Sunday, July 19, 2009
A rush to legislate
Luanne Traud
Recent columns
- Marking a difficult anniversary
- My daughter, the voter
- A few new Voices would be nice
- An elementary problem with SOLs
From the RoundTable blog
Contrary to manufactured hysteria, a recent Supreme Court ruling will not allow drug dealers to skirt prosecution in Virginia. There is no need for Gov. Tim Kaine to hasten lawmakers to a special session -- at a cost of tens of thousands of dollars the commonwealth can ill afford -- as has been suggested by an attorney general candidate.
At issue is the court's ruling last month in Melendez-Diaz v. Massachusetts. In a 5-4 vote, the justices ruled that defendants' right to confront their accusers at trial extends to forensic scientists who test evidence used against them, a right denied by Massachusetts. The ruling means that the prosecution must now make the witnesses available. Every state that does not already do this is affected.
In Virginia, current law flips the burden onto defendants. Prosecutors submit certified lab reports as evidence, while defendants maintain the right to subpoena the analysts if they wish to cross-examine the evidence.
Does Virginia's law need to be tweaked? Probably, but the Supreme Court, in deciding Melendez, also agreed to consider whether Virginia's method is constitutionally valid, so it is not yet a given.
Prudent prosecutors in the meantime will follow Melendez -- even without a change in law -- by adding the analysts to their witness lists and consulting pretrial with defense attorneys to determine if those analysts will actually be needed to testify.
The immediate effects of the ruling have created a technical loophole that has allowed defense attorneys the opportunity, in a few cases, to wait until trial to ask for lab reports to be disallowed because the prosecutors failed to have the lab technicians in court.
This concerns state Sen. Ken Cuccinelli, who is running on the Republican ticket for attorney general. He wants Kaine to bring lawmakers back to Richmond in a special session because, as he says in a press release, the decision "has begun forcing prosecutors to suspend drug and drunk driver prosecutions. ... We can call the special session now, before too much damage has been done, or we'll end up doing it later, after hundreds or thousands of drug defendants and drunk drivers have gotten off spot-free."
I caught up with Cuccinelli in a phone interview this past week to ask him the jurisdiction of these tossed cases. He mentioned one drunken driving case where the defendant had a blood-alcohol content of 0.16, slightly over the 0.15 that calls for enhanced penalties. At trial, the judge disallowed the lab report for lack of a witness, but the arresting officer's testimony was enough to gain the drunken driving conviction, just not the enhanced penalty.
Cuccinelli didn't cite any other cases but said most commonwealth's attorneys are with him in wanting a special session to correct the law.
The Washington Post reported that the change is most vexing for Fairfax because technicians stationed at the jail, rather than arresting officers, perform the breath tests on drunken driving suspects. They are running into a labor and time crunch with a dozen technicians for 4,000 DUI cases.
But they would have the same problems even if lawmakers passed a remedy tomorrow that would align Virginia law with Melendez.
True, says Cuccinelli, but a change in law could require the defense to notify the commonwealth 10 days prior to trial if the witness would be needed, alleviating some scheduling problems.
For now, it seems simply that only the element of surprise placed cases by ill-prepared prosecutors in jeopardy. Since the tactic has been used, prosecutors should see it coming, adapt and avoid jeopardizing cases.
As a practical matter, once the dust settles, the ruling will not impact too many trials or prove overly burdensome on crime labs. Some prosecutors already call the scientists, as it lends more credibility to their case, and unless the defense can challenge the lab's methods, the technician's credentials or the chain of evidence, a cross-examination usually isn't all that effective.
The vast majority of drunken driving and drug cases are settled with plea agreements and never reach trial -- a practice that soon will return once courtroom trickery no longer permits defendants to walk on an avoidable technicality.
In the meantime, fans of irony might enjoy this morsel: Should Cuccinelli succeed in his run for attorney general, he will be called upon to defend Virginia's current law before the Supreme Court.
"I would pick up the ball and defend the statute as best I could," he said. An awkward position for a lawyer who, in demanding an immediate fix to the current law, cedes that it's unconstitutional.
Traud is a member of The Roanoke Times editorial board.
