Pubdate: Sun, 28 Jun 2009
Source: Detroit Free Press (MI)
Copyright: 2009 Detroit Free Press
Contact:  http://www.freep.com/
Details: http://www.mapinc.org/media/125
Author: Brian Dickerson, Free Press Columnist
Referenced: The ruling http://drugsense.org/url/B9971kEO
Bookmark: http://www.mapinc.org/opinion.htm (Opinion)

THE RISING PRICE OF FUTILITY

I have bad news and really bad news about the war on drugs.

The bad news is that the good guys are still losing.

The really bad news is that continuing this futile battle is about to 
get a lot more expensive. And for that you can blame the U.S. Supreme 
Court -- or, if you take the long view, the criminal-coddling crowd 
that gave us the Bill of Rights.

In a 5-4 decision Thursday, the justices ruled that prosecutors are 
forbidden to use crime lab test results against criminal defendants 
unless the analysts who produced them are available to testify in 
court and face cross-examination by defense attorneys.

The majority said the exclusion of such unaccompanied lab evidence 
was mandated by the Sixth Amendment, which gives all defendants the 
right to confront witnesses against them.

Four dissenting justices said the majority had put "a crushing 
burden" on prosecutors and forecast that "guilty defendants would go 
free, on the most technical grounds" as a result. Writing for the 
dissenters, Justice Anthony Kennedy called the majority ruling "a 
windfall for defendants" that contravened 90 years of legal precedent.

Michigan's Used to It

The decision in Melendez-Diaz v. Massachusetts will have relatively 
little impact on prosecutors in Michigan, which is among a minority 
of states that already require lab technicians to testify about any 
test results they produce.

But it effectively precludes legislation to ease that burden on 
Michigan State Police scientists, who are currently logging 15 or 
more hours of overtime a week to process an enormous backlog of 
forensic evidence.

Tim Baughman, chief of appeals for the Wayne County Prosecutor's 
Office, said prosecutors and state lawmakers concerned about six-to 
eight-month waits for crime lab results have discussed freeing 
technicians to spend less time in court. "That's a solution that no 
longer exists after Thursday's ruling," he said.

Prosecutors in the majority of states whose courts historically have 
allowed crime lab reports to speak for themselves are more 
apoplectic. "It's a train wreck," Scott Beck, the executive director 
of the National District Attorneys Association, opined after reading 
the majority's decision. "To now require that criminalists in offices 
and labs ... where budgets are already being cut back travel to 
courtrooms and wait to say that cocaine is cocaine -- we're still 
kind of reeling."

The High Cost of Liberty

The most interesting thing about Thursday's decision is that it was 
written by Justice Antonin Scalia, seldom an apologist for criminal 
defendants and widely regarded as the court's staunchest conservative.

Scalia must have bridled at the conservative dissenters' insinuation 
that he was setting drug dealers loose, but he was adamant that the 
Constitution entitles defendants to confront human witnesses, not 
just mute lab reports.

Enforcing a defendant's right to cross-examine witnesses might be 
inconvenient and expensive, Scalia admitted, "but the same can be 
said of the right to trial by jury." It was not the justices' place, 
he added, to decide when constitutional safeguards were no longer 
worth what they cost the government to uphold.

"The sky will not fall after today's decision," Scalia wrote.

He's probably right about that. But the cost of putting those who 
manufacture, sell and use illicit drugs rose significantly this week. 
And now those of us who pay the freight have even more reason to 
wonder if we're getting our money's worth. 
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MAP posted-by: Richard Lake