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December 9, 2009 -- Boston Globe (MA)

New Drug Conviction Reversed, And US Ruling Is Criticized

By Jonathan Saltzman, Globe Staff

Return to Drug War News: Don't Miss Archive

At least a dozen drug and gun convictions have been overturned in Massachusetts as a result of a controversial US Supreme Court ruling six months ago that criminal defendants have a constitutional right to cross-examine forensic experts who prepare laboratory reports, according to prosecutors and defense lawyers.

The most recent reversal occurred yesterday, when a state Appeals Court panel overturned the 2007 conviction of a Boston man for trafficking cocaine in a school zone and ordered a new trial. The panel ruled that Deniz DePina's lawyer should have had a chance at trial to question state laboratory analysts.

Those analysts had certified in writing that police seized more than 14 grams of crack cocaine from a Roxbury apartment where DePina allegedly sold drugs.

The cases in which convictions were reversed were pending before the Appeals Court when the nation's highest court ruled, 5-4, that the Sixth Amendment guarantee of a right to confront witnesses extended to forensic analysis, such as laboratory reports that a powder seized by police was cocaine. That June 25 ruling stemmed from a Boston drug case and invalidated a Massachusetts law that allowed prosecutors to routinely present such evidence without allowing defendants to cross-examine the experts.

Prosecutors and defense lawyers say they expected dozens of convictions to be reversed in coming months as a result of the Supreme Court's ruling in Melendez-Diaz v. Massachusetts.

Plymouth District Attorney Timothy J. Cruz, whose office has had three drug convictions overturned, according to court records, said Melendez-Diaz is posing a hardship for prosecutors and state-paid forensic scientists. The scientists now need to testify that illegal drugs are indeed drugs and that guns involved in crimes actually fire.

"It is now being raised in virtually every pending appeal from a drug conviction, regardless of whether it was raised in the trial court and regardless of whether the nature of the substance was even contested at trial," Cruz, president of the Massachusetts District Attorneys Association, said in a statement.

Other prosecutors and defense lawyers said the ruling's impact will probably diminish when law enforcement authorities arrange to make sure that forensic experts are available to testify at trials.

"I don't think there will be a flood" of legal challenges, said Christina Miller, chief of district courts and community prosecutions for the Suffolk district attorney's office and coauthor of a recent Boston Bar Journal article on the implications of the Supreme Court ruling. "They will all eventually cycle through."

Several criminal lawyers also said that the Supreme Judicial Court is considering appeals that could help determine how many cases are ultimately reversed.

Among the issues the state's high court is weighing is whether convictions should be overturned if defense lawyers failed to object to the absence of forensic scientists at trial.

The new requirement could prove a logistical headache for the state.

In 2007, Massachusetts district courts had 46,685 drug cases, according to the Boston Bar Journal article. The two laboratories that analyzed the drugs employed 23 people. If many defendants challenge analyses that drugs are what police say they are, it would be daunting for those analysts to testify throughout Massachusetts and continue to do their lab work.

But Kathleen M. O'Connell, the court-appointed lawyer who won a new trial for DePina, said making sure that defense lawyers get to cross-examine analysts is no legal nicety.

In DePina's trial in Suffolk Superior Court, two certificates of analysis identified rocks seized by police as crack cocaine and said they weighed slightly over 14 grams. The weight was crucial because the drug trafficking charge that he was convicted of required the cocaine to total at least 14 grams.

"If you're deprived of cross-examination, prosecutors are allowed to take shortcuts that can result in erroneous convictions," O'Connell said. Her client was sentenced to three years in prison, followed by two years in jail.

Brownlow M. Speer, chief appellate lawyer for the state Committee for Public Counsel Services, said he believes that prosecutors will be able to make analysts available to testify without considerable hardship.

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