The "Phantom Expert Witness" And The Confrontation Clause

Let's say that a defendant is on trial for arson. A key part of the prosecution's case is going to be its evidence that the defendant used gasoline or some other agent to start the subject fire. And if there is no forensic evidence that the defendant started the subject fire, the prosecution is going to have to scramble to explain the absence of such evidence. One way it could do so would be to call an expert to explain the absence of such evidence. Another, as was the case in United States v. Myers, 2009 WL 1873510 (7th Cir. 2009), would be to itself explain the absence during closing arguments. Of course, the latter method would be improper, but would such an explanation lead to the creation of a "phantom expert witness," in violation of the defendant's rights under the Confrontation Clause? According to the Seventh Circuit, the answer is "no."

In Myers,

Ernest Myers rented a warehouse in the City of Joliet ("the City") to establish a for-profit recreation center for teenagers, where the youth could shoot pool, play video games, dance, and enjoy comedy shows. He dubbed the business "Against All Odds." Unfortunately, the odds were against Myers. Shortly after opening the center in late 2000, Myers had to apply to the City for permits to run pool tables, video games, and dances. The City granted him a permit for video games, but denied him permits for pool tables and dances. Myers was forced to return the lucrative pool tables he had rented. The City then demanded that Myers pave the parking lot, erect a screen between his and the adjoining lots, install a sidewalk, and conform to landscape and setback ordinances. Myers was also forced to make the bathrooms handicapped-accessible and to install fire extinguishers and emergency exits. Squeezed at one end by the denial of revenue-producing pool tables and dances and at the other end by the required improvements, Against All Odds closed on April 26, 2001.

Having lost all his investment, and having received a notice to quit the premises because of his failure to pay over $7,000 in overdue rent, according to the government Myers turned to arson. He had taken out $500,000 in property damage insurance on the property, which was owned by Ronald Schumacker. Myers's nephew Rodney Bew testified that Myers approached him and asked if he could find someone to burn down the building because "he was not going to let the City beat him out of his investment." Bew also testified that a few days later Myers told him that he had opened a gas pipeline in the building hoping that it would blow up. Anthony Dunn stated that Myers asked him for advice in starting a fire. Dunn suggested blowing out the pilot light and placing a candle nearby, and he and Myers went to the warehouse and did so. However, the building failed to ignite. Will Pruitte testified that Myers asked him how to start a fire. Pruitte suggested loosening a gas line. According to Pruitte, on May 5, 2001, he and Myers traveled to Against All Odds, where Pruitte banged on a pipe but did not open the line. He testified that he saw Myers pouring gasoline on the floor and making a gasoline trail to the door.

While there was apparently no fire lit on May 5th, there was a fire at Against All Odds on May 7th, which led to Myers and Schumacker filing insurance claims and collecting approximately $35,000 and $197,000, respectively. When fire invstiagtors went to Against All Odds, 

[a] trained accelerant detection dog named Smitty sniffed the scene and alerted at one location. Smitty also showed interest in several other areas at the scene. When investigators tested samples from those areas, including carpet fibers from the floor, no accelerant  was found.   

Nonetheless, based upon other evidence, the prosecution charged Myers (and others) with arson, use of fire to commit a felony, use of mail and wire communications to commit insurance fraud, and attempted arson And during closing arguments at Myers' trial, his attorney highlighted the fact that no forensic evidence supported the government's contention that Myers had poured gasoline on the floor of Against All Odds. Thereafter, in its rebuttal closing argument, the government prosecution with the following argument:

[Defense counsel] says, "Well, the arson people didn't find any gasoline when they went through." Another thing, you've got to remember something, too. Firefighters were there that day. They're pouring a lot of water into that building. It was water. They had hoses, they had to do a defensive attack. You heard about that. They had to break in the doors to fight the fire from the inside. So the fact you might-you didn't see evidence of gasoline apart from the burned gasoline can that you did hear testimony about, any speculation on the part of [defense counsel] about why or why there wasn't gasoline can be easily explained by the fact that there were firefighters that were in there that night trying to extinguish that fire with water. Water has a tendency to sweep through and remove all sorts of different things that might have been on the ground. So, ladies and gentlemen, that's an easy explainable different part of what [defense counsel] was trying to suggest.

Defense counsel did not object to this statement, and the court instructed the jury that the statements of the attorneys were not evidence. The jury subsequently found Myers guilty of attempted arson but acquitted him of all of the other charges.

Myers subsequently appealed, claiming that the prosecution's closing argument was improper and prejudicial, but while the Seventh Circuit agreed that the closing argument was improper, it found that it was not sufficiently prejudicial, especially in light of the fact that defense counsel did not object to it. Myers also claimed that "the Confrontation Clause was violated by the government's argument, because those comments constituted a 'phantom expert witness' that Myers could not confront." The Seventh Circuit, however, rejected this argument as well, concluding that "because there was no witness here, the Confrontation Clause is not applicable."

-CM