20-1796

Garlick v. Lee

In the

United States Court of Appeals

FOR THE SECOND CIRCUIT

AUGUST TERM 2020

No. 20-1796

JAMES GARLICK,

Petitioner-Appellee,

v.

SUPERINTENDENT WILLIAM LEE, EASTERN CORRECTIONAL FACILITY,

Respondent-Appellant.

On Appeal from the United States District Court 

for the Southern District of New York

ARGUED: MARCH 12, 2021

DECIDED: JUNE 11, 2021

Before: WESLEY, SULLIVAN, and MENASHI, Circuit Judges.

In 2013, Petitioner-Appellee James Garlick was convicted by a 

jury in state court of first-degree manslaughter. At trial, an autopsy 

report—prepared at the request of law enforcement during an active 

homicide investigation—was admitted into evidence over Garlick’s 

objection through a witness who had not participated in the autopsy 

or in the preparation of the autopsy report. On appeal, the First 
2

Department affirmed the conviction, concluding that Garlick’s Sixth 

Amendment right of confrontation was not violated because the 

autopsy report did not link the commission of the crime to Garlick 

and therefore was not testimonial. People v. Garlick, 144 A.D.3d 605, 

606 (N.Y. App. Div. 1st Dep’t 2016).

Garlick subsequently filed a petition for a writ of habeas corpus

in federal court pursuant to the Antiterrorism and Effective Death 

Penalty Act, 28 U.S.C. § 2254. The district court granted his petition 

because the First Department’s adjudication of Garlick’s appeal was 

an “unreasonable application of clearly established federal law

regarding the testimonial nature of certified out-of-court statements.” 

Garlick v. Lee, 464 F. Supp. 3d 611, 621 (S.D.N.Y. 2020); see 28 U.S.C. 

§ 2254(d)(1). We agree and AFFIRM the judgment of the district 

court.

MATTHEW BOVA (Robert S. Dean, on the brief), Center for 

Appellate Litigation, New York, New York, for PetitionerAppellee.

JOSHUA P. WEISS, Assistant District Attorney (Nancy D. 

Killian, Peter D. Coddington, Robert C. McIver, Assistant 

District Attorneys, on the brief), for Darcel D. Clark, Bronx 

County District Attorney, Bronx, New York, for

Respondent-Appellant.
3

MENASHI, Circuit Judge:

Respondent-Appellant William Lee, Superintendent of the 

Eastern Correctional Facility, appeals from the final judgment of the 

district court granting Petitioner-Appellee James Garlick’s petition for 

a writ of habeas corpus pursuant to the Antiterrorism and Effective 

Death Penalty Act, 28 U.S.C. § 2254. In 2013, Garlick was convicted by 

a jury in state court of first-degree manslaughter. At trial, an autopsy 

report—prepared at the request of law enforcement during an active 

homicide investigation—was admitted into evidence over Garlick’s 

objection through a witness who had not participated in the autopsy 

or in the preparation of the autopsy report. Garlick appealed his 

conviction, arguing that the introduction of the autopsy report

violated his Sixth Amendment right of confrontation. The state 

appellate court affirmed the conviction on the ground that Garlick’s 

right of confrontation was not violated because the autopsy report did 

not link the commission of the crime to Garlick and therefore was not 

testimonial. People v. Garlick, 144 A.D.3d 605, 606 (N.Y. App. Div. 1st 

Dep’t 2016). We conclude that this decision involved “an 

unreasonable application” of “clearly established Federal law, as 

determined by the Supreme Court of the United States.” 28 U.S.C. 

§ 2254(d)(1). Accordingly, we AFFIRM the judgment of the district

court granting a writ of habeas corpus to Garlick.

BACKGROUND

I

On November 1, 2011, police responded to a report of an assault 

at an apartment building in the Bronx. The responding police officer 

found the victim, Gabriel Sherwood, bleeding on the floor in the 

building lobby. The victim was pronounced dead at the hospital.
4

That same evening, Detective Thomas DeGrazia, the lead 

homicide detective assigned to the case, initiated an investigation and 

sought video footage from the building’s surveillance video. The 

video footage showed a man struggling with the victim in the lobby 

and a woman repeatedly striking the victim on the head. Both 

attackers—and another woman present during the attack—fled the 

scene. 

Later that evening, the police identified the female attacker as 

Johanna Rivera and arrested her as a suspect in the victim’s homicide. 

In a post-arrest interrogation, Rivera identified Garlick as the male 

attacker in the video. At 4:45 a.m. on November 2, 2011, Detective 

DeGrazia issued a department-wide notification to arrest Garlick for 

his involvement in the homicide.

On November 1, 2011, the same evening as the murder, 

Detective DeGrazia also notified staff at the New York City Office of 

the Chief Medical Examiner (“OCME”) of the need for an autopsy of 

the victim’s body and arranged for the body’s transport. He informed 

the OCME staff of details of the incident, including that the body 

appeared to have multiple stab wounds. With this information, the 

OCME prepared a “Notice of Death” form, dated November 1, 2011, 

that stated: “Circumstances of death: App. manner: Homicide.”

App’x 290. The OCME also prepared a “Supplemental Case 

Information” sheet, which documented the conversation with 

Detective DeGrazia and noted that the victim was found with 

multiple stab wounds in the lobby of a Bronx apartment building.

App’x 291.

The following day, on November 2, 2011, Dr. Katherine 

Maloney of the OCME performed the autopsy with Dr. James Gill and 
5

two Bronx homicide detectives present. Dr. Maloney then prepared 

an autopsy report concluding that the victim’s cause of death was a 

“stab wound of torso with perforation of heart” and the manner of 

death was “homicide.” App’x 275. The autopsy report is titled 

“Report of Autopsy” and bears several official seals including that of 

the OCME. App’x 275. The first page of the autopsy report includes 

the following certification:

I hereby certify that I, Katherine Maloney, M.D., City 

Medical Examiner — I, have performed an autopsy on 

the body of Gabriel Sherwood, on the 2nd of November, 

2011, commencing at 9:00AM in the Bronx Mortuary of 

the Office of Chief Medical Examiner of the City of New 

York.

App’x 276. Fiber recovered during the autopsy was “submitted to 

evidence per the usual protocol.” App’x 280.

A “Case Worksheet” was prepared at the same time as the 

report by Dr. Maloney and bears her signature. According to the Case 

Worksheet, the immediate cause of death was a “[s]tab wound of 

torso with perforation of heart.” App’x 285. After receiving 

Dr. Maloney’s findings, the police decided not to pursue a murder

charge against Johanna Rivera and instead sought to charge Garlick 

with murder because, as Detective DeGrazia testified, “the medical 

examiner made it clear that it was the stab wounds that caused the 

death.” Trial Tr. at 277, Garlick v. Lee, 464 F. Supp. 3d 611 (S.D.N.Y. 

2020) (No. 18-CV-11038), ECF No. 13-7.

Following his arrest on November 11, 2011, Garlick told the 

police that the victim had been sexually harassing his girlfriend, Lisa 

Rivera; that he and the victim began fighting outside of the apartment 

building and then moved into the lobby; that the victim brandished 
6

what he thought was a weapon; that the two struggled for it; and that 

he did not have a knife. He asserted that he was only trying to defend 

himself and his girlfriend.

On December 29, 2011, after receiving the forensic toxicology

and microscopic analysis reports, Dr. Maloney finalized the autopsy 

report. Dr. Maloney certified that she performed the autopsy, and she 

signed the autopsy report.1 The OCME certified the autopsy report

as a business record under New York’s statutory business-record rule 

and affixed the official OCME seal. As mandated by state and local 

law, the OCME then delivered the signed autopsy report to the Bronx 

District Attorney’s Office. See N.Y. County Law § 677(4); see also N.Y. 

City Charter § 557(g); N.Y. C.P.L.R. § 4520.

II

On November 28, 2011, Garlick was indicted for murder, firstdegree manslaughter (intent to cause serious physical injury), and 

assault with a dangerous weapon (first and second degree) in Bronx 

County Court. See N.Y. Penal Law §§ 125.25(1), 125.20(1), 120.10(1),

120.05(2).

At trial, the State introduced the autopsy report through the 

testimony of Dr. Susan Ely of the OCME. Garlick objected, arguing 

that introducing the autopsy report through Dr. Ely’s testimony 

would violate his right of confrontation under the Sixth Amendment 

because Dr. Ely did not prepare the autopsy report and was not 

1 The report notes that the draft report was prepared on November 2, 2011, 

and the final report was prepared on December 29, 2011. Those dates are 

separately signed and dated. App’x 280.
7

involved in the victim’s autopsy.2 Relying on People v. Freycinet, 11 

N.Y.3d 38 (2008), and People v. Hall, 84 A.D.3d 79 (N.Y. App. Div. 1st 

Dep’t 2011), the trial court held that it was “proper to allow a witness 

to testify to the contents of an autopsy” even if the witness had not 

participated in the autopsy or the preparation of the autopsy report.

Trial Tr. at 22, Garlick, 464 F. Supp. 3d 611, ECF No. 13. The trial court 

admitted the autopsy report as a business record, based on Dr. Ely’s 

testimony laying a foundation, and Dr. Ely then testified about the 

contents of the report as an expert in the fields of clinical, anatomic, 

and forensic pathology. 

The State relied heavily on the autopsy report throughout the 

trial. In its opening statement, the State referenced the report to 

describe the victim’s wounds and promised that Dr. Ely would 

provide the details. The State used the autopsy report to eliminate 

Johanna Rivera as a potential cause of the victim’s death. Because the 

video of the incident presented at trial did not clearly show that 

Garlick had a knife and because Garlick denied ever possessing a 

knife, the State connected Garlick to the victim’s knife wounds by 

relying on the conclusions in the autopsy report. The State also 

offered the autopsy report as evidence of Garlick’s intent to cause 

serious physical injury. Finally, the State relied on the autopsy report

in its closing argument, recounting Dr. Ely’s testimony about the 

victim’s wounds and describing the report’s conclusions as the “final 

diagnosis” of the victim’s “cause of death.” Trial Tr. at 449, 452-53, 

Garlick, 464 F. Supp. 3d 611, ECF No. 13-12.

2 The State indicated that Dr. Maloney, who prepared the report, and

Dr. Gill, who was present at the autopsy, no longer worked at the OCME 

but did not otherwise explain why they were unavailable to testify. 
8

The jury convicted Garlick of first-degree manslaughter and 

acquitted him of the murder charge. He was sentenced to twenty 

years’ imprisonment and five years of supervised release. He is 

currently serving that sentence.

III

Garlick appealed his conviction to the Appellate Division, First 

Department, arguing that the autopsy report was testimonial and 

therefore should not have been admitted through a surrogate witness. 

The First Department disagreed and held that Garlick’s right of 

confrontation “was not violated when an autopsy report prepared by 

a former medical examiner, who did not testify, was introduced 

through the testimony of another medical examiner” because the 

report “did not link the commission of the crime to a particular 

person” and therefore “was not testimonial.” People v. Garlick, 144 

A.D.3d 605, 606 (2016) (alteration omitted) (quoting People v. Acevedo, 

112 A.D.3d 454, 455 (N.Y. App. Div. 1st Dep’t 2013), and People v. John, 

27 N.Y.3d 294, 315 (2016)). The First Department also rejected 

Garlick’s argument that People v. Freycinet, 11 N.Y.3d 38 (2008), which 

held that an autopsy report was not testimonial, had been 

undermined by subsequent decisions of the Supreme Court of the 

United States. Garlick, 144 A.D.3d at 606 (citing Acevedo, 112 A.D.3d at 

455). Garlick unsuccessfully applied for leave to appeal to the New 

York Court of Appeals, People v. Garlick, 29 N.Y.3d 948 (2017), and 

unsuccessfully petitioned the Supreme Court for a writ of certiorari, 

Garlick v. New York, 138 S. Ct. 502 (2017).

IV

On November 27, 2018, Garlick sought a writ of habeas corpus

pursuant to the Antiterrorism and Effective Death Penalty Act
9

(“AEDPA”), 28 U.S.C. § 2254(d)(1). The magistrate judge concluded

that People v. Freycinet and its progeny did not reflect current Supreme 

Court precedent applying the Sixth Amendment’s Confrontation 

Clause but nevertheless denied Garlick’s petition for not meeting the 

exacting standard for habeas relief under the AEDPA. Garlick v. 

Miller, No. 18-CV-11038, 2020 WL 2857464, at *5-29 (S.D.N.Y. Apr. 27, 

2020), report and recommendation adopted in part, rejected in part sub nom. 

Garlick, 464 F. Supp. 3d 611.

The district court rejected the recommendation. Adopting 

substantially all of the magistrate judge’s analysis of the issues and 

conclusions of law, the district court granted habeas relief on the 

ground that the First Department’s ruling unreasonably applied

clearly established federal law. Garlick, 464 F. Supp. 3d at 618-21.

Respondent-Appellant Lee timely appealed.

STANDARD OF REVIEW

We review de novo a district court’s decision to grant a petition 

for a writ of habeas corpus. Harris v. Kuhlmann, 346 F.3d 330, 342 (2d 

Cir. 2003).

Because of the deference afforded to state courts under the 

AEDPA, we consider a state court’s error to be harmless “unless it 

had substantial and injurious effect or influence in determining the 

jury’s verdict.” Alvarez v. Ercole, 763 F.3d 223, 233 (2d Cir. 2014).

Whether a Confrontation Clause violation amounts to harmless error

depends on “the importance of the witness’ testimony in the 

prosecution’s case, whether the testimony was cumulative, the 

presence or absence of evidence corroborating or contradicting the 

testimony of the witness on material points, the extent of crossexamination otherwise permitted, and ... the overall strength of the 
10

prosecution’s case.” Cotto v. Herbert, 331 F.3d 217, 254 (2d Cir. 2003) 

(quoting Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986)). 

DISCUSSION

On appeal, Garlick argues that the state court’s decision 

approving the admission of the autopsy report through a surrogate 

witness at trial was an unreasonable application of clearly established 

federal law under the AEDPA. See 28 U.S.C. § 2254(d)(1). We agree 

and affirm the district court’s grant of habeas relief.

I

A federal court may grant habeas relief if the state court’s 

adjudication of a claim “resulted in a decision that was contrary to, or 

involved an unreasonable application of, clearly established Federal 

law, as determined by the Supreme Court of the United States.” 28 

U.S.C. § 2254(d)(1). When judging whether a state court decision was 

contrary to, or an unreasonable application of, Supreme Court 

precedent, we measure the last state-court adjudication of the 

petitioner’s claim on the merits “against [the Supreme] Court’s 

precedents as of the time the state court render[ed] its decision.”

Cullen v. Pinholster, 563 U.S. 170, 182 (2011) (internal quotation marks 

omitted); Greene v. Fisher, 565 U.S. 34, 40 (2011).

“A principle is clearly established Federal law for § 2254(d)(1) 

purposes only when it is embodied in a Supreme Court holding, 

framed at the appropriate level of generality.” Washington v. Griffin, 

876 F.3d 395, 403 (2d Cir. 2017) (internal quotation marks, citation, 

and alteration omitted). “A state court decision is contrary to such 

clearly established law when the state court either has arrived at a 

conclusion that is the opposite of the conclusion reached by the 
11

Supreme Court on a question of law or has decided a case differently 

than the Supreme Court has on a set of materially indistinguishable 

facts.” Id. (internal quotation marks omitted). An unreasonable 

application of clearly established federal law occurs when “the state 

court correctly identifies the governing legal principle but 

unreasonably applies it to the facts of the particular case, so that the 

state court’s ruling on the claim was so lacking in justification that 

there was an error well understood and comprehended in existing 

law beyond any possibility for fairminded disagreement.” Id.

(internal quotation marks, alterations, and citation omitted). The 

question therefore “is not whether a federal court believes the state 

court’s determination was incorrect but whether that determination 

was unreasonable—a substantially higher threshold.” Schriro v. 

Landrigan, 550 U.S. 465, 473 (2007).

II

To decide whether the First Department’s adjudication

involved an unreasonable application of clearly established federal

law, we begin with the Supreme Court’s Confrontation Clause 

precedents.

A

In Crawford v. Washington, the Supreme Court considered 

whether the defendant’s wife’s tape-recorded statement to police 

could be entered into evidence even though the wife was exempt from 

cross-examination by the marital privilege. 541 U.S. 36, 40 (2004). The 

Court held that regardless of its “indicia of reliability,” a testimonial 

statement such as the tape recording is inadmissible without an 

opportunity for cross-examination of the declarant. Id. at 68-69. The 
12

Court noted “[v]arious formulations” for defining the “core class of 

‘testimonial’ statements”: 

• “ex parte in-court testimony or its functional equivalent—

that is, material such as affidavits, custodial examinations, 

prior testimony that the defendant was unable to crossexamine, or similar pretrial statements that declarants 

would reasonably expect to be used prosecutorially,”

• “extrajudicial statements contained in formalized 

testimonial materials, such as affidavits, depositions, prior 

testimony, or confessions,” and

• “statements that were made under circumstances which 

would lead an objective witness reasonably to believe that 

the statement would be available for use at a later trial.”

Id. at 51-52 (alterations and citations omitted). The Court explained 

that “[s]tatements taken by police officers in the course of 

interrogations are also testimonial under even a narrow standard,” id.

at 52, and therefore the Confrontation Clause would not allow the 

admission of the tape recording absent “unavailability [of the 

declarant] and a prior opportunity for cross-examination,” id. at 68. 

The reliability of a testimonial statement may be determined only “by 

testing in the crucible of cross-examination.” Id. at 61.

B

The Supreme Court applied this holding to forensic reports in 

Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), in which the Court 

concluded that certificates attesting to the laboratory analysis of a 

suspected controlled substance fell “within the core class of 
13

testimonial statements” that required an opportunity for crossexamination. Id. at 310.

In Melendez-Diaz, the defendant objected to the trial court’s 

admission into evidence of three certificates that confirmed that the 

substance seized from his person was cocaine. Id. at 308-09. The 

defendant argued that because he had no opportunity to confront the 

analysts who performed the forensic tests, the admission violated his 

Sixth Amendment right of confrontation. Id. at 309. The Supreme 

Court agreed. Id. at 329. 

The Court explained that the certificates were “quite plainly 

affidavits”; the certificates were “sworn to by the declarant before an 

officer authorized to administer oaths” and thus “incontrovertibly”

amounted to a “‘solemn declaration or affirmation made for the 

purpose of establishing or proving some fact.’” Id. at 310 (quoting 

Crawford, 541 U.S. at 51). The Court further noted that the certificates 

were “functionally identical to live, in-court testimony, doing 

precisely what a witness does on direct examination.” Id. at 310-11 

(internal quotation marks omitted). And the certificates were “made 

under circumstances which would lead an objective witness 

reasonably to believe that the statement would be available for use at 

a later trial,” especially because “under Massachusetts law the sole 

purpose of the affidavits was to provide prima facie evidence of the 

composition, quality, and the net weight of the analyzed substance.”

Id. at 311 (internal quotation marks and citation omitted). For these 

reasons, “[a]bsent a showing that the analysts were unavailable to 

testify at trial and that [Melendez-Diaz] had a prior opportunity to 

cross-examine them,” the certificates were inadmissible without an 

opportunity to cross-examine the analysts who prepared those 

documents. Id.
14

The Court addressed several arguments advanced by the State

in favor of admissibility. First, the Court rejected the argument that

the analysts who prepared the certificates were not subject to 

confrontation “because they are not ‘accusatory’ witnesses, in that 

they do not directly accuse petitioner of wrongdoing” and their 

“testimony is inculpatory only when taken together with other 

evidence linking petitioner to the contraband.” Id. at 313. The Court 

explained that “the analysts were witnesses” and “provided 

testimony against petitioner, proving one fact necessary for his 

conviction—that the substance he possessed was cocaine.” Id. There 

is no category of witnesses who are “helpful to the prosecution” but 

“somehow immune from confrontation.” Id. at 314.

Second, the Court rejected the argument that scientific reports 

should be admissible based on indicia of reliability. Id. at 318. The 

Court explained that even statements which result from purportedly 

“neutral scientific testing” must be subject to cross-examination

because such tests are not necessarily “as neutral or as reliable” as 

advertised and are not “uniquely immune from the risk of 

manipulation.” Id. Because confrontation “is designed to weed out 

not only the fraudulent analyst, but the incompetent one as well ... an 

analyst’s lack of proper training or deficiency in judgment may be 

disclosed in cross-examination” and may reveal the “[s]erious 

deficiencies [that] have been found in the forensic evidence used in 

criminal trials.” Id. at 319-20. Even scientific testing and expert 

analysis rely on subjective judgments about which tests to perform 

and how to interpret the results. See id. at 320. The exercise of such 

judgment “presents a risk of error that might be explored on crossexamination.” Id. The Court said this is “true of many of the other 

types of forensic evidence commonly used in criminal prosecutions” 
15

because there is “wide variability across forensic science disciplines 

with regard to techniques, methodologies, reliability, types and 

numbers of potential errors, research, general acceptability, and 

published material.” Id. at 320-21.

Third, the Court rejected the argument that the Confrontation 

Clause allows an exception for public or business records. Id. at 321. 

While a document kept in the regular course of business ordinarily 

may be admitted at trial despite its hearsay status, such a document 

may not be admitted without confrontation if “the regularly 

conducted business activity is the production of evidence for use at 

trial.” Id. Similarly, public records are generally admissible unless 

such records reflect “matters observed by police officers and other 

law-enforcement personnel” in criminal cases. Id. at 322 (quoting Fed.

R. of Evid. 803(8)). Accordingly, testimonial statements cannot be 

admitted into evidence as business or public records without

confrontation. Id. at 324.3

C

In Bullcoming v. New Mexico, 564 U.S. 647 (2011), the Court 

reaffirmed that forensic reports—even those prepared by analysts

who purportedly act as “mere scrivener[s]” of machine-generated 

results—are testimonial statements that are inadmissible without

confrontation. Id. at 659. The defendant was arrested on charges of 

driving while intoxicated, and the principal evidence against him was 

a laboratory report certifying that his blood-alcohol concentration 

was above the legal limit. Id. at 651. The trial court admitted the report 

3 At Garlick’s trial, the court admitted the autopsy report as a business 

record, but Lee does not argue in this appeal that the report was admissible 

solely on that basis.
16

through a surrogate witness on the ground that the analyst who 

prepared the report “‘was a mere scrivener,’ who ‘simply transcribed 

the results generated by the gas chromatograph machine.’” Id. at 657.

The Supreme Court disagreed, holding that “[i]n all material 

respects, the laboratory report in this case resembles those in 

Melendez-Diaz.” Id. at 664. “[A]s in Melendez-Diaz, a law-enforcement 

officer provided seized evidence to a state laboratory required by law 

to assist in police investigations,” and in both cases an analyst “tested 

the evidence and prepared a certificate concerning the result of his 

analysis” that was “‘formalized’ in a signed document” and thus was 

an affirmation “made for the purpose of establishing or proving some 

fact in a criminal proceeding.” Id. at 664-65 (internal quotation marks 

omitted). The Court found it “[n]oteworthy” that the laboratory 

report contained a legend to aid law enforcement in the admission of 

certified blood-alcohol analyses in municipal and magistrate courts,

making clear that the report would be available for use at a later trial. 

Id. at 665; see also Melendez-Diaz, 557 U.S. at 311; Crawford, 541 U.S. at 

50-52. 

Again, the Court addressed several counter-arguments for 

admitting the report without confrontation. First, the Court rejected 

the argument that the laboratory report was merely the number 

resulting from the blood alcohol test “scrivened” by the analyst; 

rather, the analyst who signed the report certified that he had 

received the sample intact, had checked that the sample corresponded 

to the correct report number, and had performed a particular test 

following a specified protocol. Bullcoming, 546 U.S. at 660. The 

testimony of a surrogate witness could not convey what the analyst 

who conducted the test “knew or observed about the events his 

certification concerned, i.e., the particular test and testing process he 
17

employed,” and could not “expose any lapses or lies on the certifying 

analyst’s part.” Id. at 661-62. Moreover, the report allowed the analyst 

to identify any “circumstance or condition” that “affected the 

integrity of the sample or the validity of the analysis.” Id. at 660 

(alterations omitted). Representations relating to the presence or 

absence of such circumstances relate “to past events and human 

actions not revealed in raw, machine-produced data” and are “meet 

for cross-examination.” Id.

Second, the Court rejected the argument that forensic reports 

that are purely observational and that do not accuse the defendant of 

wrongdoing are nontestimonial and therefore not subject to 

confrontation. The Court explained that Melendez-Diaz clarified that a 

document created “for an evidentiary purpose,” and “made in aid of 

a police investigation,” is testimonial. Id. at 664 (internal quotation 

marks omitted). Thus, even “observations of an independent scientist 

made according to a non-adversarial public duty” are testimonial if 

made in aid of a police investigation or if it were reasonably known 

that the observations would be available for use at a later trial. Id.

(internal quotation marks and alteration omitted).

Third, the Court held that the absence of notarization does not 

change the report’s testimonial status. Otherwise, the right to 

confrontation would become “easily erasable” because distinguishing 

between reports that are notarized and those that are not would 

“render inadmissible only sworn ex parte affidavits, while leaving 

admission of formal, but unsworn statements, ‘perfectly OK.’” Id.

(quoting Crawford, 541 U.S. at 52 n.3).
18

D

In a later decision in which no opinion had the support of a 

majority of the Court, the Supreme Court considered whether “[o]utof-court statements that are related by [a testifying] expert solely for 

the purpose of explaining the assumptions on which [the expert’s] 

opinion rests” are subject to the restrictions of the Confrontation 

Clause. Williams v. Illinois, 567 U.S. 50, 58 (2012) (plurality opinion). In 

Williams, a forensic expert testified at a bench trial that a DNA 

profile—prepared by an outside laboratory with evidence taken from

the victim’s body—matched another DNA profile produced by the 

state police from the defendant’s blood. Id. at 56. A plurality of the 

Court concluded that the DNA profile prepared by the outside 

laboratory was not offered for its truth and therefore was not a 

testimonial statement subject to the Confrontation Clause. Id. at 57-58. 

The plurality reasoned that in a bench trial the judge sits as the trier 

of fact and will presumably “understand the limited reason for the 

disclosure of the underlying inadmissible information and will not 

rely on that information for any improper purpose.” Id. at 69. The 

Court affirmed the judgment of the trial court admitting the 

testimony.

The plurality suggested that even if the underlying profile had 

been admitted for its truth, evidence that does not serve the primary 

purpose of accusing a targeted individual of wrongdoing is not 

testimonial. Id. at 84-86. But five justices disagreed, noting that 

Melendez-Diaz held that the Sixth Amendment contemplates only 

“two classes of witnesses—those against the defendant and those in 

his favor,” id. at 116 (Thomas, J., concurring in the judgment) (quoting 

Melendez-Diaz, 557 U.S. at 313), and that prior cases had not held that 

a testimonial statement “must be meant to accuse a previously 
19

identified individual; indeed, in Melendez-Diaz, we rejected a related 

argument that laboratory analysts are not subject to confrontation 

because they are not ‘accusatory’ witnesses,” id. at 135 (Kagan, J., 

dissenting) (internal quotation marks omitted).

The plurality also suggested that the match provided “strong 

circumstantial evidence” that the outside laboratory’s analysis was 

reliable and not the product of “shoddy or dishonest work.” Id. at 76-

77 (plurality opinion). But five justices objected that such evidence of 

reliability did not render the outside laboratory’s profile admissible. 

See id. at 109 (Thomas, J., concurring in the judgment) (“The existence 

of other evidence corroborating the basis testimony ... does not 

change the purpose of such testimony and thereby place it outside of 

the reach of the Confrontation Clause.”); id. at 138 (Kagan, J., 

dissenting) (“It is not up to us to decide, ex ante, what evidence is 

trustworthy and what is not.”). 

Justice Thomas, concurring in the judgment, disagreed with the 

plurality’s conclusion that the report was admissible because it was 

not offered for its truth. Id. at 106. Rather, he reasoned that the DNA 

profile was “not a statement by a witness within the meaning of the 

Confrontation Clause” because it lacked “the solemnity of an affidavit 

or deposition.” Id. at 111 (internal quotation marks and alteration 

omitted). Justice Thomas concluded that the profile could be admitted 

because it was “neither a sworn nor a certified declaration of fact” and 

it did not “attest that its statements accurately reflect the DNA testing 

processes used or the results obtained.” Id. No other justices 

embraced this reasoning.

Ordinarily, “[w]hen a fragmented Court decides a case and no 

single rationale explaining the result enjoys the assent of five Justices, 
20

the holding of the Court may be viewed as that position taken by 

those Members who concurred in the judgments on the narrowest 

grounds.” Marks v. United States, 430 U.S. 188, 193 (1977) (internal 

quotation marks omitted). That rule produces no clear answer here

because neither the plurality’s nor Justice Thomas’s rationale is 

necessarily narrower than the other. We have previously concluded 

that “Williams does not ... yield a single, useful holding relevant to 

the case before us.” United States v. James, 712 F.3d 79, 95 (2d Cir. 2013). 

That is the case here, and we therefore rely on Supreme Court 

precedent predating Williams. Id.4

III

The First Department’s decision, which was the last state-court 

adjudication of Garlick’s claim on the merits, was an unreasonable 

application of clearly established federal law. 

First, the state court adjudication was an incorrect application 

of clearly established Supreme Court precedent, under which the 

autopsy report is testimonial and admissible only with 

confrontation.5 The autopsy report was “[a] solemn declaration or 

4 As we explain below, however, applying either the rationale of the 

Williams plurality or that of the Thomas concurrence would not alter our 

conclusion in this case. See infra note 6.

5 Contrary to Lee’s argument that Garlick’s petition must be denied 

because the Supreme Court has never specifically held that an autopsy 

report is testimonial for purposes of the Confrontation Clause, Garlick need 

not identify “an identical factual pattern before a legal rule must be 

applied.” White v. Woodall, 572 U.S. 415, 427 (2014). While the Supreme 

Court has not addressed autopsy reports in particular, the Court has plainly 

rejected the reasoning on which the First Department relied to hold the 

autopsy report admissible in Garlick’s case.
21

affirmation made for the purposes of establishing or proving some 

fact.” Crawford, 541 U.S. at 52; see also Bullcoming, 564 U.S. at 652. As 

in Melendez-Diaz and Bullcoming, law enforcement provided seized 

evidence—the victim’s body—to a state laboratory required by law to 

assist in police investigations.

The autopsy was performed in aid of an active police 

investigation. Preparations for the autopsy commenced at Detective

DeGrazia’s request and the preliminary documents—including the 

“Notice of Death” and “Supplemental Case Information” forms—

were created in anticipation of the autopsy and included details of the 

OCME staff’s conversation with Detective DeGrazia. The autopsy 

was performed in the presence of another medical examiner and two 

detectives. After completing the autopsy, Dr. Maloney promptly 

notified law enforcement of her findings, and the police consequently 

dropped charges against Rivera and pursued a murder charge against 

Garlick. The circumstances under which the autopsy report was 

created would lead any objective witness to “believe that the [report]

would be available for use at a later trial.” Crawford, 541 U.S. at 52; see

also Melendez-Diaz, 557 U.S. at 310; Bullcoming, 564 U.S. at 664. Later, 

the final, signed autopsy report was delivered to the Bronx District 

Attorney’s Office; again, any objective witness—and Dr. Maloney in 

particular—would have expected that the statements contained in the 

report would be used in a later prosecution. See Crawford, 541 U.S. at 

51-52; Melendez-Diaz, 557 U.S. at 310.

Just as in Melendez-Diaz and Bullcoming, the medical examiner 

“prepared a certificate concerning the result” of the examination that 

was “‘formalized’ in a signed document.” Bullcoming, 564 U.S. at 664-

65. Further indications of the report’s solemnity include its formal 

title, “Report of Autopsy,” the OCME seal, the certification that 
22

Dr. Maloney performed the autopsy at the indicated date and time, 

and the initialed and dated “draft” and “final” dates indicating when 

the draft report was prepared and when it was finalized.

As intended, the autopsy report was used extensively at trial 

for the purpose of proving key facts—including, notably, that it was 

Garlick rather than Rivera who caused the victim’s death. See

Crawford, 541 U.S. at 40-41; Bullcoming, 564 U.S. at 655-66. The State 

used the autopsy report in its opening and closing statements to 

describe the victim’s wounds. The State also used the autopsy report’s 

conclusions on the manner and cause of death to eliminate Rivera as 

a potential cause of the victim’s death and to prove Garlick’s intent to 

cause serious physical injury. The conclusions contained in the 

autopsy report with respect to the nature of the wounds and the cause 

and manner of death were out-of-court substitutes for trial testimony, 

see Bullcoming, 564 U.S. at 670 (Sotomayor, J., concurring in part), that 

presented the very “risk of error that might be explored on crossexamination,” Melendez-Diaz, 557 U.S. at 320. Under the applicable 

Supreme Court precedents, our conclusion is clear: the autopsy report

is testimonial and was erroneously admitted without an opportunity 

for cross-examination.6

6 Our conclusion would remain the same under either the plurality opinion 

or the Thomas concurrence in Williams. The autopsy report was not “related 

by” an expert during a bench trial “solely for the purpose of explaining the 

assumptions” behind the expert’s testimony. Williams, 567 U.S. at 57-58 

(plurality opinion). It was offered to prove the truth of the matter asserted 

to a jury, which would be impermissible even under the plurality’s view. 

See id. at 72 (“Absent an evaluation of the risk of juror confusion and careful 

jury instructions, the testimony could not have gone to the jury.”). And the 

autopsy report did not lack “indicia of solemnity.” Id. at 111 (Thomas, J., 
23

Second, the state court adjudication not only incorrectly but 

also unreasonably applied clearly established law. Under the 

AEDPA, our inquiry does not end with the conclusion that the 

admission of the report was erroneous; the relevant question is not 

whether the state court’s determination was incorrect but “whether 

that determination was unreasonable,” which is “a substantially 

higher threshold.” Schriro, 550 U.S. at 473. We hold that it was.

The First Department’s decision affirming Garlick’s conviction

relied on People v. Freycinet, 11 N.Y.3d 38 (2008), and its progeny, 

People v. John, 27 N.Y.3d 294 (2016), and People v. Acevedo, 112 A.D.3d 

454 (N.Y. App. Div. 1st Dep’t 2013). In Freycinet—decided after 

Crawford but before Melendez-Diaz and Bullcoming—and more 

recently in John, the New York Court of Appeals held that statements 

which do not “directly link” the defendant to the crime are not 

testimonial. Freycinet, 11 N.Y.3d at 42; see id. (“The report is concerned 

only with what happened to the victim, not with who killed her.”); see 

also John, 27 N.Y.3d at 315 (“[G]iven the primary purpose of a medical 

examiner in conducting autopsies, such redacted reports—‘a 

contemporaneous, objective account of observable facts that do not 

link the commission of the crime to a particular person’—are not 

testimonial.”) (alteration omitted). 7 Relying on Freycinet, the First 

concurring in the judgment). It was certified, formalized, and bore an 

official seal.

7 We note that John purported to find support for this proposition in this 

court’s decision in James. See John, 27 N.Y.3d at 315 (citing James, 712 F.3d at 

99). Yet James did not hold that autopsy reports do not “link the commission 

of the crime to a particular person.” John, 27 N.Y.3d at 315. In fact, James 

cautioned that Melendez-Diaz and Bullcoming “cast doubt on any categorical 

designation of certain forensic reports as admissible in all cases.” James, 712 
24

Department held in Acevedo that a “[d]efendant’s right of 

confrontation [is] not violated when an autopsy report prepared by a 

former medical examiner, who did not testify, [is] introduced through 

the testimony of another medical examiner.” 112 A.D.3d at 455.

In this case, the First Department drew on these precedents to 

conclude that Garlick’s right of confrontation was not violated 

because “the report, which ‘[did] not link the commission of the crime 

to a particular person,’ was not testimonial.” Garlick, 144 A.D.3d at 

606 (quoting John, 27 N.Y.3d at 315).

This conclusion contradicts clearly established Supreme Court 

precedent. The Supreme Court has squarely rejected the argument 

that forensic reports that “do not directly accuse [the defendant] of 

wrongdoing,” Melendez-Diaz, 557 U.S. at 313-14, or that are only 

“observations of an ‘independent scientist’ made ‘according to a nonadversarial public duty,’” Bullcoming, 564 U.S. at 665 (alteration 

omitted), are not testimonial. There is no category of witnesses who 

are “helpful to the prosecution” but “somehow immune from 

confrontation.” Melendez-Diaz, 557 U.S. at 314. The First Department’s 

decision unreasonably relied on the existence of such a category. Even 

if a forensic report contains only “a contemporaneous, objective 

account of observable facts” that does not accuse a defendant, John, 27 

N.Y.3d at 315, it is testimonial and the Confrontation Clause requires 

that the defendant be afforded the opportunity to cross-examine the 

declarant. Melendez-Diaz, 557 U.S. at 318-21; Bullcoming, 564 U.S. at 

661-62; Crawford, 541 U.S. at 68-69. “The Constitution prescribes a 

procedure for determining the reliability of testimony in criminal 

F.3d at 88. Nor did James hold that such linkage determines whether a 

statement is testimonial.
25

trials”—cross-examination—“and we, no less than the state courts, 

lack authority to replace it with one of our own devising.” Crawford,

541 U.S. at 67.

IV

The unreasonably erroneous admission of the autopsy report at 

Garlick’s trial was not harmless. At trial, the State introduced the 

autopsy report as its first exhibit and heavily relied on it in its opening 

and closing statements. The State used the autopsy report to eliminate 

Rivera as a potential cause of the victim’s death. No other medical 

evidence was offered at trial to establish the cause and manner of the 

victim’s death. The State also offered the autopsy report as evidence 

of Garlick’s intent to cause serious physical injury. Moreover, no 

witness testified that Garlick had or used a knife during the attack,

and Garlick denied that he had a knife. The autopsy report was the 

strongest evidence in the State’s case and was not cumulative of other 

inculpatory evidence connecting Garlick to the victim’s death.

Dr. Ely, who did not conduct or even participate in the autopsy,

could not testify with respect to the procedures and methods that 

were followed in reaching its conclusions or to the qualifications of 

the examiner. Even rigorous cross-examination of Dr. Ely could not

have adequately revealed any defects in the autopsy’s methods, 

conclusions, and reliability.

CONCLUSION

In sum, we conclude that the admission of the autopsy report

at Garlick’s trial through a surrogate witness was an unreasonable 

application of clearly established Supreme Court precedent. 

Accordingly, we AFFIRM the judgment of the district court.