Prosecutors, analysts deal with Melendez-Diaz fallout

Between Sept. 1 and Nov. 12, analysts in the drug section of the Roanoke laboratory of the Department of Forensic Science received 13 subpoenas from the localities in the region farthest removed from the lab.

The analysts spent 74 hours out of the office, traveled 2,600 miles and testified only twice for a total of 10 minutes. They were never questioned by the defense, according to Gail D. Jaspen, the chief deputy director of the department.

That’s precisely the type of mischief Justice Anthony Kennedy predicted in his dissent in June in Melendez-Diaz v. Massachusetts. 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.

Justice Antonin Scalia, the author of the majority opinion, scoffed at the suggestion that the sky would fall if states were required to do what he says the constitution requires.

Jaspen’s anecdote notwithstanding, the sky has not fallen, but prosecutors and DFS are scrambling to respond to Melendez-Diaz and to legislation approved during an emergency session of the General Assembly in August to address the case.

Because the reliability of the analysis of drugs seized from suspects and of breath and blood tests from drunken driving suspects has not been an issue in most prosecutions, Virginia and most other states had laws that permitted sworn reports by analysts to be admitted as evidence without their appearance in court. That left the analysts free to work in the lab rather than constantly travel to court and testify.

Scalia said those reports are testimonial evidence under the Confrontation Clause of the U.S. Constitution. That means the analyst must appear to present the results of the analysis unless the defendant affirmatively waives his right to confront the analyst.

Some states have done it right, Scalia said, with a procedure that requires the prosecution to notify the defendant that it intends to present the analysis through the sworn report unless the defendant demands the appearance of the analyst.

At first glance, Virginia’s procedure appeared to fall short of that standard. The burden was on the defendant to demand the appearance of the analyst. If he did so, the prosecution had to summon the analyst at the expense of the state but was under no burden to present the analyst in the prosecution’s case.

Instead, the defense could call the analyst as an adverse witness in the defense case.

State defense attorneys were quick to respond to Melendez-Diaz. Some attorneys were citing it within hours of the issuance of the opinion, and the number of subpoenas for analysts jumped from 582 in June to 1,885 the next month.

Some legislators, including Sen. and Attorney General-Elect Kenneth T. Cuccinelli II, pressed for an emergency session to bring the state’s laws in line with those cited approvingly in Melendez-Diaz.

The legislature amended the law during a one-day session on Aug. 21 to require the prosecution to notify the defendant 28 days before trial of his intent to submit the report without an appearance by the analyst. The defendant has 14 days to object. If he does, the prosecution must subpoena the analyst and present his testimony during the prosecution’s case.

The legislation anticipated a surge in subpoenas for analysts by extending the state’s speedy trial law by 90 days if a defendant is locked up and by 180 days if he is free on bond.

Legislators also amended the law that required certification of the calibration of breath testing machines in drunken driving cases to be an element of proof when the prosecution relied on the test results to prove intoxication.

Under the new legislation, the calibration of breath testing machines is an administrative and technical matter for DFS rather an element of proof.

Finally, state law was tweaked in an attempt to eliminate Melendez-Diaz problems for preliminary hearings and for chain-of-custody witnesses.

Questions remain about the effectiveness of some of those measures, despite a footnote in Melendez-Diaz that suggests that accuracy of a testing device is not testimonial and that chain-of-custody questions go to the weight of evidence rather than to its admissibility.

Some defense attorneys, such as Corinne J. Magee of McLean, say they are routinely demanding that prosecutors produce the analyst and chain-of-custody witnesses.

They’re also arguing, with limited success so far, that the logic of Melendez-Diaz requires the technician who calibrates the breath machines to testify as well.

With the additional administrative requirements created by Melendez-Diaz, “I have a lot of prosecutors who are more willing to work out cases,” Magee said.

Fairfax County Commonwealth’s Attorney Raymond F. Morrogh said Melendez-Diaz and the new law have been “a huge problem for us. … It’s been a full-time job sending out the notices and keeping track of them.”

Moreover, the county has 11 full-time general district judges and numerous substitutes with no consensus yet on such nuances as whether the case and the law require notices to be sent out on offenses that occurred before the legislation took effect. “It’s been a lively couple of months in general district court,” with roughly a thousand DUI cases pending.

Morrogh said defense attorneys appear to be using the notice-and-demand procedures to make sure that his office and DFS can jump through the administrative hoops rather than to make substantive challenges to the results of the tests.

“It’s a very talented and creative defense bar we have here, so I’m sure there’s more to come,” he said.

Learned D. Barry, a deputy commonwealth’s attorney in Richmond, said many defense attorneys there also are insisting on the presence of the analysts. “We either resolve it peacefully or we get in line for the lab technician,” he said.

The defense attorneys seldom have a substantive question for the analysts, Barry said. “They’re just testing us to see if the timetable allows the technician to show up.”

Virginia Beach Commonwealth’s Attorney Harvey L. Bryant, said the new regime is “an inconvenience and a little bit of aggravation” just from the standpoint of generating the notices to defendants. “In large jurisdictions, that’s a lot of paper.”

He said only a small minority of attorneys are routinely requesting the analysts. “In most cases, they don’t want the expert, especially in the drug cases” because the testimony tends to be “another nail in the coffin.”

Still, attorneys are insisting on receiving the notice before allowing the analyst’s report to come in, and Lynchburg Commonwealth’s Attorney Michael R. Doucette has encouraged his colleagues to be careful to document the notice – by certified mail, hand delivery, service by the sheriff or – as his office is doing – sending it by fax machine and maintaining the paper record from the machine that it was “sent successfully” to the proper number.

Doucette also suggested that prosecutors should announce in court on the record before jeopardy attaches that notice has been sent and that they intend to offer the report because no objection has been received.

Magee has a practical concern for defendants, especially in DUI cases, which tend to be tried on a much tighter schedule and more informally than are drug cases. If a prosecutor sends the notice immediately after the arrest, 14 days can elapse, and along with it the right to require the appearance of the analyst, before the defendant has focused on his circumstances and hired an attorney.

With the uncertainty created by the new law, DFS is taking steps it hopes will make more efficient use of the court time of its analysts. It has assigned its drug analysts to regions so that it will be easier for them to schedule multiple cases on the same day in the same locality.

It is also contemplating making drugs with a lower potential for abuse less of a priority.

And it has clarified that no court’s status gives it priority to an analyst’s time, be it state over federal or state circuit court over general district court. No law provides for such priority, said DFS counsel Stephanie E. Merritt, so that the analyst will respond to the first lawfully served subpoena for a given date.

Moreover, Jaspen said she hopes that a decline in the number of requests for subpoenas from September to October show that “good reasoning or the effects of the legislation” is prevailing. The number of subpoenas dropped from 1,636 in September to 1,440 the following month, and the number of hours out of the laboratory dropped by 1,207 to 1,002. That’s still a big jump from pre Melendez-Diaz numbers – 487 subpoenas in April and 350 hours of the laboratory that month.

“They’re very organized. They’re responding very well,” Barry said of the lab’s reaction to Melendez-Diaz. “They just don’t have enough resources to solve the problem.”

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