Thursday, September 16, 2010

Decision on remand in Briscoe

The Virginia Supreme Court today issued its decision in Briscoe on remand from the United States Supreme Court. You can read it by clicking here">. The court held that the former Virginia statutory scheme (under which the defendant had to call a lab analyst as his witness if he wanted to examine the analyst) was unconstitutional. This, of course, was the point that I sought to establish in bringing the petition for certiorari; Melendez-Diaz made the point clear, and now the Virginia Supreme Court has drawn the obvious conclusion.

The court held that the error was harmless in Briscoe’s case, but Cypress’s conviction was reversed. I expect his case will plead out.


Andrew MacKie-Mason said...

Congratulations! By this point, though, both defendants were out of prison, correct?

Richard D. Friedman said...

Thanks, Andrew! (To other readers: Andrew helped me prepare the Briscoe case; he is about to be a fershman atthe University of Chicago.)

My understanding is that Cypress is no longer incarcerated, but that 10 years of his sentence were suspended. So assuming he stays out of trouble, this decision does not save him any time in prison. I do believe it’s ashame how long it took the courts to get to this point. The U.S. Supreme Court issued its decision on January 25. Since then there was clearly a substantial probability that the convictions would be vacated. I thought the Commonwealth should not have insisted that Briscoe and Cypress continue to serve their sentences. (I believe it was the local prosecutor in the Cypress case who did.)