Ken, perhaps this is how the "war on drugs" ends. Maybe in another year, the law enforcement community will achieve consensus that simple possession trials don't merit the resources to pass constitutional muster. Then, you and I (and every other prosecutor) can redirect the energy that we now spend squeezing these cases through the system on cases that present more compelling public safety issues. Will you miss the crack cocaine residue (or maybe it's a different poison in Wise County) case that has been a staple in our daily (docket) diet for so long? Of course, with felony sentencing events plummeting, the state compensation board will conclude that we don't need so many prosecutors anymore. So, some of us will have to retrain. I know that you're an all-terrain field-expedient polymath lawyer. I'd like to think that I could adjust, too.
Or...this is how the War on Drugs adapts itself to changing legal terrain. Per the Scotusblog speculation, the 4 dissenters in Melendez-Diaz quickly grant cert. so they, along with freshly-confirmed Justice Sotomayor, can use Briscoe to establish that statute's like 19.2-187.1 are sufficiently preservative of the defendant's right "to be confronted with" the lab tech's testimony. All that would need to follow would be some jujitsu in a subsequent opinion to show that forcing the defendant to put on evidence (to preserve his 6th amdt. right to confrontation) does not in fact violate his 5th amdt right to due process (pursuant to which innocence is presumed and the burden of adducing evidence of guilt is on the state).
Such a line of cases is not unimaginable, though a series of Breyer-Kennedy-Roberts-Alito-Sotomayor majorities would be odd. And it would represent institutional claims and state power triumphing over rights-based arguments and originalist jurisprudence...the Drug War prolonging its own life in much the same way as it has insinuated itself into American society over the past godforsaken 30+ years.
The most probable future is that the General Assembly will chamge the statute as soon as it can so that it is clear that the Commonwealth is required to subpoena and call the expert upon defendsnt's demand.
And the defense bar will respond by routinely making the demand (having no reason not to), which creates an apprently insurmountable logistical problem for the Commonwealth. There is no way that the lab techs we have can cover the state to testify in all of these drug cases.
No they won't. After the fuss is over and it fades from being the objection du jour things will settle back into the same rhythm they have now. Defense attorneys can already demand the presence of lab techs in every single case, which would have created the very same logistical nightmare you foresee. When was the last time you saw (prior to this kerfuffle) a defendant demand the lab tech's presence?
Well I think one difference is plainly that under Melendez-Diaz the technician, once demanded, is the only way for the Commonwealth to demonstrate that the powder in question was in fact cocaine. Not so under prior 19.2-187.1 regime. The demand is more colorable, shall we say - defense attys would no longer necessarily face an impatient judge who's itching to deny a continuance motion saying "Counsel I'd like a proffer of your questions for the [absent] technician and what you expect to get out of cross-examining him."
Post Melendez you can say "Judge my client has a constitutional right to be confronted with the live testimony of anyone who's alleging that it was cocaine." Rather than just hemming and hawing about a statutory right and chain of custody and what not.
6 comments:
Ken, perhaps this is how the "war on drugs" ends. Maybe in another year, the law enforcement community will achieve consensus that simple possession trials don't merit the resources to pass constitutional muster. Then, you and I (and every other prosecutor) can redirect the energy that we now spend squeezing these cases through the system on cases that present more compelling public safety issues. Will you miss the crack cocaine residue (or maybe it's a different poison in Wise County) case that has been a staple in our daily (docket) diet for so long? Of course, with felony sentencing events plummeting, the state compensation board will conclude that we don't need so many prosecutors anymore. So, some of us will have to retrain. I know that you're an all-terrain field-expedient polymath lawyer. I'd like to think that I could adjust, too.
Or...this is how the War on Drugs adapts itself to changing legal terrain. Per the Scotusblog speculation, the 4 dissenters in Melendez-Diaz quickly grant cert. so they, along with freshly-confirmed Justice Sotomayor, can use Briscoe to establish that statute's like 19.2-187.1 are sufficiently preservative of the defendant's right "to be confronted with" the lab tech's testimony. All that would need to follow would be some jujitsu in a subsequent opinion to show that forcing the defendant to put on evidence (to preserve his 6th amdt. right to confrontation) does not in fact violate his 5th amdt right to due process (pursuant to which innocence is presumed and the burden of adducing evidence of guilt is on the state).
Such a line of cases is not unimaginable, though a series of Breyer-Kennedy-Roberts-Alito-Sotomayor majorities would be odd. And it would represent institutional claims and state power triumphing over rights-based arguments and originalist jurisprudence...the Drug War prolonging its own life in much the same way as it has insinuated itself into American society over the past godforsaken 30+ years.
/bleak>
The most probable future is that the General Assembly will chamge the statute as soon as it can so that it is clear that the Commonwealth is required to subpoena and call the expert upon defendsnt's demand.
And the defense bar will respond by routinely making the demand (having no reason not to), which creates an apprently insurmountable logistical problem for the Commonwealth. There is no way that the lab techs we have can cover the state to testify in all of these drug cases.
No they won't. After the fuss is over and it fades from being the objection du jour things will settle back into the same rhythm they have now. Defense attorneys can already demand the presence of lab techs in every single case, which would have created the very same logistical nightmare you foresee. When was the last time you saw (prior to this kerfuffle) a defendant demand the lab tech's presence?
Well I think one difference is plainly that under Melendez-Diaz the technician, once demanded, is the only way for the Commonwealth to demonstrate that the powder in question was in fact cocaine. Not so under prior 19.2-187.1 regime. The demand is more colorable, shall we say - defense attys would no longer necessarily face an impatient judge who's itching to deny a continuance motion saying "Counsel I'd like a proffer of your questions for the [absent] technician and what you expect to get out of cross-examining him."
Post Melendez you can say "Judge my client has a constitutional right to be confronted with the live testimony of anyone who's alleging that it was cocaine." Rather than just hemming and hawing about a statutory right and chain of custody and what not.
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