Greetings from the Capitol from Sen. Stuart - August 27, 2009
As promised, this report deals
exclusively with the results of the special session on Wednesday, August, 19,
2009, to deal with the United States Supreme Court in Melendez-Diaz vs. Massachusetts.
The bill that was presented to
the legislature had two major components.
The first is that the bill now conforms Virginia’s law Notice and Demand
statute more closely to the laws which were specifically approved in Melendez-Diaz vs. Massachusetts.
Under the bill, a Commonwealth’s
Attorney will now send a copy of a certificate of analysis to the defense
counsel or defendant at least 28 days prior to trial. This notice will apprise the defendant that he has 14 days
to object to the introduction of the certificate and effectively demand that
the Commonwealth produce at trial the person who conducted the analysis. If the defendant does not object, his
or her right to confront this witness at trial is waived and the certificate is
admissible so long as it meets all other statutory requirements.
The second major component is the
addition of a tolling provision to Virginia’s speedy trial requirement. Compared to other states’ laws and to
the Constitutional requirement of speedy trial, Virginia law requires that the
accused be tried in a very short time frame – 5 months for an incarcerated
person and 9 months for a person out on bond.
This bill states that the
Commonwealth can obtain a continuance because a witness is necessary for the
admission of a certificate of analysis is unavailable and this continuance is
not counted in the time necessary to hold a trial.
There is a cap on the length of
any continuances granted under this provision. The cap is 90 days in total for a defendant who is
incarcerated and 180 days for a defendant who is out on bond.
The theory behind this is to
provide the Commonwealth with notice of when these witnesses are demanded to be
present to testify so that we don’t unnecessarily subpoena these witnesses to
every case. Secondly, it
recognizes the current shortage of such witnesses and allows more time for
trial under the speedy trial act.
While I supported this bill, I
must tell you that I supported it reluctantly and I discussed it thoroughly
with many members of the legislature explaining the shortfalls of this quick
fix. The problem with this bill is
that Commonwealth’s Attorney’s are going to have a very difficult time
prosecuting cases that require a certificate of analysis because of the
unavailability of the scientific experts from the State. So at the end of the day, what happens
is these cases will get continued and pushed further and further off and, under
the tolling provision, ultimately many will be thrown out by the courts. That is a great concern to me and I believe
there were better ways to fix this.
However, there was no consensus for my use of interactive video.
The reason there was concern
about my proposal for interactive video is there is no law on that that could
be currently found. In other
words, there is no precedent set by the court which says we can use interactive
video. However, if you analyze the
use of video for cross-examination, you must come to the conclusion that it
allows a defendant to be confronted by his accuser, albeit on a television
screen rather than directly face-to-face in the courtroom.
What I would have preferred to
have seen is the addition of the use of the interactive video in conjunction
with this bill and I believe it would have been a much more comprehensive bill
to resolve these issues.
I plan on submitting this for the
2010 legislative session which is when we plan to deal with the Melendez-Diaz vs. Massachusetts
decision in a more comprehensive matter.
I don’t mean to suggest that the
bill will not do what we needed to do.
What I suggest is that the bill was not comprehensive enough. It did help us deal with the problems
caused by the Melendez-Diaz vs.
Massachusetts decision.
However, there are still holes that a good defense attorney could use to
the frustration of the Commonwealth in prosecuting the cases that require
certificates of analysis.
Ultimately, however,
Commonwealth’s Attorney’s can request what is called a nolle prosequi. What that simply means is the Commonwealth can choose to not
prosecute. The judge has to agree
and order the nolle prosequi.
However, that too can buy the Commonwealth some time if the court
believes that the nolle prosequi is for good cause. In many cases I believe courts would believe this would be a
beneficial use. The down side of
that is, if you have a criminal defendant that is a flight risk, he could not
be held in continuous custody and would have to be re-served and the trial
started all over again.
As you can see, it is a very
complicated issue. While I believe
that this bill addressed some of the issues, I will tell you unequivocally
there is a lot more work to do on this in the regular session in 2010.
I tried to explain this as simply
as possibly. But being that it is
a complicated issue, if you have any concerns or questions, please feel free to
call me or email me. I can be
reached at my senate office, 804-698-7528, P. O. Box 396, Richmond, Virginia
23218 or my district office, 804-493-8892, P. O. Box 1146, Montross, Virginia
22520, or by email at
This e-mail address is being protected from spambots. You need JavaScript enabled to view it
. As always, I appreciate the opportunity
to serve you in the State Senate.
I think that really SUCKS< Even Thou-The Cem...
