Ken Cuccinelli scores a big point swinging at Melendez-Diaz

By calling for a special session to implement a legislative solution to the mess Melendez-Diaz has made of Virginia forensic evidence in criminal trials, Ken Cuccinelli essentially stole home on an issue that should have belonged to Steve Shannon.  After all, as Shannon loves to remind us, he is the only former prosecutor in the race.  By failing to get out in front of Cuccinelli on this issue, Shannon played right into Cuccinelli's (perhaps unintentional) characterization that he is dispassionate, unmotivated, or lazy.

I don't know what the hell Shannon is doing right now.  Is he spending all his time fundraising for a fall blitz?  I haven't seen any earned media of substance.  I haven't seen any direct communication from the campaign, other than the occasional tweet.  I don't even like Cuccinelli, but this is sloppy, sloppy, sloppy.  (Or maybe it's dispassionate, unmotivated, or lazy.)

Comments

[john]

Cooch is going around Virginia stating he wants to protect individual rights . This screams he wants to limit those rights. Cuccinelli is a double minded man.

[The Jaded JD]

I don't understand your point because I don't understand how calling for a special session to revise the statutory procedure for admitting forensic evidence in criminal trials "screams he wants to limit" individual rights. I assume the individual right you mean here is the defendant's right under the Confrontation Clause to confront the forensic analyst at trial. Neither Cuccinelli nor anyone else can limit that right because the United States Supreme Court has said it is protected by the Constitution. What the General Assembly may do, and what Cuccinelli has asked the Governor to reconvene the legislature so it can do, is to ensure that the statutory procedure for admitting forensic evidence is in compliance with the new constitutional requirement.

[DanielK]

I think one of the problems may be is that how judges interpret the term "analyst." Where I work some judges have gone as far as to say that even the calibrators have to come if they are subpoenaed. I think we can all agree that the defense lawyers know that if they can subpoena the calibrators on every test and the judges allow that then they'll do it simply to overwhelm the system, knowing in the back of their head a good portion of the time they won't come up from Richmond and the case gets dropped, n/p or whatever. So far, I'm not seeing a major press for the calibrators to come up from Richmond yet, keyword there is yet. I think the problem with the "Georgia waiver" Cooch spoke about was that even if you give the defense gives a notice that they want to subpoena the calibrator from Richmond then they are still going to have to come up and given the few calibrators DFS has in Richmond then.....just look at the amount of jurisdictions within Northern Virginia. I mean everyone was talking about the Ricci case but I think this has a substantially more impact presently than that case.

I think that until Briscoe, which is specific to Virginia is decided at the end of this year it may be a waste of time to call a special session initially because we don't know how that case will change anything compared to the Melendez-Diaz decision. Heck, for all we know Briscoe could essentially overturn Melendez depending on how Sotomayor votes.

I'm not really sure how this screams he wants to limit individual rights though? I'm happy Cooch is acknowledging he'll follow federal law given some of his recent statements but you have to comply with the ruling either way. No, if he went out and said something crazy like "I don't think that applies to Virginia statute" this and that, then that argument could be made.

[The Jaded JD]

The calibrators have to come because the calibration certificate probably isn't enough under Melendez-Diaz. A piece of paper saying, "Yes, I calibrated it," doesn't satisfy the idea that defense counsel may want to question the calibrator on his training and experience or the methodology used during the calibration.

The long and short of it is there is no legislative solution to eliminate the need to hire more DFS analysts. The only thing a statute can do is correct the order of proof problem in the existing law and retain the requirement that defense counsel tell the Commonwealth they want the analyst in court. The problem, as you recognize, is that there's no way around hiring more analysts: once defense counsel says, "I want the analyst in court," neither the Commonwealth nor the judge can say no. Because there is no disincentive for defense counsel to demand the analyst, there are going to have to be enough analysts to do the same amount of analysis they're doing now plus appear in court when called. But Cuccinelli wins on this issue, so far, because it is a matter of presentation: there is a genuine problem and he beat Shannon to bringing it to the public attention and at least sounding like he wants to do something about it. Shannon is sitting on his hands and denying there's a problem at all, which is ludicrous.

I think this idea that Briscoe, which was called Magruder when the Virginia Supreme Court decided it, is going to be a vehicle for the United States Supreme Court to reverse Melendez-Diaz is overstated. As I said on the other post, Melendez-Diaz is entirely consistent with and flows naturally from Crawford. The people who are crossing their fingers and hoping against hope that Briscoe makes Melendez-Diaz go away are mistaken, I believe, because they are pinning their hopes on the fact that the Supreme Court will realize how hard Melendez-Diaz will be to live with. As I said before, how hard it is to live with is not a valid constitutional consideration; how hard it was to provide indigent defendants lawyers was not a constitutional consideration in Gideon.

[cvllelaw]

I hope that the Crime Commission will take some time to consider a response to Melendez-Diaz that addresses other Confrontation Clause issues related to this. Sections 19.2-187, 19.2-188, 18.2-268.9, and plenty of others scattered throughout the Code all need to be looked at. A quick one-day "in-the-middle-of-an-election-campaign" session is not the way to address something for which there is not yet a fixed answer. The Crime Commission, and then the Courts of Justice Committees, could meet between now and January and develop a bill that addresses Confrontation Clause issues in a way that is both consistent with Crawford and Melendez-Diaz and internally consistent (treating DUI certificates under the same rule of law as drug certificates, etc.)

It is not as easy as Cuccinelli would like to try to suggest.

Unfortunately, Shannon loses the intellectual high ground by suggesting that his 2007 proposed amendment to 18.2-269.8 has anything to do with anything.

[The Jaded JD]

I agree with everything in your comment.