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Special Session Update by Sandy Sanders

The following post is by Elwood “Sandy” Sanders, Esq. a Hanover Attorney that has been on top of this Melendez-Diaz case from day one.


The special session called by Governor Kaine after much urging from Senator Cuccinelli (and this blog!) opened today at 10 am with a hearing of the Senate Court of Justice Committee to hear various experts in various fields.

The only witness I could stay to hear was the Lynchburg Commonwealth’s Attorney [Michael R. Doucette, who was speaking as the Secretary-Treasurer of the Commonwealth Attorney’s Association] who succinctly stated the issues arising from the Melendez-Diaz decision. His report was stark and disturbing. There has indeed been an impact on public safety.

Doucette cited judicial decisions from Fairfax, Virginia Beach, and Alexandria invalidating breath tests, drug tests and calibrations. Doucette admitted that this is prime time for “sweetheart deals” on drug and DWI cases. He called it a “de facto decriminalization” of small amounts of drugs and “de facto minimunization” of DWI as well throughout the Commonwealth.

The only way to deal with this decision in a balanced way, Doucette suggested, is to have a speedy trial waiver for the period of time that is affected by the notice and demand made by the defendant. The Supreme Court of Virginia’s Briscoe decision is not helpful because it sets up a notice and demand but does not state a set time for the demand – only a reasonable time is stated and the day of trial is inherently unreasonable.

Doucette suggested that the decision has severely affected the Department of Forensic Science in that the lab examiners may have to choose between court appearances and essential lab work.

There are three bills before senators: One by Sen. McEachin that sets up a prior objection go be made by the defendant in writing, one by Sen. Cuccinelli that establishes 21 day notice to be given and a Task Force bill that I was unable to get a copy of as of this writing. There also was no scheduled testimony to give but Senator Marsh, who chaired the meeting suggested there may be public input at a joint House/Senate committee meeting in the near future.

Senator Cuccinelli’s bill speaks to the potential of video conferencing of necessary witnesses without the attendant travel. However, Doucette warned that not every circuit court is equipped with this type of technology.

My take on the events is (without the benefit of the Task Force bill) that Senator Cuccinelli has a clear handle on these issues to protect public safety without defeating the spirit of the Court’s decision. He called for this session early on; he has been shown to be right. I was however concerned that Senator Creigh Deeds was not present at least at the beginning of the hearing. Senator Cuccinelli found the time to participate in this matter.

I will keep the Virginia Right readers informed of further developments as time permits. By the way, our local senator, Ryan McDougle, was present and on duty at today’s meeting.

About Elwood Sanders

Elwood "Sandy" Sanders is a Hanover attorney who is an Appellate Procedure Consultant for Lantagne Legal Printing and has written ten scholarly legal articles. Sandy was also Virginia's first Appellate Defender and also helped bring curling in VA! (None of these titles imply any endorsement of Sanders’ views)

3 Responses to “Special Session Update by Sandy Sanders”

  1. Sandy Sanders

    Update: I have contacted Sen. Cuccinelli's office and offered my humble services to speak before the committee as needed. Stay tuned!


  2. Sandy Sanders

    Update: I have contacted Sen. Cuccinelli's office and offered my humble services to speak before the committee as needed. Stay tuned!



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Tom White Says:

Nothing is more conservative than a republican wanting to get their majority back. And nothing is more liberal than a republican WITH a majority.

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