Legislators continue to hammer out language for their anticipated fix of prosecutors’ proof problems in light of the U.S. Supreme Court decision in Melendez-Diaz v. Massachusetts.
That June 25 decision put in doubt the system Virginia uses to have laboratory technicians present testimony – on blood alcohol content and suspected drugs – through sworn reports rather than live testimony.
Virginia’s Department of Forensic Science does not have the personnel to cover the demand for live testimony, in the wake of Melendez. That’s an understatement. In fact, the recent wave of subpoenas that has hit DFS has lab techs ordered to be in three different jurisdictions simultaneously, according to prosecutors.
The DFS personnel shortage has meant the “almost de facto criminalization of drugs” and “the minimization of drunk driving,” according to Lynchburg Commonwealth’s Attorney Mike Doucette, who is providing the prosecution perspective to legislators.
The governor has called a special session of the legislature for Aug. 19 to come up with a statutory fix that will “manage” the problem.
Because there is little time to study possible long-range solutions, such as implementation of a videoconferencing system, House and Senate Courts of Justice committees are meeting to work out common language for their respective versions of bills that can be quickly sent from a conference committee for the governor’s signature.
This afternoon, a Senate Courts of Justice subcommittee spent several hours poring over language from a draft bill presented by a task force coordinated by Deputy Attorney General Frank Ferguson. Discussion centered on the mechanics of the notice-and-demand provision and how to give prosecutors some time and flexibility – through tolling speedy trial limits – without forcing lengthy incarceration of pretrial detainees.
As the subcommittee wrapped up this afternoon, Sen. Roscoe Reynolds, D-Martinsville, reminded legislators they could insure the temporary nature of their statutory fix by enacting a sunset provision that would make the act expire July 1, 2010.