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AG wants Melendez-Diaz overturned

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The Indiana Attorney General's Office is joining several states in co-authoring an amicus brief asking the Supreme Court of the United States to modify or overturn its decision in Melendez-Diaz v. Massachusetts.

In June, the SCOTUS ruled that forensic analysts must be called to offer "testimonial evidence" about any report they prepare before it can be admitted as evidence. The Indiana Supreme Court split in its ruling in Pendergrass v. State, No. 71S03-0808-CR-445, as to whether the failure of a lab technician who processed DNA evidence to testify at Richard Pendergrass' trial violated his Sixth Amendment rights.

The majority interpreted the SCOTUS majority opinion in Melendez-Diaz, 129 S. Ct. 2527 (2009), to say that not everyone who worked on the evidence must be called and the Confrontation Clause gives prosecutors discretion on which evidence to present. The Indiana justices believed Pendergrass' right to confront wasn't violated because the lab technician's supervisor was available for cross-examination.

Indiana Attorney General Greg Zoeller believes the Melendez-Diaz precedent could possibly require prosecutors to call lab techs as witnesses in every case where crime-lab reports are relevant, causing slowdowns in trials and added expense.

"If the Melendez-Diaz precedent remains in place, the backlog of cases to be tested will only worsen and many drug charges will get dismissed because the analyst is not available to testify. This can only serve as a detriment to the judicial system and the public's safety," Zoeller said in a statement.

Stephen Johnson with the Indiana Prosecuting Attorneys Council said many issues are still up in the air on Melendez-Diaz. He believes the ruling holds that some elements of proof in a criminal case, including drug analysis, can't be proved simply by introducing a piece of paper with the results, but a "live body" will have to testify. It's who and how many will have to testify that's the issue, he said.

"I do think that some person from a lab will have to testify as to a forensic analysis absent defense waiver," he said. "We don't believe Pendergrass changes that aspect of Melendez-Diaz."

The friend-of-the-court brief filed by the states in Mark A. Briscoe and Sheldon A. Cypress v. Commonwealth of Virginia, No. 07-11191, does note that the Pendergrass ruling may help ease the burden of presenting lab analysts during cases-in-chief, regardless of whether the defendant wanted to cross examine the analyst.

Briscoe asks the SCOTUS to decide whether Mark Briscoe and Sheldon Cypress waived their Confrontation Clause rights by failing to demand that the forensic analyst be available for trial; whether the clause requires the prosecution to present the testimony of its witnesses during its case in chief; and whether the clause precludes exhibits from being introduced before the witness's live testimony.

The SCOTUS is scheduled to hear arguments in Briscoe in January 2010.

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  1. "...not those committed in the heat of an argument." If I ever see a man physically abusing a woman or a child and I'm close enough to intercede I will not ask him why he is abusing her/him. I will give him a split second to cease his attack and put his hands in the air while I call the police. If he continues, I will still call the police but to report, "Man down with a gunshot wound,"instead.

  2. And so the therapeutic state is weaonized. How soon until those with ideologies opposing the elite are disarmed in the name of mental health? If it can start anywhere it can start in the hoosiers' slavishly politically correct capital city.

  3. So this firebrand GOP Gov was set free by a "unanimous Supreme Court" , a court which is divided, even bitterly, on every culture war issue. WHAT A RESOUNDING SLAP in the Virginia Court's face! How bad must it have been. And all the journalists, lap dogs of the status quo they are, can do is howl that others cannot be railroaded like McDonald now??? Cannot reflect upon the ruining of Winston and Julia's life and love? (Oh I forget, the fiction at this Ministry of Truth is that courts can never err, and when they do, and do greatly, as here, why then it must be ignored, since it does not compute.)

  4. My daughter is a addict and my grandson was taken by DCS and while in hospital for overdose my daughter was told to sign papers from DCS giving up her parental rights of my grandson to the biological father's mom and step-dad. These people are not the best to care for him and I was never called or even given the chance to take him, but my daughter had given me guardianship but we never went to court to finalize the papers. Please I have lost my daughter and I dont want to lose my grandson as well. I hope and look forward to speaking with you God Bless and Thank You for all of your help

  5. To Bob- Goooooood, I'm glad you feel that way! He's alive and happy and thriving and out and I'm his woman and we live in West Palm Beach Florida, where his parents have a sprawling estate on an exclusive golf course......scum bag

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