High Court ruling throws sand into wheels of justice

U.S. Supreme Court Justice Antonin Scalia predicted that the "sky will not fall" with a decision more than six months ago mandating that lab analysts testify in person to the validity of drug tests and alcohol screenings.

Pete Marone, director of the Virginia Department of Forensic Science, still manages to get a laugh out of that. He says the so-called Melendez-Diaz decision written by Scalia has indeed wreaked havoc on the criminal justice system.

"Justice Scalia was wrong when he said nothing's going to happen," Marone said, more seriously.

In the last six months of 2009, state lab analysts were subpoenaed to testify in courts across the state in 5,651 drug cases. In 2008, before the ruling, those requests came in by the dozen per month, not by the hundreds. And in most cases, the analysts would not be called to testify.

Marone described it as "a giant game of chicken" that defense attorneys now play with prosecutors.

The U.S. Supreme Court will revisit the issue on Monday, when it hears a case involving a Chesapeake man caught with cocaine and convicted, in part, on the basis of a lab analyst's written report.

Attorneys for Sheldon A. Cypress argue that's a clear Sixth Amendment violation of a criminal suspect's right to confront witnesses against him - in this case, the lab analyst who tested the drugs.

Cypress is no poster child for innocence.

The Smithfield native already had a felony cocaine distribution conviction when he was arrested in Chesapeake in 2005. He also has prior misdemeanor convictions for carrying a concealed weapon and marijuana possession.

In the summer of 2005, Chesapeake police said they caught Cypress and his cousin in a car containing ounces of cocaine, some marijuana, a digital scale and empty plastic baggies. The cousin testified the drugs belonged to Cypress.

Cypress was convicted and sentenced to 15 years in prison with 10 years suspended. His conviction was based in part on the lab technician's report attesting to the purity of the cocaine.

His attorney, Tom Shuttleworth of Virginia Beach, argued at the Circuit Court that the prosecutor should have forced the prosecutor to put the state lab technician on the witness stand, instead of relying on just a piece of paper.

Shuttleworth lost then and at every appeal level.

The attorneys have brought in University of Michigan Law School professor Richard D. Friedman, considered an expert on the Sixth Amendment, to argue the case before the nation's highest court. (A Northern Virginia defendant, Mark Briscoe, is also part of the case. He, too, was convicted of a drug offense without testimony of a lab technician.)

Twenty-six states and the District of Columbia filed a brief arguing that the court should use the Cypress case to overturn Melendez-Diaz. They argue that if the defendant wants to hear from the lab technician, then the defense attorney should call that person as a witness.

The Virginia General Assembly addressed the problem in the fall when it passed emergency legislation requiring prosecutors to give defense attorneys 28 days notice of their intent to use a lab report as evidence. Defendants then have the option to accept that or demand the appearance of the analyst in court.

Scalia indicated in his opinion that this type of fix would be adequate.

"There is no evidence that the criminal justice system has ground to a halt in the states that, one way or another, empower a defendant to insist upon the analyst's appearance at trial," Scalia wrote.

"That puts the burden on me," Shuttleworth said.

The Sixth Amendment says the burden is on the prosecution to present witnesses subject to cross-examination by defendants, not the other way around, he said.

Scalia is likely to be the key vote in the Cypress case.

The other unknown is how new Supreme Court Associate Justice Sonia Sotomayor will vote. The former prosecutor is considered tough in criminal matters.

The attorneys for Cypress and Briscoe say they are also interested in hearing whether Scalia acknowledges the effects Melendez-Diaz has had on the criminal justice system.

He indicated repeatedly in Melendez-Diaz that the burden of requiring live testimony would not impact justice. Melendez-Diaz upheld an earlier case.

"The serious disruption predicted," he wrote, "has not materialized."

It may not have materialized prior to June 2009, when the opinion was issued, but Marone at the state lab has evidence that it has indeed slowed justice.

Prosecutors also say they have had to delay or even dismiss cases when lab technicians didn't show up.

Since the decision was issued, the backlog of drug tests has risen 40 percent and the backlog of alcohol or toxicology test has risen 15 percent, according to Marone.

"It sure is taxing," he said.

Shuttleworth said Cypress would be grateful to win the case and have the felony removed from his record, but he acknowledged that this goes well beyond Cypress and will have ramifications across the country if they win.

"He's the most important ingredient but it does go beyond him," Shuttleworth said.

Even if he wins, Cypress will likely be freed from prison by the time the court issues its ruling, expected sometime later this year.

Cypress is scheduled to be released from the Indian Creek Correctional Center in Chesapeake on June 28.

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