- The Washington Times - Thursday, December 24, 2009

RICHMOND | Virginia’s crime lab has fallen further behind in conducting drug and alcohol analyses as forensic examiners spend more time attending trials to comply with a U.S. Supreme Court ruling, officials say.

Travel and overtime costs also are on the rise, and the two most obvious solutions - hire more scientists or establish a system allowing them to testify by videoconference - are cost-prohibitive at a time when the state is trying to close a $3.6 billion budget shortfall.

The problem arose from the Supreme Court’s June 25 ruling 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.

The justices ruled 5-4 that the government must make the scientists available for defense cross-examination. The impact was immediately felt in Virginia, where lab reports usually had been accepted as evidence with no questions asked.

By November, the number of scientists subpoenaed to court had more than doubled, the work backlog at the state lab was up, and cases were lingering in the system several days longer on average than before the ruling, said Gail D. Jaspen, chief deputy director for the Virginia Department of Forensic Science.

“We don’t know if it will ever return to pre-Melendez levels,” Ms. Jaspen said of the subpoenas. She said she was unaware of any organization tracking the ruling’s impact nationally.

In Virginia, the number of subpoenas spiked in July at 1,885. It has steadily declined since then to 1,237 in November, but that’s still more than double the 582 in June.

The number of work hours spent by forensic examiners on drug cases out of the lab also increased from 19 hours in June to 332 in November. With examiners spending so much time in court, the backlog of drug analyses over the same period grew from 901 to 1,334.

Cases remained pending an average of 20 days in November, up from 16 days in June, and the number of cases lingering for more than a month increased from three to 58.

“These numbers are creeping up even though folks are working overtime,” Ms. Jaspen said.

Since Sept. 1, 17 chemists have put in 336 hours of overtime, and mileage reimbursement for trips not related to training has increased 950 percent over the same period, she said. Overall costs associated with the increased workload are still being calculated.

The department would get some relief under the state budget proposed by outgoing Gov. Tim Kaine. He proposed adding $198,000 to hire two additional toxicologists, and $789,000 in the next two-year budget to pay those additional salaries as well as travel, overtime and training related to Melendez-Diaz.

Despite the increased effort and costs, analysts are testifying in only 25 percent to 30 percent of the cases in which they are called as witnesses, Ms. Jaspen said. She said often the cases are continued or the defendant pleads guilty.

At a recent symposium, she said that between Sept. 1 and Nov. 12, drug analysts received 13 subpoenas from two distant localities. The analysts logged 2,600 miles and 74 hours outside the office to testify for a total of 10 minutes - and were never asked a single question by defense attorneys.

Elliott Bender, a Richmond defense attorney who was among the first to use the Melendez-Diaz precedent in a Virginia court, said one reason forensic analysts are not called to the witness stand more often is that lawyers don’t know what types of questions to ask. He said the defense bar needs training on how to cross-examine the scientists.

The General Assembly met in a one-day special session last summer to revise Virginia’s law to comply with Melendez-Diaz. The law requires prosecutors to notify defense attorneys if they intend to use lab reports as evidence. Defense attorneys then have two weeks to demand that the analyst appear in court, and it’s up to the government to get them there.

Lynchburg Commonwealth’s Attorney Michael Doucette, who was involved in drafting the legislation, said defense attorneys have demanded that analysts appear in about 60 percent of his cases but have yet to ask them any questions. Some lawyers may be just trying to build a record of diligent representation while others may be calling the analysts just because they can, he said.

Mr. Bender said he demands the appearance every time because the notice usually arrives before he has seen the evidence. He predicted more order to the process as both the defense and prosecutors become more comfortable with the changes.

“It’s kind of like water always finds its natural level,” Mr. Bender said.

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