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"SETTING A TIME LIMIT FOR DEFENDANTS TO NOTIFY THE COURT SOLVES THE STATE'S STATUTORY PROBLEM, SAID GENE HART, A DEFENSE ATTORNEY FOR 13 YEARS.
BUT HART, A ROCKINGHAM COUNTY DEMOCRAT WHO IS CHALLENGING LOHR IN THE 26TH HOUSE DISTRICT, SAID THE COURT RULING IS LIKELY TO LEAD TO OTHER CHANGES IN THE WAY THE LEGAL PROCESS WORKS.
ONE OUTCOME OF THE MELENDEZ-DIAZ CASE MAY BE TO INCREASE THE ABILITY OF DEFENSE ATTORNEYS TO GET BETTER DEALS FOR THEIR CLIENTS, HART SAID.
THE PRESSURE TO HAVE A LAB TECHNICIAN IN COURT, HART SAID, COULD ALSO LEAD THE STATE TO EXPAND ALTERNATIVE COURTS THAT STRESS DRUG TREATMENT."
DEFENCE ATTORNEY GENE HART; AS REPORTED BY JEFF MELLOTT ON DNRONLINE.NEWS;
PHOTO: JUSTICE ANTONIN SCALIA;
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Background: It's not every day that an issue involving the work of forensic scientists in the criminal courts comes under scrutiny in the Supreme Court of the United States; Nor is it every day that the Supreme Court issues a searing indictment of the forensic science system in the country and faces head-on the abuses such as manipulation, prosecutorial pressure, outright fraud, bias, error and incompetence. Canadians are well aware of this through the many miscarriages of justice caused in Ontario by Dr. Charles Smith. Americans, who haven't received this message yet, will learn it from the blunt words of Justice Antonin Scalia for the majority. The Supreme Court ruled that a state forensic analyst’s laboratory report prepared for use in a criminal prosecution is “testimonial” evidence and therefore subject to "confrontation" through cross-examination of the analyst - but not before Justice Scalia told Americans how vulnerable they are to wrongful convictions as a result of American forensic science as it is practiced today. They need all of the protection of the law that they can get.------------------------------------------------------------------------------
I really enjoyed reading defence lawyer Gene Hart's prediction that the pressure to have a lab technician in court could also lead the state to expand alternative courts that stress drug treatment in reporter Jeff Mellott's story on dnronline.news published on July 23, 2009;
It boggles my mind that the people who run our criminal court systems should need a decision like Melendez-Diaz to push them toward an alternative drug treatment court system - as exists at the Old City Hall courthouse in Toronto - to try to stem drug addiction and put an end to the revolving court door process;
Jeff Mellott's story ran inder the heading, "General Assembly To Address High Court Ruling On Lab Techs.
"HARRISONBURG - A recent U.S. Supreme Court decision has led Gov. Timothy M. Kaine to call a special session of the General Assembly for Aug. 19, and Del. Todd Gilbert, R-Woodstock, is ready with draft legislation," Mellott's story began.
"The court ruling, handed down June 25 in Melendez-Diaz v. Massachusetts, requires that lab technicians who conduct tests on court evidence be made available to defendants for cross-examination," the story continued;
"To ease scheduling of the court appearances of the limited number of lab technicians statewide, a proposal that General Assembly staff drafted for Gilbert would require the prosecution to notify the defense of its intent to use a document called a "certificate of analysis."
If the defense attorney objects, the lab technician would have to testify, according to the proposed legislation. The notice would allow the lab technician to be scheduled for court and prevent case dismissals.
In a statement Gilbert released Wednesday, the delegate, a 12-year career prosecutor, called the Supreme Court decision "shortsighted."
The ruling, he said, "is tying the hands of prosecutors attempting to convict and punish drug dealers and drunk[en] drivers."
Since the ruling, Gilbert said the commonwealth's attorney's office he works in has subpoenaed lab technicians as a precaution against potential defense efforts to get cases dismissed.
Session Support
Valley lawmakers were supportive of the special session after Kaine set the date Wednesday.
"After talking to local law enforcement and the commonwealth's attorneys' offices, we need to act sooner rather than later on this issue," said Del. Steve Landes, R-Weyers Cave, in a statement.
Del. Matt Lohr, R-Broadway, said "drug dealers and drunk[en] drivers should not be allowed to walk free on the technicality that the lab analyst is not present."
State Sen. Ken Cuccinelli, R-Fairfax, the Republican candidate for attorney general, urged the governor to call a special session in a letter on July 10.
Kaine, however, had been looking to see if the state could remedy the problem administratively, instead of through legislation.
Court Case
In Melendez-Diaz, the court noted defendants have the right to face their accusers under the Sixth Amendment to the U.S. Constitution.
This means that lab technicians involved in testing case evidence must appear in court.
Until the ruling, judges in Virginia and elsewhere accepted written reports to validate evidence.
According to The Associated Press, the ruling has raised concerns that the Virginia Department of Forensic Science's 160 employees would be unable to keep up with their lab work if they were constantly in court.
Last year, the department handled nearly 60,000 cases statewide, the AP reported.
"This [ruling] has caused a logistical nightmare for lab personnel and prosecutors across Virginia. As a result, drug and DUI cases are in jeopardy all over Virginia," said Gilbert, an assistant commonwealth's attorney in Frederick County.
Remedy
Gilbert plans to show defense attorneys and prosecutors his draft legislation for possible improvements.
Gilbert's hope is that the proposed legislation would reinstate reliance on the test reports.
"We trust the integrity of our lab system. We trust the validity of these tests," he said.
Setting a time limit for defendants to notify the court solves the state's statutory problem, said Gene Hart, a defense attorney for 13 years.
But Hart, a Rockingham County Democrat who is challenging Lohr in the 26th House District, said the court ruling is likely to lead to other changes in the way the legal process works.
One outcome of the Melendez-Diaz case may be to increase the ability of defense attorneys to get better deals for their clients, Hart said.
The pressure to have a lab technician in court, Hart said, could also lead the state to expand alternative courts that stress drug treatment.
Other Business
Dealing with the ruling should not be the only business conducted during the special session, said Democrat John Lesinski of Washington on Wednesday.
Lesinski is challenging Gilbert in the 15th House District.
While in Richmond, Lesinski hoped lawmakers would also take up accepting federal stimulus money to expand unemployment benefits.
The Republican-controlled House of Delegates turned down the money while in session earlier this year, but Democrats supported accepting it.
- The Associated Press contributed to this story.
Harold Levy...hlevy15@gmail.com;
