Gov. Timothy M. Kaine this morning called a special session of the legislature for Aug. 19 to address the problems created by Melendez-Diaz v. Massachusetts.
Mark Rubin, counsel to the governor, said, “A legislative fix doesn’t cure the problem, but it will help us manage the problem.”
The problem is that the 5-4 decision by the U.S. Supreme Court appears to require prosecutors to have lab technicians appear in court to testify about the lab reports they have prepared unless the defendant waives their appearance.
State law now allows defense attorneys to subpoena those technicians, but they must present them as an adverse witness in the defense case rather than cross examine them in the prosecution’s case in chief.
Justice Antonin Scalia’s opinion implies that the procedure doesn’t meet constitutional muster, but the high court has agreed to hear an appeal challenging Virginia’s procedure rather than send the case back to the court for consideration in light of Melendez-Diaz. That case was styled Magruder v. Commonwealth in the Supreme Court of Virginia, but is Briscoe v. Virginia on the U.S. Supreme Court docket.
At least one circuit court judge, Jane Roush of Fairfax County, has refused to consider a technician’s report in a drunken driving case and dismissed a DUI charge.Two general district judges in Fairfax have dismissed DUI cases because the technician who tested the breath machines was not present, even though the technician who performed the test was.
The legislature could consider other matters at the special session, but Rubin said the governor’s staff has conferred with key legislators and believes that the session will only take one day and that no other issues will be considered.
By Alan Cooper