- The Washington Times - Thursday, July 23, 2009

RICHMOND | Gov. Tim Kaine called a special legislative session Wednesday to address a recent U.S. Supreme Court ruling that prosecutors say is jeopardizing some criminal cases.

The session will be held Aug. 19, Mr. Kaine said at a news conference.

Last month, the U.S. Supreme Court ruled that the Constitution requires prosecutors to make forensic examiners available for defense cross-examination about lab reports on drugs, ballistics and other trial evidence. Virginia defense attorneys already are citing the ruling, and prosecutors have suspended some drug and drunken-driving cases.

Virginia law puts the onus on defendants to subpoena the scientists if they want to challenge lab reports. According to the Supreme Court, the Confrontation Clause of the Sixth Amendment places the burden on the prosecution to make the forensic examiners available.

The ruling has prompted worries that Virginia Department of Forensic Science workers would be unable to keep up with their lab work if they are constantly being summoned to court. The department, with about 160 employees conducting casework statewide, handled nearly 60,000 cases last year.

State Sen. Kenneth Cuccinelli, Fairfax Republican, urged the governor to call a special session in a letter on July 10. Mr. Kaine held off while his legal advisers looked for administrative remedies but ultimately agreed that legislation is needed.

“Now I think we’re on track to at least stop the bleeding here,” Mr. Cuccinelli said in a telephone interview Wednesday. “There’s a growing workload for lab techs that they’re going to have to overcome even if we get a fix on Aug. 19.”

Louisa County Commonwealth’s Attorney Tom Garrett said he has postponed presenting some cases to a grand jury to avoid the consequences of the Supreme Court’s ruling. “If nothing else, justice is delayed,” Mr. Garrett said, adding that some of the cases could violate speedy trial rules if they linger long enough.

The ruling became an issue in the state attorney general’s race between Mr. Cuccinelli and his Democratic opponent, Delegate Steve Shannon of Fairfax County, who supported Mr. Kaine’s attempt to find an administrative remedy before summoning legislators to Richmond.

“We got handed a thorny, complicated problem by the Supreme Court decision,” Mr. Shannon said Wednesday, adding that it eventually became clear that a comprehensive solution requires both legislative and long-term administrative changes. One possible administrative remedy, he said, is allowing scientists to testify by videoconference.

House Majority Leader Morgan Griffith, Salem Republican and a member of the House Courts of Justice Committee, said finding a legislative fix will not be easy.

“It will take the lawyers on the courts committee working very hard to come up with even a temporary solution,” he said.

Mr. Cuccinelli said the solution might be found in the Supreme Court’s June 25 ruling in the Massachusetts case. He said the justices cited three other states that comply with the Sixth Amendment by requiring the prosecution to give notice if they intend to use a “certificate of analysis” and allowing the defense to either agree or object. If the defense objects, the prosecution has the burden of producing the scientist who prepared the analysis.

“The burden stays on the prosecution at every point,” Mr. Cuccinelli said.

In the Massachusetts case, defendant Luis Melendez-Diaz challenged a lab analysis that confirmed cocaine was in plastic bags found in the car in which he was riding. State courts had rejected his claim that he should be allowed to question the lab scientist about testing methods and other issues.

The Supreme Court ruled 5-4 that the lab reports are testimonial evidence and therefore subject to the Confrontation Clause. The justices later agreed to review Virginia’s law, which Mr. Cuccinelli said appears to conflict with the Melendez-Diaz ruling.

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