- The Washington Times - Friday, August 28, 2009


State Sen. Ken Cuccinelli told The Washington Times yesterday that Virginia’s crime labs are still in danger of becoming backlogged. Mr. Cuccinelli was the driving force behind an Aug. 19 special session that took the first key steps to solving the problem, so his words carry weight when he says more work needs to be done.

The problem arose when the U.S. Supreme Court ruled June 25 in Melendez-Diaz v. Massachusetts that criminal defendants can insist that crime lab technicians appear in court to explain their findings, rather than simply submitting affidavits listing the test results. Virginia defense lawyers pounced. The state’s approximately 160 technicians had been subpoenaed only 43 times in July 2008, but they were called a whopping 925 times in July 2009 after the high court ruling.

This new burden presents a lose-lose proposition for already overworked crime fighters. If the technicians don’t appear, even guilty defendants can go free. If the specialists do appear at the courthouse so often, they can’t be at the lab doing their work.

Just two weeks after the court decision, Mr. Cuccinelli called for a special session to address the looming disaster. His opponent in the race for state attorney general, Steve Shannon, characterized the senator’s stance as a “political stunt.” On July 27, Gov. Tim Kaine ratified Mr. Cuccinelli’s judgment in a letter telling the senator he would indeed convene a special session.

At that session, legislators adopted two temporary fixes suggested by Mr. Cuccinelli. First, they set up a system whereby defendants who insist on live technician testimony have only a 14-day window, ending two weeks in advance, to make the demand. That way, they can’t use it as a last-minute tactic to create the equivalent of a mistrial, and the labs can schedule the appearances ahead of time. Second, the new law lets prosecutors delay the proceedings without running afoul of the state’s “speedy trial” requirements if the technician is not immediately available.

Even with these considerations, the problem is not fully solved. “We can’t consider ourselves done,” the senator told us, “because there is still the elephant in the room of the lab technicians’ workload.” In the special session, lawmakers put off a third Cuccinelli proposal. The provision would have allowed a technician’s testimony to be taken via live, “two-way electronic video and audio” teleconferencing, directly from the lab. This would be a significant timesaver. All four state crime labs already have teleconferencing capability. Rather than spending hours traveling back and forth to the courthouse, and then twiddling thumbs at the courthouse waiting to testify, a technician could be doing real lab work right up until it is time to sit in front of the in-house camera to testify.

Lawmakers ought to adopt Mr. Cuccinelli’s additional proposal. Not doing so could put guilty criminals back on the streets.

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