- The Washington Times - Wednesday, August 19, 2009

RICHMOND | Virginia lawmakers return to the Capitol on Wednesday to respond to a U.S. Supreme Court ruling that has resulted in clogged court dockets and jeopardized some drug and drunken-driving cases.

While they are in town, legislators also will get an update on the state’s budget troubles from Gov. Tim Kaine and consider restitution for a wrongly convicted man.

Mr. Kaine called the special session after the Supreme Court ruled that prosecutors must make forensic examiners available for defense cross-examination about lab reports on drugs and other trial evidence. Failure to do so violates the defendant’s constitutional right to confront his accuser in court, the justices said in the June 25 ruling.

Virginia’s current law makes it the defendant’s responsibility to call the scientist to testify in order to challenge a lab report. The Virginia Supreme Court concluded last year that the state law was constitutional, but the ruling by the nation’s highest court in a Massachusetts case appears to conflict with that decision.

Defense attorneys in Virginia immediately began citing the U.S. Supreme Court ruling, forcing more forensic examiners to come to court. The Virginia Department of Forensic Science says the number of subpoenas for examiners to appear in court in drug cases alone 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 just over 6,100 cases at the end of July.

A task force appointed by Mr. Kaine has proposed legislation intended to blunt the immediate impact of the Supreme Court ruling until the General Assembly can explore a more long-term solution at the regular session that begins in January.

The measure would require prosecutors to provide the lab report to the defendant four weeks before a hearing or trial. The defendant would have two weeks to decide whether he wanted to question the examiner. If he did, it would be up to the prosecutor to get the scientist to court. That procedure is expected to curb the number of scientists called to testify.

“This is not a permanent solution,” said state Sen. Henry L. Marsh III, Richmond Democrat and chairman of the Senate Courts of Justice Committee. “It’s a solution to get us to the next session.”

Other suggestions include hiring more forensic scientists and allowing them to testify by videoconference from their offices.

The only other item on the full General Assembly’s calendar will be a proposal to compensate a Norfolk man who spent 22 years in prison for a rape he did not commit. Arthur Whitfield was convicted of two rapes in 1981 and sentenced to 63 years in prison, but a 2004 DNA test proved his innocence and he was freed.

Mr. Kaine pardoned Mr. Whitfield in April. Sen. Kenneth Stolle, Virginia Beach Republican, has proposed giving Mr. Whitfield $445,703, and lawmakers from both parties have agreed that the man should be compensated.

Also on Wednesday, the legislature’s money committees will learn how much the state budget will have to be cut and how Mr. Kaine proposes doing it.

Mr. Kaine has already said the budget will be $700 million to $1.5 billion short. He has not ruled out layoffs.

Dena Potter contributed to this report.

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