Expert THC witness must appear in person

SUBLETTE COUNTY – An expert drug-analysis lab technician from California cannot testify via videoconference at defendant John Handy’s felony drug trial in 9th District Court, now set for July 9.

District Judge Marv Tyler denied the prosecution’s motion on Feb. 26 after hearing arguments from Sublette County Attorney Mike Crosson and public defender Rachel Weksler.

Crosson asked that his expert witness, who works for Drug Detection Laboratories, Inc., in Sacramento be allowed to testify by videoconference for the trial, initially set for March 8.

The expert witness is expected to testify that three samples of dabs and wax he tested – seized at Handy’s July 2020 arrest – have high concentrations of THC.

Handy is charged with felony delivery of a controlled substance, THC or marijuana, felony possession of a controlled substance with intent to deliver and felony conspiracy to commit a controlled substance offense.

Handy allegedly committed the offenses in 2019 and January 2020. Detective Travis Lanning was informed by two “known but not identified sources of information” Handy was allegedly driving to Colorado, buying THC wax dabs for $10 and selling them in Sublette County for about $60, Lanning’s affidavit states.

One informant said Handy sometimes sold them to high-school-aged people. An informant was fitted with a wire and recorded a transaction that did not download, it says. However, a detective took notes during the controlled purchase, it says.

Handy pleaded not guilty; later he waived his right to a speedy trial. Judge Tyler dismissed the third felony after Crosson filed a motion .

Crosson pointed out possible bad weather, time and costs to bring the expert to Pinedale and higher personal risk due to COVID-19. Weksler said her client wanted to exercise his right to confront the expert witness in person and watch the witness in person. The same could be done with by video in light of travel or health concerns, Crosson said

Judge Tyler did not agree.

He determined that the U.S. Supreme Court has not ruled on whether or not a defendant’s rights to confront a witness are violated when expert witnesses testify via “two-way video” at trial. Using language from a related decision, Judge Tyler decided that video testimony could only be used if it is “necessary to further public policy.”

“The state has failed to show that having (the expert witness) testify by two-way videoconference furthers an important public policy, rather than serving as the mere convenience of the witness,” his order said.

It also says that the prosecution failed to show “higher personal risk” for the witness’s health, time or travel to the trial or how government resources might be conserved.