Virginia Legal*Political Blog

Gov. Tim Kaine’s package of budget cuts includes 593 state employee layoffs, according to a news release from the governor’s office today.

The plan calls for elimination of more than 900 state positions to help cover a $1.35 billion budget shortfall for FY2010.

At a press conference announcing the cuts, Kaine said they apply only to executive branches and not to the legislature, the judiciary or the State Corporation Commission. Those agencies have been cooperative in the past to requests for austerity — the judiciary took a $5 million hit this year — and may take some actions on their own.

“There’s no question we remain in the midst of the toughest economy in a generation,” Kaine said.  “But we also remain confident that Virginia will weather the storm and emerge stronger than ever before.”

The budget cuts include reductions of 13 or 15 percent for higher education and a one-day furlough for state workers on the Friday before Memorial Day next year.

By Peter Vieth

Fifth District Rep. Tom Perriello will get a reward for his vote for the climate change bill in the form of radio spots paid for by ministers and military leaders who want to highlight the moral and national security implications of the issue.

The ads will run throughout Central Virginia on Christian, country and talk radio.

In the spot, a Charlottesville minister, the Rev. Neal Havorson-Taylor says, “The Apostle Paul teaches that we should not have a spirit of timidity but of strength and love.”

Halvorson-Taylor praises Perriello for the strength to vote for the bill in spite of millions of dollars that energy companies spent to oppose it.

“[W]hat we need are leaders who demonstrate a spirit of power and do what is right. I know Tom and Tom Perriello is that kind of leader,’ Halvorson-Taylor says.

The ads are part of a half-million dollar campaign by the American Values Network. The network says on its Web site that its mission is to “actively participate in building up the American family and community values that have always been at the core of our successful efforts to create a ‘more perfect union.’”

By Alan Cooper

Legislative conferees wrangled for much of the afternoon today before finally agreeing on a legislative response to Melendez-Diaz v. Massachusetts.

The U.S. Supreme Court ruled, 5-4, in that case in June 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.

Prosecutors, legislators and officials at the Department of Forensic Science feared that prosecution of drug cases would grind to a halt without changes by the General Assembly.

Two major components of the fixes in House Bill 5007 and Senate Bill 5003 were agreed to early on.

One set up a “notice and demand” procedure cited approvingly in Melendez-Diaz. Under the system, a prosecutor notifies a defendant that he intends to use a sworn statement by the analyst rather than require the analyst to testify in person at trial. The defendant then may demand that he appear at the trial and be subject to cross examination.

The other extends the state’s speedy trial requirements by 90 days if a defendant is locked up and by 180 days if he is on bond to allow the prosecution to make sure that a technician is available to testify. State law now generally requires trial within five months of a probable cause determination if a defendant is incarcerated and nine months if he is free.

The tough issue was how to excuse the three technicians who inspect and maintain the state’s breathalyzers from any requirement that they have to testify.

The legislation attempts to do so by eliminating admission of the certification of the reliability of the machine from an element of the prosecution’s proof and making the reliability a matter of maintenance for the Department of Forensic Science.

The hangup came when some Senate Courts of Justice members insisted that the legislation still show that the prosecution had the burden of proof on reliability, while their House counterparts were adamant that such a provision would still require live testimony from the technician.

The final bill reflects the House view.

“This is truly a bipartisan fix,” House Majority Leader H. Morgan Griffith, R-Salem, told the House. But he acknowledged, “It is not perfect, and it will not solve all the problems created by Melendez-Diaz.”

Further work probably will necessary in the 2010 session of the legislature, he said.

By Alan Cooper

The Senate Courts of Justice Committee produced legislation, Senate Bill 5003, this afternoon that its members hope will provide at least an interim response to Melendez-Diaz v. Massachusetts.

The U.S. Supreme Court ruled, 5-4, in Melendez 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.

The General Assembly will meet in special session tomorrow to address what legislators and prosecutors are describing as interim, immediate response to the case, with hope for a more considered solution in January.

House Majority Leader H. Morgan Griffith, R-Salem, attended the session and said afterward that he hopes that the House Courts of Justice Committee will adopt something similar tomorrow morning before the legislature convenes at noon.

Sen. Thomas K. Norment, R-Virginia Beach, emphasized the need for committee members to present a united front for their colleagues. The issues are “inside baseball” that few members outside the committees will understand, so that they will necessarily rely on the expertise from the courts committee members and staff.

The Senate committee worked off the latest draft of legislation developed by a subcommittee that worked with a task force composed of representatives of the Kaine administration, the attorney general’s office, Virginia State Police and the Department of Forensic Science.

The major stumbling blocks were provisions designed to assure that the results from breathalyzers are accurate without making the certification of their accuracy “testimonial,” in the language of Melendez-Diaz.

The case is an extension of a 2004 Supreme Court decisions that altered conception of what prosecutors and criminal defense attorneys usually put in the category of hearsay testimony. Instead of analysis of whether such statements are reliable, the focus is on whether they were “made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.”

Because only three technicians maintain the state’s breathalyzers, a finding that the certificates are testimonial would put them in court so often that we would not have time to work on the equipment.

The committee agreed on a proposal from Sen. Roscoe Reynolds, D-Martinsville, that would exclude the certification if a defense attorney could show in pretrial proceedings that a machine was inaccurate, not properly maintained or inspected within the previous six months.

There was much less discussion about the centerpiece of the legislation: a procedure for having prosecutors notify defendants of their intent to present a sworn certificate from an analyst as evidence and allowing the defendant to demand the analyst’s appearance at trial.

By Alan Cooper

The Associated Press is reporting that legislators expect Gov. Kaine to announce an additional $1.3 billion in budget cuts tomorrow.

According to the AP’s sources, Kaine heard from state economists and other experts who are doubtful that a recovery from the recession is imminent.

Kaine will address the General Assembly’s money committees Tuesday morning.  The special session to address scientific evidence issues in the wake of the U.S. Supreme Court’s Melendez-Diaz opinion begins at noon.

When the members of the Norfolk & Portsmouth Bar Association gather next month at Harbor Park stadium (home of the Norfolk Tides), politics, not baseball, will be the pastime.

Creigh Deeds and Bob McDonnell, Virginia’s gubernatorial candidates, are scheduled for a joint appearance at the group’s Sept. 15 luncheon at Hits at the Park restaurant.  Game time is 11:45.

By Peter Vieth

Republican gubernatorial candidate Bob McDonnell offered a package of law enforcement proposals yesterday.

The proposals are part of his public safety platform, reports The Virginian-Pilot. McDonnell’s plan inlcudes mandatory sentences for habitual drug dealers, lifetime monitoring for certain sex offenders and increased use of narcotics courts.

McDonnell acknowledged that the expansion of drug courts and higher number of inmates in state prisons would require additional spending, which could be a challenge during the economic recession.

The Virginian-Pilot reports that Del. Phil Hamilton, R-Newport News, gets $40,000 a year as a coordinator of an Old Dominion University teacher training center that he sponsored as a legislator.

A budget amendment that Hamilton introduced in 2007 provided the initial money for ODU’s Center for Teacher Quality and Educational Leadership, and the center still gets $500,000 a year from the state.

According to his contract, Hamilton serves as coordinator for the center. His stated duties include recruiting school districts to participate in center activities, marketing the center to state and federal officials and maintaining records.

The Pilot says Hamilton is is a retired teacher and school administrator who works part time as coordinator of innovation and development for the Newport News school system.

A delegate for 20 years, Hamilton is a member of the powerful Appropriations Committee.

According to The Pilot, he and the man who awarded him the contract say he got the job because he was the best person for it. His opponent in the November election and an ethics expert see a conflict of interests.

By Alan Cooper

Former Democratic Gov. Doug Wilder has nice things to say about the Republicans’ candidate for governor this year.

In an interview with The Washington Times, Wilder complimented GOP nominee Bob McDonnell on his efforts to reach out to Virginians who don’t traditionally vote Republican.

He also expressed concern that Democratic candidate Creigh Deeds was at risk of becoming the “me, too” candidate.

Wilder, however, still has not endorsed a candidate in the race.

The Senate Courts of Justice Committee also will meet Aug. 7, four hours earlier than the criminal subcommittee of its House of Delegates counterpart, to discuss legislation that will be considered at the Aug. 19 special session of the General Assembly to address Melendez-Diaz v. Massachuetts.

Yesterday’s post about the House subcommittee meeting described the case, the reason for calling the special session and the likely action at the session.