The discussion today at two legislative committees illustrated the difficulty in tackling a tough issue in a short period of time even when there’s general agreement on the response to the problem.
The problem is the U.S. Supreme Court ruling in Melendez-Diaz v. Massachusetts, which placed in doubt the system Virginia uses to have laboratory technicians present testimony through sworn reports rather than by live testimony. The court ruled, 5-4, that prosecutors generally must present the analyst who prepared a report unless the defendant gets notice of the prosecution’s intent to rely on the report and waives the appearance of the technician.
Most states have such a procedure, and the Supreme Court has agreed to decide in Briscoe v. Virginia whether Virginia’s system complies with the Confrontation Clause of the U.S. Constitution.
That decision probably won’t come down before April, but Gov. Timothy M. Kaine called a special session of the legislature for Aug. 19 to deal with the problem that a prosecutor and a representative of the Virginia Department of Forensic Science described as dire.
“It’s the Kmart ‘blue light’ special” as far as prosecutors are concerned, said Mike Doucette, the Lynchburg commonwealth’s attorney who is representing his prosecutorial colleagues in trying to come up with a solution. Prosecutors are making very favorable offers to defendants in drug cases “because we have no cards in our hands,” he told the committees.
The result has been the “almost de facto criminalization of drugs” and “the minimization of drunk driving,” he said.
Gail Jaspen, chief deputy director of the Department of Forensic Science, said the effect of Melendez-Diaz on her agency has been “immediate, swift and substantial.” She said analysts spent 844 hours in court in July, sharply higher than the average of 370 hours per month in the previous 11 months.
After hearing comments from Doucette and Jaspen in separate sessions, the Senate Courts of Justice Committee and the criminal law subcommittee of its House counterpart examined draft legislation prepared by a study group composed of representatives from the governor’s office, the attorney general’s office, the Department of Forensic Science, Virginia State Police and other agencies, with consultation from representatives of criminal defense attorneys.
Two senators and at least three delegates also have prepared drafts of their own.
The basic goal of all the proposals is the same: establish what the Supreme Court described approvingly as a notice and demand procedure for waiving the appearance of analysts in some cases and create some leeway in the state speedy trial laws.
The devil was in the details, however, as no consensus developed on the precise nature of the new procedure or on just how the speedy trial statute should be tolled.
Deputy Attorney General Frank Ferguson, who is coordinating the work of the study group along with gubernatorial counsel Mark Rubin, handled most of the comments and questions from the legislators.
Ferguson emphasized that the study group is trying to focus on a temporary legislative fix that will keep prosecutors and lab analysts working relatively smoothly until more comprehensive legislation can be developed at the legislature’s regular session in January.
He said his group will meet Tuesday morning and a subcommittee of the Senate Courts Committee composed of chairman Henry L. Marsh III, D-Richmond; John S. Edwards, D-Roanoke; Roscoe Reynolds, D-Martinsville; Ken T. Cuccinelli, R-Fairfax; and Ryan T. McDougle, R-Hanover will meet Wednesday afternoon to review the study group’s revisions.
By Alan Cooper