- The Washington Times - Saturday, July 11, 2009

RICHMOND | Virginia’s Republican candidate for attorney general said Friday that the General Assembly should hold a special session to deal with a U.S. Supreme Court ruling that he said could cripple the state’s criminal justice system.

Kenneth T. Cuccinelli II said some prosecutors are suspending drug and drunken driving prosecutions because of last month’s decision in a Massachusetts case. In that 5-4 ruling, the court said prosecutors must make forensic scientists available for defense cross-examination about lab reports on drugs and other trial evidence.

The ruling raises questions about a Virginia law that puts the onus on defendants to subpoena scientists if they wish to challenge the accuracy of lab reports. Defendants who fail to take such action in a timely manner waive their rights under the Constitution’s Confrontation Clause, according to the Virginia statute.

The U.S. Supreme Court has agreed to review Virginia’s law, but Mr. Cuccinelli - a state senator from Fairfax County - said the legislature should go ahead and change it rather than wait for a potentially damaging ruling.

“If we lose that case, there’s going to be a lot of remands for new trials,” Mr. Cuccinelli said in a telephone interview. “That’s going to be a sudden workload hit.”

Mr. Cuccinelli sent a letter to Gov. Tim Kaine, urging him to call a special session. He wrote that “there is a need to act quickly to avoid very significant problems once some ongoing cases start to run up against speedy trial limitations as a result of continuances that are currently being requested and granted” because of the ruling.

Kaine spokesman Gordon Hickey said it’s too early to convene a special session.

“The governor is well aware of this issue,” Mr. Hickey said. “Certainly legislation would be one solution, but let’s not leap to that before we give it a little thought. The governor’s legal team is looking at other ways to fix it.”

The General Assembly also could call itself into special session if two-thirds of the members of both houses make written requests to the governor.

Louisa County Commonwealth’s Attorney Tom Garrett said prosecutors across the state support a special session.

“You’d be hard-pressed to find a commonwealth’s attorney who isn’t in support of it,” he said, adding that the problems are too urgent to follow the usual procedure and take up the matter at the next regular session in January.

“I can’t wait until July 1, 2010, for a new law to take effect,” he said.

Mr. Garrett said his relatively small jurisdiction has “dozens and dozens” of cases that could be affected by the ruling. He said one cocaine case in Louisa already has been dismissed because the forensic analyst was not present.

Mr. Garrett said the state’s Department of Forensic Science simply doesn’t have the manpower to have its examiners running all over the state to testify. About 160 employees conducting casework handled nearly 60,000 cases last year, the department says. The number of tests would be even higher because many cases involve multiple pieces of evidence.

Fixing the state’s law would not be difficult, Mr. Garrett said. He said the statute could be amended to require the state to subpoena the scientists and give the defense a deadline for stating whether they want them to appear. The justices signaled in their ruling that such “notice and demand” statutes in three states are constitutional, Mr. Garrett said.

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