Garlick v. Lee

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
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 Petitioner-
Appellee.

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.

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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.

3
 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

4
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

5
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, first-
degree 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.

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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.

7
 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

8
(“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 cross-
examination otherwise permitted, and … the overall strength of the

9
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

10
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

11
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 cross-
examine, 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

12
testimonial statements” that required an opportunity for cross-
examination. 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.
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 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 cross-
examination.” Id. The Court said this is “true of many of the other
types of forensic evidence commonly used in criminal prosecutions”

14
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.

15
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
16
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).

17
 D

In a later decision in which no opinion had the support of a
majority of the Court, the Supreme Court considered whether “[o]ut-
of-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

18
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,

19
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.

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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
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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 cross-
examination,” 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.,

22
 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

23
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 non-
adversarial 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.

24
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.

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