WILL SUPREME COURT RULING HINDER JUSTICE?

Local prosecutors are worried that a ruling from the U.S. Supreme
Court in late June could hamstring the criminal justice system — and
cause some defendants to escape prosecution.

In a 5-4 ruling in Melendez-Diaz v. Massachusetts, the high court
determined that prosecutors are responsible for having crime lab
experts on hand for trials so that the defense can challenge their
findings. That clashes with Virginia's court practices, which placed
the responsibility on the defense attorney to request the analysts'
presence.

Crime lab workers perform such analysis as DNA and fingerprint tests,
gun analysis, Breathalyzer tests in DUI cases and tests of suspected
drugs to see if they're the real thing.

But requiring the analysts, including those working out of a Norfolk
lab, to spend more time in court means less time performing lab work.

"If scientists had to appear at all the drug cases and DUI cases, you
can imagine the chaos that would result," said Hampton Commonwealth's
Attorney Linda D. Curtis. "If they're required to travel all over the
Peninsula and the Southside, they won't be in the lab doing analyses.
. So this could potentially create a bottleneck in the courtroom and
the labs."

In recent weeks, judges, prosecutors and defense attorneys have been
trying to determine the scope of the decision.

"It's going to cause problems," predicted Virginia Beach
Commonwealth's Attorney Harvey L. Bryant. "Defense attorneys think
they've been given a candy jar, and we're going to try to keep a lid
on it."

Newport News lawyer Edward I. Sarfan said the ruling surprised many
attorneys. "As defense attorneys, we get very few decisions that help
us," he said.

In recent weeks, several cases in Hampton, including a three-day trial
in a significant drug case, had to be postponed because the crime lab
analysts weren't on hand. In Virginia Beach on Thursday, a DUI case
had to be reduced to reckless driving because an analyst wasn't around.

There's widespread concern that many prosecutions around the state
will have to be dropped because the delays could cut into a
defendant's right to speedy trial.

"Absent some solution, it's not hard to imagine that cases will be
dismissed for not having been able to be brought to trial within the
requisite period of time," Curtis said.

It used to be in Virginia that a paper certification from the crime
lab was enough, and it was up to the defense to subpoena the analyst.

But after the Supreme Court's ruling, the crime lab analyst has to be
there unless the defendant waives the right to confront them.

But Curtis said a legislative fix that passes constitutional muster is
possible — to allow prosecutors to notify the defense in advance that
the prosecution doesn't plan to have the analyst at the trial. The
defendant would then have to decide whether to waive the right to
challenge them.

On Friday, state Sen. Kenneth T. Cuccinelli II, R-Fairfax, a candidate
for Virginia attorney general, called on Gov. Timothy M. Kaine to
appoint a special session of the General Assembly to come up with a
legislative fix.

"In light of the very serious potential problems that the recent
ruling may cause in prosecutions all over Virginia," the special
session is crucial, Cuccinelli wrote to Kaine. "If you speak to
Commonwealth's Attorneys from across Virginia, I think you will find
there is a need to act quickly to avoid very significant problems."

Kaine has said he believes a fix can be made without calling lawmakers
to Richmond. But if the governor doesn't call them back, Cuccinelli
wants lawmakers to decide to assemble anyway with a two-thirds vote.

One way to fix the problem, of course, is for the state to hire more
crime lab workers, but that's seen as a long shot given the state's
budget crisis.

Some lawyers speculate that many of the more minor drug offenses —
such as marijuana possession — could fall by the wayside first.

"The police could start concentrating on the bigger fish and not do
the smaller marijuana cases," Sarfan said.

Another possibility, he said, is for prosecutors to offer defendants
more attractive plea deals, enticing people to plead guilty to crimes
so the cases get resolved without a trial.

The recent decision could, of course, create new trial strategies.

Another local attorney, Robert W. Lawrence, said it rarely benefits a
defendant to put a state crime analyst on the witness stand. Still, he
said, it would be malpractice to waive the right to confront the
witness if he knew that doing so would help prosecutors more easily
convict his client.

"There's going to have to be some give and take on everybody's part,"
Lawrence said. "It's going to have a big impact. ... But no one really
understands the full extent of the decision at this point, until it's
played out in the courtroom."

Forensic labs stay busy The Virginia Department of Forensic Science, a
state agency, has four crime labs — in Richmond, Norfolk, Roanoke and
Manassas. With 160 employees, the labs performed tests for 60,000
criminal cases in 2008, or 5,000 a month. They work on tests for
drugs, alcohol, fingerprints, DNA, guns, trace evidence and documents.