UPDATE: AG candidate wants special session after Supreme Court ruling

Updated 1:31 p.m.

RICHMOND, Va. (AP) — Virginia’s Republican candidate for attorney general said Friday that the General Assembly should hold a special session to deal with a U.S. Supreme Court ruling that he said could cripple the state’s criminal justice system.

Ken Cuccinelli said some prosecutors are suspending drug and drunken driving prosecutions because of last month’s decision in a Massachusetts case. In that 5-4 ruling, the court said prosecutors must make forensic scientists available for defense cross-examination about lab reports on drugs and other trial evidence.

The ruling raises questions about a Virginia law that puts the onus on defendants to subpoena scientists if they wish to challenge the accuracy of lab reports. Defendants who fail to take such action in a timely manner waive their rights under the Constitution’s Confrontation Clause, according to the Virginia statute.

The U.S. Supreme Court has agreed to review Virginia’s law, but Cuccinelli — a state senator from Fairfax County — said the legislature should go ahead and change it rather than wait for a potentially damaging ruling.

``If we lose that case, there’s going to be a lot of remands for new trials,‘’ Cuccinelli said in a telephone interview. ``That’s going to be a sudden workload hit.‘’

Cuccinelli sent a letter to Gov. Timothy M. Kaine, urging him to call a special session. He wrote that ``there is a need to act quickly to avoid very significant problems once some ongoing cases start to run up against speedy trial limitations as a result of continuances that are currently being requested and granted’‘ because of the ruling.

Kaine spokesman Gordon Hickey said it’s too early to convene a special session.

``The governor is well aware of this issue,‘’ Hickey said. ``Certainly legislation would be one solution, but let’s not leap to that before we give it a little thought. The governor’s legal team is looking at other ways to fix it.‘’

The General Assembly also could call itself into special session if two-thirds of the members of both houses make written requests to the governor.

Louisa County Commonwealth’s Attorney Tom Garrett said prosecutors across the state support a special session.

``You’d be hard-pressed to find a commonwealth’s attorney who isn’t in support of it,‘’ he said, adding that the problems are too urgent to follow the usual procedure and take up the matter at the next regular session in January.

``I can’t wait until July 1, 2010, for a new law to take effect,‘’ he said.

Garrett said his relatively small jurisdiction has ``dozens and dozens’‘ of cases that could be affected by the ruling. He said one cocaine case in Louisa already has been dismissed because the forensic analyst was not present.

Garrett said the state Department of Forensic Science simply doesn’t have the manpower to have its examiners running all over the state to testify. About 160 employees conducting casework handled nearly 60,000 cases last year, the department says. The number of tests would be even higher because many cases involve multiple pieces of evidence.

Fixing the state’s law would not be difficult, Garrett said. He said the statute could be amended to require the state to subpoena the scientists and give the defense a deadline for stating whether they want them to appear. The justices signaled in their ruling that such ``notice and demand’‘ statutes in three states are constitutional, Garrett said.

—Associated Press

Earlier:

A recent U.S. Supreme Court decision has some local prosecutors worried about long delays in cases where lab evidence is required.

In late June, the court ruled in Melendez-Diaz v. Massachusetts that a defendant has the right to cross-examine a lab analyst who prepared reports a prosecutor wants to introduce as evidence.

Lynchburg Commonwealth’s Attorney Mike Doucette, giving a common example of the practice, said that in drug cases, prosecutors used to simply be able to file a crime lab certificate that said a substance was in fact an illegal drug with the court clerk’s office a week in advance, then introduce the paperwork as evidence during a trial.

If the defendant wanted to question the analyst who prepared the certificate, the defendant could subpoena the expert for himself or herself, according to current Virginia law.

That may not be good enough anymore, according to the Melendez-Diaz ruling.

Local attorneys disagree about the impact of the ruling. Some think existing Virginia law is adequate. Others say there will be delays and a period of uncertainty until the General Assembly crafts new law in line with the ruling.

“The biggest effect will be delays,” Campbell County Commonwealth’s Attorney Neil Vener said. “And it’s going to really hurt the state labs because the scientists are going to be testifying in court instead of analyzing drugs and DNA.”

The process of submitting a suspected quantity of drugs and getting the results back takes months now, he said. It is going to take more time with analysts traveling across the state.

With less revenue coming into state coffers, it’s not practical to hire more scientists to meet the increased demand, nor is it possible to build labs in each jurisdiction to cut down on traveling delays, Doucette said.

Bedford Commonwealth’s Attorney Randy Krantz, however, said there may be some delays, but he does not foresee much of a difference in the way things are done there because he reads the court’s opinion to apply only to a defendant’s right to confront the witness during a trial.

“If we’re going to have a trial, we usually have already subpoenaed the person who created the certificate,” Krantz said. “The prosecutor wants to make the best case possible. He wants a live person on the stand.”

While local lawyers deal with the immediate effects of the court’s ruling, they are looking to another case before the U.S. Supreme Court that could provide much-needed clarity.

After ruling on the Melendez-Diaz case, the court agreed to hear Briscoe v. Virginia, a drug case that will decide whether existing state law giving defendants the opportunity to subpoena lab experts complies with the Melendez-Diaz opinion.

Doucette said prosecutors across the state disagree, but there is not much debate among local defense lawyers.

“It doesn’t meet the requirements,” Lynchburg Public Defender Sharon Eimer said. “It does shift the burden (onto the defendant) and that’s been the argument all along.”

Eimer said defendants can’t legally be required to produce evidence, which the current law requires in asking the defendant to subpoena the expert. The burden of proof in a criminal case is on the prosecutor, she said.

Amherst County-based defense lawyer Greg Smith said he believes the General Assembly will have to craft a new law that requires a prosecutor to not only give notice of the intent to use a lab certificate as evidence, but to subpoena the expert as the prosecutor’s witness at the state’s cost if the defendant demands it.

If the legislature refuses to act, Smith said, with the limited number of chemists working for the state labs, the judicial system could become mired.

Timing of the court’s ruling could be a problem. Although Supreme Court opinions can be filed any time after cases have been argued, if cases are to be decided at the end of a term, many opinions are released in May and June, well after the normal close of the General Assembly’s session.

If the law does change, lawyers say it is hard to predict how the new requirement will play out in court.

Doucette said testimony via video conferencing will have to be set up to alleviate delays caused by forcing experts to travel.

Smith said he thinks the novelty of it will wear off. Insisting on the expert testimony could change the outcome of a case from a favorable plea offer from the prosecutor into a prosecutor insisting on a jury trial, where recommended sentences usually exceed those delivered in judge-only trials and in plea agreements.

Eimer said that once the law is fixed the question of delays and testimony will largely go away.

“In reality, you’re going to talk to the analyst ahead of time and if there’s not an issue, you’re not going to want to call the analyst (as a witness).”

—Chris Dumond