Cuccinelli scores yet another run with Melendez-Diaz

If Ken Cuccinelli stole home yesterday by getting out in front of Steve "the only former prosecutor in the race" Shannon and calling for a special session to fix the problems the United States Supreme Court created for Virginia prosecutors with its Melendez-Diaz decision, the Democrats just gave him another run today with a wild throw to the catcher at home plate:  the Governor is out of the Commonwealth for the weekend and unable to respond to his request.  Out of town on DNC business?  Wow.  Way to leverage that old issue, Ken.

How many drivers are going to get stopped for DUI this weekend?  How large will the backlog be, if Commonwealth's attorneys truly are getting continuances in cases requiring forensic evidence, before the Governor lets the General Assembly change the current statute?

Either Cuccinelli just had a brilliant at bat or he caught a very lucky break.

Comments

[DanielK]

Hi, this is my first time to this site. He's bringing up the issue on DWI's which is smart...it's not required to be a prosecutor to be AG but then again, I think a lot of voters equate the Attorney General to a "tough on crime/former prosecutor" stle. I think the 2005 race proved that well so he's trying to counter that as much as possible because I think a lot of voters are going to consider that. As a Sheriff's Deputy here are my thoughts on the Melendez-Diaz decision and it's affects in Virgina.

Thus far, some cases are being tossed out but what is failed to be mentioned is the fac that bring in the breath techs is nothing new in DWI cases, nor are backlogs of cases. All cases, with the exception of one I've subpoenaed the tech and thus far my record is unblemished. In my jurisdiction some officers are in the habit of subpoenaing the tech but now it is a requirement. The real question is, and I haven't seen this yet is when these defense attornies will start requiring the machine calibrators, their supervisors and even down to the person you cleaned the office down in Richmond to testify. If judges are requiring even those "analysts" to testify then we got a much bigger problem.

Justice Kennedy's dissent really demonstrated why the opinion was really poorly written since Scalia never really explaining who an "analysist" is. I can't speak for other smaller jurisdictions throughout the Commonwealth but I wouldn't be surprised if they don't train their officers to run their own tests because they can't afford to have full time techs on staff. A good portion of Troopers run their own tests and thus don't have to worry about subpoenaing the tech who ran the test.

I also just read a release from the Shannon campaign that showed why Cooch is trying to get out on this issue to include his help in "killing a bill in committee" concerning multiple DWI's. He definitely got out in front of the issue and I'm assuming that this will be the only time he's able to do that with any criminal justice issues. I'm going to assume that the transition in getting Mike Henry on staff had something to do with this but of course we'll never know.

Lastly, Cooch spoke of making a waiver in Virginia similar to that in Georgia...I spoke to someone I know in Georgia and he told me that a few attornies are using the Melendez-Diaz decision to challenge that. We'll see how succesfull that is but we may have to wait till October when the Court is back in session and another case that could overturn this one is argued. Also, could some voters be asking themselves "If Cuccinelli was so worried about keeping drunk drivers off the road why didn't he ever attempt to become a commonwealth attorney? Even briefly?" It's a lot of work, with very little pay which keeps many new lawyer away from the job.

In my opinion, Cuccinelli just caught a lucky break and nothing else.

[The Jaded JD]

The problem is with the calibrators (just like the calibrators of the radar guns, which I've heard is becoming an issue) because the calibration certificate alone may be insufficient now. I'm pretty sure the breath techs are almost always in court unless the officer did the test himself because they have to identify the defendant as the person who provided the sample as well as confirm that the machine registered an illegal BAC.

Of course, the stakes are much higher with the drug & DNA cases because they're so often felonies and because those analyses are done in fewer places and those forensic techs are even more backlogged. A jurisdiction might have its officers conduct a breath test, as you suggest, but it's going to be a lot harder for them to rely on field tests in drug cases.

As far as a bill to address Melendez-Diaz, I don't know what specific change Cuccinelli has in mind. If there is a legislative session, I will look at the bills that come in from the various members. But my point is that Cuccinelli beat Shannon on an issue Shannon should have owned. Perhaps Mike Henry will light a fire under Shannon to get him moving like you say. But I'm calling this race for AG as objectively as I can: I'll criticize Cuccinelli when I think he's wrong, but I have to give him props when he's right.

[DanielK]

Yes, the breath tech is normally subpoenaed but prior to this it was usually on behalf of the defense. An an initial appearance I wouldn't bring the tech in and I'll usually wait until I see what what the defense attorney is going to do. At least in my jurisdiction they allow for a prosecution continuance if they want to cross the tech. Of course this is all prior to Melendez-Diaz decision.

In regards to the drug cases, recently in Northern Virginia the main lab was moved out to Prince William, right next to the GMU campus there and as far as I know they are responsible for a majority of the tests done in NoVa. So, that should be the main concern in my eyes. Unfortunately, until Briscoe, et al v. Virginia is decided there isn't much that can be done. You're the professional lawyer and I'm just a cop but from my reading there really isn't much any legislative session can do now and I agree that this is only a stunt by Cooch to get ahead on the issue.

The waiver Cooch talked about still would have to allow for defendants to subpoena scientists when they desire. I think we both know that lawyers will only subpoena them hoping they won't show on the far possibility that it'll get nolle prosed or dismissed. I think any defense attorney worth their salt will not advise a client to sign a "waiver" especially if they know that the state lab scientists in drug cases can't attended. I think anytime I defendant waives a constitutional right they are in trouble, but that's just me. You are right, Cooch got ahead on this stunt and I'm sure the voters aren't going to notice that he provided no example as to how he as a legislator would right something that passes the constitutional muster of this decision. Voters aren't going to notice that there is no real way to get around this decision but the fanfare Cooch and Meredith have done with this is good even though to any trained observer it is all talk and no solution. I give them credit. I would argue that this definitely won't happen again given the fact that Mike Henry is taking over.

Lastly, (sorry for the length) I think the decision in Briscoe will be different once Sotomayor is confirmed. I don't agree with Scalia ideologically but that opinion and much of his reasoning going after the dissent was clearly written by someone who has never really worked within the criminal system. I'm just surprised at how poorly reasoned it was but then again, what do I know in Scalia's eyes I'm just a dumbass cop :)

[The Jaded JD]

I don't fault Scalia's reasoning at all. Melendez-Diaz does, as Scalia wrote, flow naturally and intuitively from Crawford. And it's critical not just from Scalia's textualist perspective but from any perspective faithful to the Bill of Rights that we interpret the text for what it means--whether it means A or B--without consideration of whether the meaning will inconvenience police officers, defendants, attorneys, judges, or the status quo. If Melendez-Diaz stands in substantially the same form after Briscoe is decided next year as it stands now, it will be a revolutionary, landmark case in the sense that it has completely altered the way forensic evidence is presented at trial. The costs of that revolution may indeed by quite high, in terms of adding staff to the DFS and parallel agencies in other states and at the federal level. But that consideration is not a valid one when determining whether the Confrontation Clause means A or B. For example, think of Gideon v. Wainwright and the requirement that states provide indigent criminal defendants with legal counsel. That decision was unfathomably expensive to implement at the time, but the expense of implementation is not a factor in assessing whether the case was rightly decided.