[Posted July 30, 2009] Virginia’s law-enforcement lawyers are not happy these days, as a result of two recent appellate decisions. In one case, I think the concern is fully justified; in the other, it’s less so.

Let’s start with the less problematic opinion. It’s Whitehead v. Commonwealth, decided by the Supreme Court of Virginia on June 4. The vexing part of the opinion isn’t so much the holding on the merits – a reversal of a criminal conviction for receiving stolen property. The problem arises with the court’s treatment of an alternate ground urged by the Commonwealth for affirmance.

The June 4 opinion first rejects the Commonwealth’s argument that the defendant constructively received the stolen goods. But the Court of Appeals, in evaluating the case, had also found that the defendant constructively possessed the goods (evidently constructive possession isn’t the same thing as constructive receipt). Constructive possession requires proof that the defendant knew of the presence and character of the property, and that it was under her dominion and control.

Given the facts set forth in the opinion, it looks like the Commonwealth is going to win on this point. But no; the Supreme Court refuses to entertain this alternate ground, because the prosecution never urged it at trial. It’s very well-established that no party can raise a point for the first time on appeal (except subject-matter jurisdiction), so the court finds this point to be defaulted. And that ruling is what bothers prosecutors. They fear that the court will refuse to consider whether the trial court was “right for the wrong reason” and reverse a conviction where the defendant is demonstrably guilty, albeit from a different approach.

I think there is a different issue in Whitehead. The Supreme Court found that the concept of constructive possession had never been advanced at trial. This isn’t an alternate ground that had been offered to the trial court but never ruled upon; it was a theory of the case that had never been developed below. In that vein, I agree with the Supreme Court’s approach. It would be unfair for the appellate courts to pass judgments on issues that were never developed, because if the prosecution had offered such a justification, the defense might well have adduced some relevant evidence to refute it.

Prosecutors are worried about Whitehead, in that they foresee that they might lose some of these demonstrably-guilty appeals. I believe that if the prosecution fully develops its issues at trial, then the appellate courts are likely to consider the ones that didn’t get ruled upon. (But see the essay in the current issue of the Virginia State Bar Litigation Section’s newsletter for a scary caution about this assumption.) It’s only when the issue appears for the first time on appeal that the courts will say, “No dice.”

The other significant case is Melendez-Diaz v. Massachusetts, released by the US Supreme Court on June 25. This one has law-enforcement types so concerned that the Governor has called for a special session of the legislature to deal with this case. This matter, it seems, can’t wait until January, and I can easily see why.

Melendez-Diaz is the natural extension of the 2004 ruling in Crawford v. Washington, which requires actual confrontation instead of the use of hearsay exceptions in criminal cases. It’s limited to testimonial hearsay. Last month, the Court ruled that certificates of analysis are testimonial hearsay, so at trial the prosecution has to produce the forensic scientist who did the test.

That sounds like a minor annoyance for the prosecution, and especially for the scientists; they’ll have to spend much of their time travelling and raising their right hands a lot, instead of staying put in the lab, doing what they’re principally paid to do. But it is far, far beyond a minor annoyance. Here are the numbers:

The Forensic Science folks up in Richmond are budgeted for 74 scientists. Actually, several of those positions are open, and I suspect they may have remained open for a while for budgetary reasons. For ease of calculation, let’s say that 70 scientists are available to testify. (I’m confident that the actual number is under 70.)

There are 31 judicial circuits and a like number of districts in the Commonwealth. That makes 62 courts in which issues involving drug testing or DUI blood-alcohol testing might be used. Obviously, some of those venues are far removed from Richmond (Jonesville, in Lee County, is farther west than downtown Detroit).

There were just over 60,000 criminal cases actually tried in Virginia in 2008. I have no way of knowing how many of those were drug cases (or the far-less-frequent DUI-blood-test cases), but I’m going to use the scientific wild-guess figure of 9,000, or 15% of all criminal trials. If you do the math, that means that each and every forensic scientist will have to go to court to testify (assuming the number of trials remains constant) in 128 different cases per year, and those court appearances will be strewn across the state.

There are about 240 court days per year, allowing for holidays, judicial conferences, and weather closings. In addition, the scientists are entitled to things like vacations and sick leave. Let’s assume they’ll work about 230 days per year. That means that the work they previously did in 230 days will have to be squeezed into just over 100 – and that assumes that there will be no cases that are continued on the day of trial, necessitating a second appearance in the same case.

You see where this is going? Unless the General Assembly is prepared to triple or quadruple the number of scientists on the payroll (and they’d probably have to raise taxes to do so, so you get an idea of how likely that is), these folks are going to be impossibly overworked. Oh, and another little glitch – the Commonwealth would be competing with 51 other jurisdictions (the other 49 states, plus the District of Columbia and the Commonwealth of Puerto Rico) to hire scientists. Does list that many forensic specialists, I wonder?

The legislature will consider, and probably speedily approve, a notice-and-demand statute next month, since the Supreme Court in Melendez-Diaz specifically approved that kind of approach. I expect they will enact it as an emergency measure, so it will take effect as soon as the Governor signs it. And I expect the Governor to ask the Speaker of the House to borrow a pen so he can sign it immediately. Even if that goes as smoothly as possible, I still foresee some version of the dire consequences I outlined above. It will be worse if I have underestimated the percentage of drug cases on the docket.

Now you know what keeps prosecutors up at night nowadays.

[Note: The Supreme Court issued a revised opinion in the Whitehead case on October 22, 2009. I analyzed that revision in a separate post on October 26.]