Federal prosecutor bemoans Supreme Court decision requiring government lab analysts to testify about their tests.Now, can anybody get a new trial for Olofson based on this? I think not. Maybe one day the ATF will be forced to actually write their procedures down and film ALL of their tests. Probably too much to hope for.
My thanks to Len Savage for forwarding this Washington Post story.
Mike
III
Lab Analyst Decision Complicates Prosecutions
High Court Requires Scientists to Testify
By Tom Jackman
Washington Post Staff Writer
Wednesday, July 15, 2009
The predictions are dire. In New York, murderers could walk free. In Fairfax County, drunken driving cases could be dismissed. And nationwide, thousands of drug cases might have to be thrown out of court annually.
Legal experts and prosecutors are concerned about the results of last month's U.S. Supreme Court ruling that requires lab analysts to be in court to testify about their tests. Lab sheets that identify a substance as a narcotic or breath-test printouts describing a suspect's blood-alcohol level are no longer sufficient evidence, the court ruled. A person must be in court to talk about the test results.
The opinion, written by Justice Antonin Scalia, has prosecutors and judges shaking their heads in disgust and defense lawyers nodding with satisfaction at the notion that the Constitution's Sixth Amendment guarantee that defendants "shall enjoy the right . . . to be confronted with the witnesses against him" is not satisfied by a sheet of paper.
"This is the biggest case for the defense since Miranda," said Fairfax defense lawyer Paul L. McGlone, referring to the Supreme Court ruling that required police to inform defendants of their Fifth Amendment right against self-incrimination. He said judges "are no longer going to assume certain facts are true without requiring the prosecution to actually put on their evidence."
Four drunken driving cases in Fairfax and at least one in Prince William County have been thrown out by judges after defense attorneys used the new ruling to challenge the prosecution's evidence.
States and counties across the country handle evidence differently, so the problems caused by the ruling vary widely. But many jurisdictions have a similar issue: Crime labs that test drug and DNA samples face huge backlogs even when scientists and analysts do not have to testify. If the workers are taken out of the labs to appear in court, those backlogs will grow.
In drug cases, more than 1.5 million samples are analyzed by state and local labs each year, resulting in more than 350,000 felony convictions, national statistics show. "Even if only 5 percent of drug cases culminate in trials, the burden on the states is oppressive," a group of state attorneys general wrote in a brief for the case.
The percentage of cases going to trial could well go up if defense lawyers think that bringing lab analysts to court will help their cases. Lawyers also could go to trial with the hope of a dismissal if the analyst cannot be there.
Scott Burns, executive director of the National District Attorneys Association, was a prosecutor in Utah for 16 years. "Sometimes it's the game within the game," he said. With less incentive to plea bargain, defense attorneys might try more cases, and "that's going to put more stress on the system," Burns said.
In Prince George's County, lab analysts testify regularly, but the volume of cases is so great that "we still are not able to process all the drug cases," State's Attorney Glenn F. Ivey said. "There's a triage going on in court cases. Some marijuana cases don't get tested, and we end up throwing them out."
Then there are the big rural states, where crime labs are hours away from many county courthouses. "It'll have a huge impact," said Ladd Erickson, state's attorney in McLean County, N.D. "It's not volume as much as it is distance. For some counties, round trip is going to be 10 to 12 hours to testify" for the lab analyst to travel to court.
Burns said 42 states and the District are affected by the Supreme Court case, Melendez-Diaz v. Massachusetts.
The court might be looking to blunt the impact. It has agreed to hear an Alexandria case that could provide prosecutors with an escape hatch from the requirement of bringing lab analysts to court. The court will rule on whether Virginia's law requiring the defense to provide advance notice when it wants the lab analyst to testify is constitutional. But a ruling on that case probably will not come until next year, and many lawyers believe Virginia's law is deficient.
Last month's Supreme Court ruling emerged from a case in which Luis E. Melendez-Diaz allegedly stashed cocaine in a Boston police car while he was under arrest. The certificate of analysis, determining that the white powder found in the car was cocaine, was entered without a technician's testimony and with only minor objection.
Scalia wrote that Melendez-Diaz "was entitled to 'be confronted with' the [lab] analysts at trial."
The ruling was 5 to 4, and the dissent written by Justice Anthony M. Kennedy predicted a real-world disaster. "The Court threatens to disrupt forensic investigations across the country and to put prosecutions nationwide at risk of dismissal . . . when a particular laboratory technician . . . simply does not or cannot appear," Kennedy wrote.
Kennedy added, "Guilty defendants will go free, on the most technical grounds, as a direct result of today's decision, adding nothing to the truth-finding process."
In Manhattan, a unique situation in the medical examiner's office could result in disaster for homicide cases, Chief Assistant District Attorney Mark Dwyer said. The personnel turnover in the medical examiner's office is so great that the pathologist who performs an autopsy on a victim often is not still employed there 18 months later, when the case goes to trial. So the accepted practice in courts has been to admit the autopsy report without any testimony by the person who determined the cause of death, Dwyer said.
In addition, New York's DNA lab uses an assembly line approach in which as many as 12 people have roles in breaking down and analyzing a piece of evidence for traces of DNA, Dwyer said. "We would be extremely concerned if the [Melendez] issue extended into DNA analysis and autopsy reports," he said. "That would have a major and negative impact on the ability to process serious cases."
In drunken driving cases, Fairfax also faces a problem. In most DWI cases, the county uses breath-test technicians stationed in the jail to perform the blood-alcohol tests rather than the arresting officers so the entire 1,300-officer force does not have to be trained on the machines. But there are only a few dozen technicians in Fairfax processing about 4,000 DWI cases a year. Training Virginia's largest police force on the machines is not feasible financially, spokeswoman Mary Ann Jennings said.
"I think the effect of this could be very, very bad for public safety," said Fairfax Commonwealth's Attorney Raymond F. Morrogh. "If we are not able to use this evidence, which is reliable, but it's excluded because we can't get the technician here, the guilty will go free. It's a real challenge for us to deal with it." Fairfax is asking for continuances in any case with a Melendez-Diaz challenge. Loudoun County also is asking for continuances.
On Friday, state Sen. Ken Cuccinelli (R-Fairfax), a candidate for attorney general, called for a special session of the General Assembly to amend Virginia's law. His proposal would require defendants to provide advance notice that they object to a lab analysis, and then prosecutors would have enough time to bring in the technician.
9 comments:
While many probably won't agree with me I believe that there is a positive aspect to this. It will force the government to be more selective in its administration of justice and hopefully lead to a decrease in the prosecution of victimless crimes. They will have to focus on true "mala in se" crimes instead of all of the "mala prohibita" crimes that they now focus on. The whole "war on drugs" is a farce and one of the reasons that we find ourselves in the situation that we do today. It has been an excuse to militarize the police and take ever more of our freedoms from us. No knock raids scarcely occurred until the "war on drugs". I say that it is about time that we are finally able to confront ALL of our accusers for a change!
Isn't it interesting that as soon as something threatens the rubber-stamp process of declaring a person's guilt based solely on the whims of 'the man behind the curtain', people in the statist vocation begin to experience wadded panties and twisted knickers?
Why - how DARE the unwashed hoi-polloi demand to have someone interrupt his or her busy schedule to testify / verify / justify the procedures, controls and results of tests, merely to seek the just application of law???
Quick! We must appoint a LAW Czar, to eliminate the need for such troublesome things as trials, juries and evidentiary hearings!
"Even if only 5 percent of drug cases culminate in trials, the burden on the states is oppressive," a group of state attorneys general wrote in a brief for the case.
And the alternative is: the burden on the defense is oppressive. Given a choice I prefer to burden the prosecution.
With less incentive to plea bargain, defense attorneys might try more cases, and "that's going to put more stress on the system," Burns said.
Good.
...the dissent written by Justice Anthony M. Kennedy predicted a real-world disaster. "The Court threatens to disrupt forensic investigations across the country and to put prosecutions nationwide at risk of dismissal ... when a particular laboratory technician ... simply does not or cannot appear," Kennedy wrote.
So it's just awful to put such a burden on a tax-funded organization that employs thousands of people because the public defender might actually win one...
The personnel turnover in the medical examiner's office is so great that the pathologist who performs an autopsy on a victim often is not still employed there 18 months later, when the case goes to trial.
But no one is asking why turnover is so high...
On Friday, state Sen. Ken Cuccinelli (R-Fairfax), a candidate for attorney general, called for a special session of the General Assembly to amend Virginia's law. His proposal would require defendants to provide advance notice that they object to a lab analysis, and then prosecutors would have enough time to bring in the technician.
Anybody here still think the GOP is our friend?
Regardless of what the Supreme court says, or what kind of subterfuge the prosecuters try, if I were on a jury, and there was no analyst to explain and defend the alleged forensics on a piece of paper.... I'm not convicting anybody on that basis.
ParaPacem, I'm afraid we're already headed that way.
Let's hope more reasonable people prevail.
Jim
III
It was never intended that it should be easy for the government to convict someone of a crime. That's what the requirements of "confronting the witness", prohibitions of unreasonable search and seizure, and due process are all about.
The Miranda decision was initially seen by prosecutors and police as an insurmountable obstacle that would put the US criminal justice system into gridlock.
In my thirty plus years in criminal justice I've found that, for the most part, what government agencies perceive as a "bad law" or a "bad SCOTUS decision" has come about as the result of bad LEO agency and/or prosecutorial practices. When LEO agencies and prosecutors establish a practice of cutting corners and allowing expediency to trump the rule of law the results will eventually jump up and bite them in the butt.
And, then they will scream like a cat with its tail hung in the gate and try to convince folks that they are the aggrieved, mistreated, misunderstood party.
I'm a lot less concerned that the guilty will go free than I am that the innocent might suffer. Wait. didn't that used to be the standard for criminal due process?
The right to confront the witnesses against you. What a novel concept.
I got a speeding ticket in a state where such is a Calss 3 misdemeanor. They have an arraignment where they expect you to plead guilty (to avoid the inconvenience of coming back for trial.)
When asked how I pleaded, I asked two questions:
1) Is the standard of proof in the case "Beyond a Reasonable Doubt"? The judge said it was.
2) Am I entitled to the full due process of a normal criminal procedure in the matter of this Class 3 misdemeanor? The judge said yes, but not to worry, the greatest penalty would be a fine - not to worry about jail time.
I then requested a jury trial.
The judge clearly didn't know what to do, so he turned to the clerk and said, "Please get the papers for a jury trial."
The clerk disappeared into her office for a few minutes, and came back empty-handed. She said she didn't know what forms to use, since no one had every requested a jury trial for a speeding ticket. She said she'd forward them to me.
Later, the prosecutor attempted to notice me for a pre-trial conference. But his notice wasn't legally sufficient, so I ignored it. After the appointed time for the meeting, I called, feigned ignorance, and asked what it was about.
By then, he'd already decline prosecution. (Darn, i was looking forward to barbecuing the officer on the stand!) I requested a second copy of the dismissal be mailed to me.
End of story.
Sometimes it pays to stand up for your rights. And if this decision works out the way I think it will, a lot more people are going to be saying, "Prove it."
I don’t want to throw water on this but if custom and usage holds, gun owners will be exempt from the new ruling.
Can’t have those evil gun owners get a fair trial in the USA; we got to get guns off the street.
Aaron Zelman one time told me he thought there were 7000 people in prison in the USA that were rail roaded by the AFT using less than equitable standards.
The make it up as you go crowd does as they damn well please. Remember the so called gun experts at the WACO trial?
They brought in a bolt from an AR15 and claimed it was from a full auto M16.
They said the gun was destroyed in the fire because it was made of aluminum and that only the bolt survived.
You need a temperature of 1200 degrees to adequately melt aluminum plus at 1200 degrees the hardness of the bolt would have been changed.
This was a real surprise to me, given the Hudson decision c. 2006
which mentioned the "new police professionalism" as being an adequate safeguard against misconduct in SWAT style raids on citizens. I trust most readers have adequate info on how *that* works out; see Radley Balko's The Agitator and ShootingMessengers for ongoing coverage. (Balko is the author of Overkill a book on "police militarization."
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