The Supreme Court upheld a California woman's drug trafficking conviction on Thursday that was based on an expert who testified that gangs rarely use "blind mules" to move drugs across the southern border, prompting a striking dissent from Justice Neil Gorsuch.
In a 6-3 decision that was not on the court's usual ideological lines, the majority opinion in Diaz v. United States by Justice Clarence Thomas dismissed the argument that an expert witness for the prosecution had gone too far to describe defendant Delilah Guadalupe Diaz's mindset when he said that most large-scale drug couriers were aware of what they were transporting.
Gorsuch, a Trump appointee known to break away from his Republican-appointed colleagues from time to time, dissented from the majority, arguing that the expert witness should have been inadmissible during Diaz's trial.
He wrote that the "upshot" of this ruling leaves the government with "a new powerful tool in its pocket," according to his dissent, which was joined by Democratic-appointed Justices Elena Kagan and Sonia Sotomayor.
"Prosecutors can now put an expert on the stand — someone who apparently has the convenient ability to read minds — and let him hold forth on what 'most' people like the defendant think when they commit a legally proscribed act. Then, the government need do no more than urge the jury to find that the defendant is like 'most' people and convict," Gorsuch added.
The federal rule of evidence known as Rule 704(b) states that an expert cannot offer an opinion on the defendant's "mental state or condition," but the high court's majority said the expert's testimony about drug smuggling did not violate that rule.
Diaz's defense lawyers said she did not know that methamphetamine was stashed away in the vehicle she was driving, which belonged to her boyfriend. They described her as a "blind mule," someone who did not know he or she was transporting illicit substances.
During Diaz's trial, the Justice Department called a Homeland Security agent as an expert witness who testified that most drug cartels won't send large quantities of drugs with people who are unaware of the contraband, though the agent did admit it can happen.
Thomas's opinion was joined by five other Republican-nominated members of the court in addition to one Democratic-nominated member, Justice Ketanji Brown Jackson.
Jackson wrote her own concurrence that Rule 704(b) is "party agnostic," adding that "neither the government nor the defense can call an expert to offer her opinion about whether the defendant had or did not have a particular mental state at the time of the offense."
For instance, Diaz, at one point, called an automobile specialist who testified that a driver of her particular vehicle "would almost certainly not know that it contained drugs."
"That type of evidence is permissible under the interpretation of Rule 704(b) the Court adopts today," Jackson wrote.
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But Gorsuch's dissent stressed that the majority was adopting the government's "muddled view" of the rule, leading him to ask, "What happens next?" when a similar case rises to the high court's chambers.
"We will draw some as-yet unknown line and say an expert's probabilistic testimony went too far. Or we will hold anything goes and eviscerate Rule 704(b) in the process. Rather than face either of those prospects, how much easier it would be to follow where the Rule's text leads," the justice added.
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