Melendez-Diaz not as scary as the Washington Post thinks

The Washington Post today published a "sky is falling" critique of the Supreme Court's decision in Melendez-Diaz that the Confrontation Clause in the Sixth Amendment requires an opportunity to cross-examine crime lab workers who prepare reports for trial. According to the Post ("Lab analyst decision complicates prosecutions, July 15):

"This is the biggest case for the defense since Miranda," said Fairfax defense lawyer Paul L. McGlone, referring to the Supreme Court ruling that required police to inform defendants of their Fifth Amendment right against self-incrimination. He said judges "are no longer going to assume certain facts are true without requiring the prosecution to actually put on their evidence."

Four drunken driving cases in Fairfax and at least one in Prince William County have been thrown out by judges after defense attorneys used the new ruling to challenge the prosecution's evidence.

States and counties across the country handle evidence differently, so the problems caused by the ruling vary widely. But many jurisdictions have a similar issue: Crime labs that test drug and DNA samples face huge backlogs even when scientists and analysts do not have to testify. If the workers are taken out of the labs to appear in court, those backlogs will grow.

In drug cases, more than 1.5 million samples are analyzed by state and local labs each year, resulting in more than 350,000 felony convictions, national statistics show. "Even if only 5 percent of drug cases culminate in trials, the burden on the states is oppressive," a group of state attorneys general wrote in a brief for the case.

The percentage of cases going to trial could well go up if defense lawyers think that bringing lab analysts to court will help their cases. Lawyers also could go to trial with the hope of a dismissal if the analyst cannot be there.

Scott Burns, executive director of the National District Attorneys Association, was a prosecutor in Utah for 16 years. "Sometimes it's the game within the game," he said. With less incentive to plea bargain, defense attorneys might try more cases, and "that's going to put more stress on the system," Burns said.

In Prince George's County, lab analysts testify regularly, but the volume of cases is so great that "we still are not able to process all the drug cases," State's Attorney Glenn F. Ivey said. "There's a triage going on in court cases. Some marijuana cases don't get tested, and we end up throwing them out."

Then there are the big rural states, where crime labs are hours away from many county courthouses. "It'll have a huge impact," said Ladd Erickson, state's attorney in McLean County, N.D. "It's not volume as much as it is distance. For some counties, round trip is going to be 10 to 12 hours to testify" for the lab analyst to travel to court.

Burns said 42 states and the District are affected by the Supreme Court case, Melendez-Diaz v. Massachusetts.

From my perspective, though, such concerns seem quite overblown. Given that Texas law adequately complies with the new SCOTUS ruling and we lock up more people per capita than the rest of the country, I just don't buy the argument that the criminal justice system can't function under these restrictions. We also have the problem identified of rural areas needing to use crime labs hudreds of miles away, but Texas hasn't had any trouble filling up our prisons under such strictures.

Texas law (CCP 38.41), which Antonin Scalia approved of specifically in the majority opinion, already requires "notice and demand" regarding testimony by lab workers, where prosecutors must give notice that they intend to use lab evidence and the defense has an opportunity to demand cross-examination if they give ten days' notice. Poof! Problem solved!

So what's the big deal? While there may be some cases dismissed in transition as states change their laws to accomodate the court's opinion, Texas' example shows that it's possible to comply with confrontation requirements in a high-volume, big-state system.

I also don't find it compelling that the criminal justice system may be forced to prioritize cases in order to shepherd scarce resources, which is a fundamental dilemma confronting everyone who must live within a budget. If because of Melendez-Diaz, "Some marijuana cases don't get tested, and we end up throwing them out," would anyone out there really shed a tear?

A much more intriguing set of arguments about Meldendez-Diaz and its effect on federal immigration law can be found on the Fifth Circuit Blog authored by Brad Brogan, who argues persuasively that "the Supreme Court's recent decision in Melendez-Diaz v. Massachusetts has abrogated Fifth Circuit case law permitting the Government to rely on certificates of non-existence of record (CNRs) to prove the no-permission-to-reapply-for-admission element in illegal reentry cases."

According to Brogan's reading, Melendez-Diaz eviscerated the Fifth Circuit's ruling in Rueda-Rivera, declaring after poring over the details that "There is simply no room left to argue that CNRs are not testimonial after Melendez-Diaz. The CNR's are ex parte affidavits prepared solely for use at trial, and "[t]he Sixth Amendment does not permit the prosecution to prove its case via ex parte out-of-court affidavits." That's an implication of the case I hadn't heard mentioned previously, but Brogan's right that Scalia's opinion speaks directly to the matter:

Far more probative here are those cases in which the prosecution sought to admit into evidence a clerk’s certificate attesting to the fact that the clerk had searched for a particular relevant record and failed to find it. Like the testimony of the analysts in this case, the clerk’s statement would serve as substantive evidence against the defendant whose guilt depended on the nonexistence of the record for which the clerk searched. Although the clerk’s certificate would qualify as an official record under respondent’s definition—it was prepared by a public officer in the regular course of his official duties—and although the clerk was certainly not a “conventional witness” under the dissent’s approach, the clerk was nonetheless subject to confrontation [under common law].

It'll be interesting to watch these confrontation issues play out in that unlikely venue.

The other major implication for Texas I'd already mentioned here: Melendez-Diaz likely overturns the Texas Court of Criminal Appeals' position that "parole revocation certificates" are "business records," since they are documents specifically prepared for use in court. In this instance, too, I don't see requiring confrontation as a major concern, though next session the Lege may need to enact "notice and demand" provisions similar to those in place for crime lab workers to allow confrontation in parole revocation hearings.

See related Grits posts:

• Will Melendez-Diaz compel confrontation for parole revocation certificates?
  
• Real splits on criminal justice not liberal-conservative
• SCOTUS: Forensic reports require cross-examination of analysts
• Pragmatism vs. Confrontation frames SCOTUS' lab report debate
  
• Scotus to hear debate on whether lab reports are objective or testimonial
• Pending SCOTUS case could moot proposal to admit DWI breath tests without cross examination
• Are crime lab reports 'testimonial' documents? SCOTUS will decide