SUPREME COURT REVISITS RULING ON CHALLENGES TO FORENSIC REPORTS

It was just a little more than six months ago that the Supreme Court
decided that defendants must have the opportunity to challenge those
who prepare forensic reports before they are admitted into evidence.
So Justice Antonin Scalia, who wrote that opinion, wanted to know why
his colleagues were debating it once again Monday.

"Why is this case here, except as an opportunity to upset
Melendez-Diaz?" Scalia thundered, referring to the opinion the court
rendered at the end of its term last June.

That is exactly what 26 states and the District of Columbia want the
court to do, saying the ruling imposes a debilitating procedural and
financial requirement on prosecutors. There is at least a theoretical
possibility that the 5 to 4 decision will not stand. Now-retired
Justice David H. Souter was part of the majority, and he has been
replaced by Justice Sonia Sotomayor, a former prosecutor the states
hope will be more receptive to their arguments.

So Sotomayor, the last to vote when justices meet in their private
conferences to discuss cases, was at the forefront of Monday's
arguments. She and Scalia dominated questioning, but Sotomayor gave
no indication she was ready to overturn the court's earlier decision.
She seemed more interested in finding a way to implement the decision
in a way that helps prosecutors without offending the Constitution's
guarantee that the accused be able to question those who testify against them.

Sotomayor asked Virginia Solicitor General Stephen R. McCullough what
kind of rule would allow prosecutors to present the forensic reports
without the proceeding becoming a "trial of affidavits."

The case at hand is in an unusual posture. Two men, Mark A. Briscoe
and Sheldon A. Cypress, were indicted on charges of cocaine
possession in separate incidents. Each objected to the admission of a
state lab report identifying the white substance in their possession
as cocaine, because the person who conducted the test was not called
to testify.

The Virginia Supreme Court combined their cases and turned down their
appeals, saying the men could have called the analysts on their own.

But Scalia said that was not good enough, and read from his own
decision in Melendez-Diaz: "The Confrontation Clause imposes a burden
on the prosecution to present its witnesses, not on the defendant to
bring those adverse witnesses into court."

Last term's decision scrambled the court's normal ideological teams:
Scalia was joined by the court's most conservative member, Justice
Clarence Thomas, as well as liberals Souter, John Paul Stevens and
Ruth Bader Ginsburg.

Justice Samuel A. Alito Jr. was the toughest questioner for
University of Michigan law professor Richard D. Friedman, who
represented Briscoe and Cypress. Alito said there was only a "slight
difference" between whether the lab analyst was called in the
prosecution's part of the trial or the defendant's, so long as the
accused had a chance to question.

Friedman said placing the responsibility on the defendant would be a
"transformation in the Anglo-American trial" and would mean that the
analyst's failure to show at trial would hurt the defendant, not the
prosecution. Friedman warned that the principle could be expanded to
audiotapes, videotapes or other kinds of witness testimony.

"Let's just not get beyond the facts of this case," Alito said. "All
that we are dealing with is an analyst's report relating to the
nature of the substance that was tested and, if it's a controlled
substance, the amount. That's it."

Alito also disputed Friedman's contention that the Melendez-Diaz
ruling was not imposing an undue burden on prosecutors. Alito pointed
to the brief by the states and the District, which called the
decision "unworkable."

"If it is not a burden on these 26 states plus the District of
Columbia, why are they bothering to make this argument?" Alito asked.
"Just for amusement?"

Arguments about costs did not move the majority justices last term.
And Scalia noted that less than two months after the Melendez-Diaz
decision, Virginia amended its law so that it "complies completely."

"So we are pronouncing on the validity of a Virginia statute that is
now gone, right?" Scalia asked Leondra R. Kruger, a federal assistant
solicitor general who was supporting Virginia.

Told that Virginia was trying to protect convictions that came
between the court's decision and the new law, Scalia replied: "I'm
not criticizing Virginia; I'm criticizing us for taking the case."

The case is Briscoe v. Virginia.