Court revisits ruling forcing lab testimony

— Virginia Hernandez Lopez admitted to knocking back two shots of tequila with Sprite chasers on an August night in Julian, Calif., a couple of years ago. But she said she was not drunk when her Ford Explorer collided with an oncoming Toyota pickup later that night, killing its driver.

In May, a California state appeals court affirmed Lopez’s conviction for vehicular manslaughter. Her blood-alcohol level two hours after the accident was, according to a report presented to the jury, just over the legal limit of .08 percent.

But the appeals court reconsidered the case after a decision in June from the U.S. Supreme Court, Melendez-Diaz v. Massachusetts, that prohibited prosecutors from introducing crime lab reports without testimony from the analysts who prepared them. Applying the new precedent, the appeals court reversed Lopez’s conviction, saying prosecutors had violated her constitutional right to confront witnesses against her by failing to put the analyst who prepared the blood-alcohol report on the witness stand.

But now, in an unusual move, the Supreme Court will hear arguments on Jan. 11 in a new case that raises questions about how lower courts may carry out its 6-month-old precedent. Many state attorneys general and prosecutors are hoping the court will overrule its decision before it can take root, saying it is a costly, disruptive and dangerous misstep.

“Already data and anecdotal evidence are demonstrating an overwhelming negative impact,” a friend-of-the-court brief submitted by 26 attorneys general last month said. The decision, they said, “is already proving unworkable.”

Rather than overturning the court’s June decision in the new case, which involves two Virginia cocaine trafficking convictions, the justices may simply clarify the ground rules for when and how analysts’ testimony must be presented.

The 5-4 vote in the original case also raises issues about the vulnerability of the decision because there were unusual coalitions on both sides, with Justice David Souter, now departed from the court, in the majority. His replacement, Justice Sonia Sotomayor, is a former prosecutor, and her views on the issue are unknown.

Defense lawyers say the costs of complying with the decision are minimal. “Sufficient data and experience are already available to demonstrate that the burden is a modest one, easily borne,” lawyers in the Virginia case told the Supreme Court this month.

Since the Melendez-Diaz case, the state of Massachusetts told the U.S. Supreme Court last month that it now faces “daunting volumes of cases to manage.”

Other kinds of cases may be affected as well.

The second ruling in Lopez’s case, which found that her constitutional rights had been violated, has had “a tremendous negative impact,” the San Diego district attorney’s office told the state Supreme Court last month, and will affect prosecutions ranging “from misdemeanor driving under the influence cases to capital murder cases.”

Lawyers for the defendants in the new Supreme Court case, Briscoe v. Virginia, No. 07-11191, acknowledged that the Melendez-Diaz decision “creates some additional cost” in states that had not already recognized a right to live testimony. But they said those costs were minor and “constitutionally irrelevant.”

In the case, prosecutors in Virginia offered proof that the “off-white, chunky solid material” and “white, rock-like substance” that the police found in Mark A. Briscoe’s kitchen and shorts was cocaine by submitting “certificates of analysis” signed by a forensic scientist. Briscoe argues that this violated his constitutional rights because the scientist did not take the stand.

The immediate issue in the case is whether a hybrid procedure used in Virginia satisfied the precedent set by the Supreme Court in the Melendez-Diaz case. Prosecutors there were allowed to present paper reports during their case but were required to produce the analysts responsible for them for cross-examination during the defense’s case if requested.

Front Section, Pages 3 on 12/21/2009

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