Cross Posted on Blue Commonwealth and New Dominion Project
Since the Supreme Court’s decision in Melendez-Diaz v. Massachusetts Virginia has become center stage in how courts and law enforcement will deal with this new landmark ruling. The 5-4 decision authored by Justice Scalia held that it was unconstitutional to introduce certificates of analysis or lab sheets because it does not allow for a defendant to "confront" the witnesses against them. In the face for Attorney General this has come front and center and mainly the first strike was does by Republican Ken Cuccinelli is calling for a special session to fix the problem courts are now experiencing. Steve Shannon on the other hand called for a more measured and tempered approach to see how Commonwealth offices are handling it. Yesterday, Governor Tim Kaine called for a special session of the General Session to be held on August 19th to specifically address the Melendez-Diaz decision. While Ken Cuccinelli won the "press war" in immediately calling for a special session I believe that is all he really won given the fact that he was very limited regarding the impacts of Melendez-Diaz to both the courts and law enforcement.
In Virginia, during a DWI most arresting agencies have their officers run the breath tests following an arrest. Fairfax County is different due to the high amount of arrests that occur so it is more expedient to have staffers at the jail who run the tests and draw blood when necessary. (The blood draw capability by staff also prevents officers from going to hospitals) While there was a sense if you listened to Ken Cuccinelli that the sky is falling due to this decision I’ll respectfully disagree, at least with DWI’s. Thus far if you notice a substantial amount of the debate has focused on DWI arrests and little on drug cases because there are substantially more going through the court systems. The Georgia waiver that Cuccinelli discusses and which was held constitutional under Melendez-Diaz is a "notice-and-demand" waiver which would allow defendants to waiver their rights to cross examine the tech, lab analyst or machine calibrator. While the wavier is constitutional it really does not fix the problem that is faced "on the front lines" by our Commonwealth Attorneys and law enforcement and will bring us right back to square when where we already are. The problem that Ken Cuccinelli fails to grasp is that there are currently not enough analysts available testify at the amount of trials they will be subpoenaed to.
Routinely, breath techs/machine operators are in court for their DWI case whether it be because they run their own tests or because they are subpoenaed. This is really not a major issue facing prosecutions. This recent decision has told us now that we have to make sure that whoever ran the test is present in court and available for cross examination. Nothing more, not a big deal. The issue that Ken Cuccinelli really misses is that fact that lawyers are now arguing (Successfully) that the Department of Forensic Science (DFS) machine calibrators from Richmond have to be present and available for testimony as well. Eventually this will be applied to radar/LIDAR equipment and even the equipment used in narcotics testing facilities. This is where the "legislative fix" offered by Cuccinelli fails miserably in the long term view of the decision. Currently, there are only three DFS machine calibrators for the entire Commonwealth who are responsible for calibrating the alcohol testing machines every six months. The sheer volume of DWI cases through Virginia everyday makes it impossible a calibrator to be in Arlington, Alexandria, Falls Church, Fairfax, City of Fairfax, etc on the same day at the same time. That is only a small segment of Northern Virginia and not including the other areas in Virginia. Ken Cuccinelli has not figured out or is simply clueless as to how the Georgia waiver statute will address that issue and he won’t because it provides no method to deal with this. The only way to deal with this problem after the special session is through administrative means suggested by Steve Shannon between the courts and those now responsible for testifying. It is quiet clear that Steve’s experience as an assistant commonwealth allows him a key vantage point in this aspect of the debate.
Defense lawyers throughout the Commonwealth know that there are not enough calibrators to be in every courthouse everyday of the week. The ability to schedule them reasonably is going to be a major problem for the Commonwealth and the courts. Even in a recent Roanoke Time editorial ( http://bit.ly/... ) Cuccinelli agreed that legislative remedy wouldn’t essentially fix this problem but instead make it easier to deal with the scheduling difficulties. I contend, from being "on the front lines" that it will not be easy once everything gets started following a special session by the legislature. By knowing that a defendant’s case cannot be continued forever the inability of the Commonwealth to schedule calibrators to be present will result in even more dismissals Fairfax Commonwealth Attorney Ray Morrogh even agreed in a July 18th Washington Post article ( http://bit.ly/... )that even with the waiver it will not prevent defendants from requesting calibrator’s to be present if they so choose. There is no disincentive for calling a calibrator or a lab analyst in narcotics cases because if they are unable to be present then there is a good chance of a dismissal of charges for them. While some argue that there is no benefit for the defense to call the "experts" if questioned properly by a competent lawyer then there really is no risk to the defendant and his case. Their job is to zealously represent their client in the best way possible and I believe this will be an avenue explored by them.
While Ken Cuccinelli may have won the "media war" in calling for a special session he did only that; win the media war without providing any workable solution to go along with his "legislative fix." As this issue becomes more visible to voters it will become apparent that the Mike Henry was correct is his assessment that this was simply a stunt by the Cuccinelli campaign. Myself and others "on the front lines" need solutions and not stunts from someone running for Attorney General. What Ken Cuccinelli needs to realize with this decision is that the Commonwealth will have to hire more lab analysts and calibrators so they can be in accordance with this decision. The more time breath techs, lab analysts and calibrators are in court or traveling for trial the less time they are doing the jobs that they were hired to do and the backlog of cases will continue to grow. Although the economic crisis the United States and Virginia is going through makes that extremely difficult the Constitution and the Supreme Court cannot take those factors into account in making their decisions. His belief that this special session will be a quick fix to this problem should raise serious concerns to his understanding of this very important issue in criminal law in which he has no hands on experience. While it is not necessary to have criminal law experience I think his lack of experience is evident in this case. Ken Cuccinelli’s call for a special session will leave prosecutors and law enforcement on August 20th in the exact same position as we are now: Attempting to find a balance between the competing interests of following the Constitution of the United States and furthering public safety.