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).