Assembly approves steps to prevent court logjams

In a day of fits and starts, the General Assembly passed a bill yesterday designed to ease a potential logjam in Virginia's courts after a recent U.S. Supreme Court decision.

"It is not perfect and will not solve all the questions raised by Melendez-Diaz," House Majority Leader H. Morgan Griffith, R-Salem, told his colleagues, referring to the high court's opinion.

In Melendez-Diaz v. Massachusetts, the high court ruled June 25 in favor of Luis Melendez-Diaz, who challenged a lab analysis that cocaine was in plastic bags found in a car in which he was riding.

Gov. Timothy M. Kaine called the legislature into special session yesterday after the court ruled that prosecutors must make forensic scientists available to defense lawyers for cross examination because the Bill of Rights gives defendants the right to confront their accusers.

The state maintains that it does not have enough scientists to do this. Some prosecutors say they already have dropped or suspended cases because they could not get examiners to court.

Gail D. Jaspen, chief deputy director of the Department of Forensic Science, told the Virginia Forensic Science Board last week that the department received more than 900 subpoenas for drug examiners last month, compared with 43 in July 2008.

The high court's decision had other human costs. Dr. Leah Bush, Virginia's chief medical examiner, told the board that families with loved ones who died of drug overdoses must sometimes already wait three or four months for toxicology testing to be completed to get death certificates.

That means families often must put insurance, mortgage and other issues on hold, adding a great deal of stress, Bush said.

Before the Supreme Court's decision, many Virginia prosecutors presented certificates of evidence obtained by tests, rather than the actual forensic examiner. The high court's decision basically affected drunken-driving, drug and sexual-offender cases by delaying the presentation of evidence.

The legislation, adopted unanimously yesterday by the House and Senate, would make it easier for prosecutors to schedule court appearances by the forensic examiners.

The bill would require prosecutors to provide the lab report to the defendant four weeks before a hearing or trial. The defendant would have two weeks to decide whether to question the examiner. If the defendant chose to question the examiner, the prosecutor would have a certain time limit to get the examiner to court.

Prosecutors who cannot arrange for the examiner to get to court could ask for a delay of up to 180 days in the case of a defendant who is not in jail or 90 days if the defendant is in jail.

The Department of Forensic Science has a backlog of 6,100 cases since the June 25 ruling.

"The measures approved today ensure some key challenges initially presented by the court decision have been resolved," Kaine said.

Griffith, and state Sen. Thomas K. Norment Jr., R-James City, said the General Assembly could resolve some unmet problems when it returns for the regular session in January.

In the interim, lawmakers will ask the State Crime Commission to study whether the state could videotape the testimony of the examiners and present that in court. The commission also will study how much this would cost local courts.

Griffith and Norment urged their colleagues not to challenge the bill, which was worked out by prosecutors, defense attorneys, legislators and representatives of Kaine and Attorney General Bill Mims in the days leading up to the special session.

"This is a subject that only a lawyer loves," said Griffith, who is a lawyer and is married to a lawyer. Griffith estimated the bill would solve about 70 percent of the problems.

Still, the legislators who assembled in Richmond spent hours in recess as lawyers on the two bodies' Courts of Justice committees argued over how to certify the accuracy of drunken-driving testing machines. The House committee debated whether to substitute "use" for "utilize."

The legislature also arranged compensation for Arthur Lee Whitfield, a Virginia Beach man who was wrongly imprisoned for 22 years.

The special session was confined to those two topics. Eight legislators from the Shenandoah Valley voted against the resolution restricting the agenda because they wanted to restore funding to reopen closed rest stops. Two rest stops along Interstate 81 have been shut down because of transportation budget cuts.

Contact Tyler Whitley at (804) 649-6780 or twhitley@timesdispatch.com.