JUDGE: DRUG TEST WITNESS LAW 'ABSURD'

DURHAM -- Calling it "absurd," a judge has ruled that a law governing the
prosecution of drug cases in North Carolina is unconstitutional.

The law says that, unless defense lawyers object in advance, prosecutors
don't have to subpoena chemists who perform laboratory tests on the purity,
quantity and identity of illegal narcotics.

Without an advance objection, prosecutors can merely produce a written lab
analysis, without calling the chemist who performed it into court as a
witness, the law says.

But Superior Court Judge Narley Cashwell of Raleigh, presiding over a
Durham cocaine case this week, said the law violates the constitutional
right of criminal suspects to confront and cross-examine their accusers.
The judge said such rights should be automatic. People should not be
required to raise an objection to exercise a right that is constitutionally
guaranteed, he added.

"It's absurd," Cashwell said. "I question whether this statute is one that
anyone should ever rely on."

In addition, Cashwell said that unless chemists are brought to court, there
is no way to be sure narcotics were properly tested and that samples or
test results were not tampered with, he ruled.

Cashwell's ruling came in the case of Rickie Philander Newman, who was
accused of possessing three "rocks" of cocaine worth about $60 in October 1999.

Prosecutor Michael Moore did not bring to court a State Bureau of
Investigation chemist who analyzed the cocaine. Instead, he produced a
police officer to testify about the chemist's written report.

Assistant Public Defender Dawn Baxton, representing Newman, objected on
constitutional grounds. She also said that a laboratory report, standing
alone, was not sufficient evidence in a Superior Court jury trial.

In rebuttal, Moore said Baxton failed to object in advance to the chemist's
absence, as the law allowed her to do.

As it turned out, Newman was acquitted for reasons unrelated to the
chemical analysis of the cocaine. Jurors simply were not convinced that
Newman -- rather than others who were with him -- possessed the cocaine.
Because there was an acquittal rather than a conviction in the case, there
will be no appeal.

And because there will be no appeal, there will be no chance for a higher
court to consider the validity of Cashwell's ruling that the law is
unconstitutional. As a result, the ruling is not binding on other judges.

Still, many Durham lawyers said Cashwell's action is significant, raising a
question that ultimately may find its way to the state Supreme Court.

"I agree with the judge," Public Defender Bob Brown said Thursday. "I
believe the statute is unconstitutional. It relieves the state from the
responsibility of producing critical witnesses.

"The Constitution gives defendants an absolute right to confront his
accuser at trial," Brown added. "It is a right that should not have to be
asserted. It is guaranteed."

Assistant Public Defender Lawrence Campbell, president of the Durham
Criminal Defense Lawyers Association, said the law is "a statute of
convenience for the state. But I don't think the Constitution was written
to make it convenient for prosecutors to convict people."