Pubdate: Wed, 15 Jul 2009
Source: Washington Post (DC)
Copyright: 2009 The Washington Post Company
Author: Tom Jackman, Washington Post Staff Writer


High Court Requires Scientists to Testify

The predictions are dire. In New York, murderers could walk free. In
Fairfax County, drunken driving cases could be dismissed. And
nationwide, thousands of drug cases might have to be thrown out of
court annually.

Legal experts and prosecutors are concerned about the results of last
month's U.S. Supreme Court ruling that requires lab analysts to be in
court to testify about their tests. Lab sheets that identify a
substance as a narcotic or breath-test printouts describing a
suspect's blood-alcohol level are no longer sufficient evidence, the
court ruled. A person must be in court to talk about the test results.

The opinion, written by Justice Antonin Scalia, has prosecutors and
judges shaking their heads in disgust and defense lawyers nodding with
satisfaction at the notion that the Constitution's Sixth Amendment
guarantee that defendants "shall enjoy the right . . . to be
confronted with the witnesses against him" is not satisfied by a sheet
of paper.

"This is the biggest case for the defense since Miranda," said Fairfax
defense lawyer Paul L. McGlone, referring to the Supreme Court ruling
that required police to inform defendants of their Fifth Amendment
right against self-incrimination. He said judges "are no longer going
to assume certain facts are true without requiring the prosecution to
actually put on their evidence."

Four drunken driving cases in Fairfax and at least one in Prince
William County have been thrown out by judges after defense attorneys
used the new ruling to challenge the prosecution's evidence.

States and counties across the country handle evidence differently, so
the problems caused by the ruling vary widely. But many jurisdictions
have a similar issue: Crime labs that test drug and DNA samples face
huge backlogs even when scientists and analysts do not have to
testify. If the workers are taken out of the labs to appear in court,
those backlogs will grow.

In drug cases, more than 1.5 million samples are analyzed by state and
local labs each year, resulting in more than 350,000 felony
convictions, national statistics show. "Even if only 5 percent of drug
cases culminate in trials, the burden on the states is oppressive," a
group of state attorneys general wrote in a brief for the case.

The percentage of cases going to trial could well go up if defense
lawyers think that bringing lab analysts to court will help their
cases. Lawyers also could go to trial with the hope of a dismissal if
the analyst cannot be there.

Scott Burns, executive director of the National District Attorneys
Association, was a prosecutor in Utah for 16 years. "Sometimes it's
the game within the game," he said. With less incentive to plea
bargain, defense attorneys might try more cases, and "that's going to
put more stress on the system," Burns said.

In Prince George's County, lab analysts testify regularly, but the
volume of cases is so great that "we still are not able to process all
the drug cases," State's Attorney Glenn F. Ivey said. "There's a
triage going on in court cases. Some marijuana cases don't get tested,
and we end up throwing them out."

Then there are the big rural states, where crime labs are hours away
from many county courthouses. "It'll have a huge impact," said Ladd
Erickson, state's attorney in McLean County, N.D. "It's not volume as
much as it is distance. For some counties, round trip is going to be
10 to 12 hours to testify" for the lab analyst to travel to court.

Burns said 42 states and the District are affected by the Supreme
Court case, Melendez-Diaz v. Massachusetts.

The court might be looking to blunt the impact. It has agreed to hear
an Alexandria case that could provide prosecutors with an escape hatch
from the requirement of bringing lab analysts to court. The court will
rule on whether Virginia's law requiring the defense to provide
advance notice when it wants the lab analyst to testify is
constitutional. But a ruling on that case probably will not come until
next year, and many lawyers believe Virginia's law is deficient.

Last month's Supreme Court ruling emerged from a case in which Luis E.
Melendez-Diaz allegedly stashed cocaine in a Boston police car while
he was under arrest. The certificate of analysis, determining that the
white powder found in the car was cocaine, was entered without a
technician's testimony and with only minor objection.

Scalia wrote that Melendez-Diaz "was entitled to 'be confronted with'
the [lab] analysts at trial."

The ruling was 5 to 4, and the dissent written by Justice Anthony M.
Kennedy predicted a real-world disaster. "The Court threatens to
disrupt forensic investigations across the country and to put
prosecutions nationwide at risk of dismissal . . . when a particular
laboratory technician . . . simply does not or cannot appear," Kennedy

Kennedy added, "Guilty defendants will go free, on the most technical
grounds, as a direct result of today's decision, adding nothing to the
truth-finding process."

In Manhattan, a unique situation in the medical examiner's office
could result in disaster for homicide cases, Chief Assistant District
Attorney Mark Dwyer said. The personnel turnover in the medical
examiner's office is so great that the pathologist who performs an
autopsy on a victim often is not still employed there 18 months later,
when the case goes to trial. So the accepted practice in courts has
been to admit the autopsy report without any testimony by the person
who determined the cause of death, Dwyer said.

In addition, New York's DNA lab uses an assembly line approach in
which as many as 12 people have roles in breaking down and analyzing a
piece of evidence for traces of DNA, Dwyer said. "We would be
extremely concerned if the [Melendez] issue extended into DNA analysis
and autopsy reports," he said. "That would have a major and negative
impact on the ability to process serious cases."

In drunken driving cases, Fairfax also faces a problem. In most DWI
cases, the county uses breath-test technicians stationed in the jail
to perform the blood-alcohol tests rather than the arresting officers
so the entire 1,300-officer force does not have to be trained on the
machines. But there are only a few dozen technicians in Fairfax
processing about 4,000 DWI cases a year. Training Virginia's largest
police force on the machines is not feasible financially, spokeswoman
Mary Ann Jennings said.

"I think the effect of this could be very, very bad for public
safety," said Fairfax Commonwealth's Attorney Raymond F. Morrogh. "If
we are not able to use this evidence, which is reliable, but it's
excluded because we can't get the technician here, the guilty will go
free. It's a real challenge for us to deal with it." Fairfax is asking
for continuances in any case with a Melendez-Diaz challenge. Loudoun
County also is asking for continuances.

On Friday, state Sen. Ken Cuccinelli (R-Fairfax), a candidate for
attorney general, called for a special session of the General Assembly
to amend Virginia's law. His proposal would require defendants to
provide advance notice that they object to a lab analysis, and then
prosecutors would have enough time to bring in the technician.
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