Costs deter DAs in appeal of some cases
On a late summer night four years ago, state and federal investigators made the year's biggest drug bust in Suffolk County: more than $2 million worth of cocaine stashed in an apartment along Revere Beach Boulevard.
But no one has been convicted of selling the 22 kilograms of cocaine, partly because a judge ruled that the search was illegal. While such rulings are not uncommon, Suffolk County prosecutors had concerns that extended beyond matters of law: They said they couldn't afford to appeal.
Under a state law loathed by district attorneys, but unnoticed by the general public, the DA's office would have to pay the legal fees of the two alleged drug dealers if they appealed the judge's ruling, potentially tens of thousands of dollars.
The Suffolk District Attorney's office asked the state's highest court to exempt it from the requirement, but the court refused. Prosecutors are now pursuing the appeal, in spite of the cost.
For nearly a decade, district attorney's offices have had to pay the fees of defendants' lawyers when prosecutors appeal pretrial rulings that suppress evidence and gut their cases. But district attorneys say that budget cuts are making it all but impossible to continue doing so. In response, Governor Mitt Romney has proposed eliminating the requirement in the fiscal 2005 budget.
Daniel Winslow, the governor's chief legal counsel and a former Wrentham District Court judge, said prosecutors are being forced to drop criminal cases because they can't afford to foot the bills of high-priced defense lawyers.
"The way the law is currently written, even a millionaire's lawyer would be reimbursed by the Commonwealth for a valid appeal," he said.
But defense lawyers counter that when they are able to persuade a judge to throw out key evidence, which usually results in cases being dismissed, their clients shouldn't have to pay even more because the prosecution doesn't like the ruling.
They say the law simply encourages prosecutors to be more discriminating about the rulings they appeal. "It seems to me that the DA's office, by having to make judgments about paying money, is a little bit more careful about which cases they do appeal and don't just appeal wholesale because they don't have to pay for it," said John H. LaChance, a Framingham defense lawyer and former federal prosecutor.
The law in dispute applies only to prosecutors' appeals of rulings made before a jury is sworn in. The provision was created, defense lawyers say, to keep defendants from having to pay to relitigate issues, such as a judge's finding that a search was illegal and that any evidence found cannot be used.
The provision only applies in cases in which defendants can afford to hire private lawyers; if the defendant is poor, he or she is represented by public defenders with the Committee for Public Counsel Services, which would handle the case if the prosecution appealed a ruling in a pretrial motion.
Because prosecutors are loath to appeal motions to suppress evidence when they must pay the defendant's legal fees, generally only poor defendants are at risk of having the evidence reinstated on appeal, opponents of the law argue.
"The practical effect has been that we only appeal cases where the client is indigent, and people who are rich get a free pass," Brian J.S. Cullen, former chief of the Suffolk district attorney's narcotics unit, told Supreme Judicial Court Justice Robert Cordy last fall when he unsuccessfully sought an exemption from the rule in the Revere Beach drug case. "That's a problem."
The legislation proposed by the Romney administration says that the state wouldn't have to pay defense lawyers' fees unless the prosecution loses the appeal and the state Appeals Court determines the appeal was frivolous.
Although the original law has been around for decades, the state's Administrative Office of the Trial Court picked up the tab for defense lawyers' fees in such appeals until 1996, when the office announced it could no longer afford to do so. The SJC then said that district attorneys had to cover the cost.
But that's been tough, given budget cuts and the increasingly higher bills of private defense lawyers.
From fiscal 2001 through fiscal 2004, the total budget of the state's 11 elected district attorneys has fallen from $75.1 million to $69.8 million, according to the Massachusetts District Attorneys Association, forcing staff cuts.
In Suffolk County, the budget for the district attorney's office has been reduced by about 10 percent over two years, and the number of full-time employees has dropped from 295 to 255.
Meanwhile, the bills for defense lawyers who handle so-called interlocutory appeals have soared, according to prosecutors. Robert Thompson, chief of appeals for the Plymouth district attorney's office, said one defense lawyer's bill for the office's appeal of a pending 1997 cocaine case has topped $16,000.
Thompson, one of the sharpest critics of the existing law, said that other district attorneys have reported bills as high as $30,000.
As a result, some prosecutors say they have decided to forgo appealing some suppression-of-evidence rulings, even though the District Attorneys Association estimates that it wins 80 percent of such appeals.
Worcester District Attorney John J. Conte said through a spokesman that his office weighs the fees when considering whether to appeal because "we just don't have the money."
Cullen, who is now a civil litigator in New Hampshire but still heads the Massachusetts State Prosecutors Association, estimated that the Suffolk attorney's office opted not to appeal six to 12 cases last year because it couldn't afford to do so.
The amount of drugs found in the Revere apartment four years ago is so large that Suffolk County prosecutors have decided to appeal the judge's ruling that threw out the 22 kilograms of cocaine as evidence, whatever the cost.
"Knowing there's 22 kilos at stake, we certainly don't want to put these people back on the street," said Cullen. 