Americans worried sick about the erosion of constitutional liberties can take some comfort in two recent Supreme Court decisions that have unambiguously upheld Second and Sixth Amendment rights.
In the 2008 landmark District of Columbia v. Heller case, the court rejected the rationale behind D.C.’s three-decades-old gun ban, ruling that the Second Amendment gives individuals the right to own firearms for their personal self defense in addition to the collective right to keep and bear arms that applies to state-regulated militias. This was the first time that a local gun ban law was struck down on Second Amendment grounds, and liberals were furious.
In this year’s Melendez-Diaz v. Massachusetts decision, Justice Antonin Scalia has written another outstanding decision, but one that will make some conservative law-and-order types shudder. But any legitimate fears that some drug dealers and drunk drivers could go free is overshadowed by the constitutional protection it provides against being sent to jail by a piece of paper.
Luis Melendez-Diaz was convicted of selling cocaine after Boston police officers found plastic bags containing white powder in the police cruiser following his arrest. In his appeal, Melendez-Diaz argued that prosecutors violated his Sixth Amendment rights by offering certificates that the powder was cocaine signed by state laboratory analysts instead of their live appearance in court.
The high court agreed. Citing “the deeply rooted common-law tradition of live testimony in court subject to adversarial testing,” Scalia pointed out that the Sixth Amendment clearly grants the accused the right “to be confronted with the witnesses against him” – no matter how logistically difficult that might be for the prosecution.
The Sixth Amendment, Scalia added, does not create a category of witness that is somehow immune from cross examination. Such courtroom confrontation “is designed to weed out not only the fraudulent analyst, but the incompetent one as well.”
The burden of getting crime lab techs into court has now been placed squarely on the prosecution – where it belongs. Knowing that they will have to testify under oath will also make it easier for analysts to resist any temptation to fudge the results. That said, the transition is not going to be easy.
The Melendez ruling has already resulted in the dismissal of at least one drunk driving case in Fairfax County, and many more in the pipeline are likely to follow. Virginia state Sen. Ken Cuccinelli, R-Centreville, who was the first to call for a special session of the legislature to deal with the fallout, is happy with the decision.
“I’m disappointed it was only 5 to 4,” he told me, even though prosecutors now face a tremendous logistical challenge scheduling techs to testify in thousands of drug and DUI cases now pending. They can ask for continuances, but will eventually bump into speedy trial deadlines.
Cuccinelli wants the General Assembly to adopt laws now on the books in three other states that require defendants to give prosecutors a heads up if they intend to challenge lab results. More lab techs must also be hired, but “cost should not be the driver,” the famously frugal Cuccinelli added.
Instead of supporting this practical solution, Cuccinelli’s Democratic opponent for attorney general sent him a strange letter attacking the Republican state senator for not supporting his unrelated House bill increasing penalties for drunk drivers. Del. Steve Shannon, D-Vienna, a former prosecutor, apparently did not bother to read the Melendez ruling and doesn’t seem to understand Virginia’s bicameral legislature either.
Not a good thing for a candidate who wants to be the commonwealth’s top attorney.
Barbara F. Hollingworth is The Washington Examiner’s local opinion editor.
