Supreme Court case pits defendants' rights vs. prosecutors

When a state trooper stopped a car in Chesapeake for having tinted windows back in 2005, no one predicted that the case might bring the criminal justice system to a grinding halt.

The trooper reported finding cocaine on passenger Sheldon A. Cypress that day, but Cypress has successfully appealed his case all the way to the U.S. Supreme Court.

The issue involves whether state lab technicians should be required to testify in person at trials involving drugs and alcohol. In the past, prosecutors have gotten away with simply submitting a "certificate of analysis," a piece of paper from the lab attesting to the drug content or blood-alcohol level.

A similar case, Melendez-Diaz v. Massachusetts was decided by the Supreme Court last month and has already caused extensive delays and dismissals, prosecutors said. That's why Gov. Timothy M. Kaine called for a special session of the General Assembly next month to address the issue.

But it might not be enough.

The Supreme Court in the Cypress case will decide, likely early next year, the proper procedures for states to follow, taking the issue a step further than it did in the Melendez-Diaz case. Whatever action the General Assembly takes on Aug. 19 might be negated by whatever the nation's highest court rules.

"Alarmists are saying the whole system will come to a screeching halt because of this," said Virginia Beach attorney Tom Shuttleworth, who represented Cypress in state court and has been assisting in the appeals.

Well before the Melendez-Diaz case, Shuttleworth argued in the Cypress case that the Sixth Amendment's confrontation clause requires prosecutors, not the defense, to present the lab technician as a witness. A Chesapeake Circuit Court judge disagreed and found Cypress guilty of cocaine distribution based on a paper lab report. Cypress is serving a five-year prison term.

"I just refused to agree that the drug report could come in without somebody testifying about it," Shuttleworth said. (Cypress lost again before the Virginia Court of Appeals and the Virginia Supreme Court.)

Prosecutors statewide say the Melendez-Diaz decision, which held that lab technicians must testify in person, is already causing problems and has allowed suspects in drunken driving and drug case s to go free.

"I have heard anecdotally that judges are dismissing cases when the case is called and there's not an analyst there to testify," Robert Q. Harris, director of the Virginia Commonwealth's Attorneys' Services Council, said Wednesday. "And cases are being continued."

Chesapeake Commonwealth's Attorney Nancy Parr said 50 to 60 cases have been continued until state lab technicians can make their court appointments. That will cause further delays as lab technicians have to be out of the office more frequently and are unable to complete tests.

"That's the impact we're seeing," Parr said.

"As this snowballs, it's going to have a cumulative effect," Virginia Beach Commonwealth's Attorney Harvey Bryant said.

He said the ruling has affected several drunken driving cases. Two were reduced to reckless driving, and one was dismissed when the person who calibrates the Breathalyzer machine - to attest to its accuracy - did not testify.

"I think that goes way beyond what the Supreme Court said," Bryant said.

Suffolk Commonwealth's A ttorney Phil Ferguson said his office handled a marijuana case that was dismissed, in part on the Melendez-Diaz issue.

"There's no questions it's an issue. It's a major issue," Ferguson said.

One way he is trying to get around the problem is by forcing defense attorneys to take their cases to a jury trial if they don't waive the appearance of the chemist. Defendants are more likely to get more prison time by a jury than by a judge or through a plea bargain, he said.

But Portsmouth Commonwealth's Attorney Earle C. Mobley said that will solve nothing and clog the system even more.

"I think it's heavy-handed to just routinely ask for juries, to essentially punish a defendant because his lawyer seeks to force the commonwealth to jump through all the hoops that the law requires," Mobley said. "That could essentially cause the courts to come to a gridlock."

He said his office has been using different avenues to get around the problem.

Sometimes, they'll accept quick plea bargains to resolve cases, mostly ones involving marijuana, with offers that might be more generous than his office would normally give.

They may also "nol pros," or temporarily dismiss, cases and then take them to a grand jury to avoid having to present the chemist as a witness in preliminary hearings in General District Court.

"But that's a huge problem in the long run," he said. "At some point, the lab is going to get incredibly backed up."

Some suggested that the state may have to hire hundreds more lab analysts to keep up, but the governor's office has said budget constraints would make that difficult.

The Virginia Department of Forensic Science received about 60,000 submissions for testing last year, including fingerprints, DNA, drugs, firearms and toxicology.

The department has about 160 employees doing analysis work at four labs, including one in Norfolk. That equates to about 31 tests per month per employee. More than half of the submissions are for drug testing.

Department Director Pete Marone was optimistic that his office can handle whatever extra work is thrown at them.

"We are concerned about these developments, yes, but we cannot afford to take our eye off the ball. We are scientists. We have to get things right.

"We will adjust."

Tim McGlone, (757) 446-2343, tim.mcglone@pilotonline.com