[Posted January 25, 2010] Deciding a case argued just two weeks ago, the Supreme Court of the United States issued a terse one-sentence per curiam order an hour and a half ago, reversing the case of Briscoe v. Virginia. Today’s order follows the reasoning of the very recent (June 2009) decision in Melendez-Diaz v. Massachusetts, which held that the Sixth Amendment requires the testimony of forensic scientists instead of the introduction of certificates of analysis in criminal prosecutions.

The grant of this writ engendered plenty of speculation over why the court would take the case, since the court had just decided the issue in Melendez-Diaz. One common theory was that the departure of Justice Souter gave the Melendez-Diaz minority hope that his replacement might provide a swing vote to overturn the still-warm ruling. (It only takes four votes to grant cert.) Justice Sotomayor is a former prosecutor and trial judge, and I recall reading speculation that those two factors might make her more sympathetic to the plight of the prosecution in drug and DUI cases. Today’s order demonstrates that that hope, if it really existed, had no real support.

The Melendez-Diaz doctrine poses a logistical nightmare for prosecutors in places like Virginia. The number of these prosecutions simply overwhelms the number of available scientists. The last I heard, Virginia had just 64 forensic scientists available to perform these analyses. If the defense bar uniformly starts demanding the testimony of the scientists instead of waiving their presence, there is no way for that number of experts to handle all the court cases and still have time for their day jobs, which is to perform the tests in the first place.

I’m aware that some prosecutorial agencies may not perceive that the house is on fire after Melendez-Diaz, because defendants don’t really want the scientists to testify (if the scientists appear, it only makes the prosecution’s case look more compelling). This reminds me of a theory I once heard, to the effect that China could win any war without firing a shot, by having its citizens surrender to the enemy at the rate of one million per day. The result would surely overwhelm any adversary. I believe that if the criminal defense bar acts collectively, it would have the same effect: The system just can’t handle that kind of load.

What about just hiring more scientists? Suppose we had 264 instead of just 64? That’s a nice concept, but it has two significant drawbacks. First, the state government, which would employ those men and women, isn’t exactly awash in disposable funds right now. And second, there are 49 other states, plus the District of Columbia, plus every other jurisdiction that’s subject to American law, that will also be looking to hire more scientists in order to comply with this requirement. Where will they all come from?

Here’s an interesting issue: Just 13 days ago, a panel of the Court of Appeals of Virginia decided Farmer v. Commonwealth, defiantly refusing to apply Melendez-Diaz until and unless the Supreme Court of Virginia acted upon the question. (You can see my analysis of Farmer here.) I’ll engage in a bit of tea-leaf reading here by saying that perhaps the CAV panel thought that Briscoe would come out the other way. Technically, the SCV hasn’t yet acted; the Big Supremes have only this morning directed the Virginia high court to follow Melendez-Diaz. But I don’t have much doubt as to how that one will come out. I also don’t doubt that Mr. Farmer will get either en banc review from the CAV or else a writ from the justices, now that the Robes in Washington have spoken.

One (very thin) silver lining: Today’s ruling comes three weeks before the deadline for introducing bills in the current legislative session, so the creative folks in the Attorney General’s Office still have time to put together a possible legislative response.