28 June 2009

Melendez-Diaz, Magruder, & Virginia

Having watched the continuing angst over Melendez-Diaz, I started asking around as to why everyone is so worried in light of Virginia's Magruder decision. The answer I got back from several people was "because Magruder is before the Supreme Court too." Of course, nobody seemed to know anything else, so I went looking.

After searching for "Magruder" and not finding anything, I came upon it when I searched for the other parties who had been consolidated in the appeal to the Virginia Supreme Court: Briscoe and Cypress (apparently Magruder must not have appealed his case to the federal supreme court).

Here's the timeline for the case to date:
May 29 2008 Petition for a writ of certiorari and motion for leave to proceed in forma pauperis filed. (Response due July 3, 2008)
Jun 10 2008 Order extending time to file response to petition to and including August 4, 2008.
Aug 1 2008 Brief of respondent Virginia in opposition filed.
Aug 14 2008 DISTRIBUTED for Conference of September 29, 2008.
Aug 14 2008 Reply of petitioners Mark A. Briscoe, and Sheldon Cypress filed. (Distributed)
Jun 25 2009 DISTRIBUTED for Conference of June 29, 2009.
This case has not been granted certiorari by the US Supreme Court (otherwise it would have a "Petition GRANTED" entry). It's still up in the air and at this moment the controlling case in Virginia remains Magruder.

Beyond this, I've had a couple of defense attorneys I know swear to me that the language in 19.2-187.1, "The accused . . . shall have the right to call the person performing such analysis . . . and examine him in the same manner as if he had been called as an adverse witness" shifts the burden to the defendant to bring the expert to trial and call him as the defense's witness.

The party which subpoeanaes the expert to trial is a red herring, since even if the defendant was required to subpoena the expert, subpoenaing is different from actually "calling" the witness at trial. We've all seen cases wherein people are subpoenaed yet never testify. Even so, there is nothing in the statute which requires the defendant to subpoena the expert. The last sentence of the statute is instructive here: "Such witness shall be summoned and appear at the cost of the Commonwealth." This appears to be a poorly written requirement that the Commonwealth summon and pay for the appearance of the expert. Even if one is not convinced by an initial reading, and thinks that the General Assembly had to instruct courts that criminal case subpoenaes are paid for by the State, it's commonsense that the way in which the Commonwealth would pay the "cost" would be for it to arrange the subpoena and any required expenses pretrial. Still, as I wrote previously, the statute really needs the General Assembly to go in and make some changes in order to foreclose any arguments.

I still think that, at least as long as Magruder stands, it will be nigh unto impossible for a defendant to even raise the burden shifting argument. I can't figure a way in which the defendant could get to the point at which he could raise the issue without the cooperation of the Commonwealth. Even assuming arguendo that the defense wasn't required to demand the prosecution produce the expert and was somehow able to subpoena the expert without the Commonwealth finding out before trial, he'd have to raise his objection when the prosecution went to introduce the certificate of analysis during the Commonwealth's case in chief. In order to fulfill the requirements of Magruder, the defendant would have to inform the trial court that he was being required to call the witness. Magruder requires the defendant to (1) "avail [himself] of the opportunity to require the presence of a particular forensic analyst at trial", and be (2) "in the position of being forced, over [his] objection, to call a forensic analyst as a witness). Any prosecutor with half a brain cell will then withdraw the certificate and call the expert himself as part of his case in chief, foreclosing the burden shifting argument.

As things stand, the Commonwealth's statutory plan is on solid footing. Now we just have to wait for word from the Mount about the fate of Magruder (Briscoe/Cypress).


Donald said...

If I understand what you're saying about the VA statute and Magrouder, there still might be a problem. If I understand the VA statute correctly, the prosecutor has to send notice to defense counsel, who can then give notice that he wants the lab tech to show up at trial. Fast forward to trial. Prosecutor then may still seek to admit the lab report into evidence, and defense counsel is now entitled to call the lab tech, since he previously said he would.

The problem happened, though, at the second the report was admitted into evidence. Melendez-Diaz means that the report should only get in through the testimony of the lab tech during the prosecution's case in chief. You cannot confront a lab report. The prosecution rests having established a material fact through non-confrontable testimony.

What if VA passed a law permitting a police officer to testify as to what a crime victim told him (regardless of a the presence of a hearsay exception), and that the defense could then call the victim as an adverse witness? Certainly, that wouldn't be permissible under Crawford. Since lab reports are testimonial, neither can the VA statute.

Isn't the answer just a clean notice-and-demand statute? Prosecutor gives notice, and defense counsel has to demand testimony or else the report is admissible....seems pretty easy.

Ken Lammers said...

If the prosecutor has notice that the defendant wants the expert at court and does not call that witness himself he has committed major error. Even if the case did proceed as you lay it out, the defendant, by not objecting when the prosecutor introduces the certificate, would have waived the introduction of the certificate as evidence. If the defendant objects at the introduction of the certificate and the prosecutor still doesn't call the expert he has committed even greater error.

While it is my fervent hope that Virginia not starting writing this type of statutory plan for other types of evidence in a criminal trial, if it did so it would be a notice and demand statute and just as valid as this one, with the same theoretical problem as this one, and the same near impossibility of it ever being an appealable issue.

And, yes, I hope the General Assembly will rewrite the statute, but for now we in Virginia must deal with this statutory plan.

Anonymous said...

I agree with Donald. When the Court says that "the Con-frontation Clause imposes a burden on the prosecution to present its witnesses, not on the defendant to bring those adverse witnesses into court," it seems to be expressing a perspective hostile to the statutory scheme set out in Va. Code Sec. 19.2-187.1. I think that we [prosecutors] are in for some stormy weather.

Donald said...

Of course, defense counsel should object at the time of admission. I was assuming that the certificate would be admitted over objection, with the trial judge ruling that the remedy was to permit the defendant to call the lab tech during his case.

But post-Melendez-Diaz, admission of the certificate might be plain error and subject to reversal even without an objection.

other donald said...

There seem to be two Donalds posting in Ken's comments section (the other one is more eloquent than I).

Just jumping in to note that the case granted today by Scotus is Briscoe/Cypress only (i.e. Magruder didn't appeal beyond SCOVA), and the attorney who sought certiorari, a UMichigan law prof., has a blog that's rather interesting: