assumed retesting can always be completely that's true that's why it's important to comply the first time i agree and that is why it grazed his job was to ensure that all the checks and balances that the mississippi has in place for followed and that everything was done correctly in this case didn't know and the record gross talks about specifically telling the jury exactly what smith would have done and she would have taken the evidence she would have opened it she would have visually examined it she would have obtained the weight of the entire sample and then she would have taken a sample of that and suggested that the testing one of those tests and cleated putting the sample into a chemical solution dissolving it into the next was with an instrumental and then he said that she would have taken the remaining evidence and put it back into the bag which and indicates that you know it couldn't be reweigh aid and so we know that it weighed point one gram at least but he did testify that it could weigh up two point one nine gram but they round down as that that's their procedure that they do and so i would just end conclusion i think that given the lack of clearly established law on this particular issue that it cannot be said that the mississippi supreme court's decision was contrary to an unreasonable application of clearly established federal law and for those reasons we ask that this court affirm the district courts in all of federal habeas relief thank you thank you what i want to make sure doesn't get lost in the shuffle here and all this talk about gross conducting a technical review is that everything he said about his technical review was about her test to determine the nature of the substance never mentioned anything about any technical review of her test that is her weighing of the substance to determine its weight in fact when he was asked about the weight of the substance he admitted that he didn't know because he didn't actually weigh that substance your honor mentioned at one point during the last discussion it was unclear who did the way and it's absolutely not unclear he testifies in this is  of the record that miss smith would have retrieved this from the evidence vault at the mississippi crime lab through mr know and then among other things she obtained the weight of the exhibit with respect to counsel's claims that he then later claimed to have an expert opinion regarding the weight it's just absolutely not the case the passage that she was mentioned in had to do right after the admission of the report  he explains that miss smith would have recorded her conclusions on the report the question was and in this case the results of the analysis are what mr gross as an miss miss analysis the results  analysis where the evidence of mission number one contained cocaine in the amount of point one gram and then he at the state asked just so i'm clear so this report and your review of this report means that these items in this bag that have a crime lab tag on them and biloxi police department means that this is point excuse me point one grams of cocaine and he answers yes that evidence was identified as cocaine and in the amount of point one gram there's absolutely there's one instance during his testimony in which he's asked for his expert opinion and that's this in your expert opinion your expert opinion for which we are here the items in that bag that is cocaine is that correct he says yes that's correct that's at eight twelve the record is then cross examined about purity yeah not wait to hear it at present jenkins in the be clear there was a certain in this case there was a court of appeals decision and then a search of the mississippi supreme court and then a five four split by the mississippi supreme court we then came in and actually see a smidgen of uncertainty under established law of the asli the involvement grim grim says that involvement is what matters i think that that's inconsistent with everything that the supreme court has said since crawford but that's what graham's us and they say that what's clearly established is involvement beyond what was deemed insufficient in bulk and in both coming in what was deemed insufficient was the testifying witness was available for cross examination regarding the operation and the the the issue there and again you know i know that this this court as a as a panel as is bound by graham but certainly obviously if the court were to determine that there was more involvement than book i mean here we dispute out there about whether or not autopsies are testimonial reports or not in your brief yes yeah i think it's probably in the earlier pleadings in the district court but i can find it and and submit it through twenty if you'd like me to you may do thank you thank you this case is submitted