Supreme Court ruling shakes up criminal trials

Reporting from Washington - Until last month, the strongest evidence in drug and drunk driving cases in courtrooms across the nation often was a piece of paper. A crime lab or Breathalyzer report would confirm that the defendant indeed had illegal drugs or a high level of alcohol in his or her system.

But a Supreme Court decision has sent a jolt through that procedure.

Now the prosecution must make a lab technician available to testify in person if the defendant demands it. As a result, some cases already have been dismissed. One state, Virginia, has called a special legislative session to change its laws. And some lawyers think the ruling will continue to have a major effect.

In a 5-4 decision, the high court said that lab reports served as “witnesses” for the prosecution. And because the 6th Amendment gives defendants a right to "be confronted with the witnesses against him," Justice Antonin Scalia said that drug defendants and others were "entitled to be confronted with the [lab] analysts at trial."

While Scalia said the decision upheld the basic right to question the prosecution's witnesses, the four dissenters said the ruling had "vast potential to disrupt" the criminal courts. They also said it gave "a great windfall" to defendants, some of whom could have their cases dismissed because a lab technician was not available to testify.

Some prosecutors have said they fear the uncertainty -- and the potential cost -- of being required to have lab technicians ready to testify.

"This is a train wreck in the making," said Scott Burns, executive director of the National District Attorneys Assn. "The court is saying you can't submit an affidavit saying that the cocaine is cocaine. The criminalist must be there to testify the cocaine is cocaine. Particularly in rural states and in smaller communities, this is going to be a major problem."

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Attorneys reflect on representing celebrity clients

A decade ago, Robert G. Bernhoft’s wife, Vicki, was cleaning houses for a living while he attended law school and worked part-time. The couple had perfected the art of coordinating their schedules so one of them could be home at the same time as their three elementary-school-aged daughters.

Fast-forward to the present, and the Bernhofts now own two homes, in Wisconsin and California. Bernhoft has twice represented actor Wesley Snipes, and former presidential candidate and consumer advocate Ralph Nader, in addition to successfully trying several other high-profile cases across the nation. He’s been interviewed by Greta Van Susteren on Fox News’ On the Record, as well as spotlighted by The Los Angeles Times and The Wall Street Journal.

Representing the celebrity client can be “career-making or career-breaking,” says Bernhoft. Fortunately for him, it’s been the former, but it could’ve just as easily gone the other way. In Snipes’ 2008 felony tax fraud and conspiracy trial, for example, he and his team opted not to call any witnesses — a move that generated much criticism from the national media legal pundits. It was a “penthouse or an outhouse” situation, recalls Bernhoft, but the strategy proved successful when Snipes was acquitted of all the felony charges pending against him in a Florida federal court.

When you’re representing a celebrity, your job performance is indeed subject to heightened media and public scrutiny, agrees Milwaukee’s Jonathan C. Smith. “But the spotlight fades pretty quickly,” Smith says, “and in the end you just do the job for the client that you were hired to do.”

Smith was part of the team representing former Green Bay Packers tight end Mark Chmura. Chmura faced, and ultimately was acquitted of, child enticement and third-degree sexual assault charges. Smith also represented former professional basketball player Latrell Sprewell when he was the subject of a widely-publicized assault allegation, for which charges were never issued.

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