Prosecutors on defense

Published 8:25 am Wednesday, August 5, 2009

COURTLAND—The U.S. Supreme Court’s ruling on a Massachusetts case could affect how cases are prosecuted locally and across the nation.

In the case Melendez-Diaz v. Massachusetts, the high court ruled — by a 5-4 vote — that if a prosecutor plans to present a lab report as evidence in a criminal trial, the scientist who performed the analysis must be available for cross-examination by the defense. To not provide the scientist would be a violation of a defendant’s Sixth Amendment right to confront his accuser.

Prosecutors are not taking any chances.

“At this point we are subpoenaing the expert witnesses as we need them to give testimony,” Southampton Commonwealth’s Attorney Eric Cooke said Tuesday.

Isle of Wight Commonwealth’s Attorney Wayne Farmer concurred.

“We don’t have a choice at this point,” Farmer said Tuesday. “As a matter of just being sure that we are prepared to move forward with our prosecutions, we are subpoenaing those folks now.”

At issue now is whether Virginia’s “notice-and-demand” statute is constitutional. The Supreme Court ruled in Melendez that such statutes, which allow a defendant to demand a scientist appear in court for cross-examination, were constitutional. If a defendant declines to do so, a certificate of analysis is entered into the evidence at trial.

“Virginia has a statute in place that says if the defendant wants that person there, then the defendant can subpoena that person there, and the defendant’s attorney can examine that witness as though they were a witness for the commonwealth,” Farmer said. “So essentially you get to call the witness and then you can try and impeach the witness that you have called.

“But the problem is that you put the burden of getting that person there on the defendant. Melendez, as I read it, says you can’t do that. It is the commonwealth’s obligation to get that witness there. You can’t pass it off to the defendant.”

Cooke said the Virginia General Assembly may need to take action.

“They’re calling the General Assembly into special session so they can address this issue,” he said, adding that commonwealth attorneys across the state were hopeful that Virginia’s statute would “meet constitutional muster. We hope that it does, but if not there likely will be a legislative fix for that problem.”

Asked if he thought the statute needed to be amended, Farmer said, “I think the statute probably falls short. The Supreme Court has not ruled on it specifically, and there are some people that say the statutory scheme Virginia has may be sufficient. My gut reaction is — probably not.”

Both prosecutors said they are more concerned about the logistical effects of the Melendez ruling.

“From a practical standpoint, it is going to be more difficult,” Farmer said. “We have a limited number of analysts who perform the tests, and they’re performing tests for a large number of courts and jurisdictions.

“It will make it more difficult to prosecute, particularly our drug cases, but I don’t think it will affect the way we prosecute them other than we will be subpoenaing witnesses that we have not had to subpoena in the past.”

Added Cooke: “I’m sure it will cause a backlog at the lab, which is the biggest concern that we all have.”

Cooke said his office usually relies on the services of the Department of Forensic Science’s Eastern Lab in Norfolk but sometimes also uses the state’s Central Lab in Richmond. Farmer said his office uses the Eastern Lab most of the time. The state has two additional labs in Manassas and Roanoke.

Farmer said Melendez could affect DUI cases as well.

“It’s fairly well accepted that Melendez is probably going to have consequences outside of the drug realm,” Farmer said. “We are already subpoenaing in DUI cases. Sometimes the officer (who made a DUI arrest) is not the same officer that did the Intoxilyzer analysis. On DUIs we are having not only the officer that made the arrest but also the one who did the Intoxilyzer test in court to testify that they did it appropriately.”

He added, “Melendez, while it addressed drug cases particularly, the general ruling about the confrontation clause could have other ramifications that we’re just beginning to recognize.”

Cooke said, “Whatever the landscape is, whatever the rules are, we’re going to play by them. It’s simply a matter of clarifying what our responsibilities will be.”

The Supreme Court’s ruling on June 25 did not adhere at all to the traditional liberal-conservative divide between the justices. Antonin Scalia, John Paul Stevens, David Souter, Clarence Thomas and Ruth Bader Ginsburg formed the majority opinion, while Anthony Kennedy, Stephen Breyer, Samuel Alito and Chief Justice John Roberts dissented.

Asked if he thought it was unusual how the Supreme Court justices voted, Farmer said, “It seems to me a lot of the folks that were in the dissent on this have prosecutorial experience. They’re former prosecutors, or have some connection to prosecution. If you read their opinion, they certainly speak to the difficulty this will create for those who prosecute crime. It’s going to make things more difficult.”

But Cooke said, “I take a more pragmatic approach. I look at it to see what the rule is, and then I see how to apply it to my day-to-day prosecution activities, versus which legal scholar or which justice fell a particular way.”