Ronald Mallay v. United States

Ronald Mallay was convicted at an authorized capital trial of, inter alia, two murders carrying a minimum sentence of life imprisonment and a maximum sentence of death. The Government proved the cause and manner of both deaths through forensic autopsy and toxicology reports prepared by analysts who never testified, introduced instead through a surrogate examiner and a pathologist who did not perform the underlying tests. Because the jury was unable to reach a unanimous decision as to punishment, the District Court imposed a life sentence. The Second Circuit affirmed, holding the reports non-testimonial because, in its view, they were not prepared primarily for use at a criminal trial. See United States v. James, 712 F.3d 79 (2d Cir. 2013). Years later, this Court decided Smith v. Arizona, 602 U.S. 779 (2024), and the Second Circuit decided Garlick v. Lee, 1 F.4th 122 (2d Cir. 2021), both of which Petitioner contends render the affirmance demonstrably wrong. When Petitioner moved to recall the mandate on that ground, the Second Circuit denied the motion as presenting no “exceptional circumstances,” over a dissent. The questions presented are as follows:

1. Whether forensic autopsy and toxicology reports prepared in the course of a criminal investigation are “testimonial” under the Sixth Amendment’s Confrontation Clause, so that their admission through a surrogate witness who did not prepare them violates a defendant’s right to confrontation.

2. Whether a Court of Appeals abuses its discretion and so departs from the accepted and usual course of judicial proceedings as to warrant this Court’s review under Rule 10, when it declines to recall its mandate as presenting no “exceptional circumstances” even though an intervening decision of this Court has rendered its prior affirmance demonstrably wrong on a Federal question the Petitioner preserved at trial and on direct appeal.