- The Washington Times - Monday, August 31, 2009

New Mexico’s state crime laboratory faces a potentially crushing workload, Virginia called a special legislative session this summer to change its drunken driving laws, and an Oregon district attorney says he has felt forced to make some plea deals about which he has doubts.

These are some of the consequences beginning to hit many states from a landmark Supreme Court decision that proponents hailed as a victory for the rights of criminal defendants.

The 5-4 decision in Melendez-Diaz v. Massachusetts requires prosecutors to make lab technicians available to testify at trials. Prosecutors previously were able to introduce into evidence reports from the technicians that indicated whether a defendant had drugs or alcohol in their system or that a substance seized by police was an illegal drug.

“Our position has been that for 90 years, this had been acceptable,” Scott Burns, executive director of the National District Attorneys Association, said of the procedures before the high court’s ruling. “I don’t know that any district attorney has seen a criminalist break down on the stand, Perry Mason style, and say, ‘You’re right. I lied, it wasn’t cocaine.’ ”

Josh Marquis, the district attorney of rural Clatsop County in northwestern Oregon, said the ruling has allowed defense attorneys to engage in “nuisance” tactics that he describes as “throwing sand in the machine.”

A defendant forcing the prosecution to call a lab technician to testify is part of a defense strategy akin to a motorist appealing a speeding ticket and hoping it will be dismissed because the officer who issued it won’t be able to appear in court, Mr. Marquis said.

The Melendez-Diaz decision allows a defendant who otherwise might have pleaded guilty to take the case to trial in the hopes that the lab technician won’t be available to testify, which could lead to a dismissal of the case.

Mr. Marquis made clear that such defense tactics are not improper but said that in counties such as his, where the nearest lab technicians work 100 miles away, they can affect the outcomes of cases.

With technicians needing to take a two-hour round trip to testify in the courtroom, Mr. Marquis said, he has to be judicious about calling the technicians to testify so as not to “burn up all the good will” he has with the lab. “As a prosecutor, I have to ask whether it’s really worth it” to call the technicians to testify, he said.

As a result, Mr. Marquis said, in some “garden-variety drug possession” and “low-level dealing cases,” his office has “made deals that I haven’t felt very comfortable about.”

Mr. Marquis said the Melendez-Diaz decision has not led to changes for plea negotiations in serious cases. “If it was a rape case or homicide we would do what we needed to do,” he said.

Stephen Braga, a Washington white-collar defense lawyer, said concerns such as those expressed by Mr. Marquis overstate the impact of the Melendez-Diaz case.

“It’s not like every drug case in this country is going to be threatened by this decision,” said Mr. Braga, noting that only about 5 percent of drug and other criminal cases go to trial. The rest are resolved through plea agreements, he said, and he doesn’t think the Melendez-Diaz decision will change that statistic.

Mr. Braga said the decision may affect how prosecutors negotiate plea agreements to mitigate the defense strategy Mr. Marquis described. He said prosecutors likely will give a defendant the most favorable plea offers early in a case, but offer a harsher deal if the defendant decides to plead guilty only after it becomes clear that a lab technician will testify in the case.

He also said defendants still can agree that a report from an analyst can be admitted into evidence without calling the analyst to testify.

“Most of the time, there is not going to be a dispute about the test,” Mr. Braga said. “There are some that might be worth probing, but by and large these chemists are not going to be testifying in every drug case.”

That would be good news for David Mills, the director of New Mexico’s state laboratory. His lab’s 13 technicians conduct nearly all of the testing for the state’s thousands of drug- and alcohol-related cases.

The analysts already spend considerable time traveling across the state to testify, and Mr. Mills said they’ve seen an increase in subpoenas since the Melendez-Diaz decision.

“We’re able to keep up so far,” Mr. Mills said of the potential impact on lab work, “but as it continues, I think it will cause problems.”

It already has caused problems for Virginia, which had to call a special session of its legislature this month to deal with the impact of the decision.

Immediately after the high court issued its decision in June, defense attorneys began citing it in court. The number of subpoenas to the Virginia Department of Forensic Science in drug cases jumped from 43 in July 2008 to 925 last month.

Prosecutors say they have had to drop or suspend some cases because of scheduling conflicts with the scientists. Also, the increased time the examiners are required to spend in court threatens to worsen a backlog of forensic cases at the state crime lab. The backlog stood at more than 6,100 cases at the end of July.

To avert a potential scheduling nightmare, the state legislature decided to require prosecutors to disclose what scientific analysis they intend to use at least 28 days before trial. The defendant then has two weeks to decide whether to require an analyst to testify. The legislature also allowed prosecutors to ask for delays for scheduling if the defendant wants the analyst to testify.

It still may take time before the full impact of the Melendez-Diaz decision is known.

Matt Kaiser, a Washington federal criminal defense lawyer, suggested that the logic of the decision could be applied in other cases in which documents are introduced into evidence without witness testimony, such as securities fraud or criminal immigration proceedings.

In such immigration cases, for example, documents showing that a defendant has been deported previously are frequently introduced into evidence without testimony from the person who prepared the document.

“I think what it’ll do is create immediate an opportunity for creative and aggressive criminal defense lawyers to try some things they have not been able to try,” Mr. Kaiser said. “There’s language in Melendez-Diaz that allows it to be extended to a lot of cases beyond forensic case.”

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