- 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.

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