The Supreme Court made a ruling last month that has prosecutors everywhere trying to figure out what to do. Republican Attorney General candidate Ken Cuccinelli has called for Governor Kaine to call a special session of the General Assembly to address Virginia Law. As usual, Governor Kaine’s position is to do nothing. Meanwhile, many localities have stopped prosecuting drug and DUI cases until the state makes a decision. Steve Shannon supports Governor Kaine’s “do nothing” approach. Meanwhile, drunk drivers and drug dealers can have a field day. Kaine and Shannon think a special session is too costly. I hope they will be able to explain that to the loved ones of Virginians whose families suffer injury or death because the Governor thinks it’s too expensive. Too bad he did not have that fiscal restraint when it came to footing the bill for free transportation to D.C. for President Obama’s inauguration. That money could have been used to protect Virginians instead of being wasted by the absentee governor.
In the case of Melendez-Diaz v. Massachusetts, SCOTUS ruled that that the accused has the right to face their accuser. In this case, the Lab Technicians. Elwood “Sandy” Sanders wrote a guest blog which was published here a couple of days after the ruling. Sandy contacted me as soon as that ruling was handed down. Excellent foresight. You can read Sandy’s take on this important story here.
Many (including Sandy Sanders) believe this ruling will lead to an unacceptable amount of work being added to already over worked lab technicians. And he is correct. However, the 6th Amendment provides that “in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him.”
Now, in Virginia, the accused has that right – but they must request the lab technician be present in court. The Supreme Court says that is not good enough. The lab technician must be there to present the evidence. Labs generally have a back log of work and having technicians traveling all over the state to testify is an expensive burden. I believe Virginia’s current law balances the rights of the accused with reason and sanity. In Virginia, all one must do is assert the 6th amendment and the lab technician will be summoned to court. I’m no lawyer, but I know a failure to assert a right after you have been made aware of your rights is your problem. And when you are represented by an attorney, it is assumed that you are fully up to speed on your rights. So, if you take the stand and incriminate yourself by failing to assert your 5th amendment rights, that is your problem. Why should the 6th amendment be any different?
Now, if you are represented by an attorney in a drug or DUI case and your attorney failed to advise you of the Confrontation Clause, or assert that right on your behalf, you may have a case for ineffective counsel and grounds for a retrial. But absent any inside evidence that the lab made a mistake and the testimony of the lab technician that performed the analysis in question would tend to have the evidence thrown out, it will be almost impossible to make a case for a retrial.
But if I were sitting in a cell right now, I would be inclined to have an investigation done on the technician that performed the analysis of my drugs or blood (in the case of a DUI) and see if there was anything in his past that would tend to discredit him. Perhaps a prior DUI or drug conviction, history of mental illness, etc. It would be worth a shot, right? Most convicts probably qualify for a free attorney, anyway. Why not work the system.
The burden placed on Virginia and other states by this ruling is significant. I have met some lab technicians that have great technical skills, but would no doubt crack under cross examination. The hiring practices and requirements for Lab Techs will now include an ability to do well in court under cross examination and have an appearance that reflects credibility. I see a lot of hair cuts and intense training in store for the Techs already employed and a backlog that will grow even larger. So large that the right to a speedy trial, also guaranteed by the 6th amendment, may cause real problems.
So, the good news is, the Supreme Court upheld our 6th amendment rights. The bad news is, it may let some criminals off the hook as the financial burden becomes too great to prosecute. Will it be worth prosecuting a few grams of crack or coke? In the grand scheme of things, probably not. Just as some localities must decide not to make some well deserving cases a death penalty case for monetary reasons, so will we see the same logic applied to drug cases.
The net effect of this ruling will be to let more drug users walk, effectively legalizing small amounts of drugs.
And that will not be good for society.