Va. Special Session Called to Scrutinize Testimony Ruling

Virginia Gov. Tim Kaine announces Wednesday morning plans to convene a special session of the General Assembly.
Virginia Gov. Tim Kaine announces Wednesday morning plans to convene a special session of the General Assembly. (Dean Hoffmeyer - AP Photo/Richmond Times-Dispatch)
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By Tom Jackman and Rosalind Helderman
Washington Post Staff Writers
Wednesday, July 22, 2009; 6:22 PM

Virginia on Wednesday became the first state in the country to convene its legislature to try to revise its laws to conform to the new standards set by the Supreme Court's ruling that live testimony is needed to introduce scientific reports in criminal trials.

Gov. Tim Kaine (D) is calling the General Assembly into a special session on Aug. 19, for what he hopes will be a one-day session to approve legislation that will already be agreed upon by both parties.

"If we don't solve it in a special session," the governor said, "it really creates a potential problem of people who are charged with very serious crimes being able to escape conviction on technicalities."

Changing the state's laws, however, will not alleviate the crisis state prosecutors foresee when defense lawyers begin demandingthat lab analysts or breathalyzer technicians appear in court to explain their findings in large numbers, officials said Wednesday. That will likely take years, carry significant cost, and require solutions that haven't yet been devised, those involved in the process said.

"The heavy lifting, in the long haulis going to have to come from administrative changes to the criminal justice system," said state Del. Steve Shannon (D-Fairfax), a candidate for attorney general.

"I don't think there are going to be any quick and easy answers," said Pete Marone, director of Virginia's Department of Forensic Science, which performs nearly all the lab testing and breathalyzer calibration in the state.

The decision last month in Melendez-Diaz v. Massachusetts, authored by Justice Antonin Scalia, ruled that introducing a lab sheet into evidence violated the Sixth Amendment right of a defendant "to be confronted with the witnesses against him." Many states, including Virginia, allow the defense to subpoena the author of a scientific report or finding and examine them in the defense case. But that unfairly shifs the burden of proof from the prosecution to the defense, the court ruled.

Following the ruling, defense lawyersbegan objecting to blood-alcohol certificates in drunk-driving cases when either the breathalyzer technician or the person who calibrated the machine -- Virginia law requires proof of breathalyzer calibration every six months in DWI cases -- wasn't in court. Five cases in Fairfax County alone have already been thrown out on such challenges.

State Sen. Ken Cuccinelli (R-Fairfax), also an attorney general candidate, said Virginia law needed to be changed to require prosecutors to present live testimony with lab or breath reports, as other states cited by Scalia do.

Cuccinelli and Shannon were part of a working group created by Kaine that recommended the special session. Kaine's move was the first by any state in the nation, according to Scott Burns, executive director of the National Association of District Attorneys.

Virginia's lab analysts are already backed up testing evidence without the added obligation of traveling to court, and requiring their live testimony will create even greater backlogs, officials said. Virginia has 160 employees who worked on 60,000 cases last year, according to DFS spokesman Tom Gasparoli, many with multiple pieces of evidence.

And Virginia has just three people who calibrate and certify the more than 200 breathalyzer machines around the Commonwealth, Marone said. They are rarely called to testify, but their failure to appear has already resulted in blood-alcohol certificates being thrown out in some cases, including a circuit court case recently in Virginia Beach. Judges can still convict for drunk driving based on a driver's behavior.

Prosecutors in the District and Maryland said they already subpoena lab examiners for trial, dealing with scheduling and backlog problems as they arise.

Possible solutions being discussed in Virginia include using teleconferencing to allow lab analysts or breath technicians to testify from remote locations, Marone said. A short-term fix could involve paying more overtime to lab analysts, said Kaine. Scheduling certain experts to testify only on certain days could be another answer.

Hiring or training more analysts and technicians is a long-term answer, Marone said, but budget restraints make that difficult.

Staff reporter Dan Morse contributed to this report.

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