In Special Session

I am writing this before the Special Session of the 2009 General Assembly convened yesterday. Hopefully, as you read this, we have adjourned.

The special session was called by Governor Tim Kaine as a result of the U.S. Supreme Court ruling on June 25 in Melendez-Diaz vs. Massachusetts.

The court ruled that a defendant has a constitutional right to cross-examine the analyst who submitted an affidavit in a trial reporting the results of laboratory analyses.

Since then, defense attorneys have made an unprecedented number of requests to have lab analysts at trials across Virginia.

The result of the ruling has been a flood of subpoenas for testimony from analysts working for Virginia Department of Forensic Science laboratories.

Specifically, the number of subpoenas issued to laboratory analysts has increased by more than 670 percent from the total received over the entire previous year.

Impact on State Agencies

The amount of time that Department of Forensic Science analysts have spent out of the lab and in courtrooms has tripled.

That has strained the agency’s budget due to increased travel costs and raised the possibility of major backlogs in performing tests.

The agency already needed more analysts and there is a worry about retaining the ones they have and recruiting new ones due to increasing workloads.

The Office of the Chief Medical Examiner is also impacted because a backlog of chemical analyses of blood samples will slow down final autopsy results.

Medical examiners also submit affidavits for autopsies in criminal trials and they may also be subject to subpoenas.

The Virginia State Police are also worried because they maintain the sex-offender registry and submit affidavits certifying compliance with registration requirements.

Working Together

Because of all of this, Governor Kaine and Attorney General Mims have been working together on an immediate solution.

They convened a working group of affected agencies, defense attorneys, and representatives of police and sheriff’s departments to examine the problem.

They came up with draft legislation that has been introduced by members of the House and Senate Courts of Justice Committees.

The idea is to immediately solve the problems encountered by the Department of Forensic Science and Office of the Chief Medical Examiner.

The administration bills amend existing law by stretching out the timeframes for the process of handling the affidavits or certificates of analysis.

That has the effect of allowing for more time to plan when an analyst or examiner must be away from the office to testify.

Another change would allow for a continuance without jeopardizing the speedy trial requirement if an analyst or examiner cannot be in court on a particular day.

More Next Year

Other agencies are potentially affected by the Melendez-Diaz ruling, including the Department of Motor Vehicles and the Virginia Department of Agriculture.

These agencies also provide certified documents and affidavits in criminal trials. But, they have not been adversely affected yet.

Therefore, the decision was to put off until the 2010 session any changes in statutes affecting these agencies.

The other reason for waiting is that an appeal challenging Virginia’s certificates of analyses statute is before the U.S. Supreme Court.

In agreeing to hear the case of Briscoe vs. Virginia this fall, the court specifically did not invalidate our statute as it did in the Melendez-Diaz case.

Therefore, the consensus was to wait and see what happens before making any further changes.

What, Politics, Too?

There is also a political dimension to all of this as the two candidates for attorney general have each introduced competing bills.

Democratic candidate Steve Shannon is still a member of the House of Delegates and Republican nominee Ken Cuccinelli still serves in the Senate.

Each of them will try to get a piece of their bills in the final version of the legislation. By the time you read this, I am sure that the outcome will be known.