Supreme Court ruling prompts call for special session

RICHMOND

Gov. Timothy M. Kaine is bringing legislators back to town Aug. 19 to amend state law dealing with how government forensic scientists can be called to testify in criminal trials.

The governor's decision comes in response to a recent U.S. Supreme Court ruling, known as Melendez-Diaz, that places the burden on prosecutors to call those technicians to court as witnesses.

"A special session is the most effective way to ensure compliance with Melendez-Diaz and ensure that pending cases in Virginia are held in an orderly fashion," Kaine told reporters Wednesday.

The high court held that the presentation of a forensic lab report as evidence - instead of testimony by the scientist who produced it - violates a defendant's constitutional right to confront witnesses. The case stemmed from a 2001 drug arrest in Boston.

That decision has had a ripple effect throughout Virginia's court system, with some prosecutors delaying trials and some judges tossing cases when lab analysts don't appear in person.

Phil Ferguson, the Suffolk commonwealth's attorney, said he's aware of a marijuana case that a judge dismissed in part because there was no analyst to testify. There were other technical problems with the case too, he said.

"It's a major issue," he said. "I think all of us are having to react to this. The potential ramifications are enormous, make no doubt about it."

In addition to jeopardizing some prosecutions, the ruling could create logistical headaches for the state's forensic scientists.

If they are regularly called to appear as witnesses, it could limit their productivity by pulling them away from the lab.

Pete Marone, director of the state Department of Forensic Science, said there is concern about the ruling, but he added, "We are already adapting, and we'll do what we have to do."

Last year, nearly 60,000 cases were submitted to the department, whose work includes examination of drugs, firearms, fingerprints, DNA, documents, and breath-alcohol samples.

How the state should respond to the ruling has become a point of contention in the race for attorney general. Republican Ken Cuccinelli first raised the issue, calling earlier this month for a special session. Democrat Steve Shannon floated the idea of using videoconferencing to allow analysts to testify without having to travel.

Kaine said he will authorize use of a state contingency fund to offset additional costs incurred as a result of the Supreme Court decision.

His office has worked since the ruling to find an administrative solution but hasn't yet settled on one.

One fix would be to hire more trained forensic scientists. But given the state's financial situation, that could be difficult.

The date of the planned special session coincides with meetings of the General Assembly's money committees in Richmond, so some lawmakers are expected to be in town anyway.

Even if the law is changed in a special session, that may not entirely resolve things.

Early next year, the U.S. Supreme Court is expected to hear a consolidated Virginia case that raises

questions similar to those considered in Melendez-Diaz.

One of the matters involved is an appeal stemming from the 1995 arrest of Sheldon A. Cypress on a drug charge in Chesapeake. The state Supreme Court upheld the legality of Virginia's forensic-testimony rules in a 2008 ruling that consolidated the Cypress case with two other appeals.

Pilot writer Tim McGlone contributed to this report.

Julian Walker, (804) 697-1564, julian.walker@pilotonline.com