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Drug Enforcement Administration chemists will be trekking from their lab in Largo, Md., to D.C. Superior Court more often after a Dec. 28 ruling by the D.C. Court of Appeals, which found that a defendant’s Sixth Amendment right to confront witnesses doesn’t exclude expert witnesses such as chemists. Under a 1981 D.C. law, the submission of a chemist’s report to verify a seized substance is an illicit drug at trial will no longer pass muster unless the defendant waives his confrontation-clause right, the ruling stated. Otherwise, the chemist will have to appear to testify. “I think this will properly pierce the presumption of infallibility with respect to this category of scientific evidence,” says D.C. Public Defender Service appellate attorney Andrea Roth, who filed an amicus brief with two colleagues. “I think it will lead to better science and better trials on both sides.” The three-judge panel based its new interpretation of the confrontation clause on the 2004 Supreme Court ruling in Crawford v. Washington, which limited the introduction of testimonial statements without producing the witness. The Court of Appeals affirmed the cocaine-distribution conviction of Michael Thomas in his appeal because his counsel did not raise a confrontation-clause objection at trial. Some defense attorneys, however, have raised those objections since Crawford, which now may result in other drug convictions being reversed for constitutional error. Attorney Edward Bunn represented Thomas on appeal. The U.S. Attorney’s Office for the District of Columbia has not yet decided whether to request an en banc hearing, says spokesman Channing Phillips
Brendan Smith can be contacted at [email protected].

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