RICHMOND | Virginia’s backlog of forensic science cases could skyrocket as examiners spend a lot more time in court because of a recent U.S. Supreme Court decision, Department of Forensic Science officials told an oversight board Wednesday.
The U.S. justices ruled in June that prosecutors must make forensic examiners available for defense cross-examination about lab reports on drugs, ballistics and other trial evidence.
The number of subpoenas for examiners to appear in court jumped from 43 in July 2008 to 925 last month, department officials said. Examiners spent 844 hours in court in July, more than double the average for each of the past 11 months.
Gov. Tim Kaine called a special legislative session for Aug. 19 to address the issue. A legislative subcommittee was meeting Wednesday to try to draft a fix.
“If our toxicologists and our drug analysts are in court, they’re not in the lab, and the backlog is going to grow,” said Gail Jaspen, the department’s chief deputy director.
The backlog stood at slightly more than 6,100 cases at the end of July, but members of the Forensic Science Board worried it would grow exponentially if examiners spent more and more time out of the lab.
The department could outsource some cases, board members said, but it is costly and often more difficult to get private lab workers in court.
Meanwhile, prosecutors are facing a “tsunami” of drug and drunken-driving cases because many were pushed back when examiners weren’t available for court earlier this summer, said Fairfax County Commonwealth’s Attorney Raymond Morrogh, chairman of the board.
Mr. Morrogh said prosecutors could lose cases or be forced to plea-bargain with criminals simply because examiners aren’t available.
“Most prosecutors are not inclined to endanger the public safety by giving sweet deals to criminal defense lawyers on DWIs unless we’re forced to,” he said.
Defense attorneys began citing the ruling soon after the 5-4 decision was issued June 25. The court ruled that lab reports are testimonial evidence and thus subject to the Constitution’s Confrontation Clause.
The U.S. justices ruled in favor of Luis Melendez-Diaz, who challenged a lab analysis that confirmed cocaine was in plastic bags found in the car in which he was riding. Massachusetts courts had rejected his claim that he should be allowed to question the lab scientist about testing methods and other issues.
A Virginia law requires the prosecution to submit any lab reports it plans to use as evidence a week before a hearing or trial. If the defendant doesn’t demand that the examiner testify, he or she has waived his Confrontation Clause right.
The Virginia Supreme Court concluded last year that the state law was constitutional, but the nation’s highest court has agreed to hear an appeal of the Virginia court’s decision.
Delegate W.R. “Bill” Janis, Henrico Republican and a member of the board, said he was “not convinced this is the crisis everyone’s made it out to be.”
Defense attorneys could have subpoenaed examiners before, he said, and the recent uptick is likely gamesmanship from prosecutors and defense attorneys and will likely die down.
But he said legislators could use next week to push for more funding for the department. Toxicology cases make up more than one-fifth of all backlogged cases, but Virginia has only four toxicologists and one trainee.
“You never want to waste a good crisis,” Mr. Janis said. “We shouldn’t waste the opportunity in the bully pulpit next week that we need more toxicologists.”
Leah Bush, Virginia’s chief medical examiner and a member of the board, said her office also was feeling the pinch from the ruling, as toxicology reports that used to take weeks now are taking up to four months.
Dr. Bush said she gets calls from families who are waiting for death certificates for insurance and other purposes, and that longer backlogs could put them in a bind financially.
“So far it’s a manageable spike, but if it continues at the same level it will quickly become unmanageable,” she said.
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