Va. forensic examiners spending more time in court

RICHMOND, VA. — Virginia's backlog of forensic science cases could skyrocket as examiners spend a lot more time in court because of a recent U.S. Supreme Court decision, Department of Forensic Science officials told an oversight board Wednesday.

The U.S. justices ruled in June that prosecutors must make forensic examiners available for defense cross-examination about lab reports on drugs, ballistics and other trial evidence.

The number of subpoenas for examiners to appear in court in drug cases alone jumped from 43 in July 2008 to 925 last month, department officials said. For all cases, examiners spent 844 hours in court in July, more than double the average for each of the past 11 months.

Gov. Timothy M. Kaine called a special legislative session for Aug. 19 to rework the state's procedures to make them constitutional. A legislative subcommittee spent about three hours Wednesday reviewing and amending a bill drafted by a task force appointed by Kaine.

"If our toxicologists and our drug analysts are in court, they're not in the lab and the backlog is going to grow," Gail Jaspen, the department's chief deputy director, said at the Forensic Science Board meeting.

The backlog stood at just over 6,100 cases at the end of July, but board members worried it would grow exponentially if examiners spent more and more time out of the lab.

The department could outsource some cases, board members said, but it is costly and often more difficult to get private lab workers in court.

Meanwhile, prosecutors are facing a "tsunami" of drug and drunken driving cases because many were pushed back when examiners weren't available for court earlier this summer, said Fairfax County Commonwealth's Attorney Ray Morrogh, chairman of the board.

Morrogh said prosecutors could lose cases or be forced to plea bargain with criminals simply because examiners aren't available.

"Most prosecutors are not inclined to endanger the public safety by giving sweet deals to criminal defense lawyers on DWIs unless we're forced to," he said.

Defense attorneys began citing the ruling soon after the 5-4 decision issued June 25. The court ruled that lab reports are testimonial evidence and thus subject to the Constitution's Confrontation Clause.

The U.S. justices ruled in favor of Luis Melendez-Diaz, who challenged a lab analysis that confirmed cocaine was in plastic bags found in the car in which he was riding. Massachusetts courts had rejected his claim that he should be allowed to question the lab scientist about testing methods and other issues.

A Virginia law puts the onus on the defendant to call a forensic examiner to testify if he wants to challenge a lab report. The Virginia Supreme Court concluded last year that the state law was constitutional, but the nation's highest court has agreed to hear an appeal of that decision.

The bill proposed by Kaine's task force would essentially shift the burden to the prosecution to make the examiner available. Prosecutors would have to provide the lab report to the defendant four weeks before a hearing or trial and the defendant would have two weeks to tell the prosecutor whether he wanted to question the examiner.

The Supreme Court ruled that similar "notice and demand" statutes in three other states are constitutional.

Most defendants would likely waive their right to question the examiner for the same reason they did not routinely subpoena them before the Melendez-Diaz ruling: It typically has not been in the defendant's interest to call an expert who will verify his qualifications and the accuracy of his work, Lynchburg Commonwealth's Attorney Michael R. Doucette said.

Del. Bill Janis, R-Henrico and a member of the forensic board, said he was "not convinced this is the crisis everyone's made it out to be." He said the recent uptick is likely gamesmanship from prosecutors and defense attorneys and will probably die down.

Doucette told the Senate Courts of Justice subcommittee that defense attorneys are insisting forensic examiners be brought to court to "clog up the system."

Steve Benjamin, a defense attorney and counsel to the committee, disagreed. He said Virginia and other sates "lapsed into a series of conveniences and shortcuts," and the Supreme Court ruling has reawakened defense attorneys to the importance of a defendant's constitutional right to confront his accuser.

Nevertheless, Janis said legislators could use next week to push for more funding for the department. Toxicology cases make up more than a fifth of all backlogged cases, but Virginia has only four toxicologists and one trainee.

"You never want to waste a good crisis," Janis said. "We shouldn't waste the opportunity in the bully pulpit next week that we need more toxicologists."

Leah Bush, Virginia's chief medical examiner and a member of the board, said her office also was feeling the pinch due to the ruling, as toxicology reports that used to take weeks now are taking up to four months.

Bush said she gets calls from families who are waiting for death certificates for insurance and other purposes, and that longer backlogs could put them in a bind financially.

"So far it's a manageable spike, but if it continues at the same level it will quickly become unmanageable," she said.