AG to argue before Supreme Court

Case revolves around state's use of crime lab data

Martha Coakley will argue the case today. The last time the attorney general's office argued a case before the court was in 2006.

In her first appearance before the United States Supreme Court, Massachusetts Attorney General Martha Coakley will argue today that prosecutors should not be required to bring forensic scientists to court to defend their work in drug cases.

The rare opportunity to stand before the nation's highest court comes at a fortuitous time for Coakley, a Democrat who said last week that she would be interested in replacing US Senator John F. Kerry if he were to ascend to a Cabinet post in President-elect Barack Obama's administration.

"It increases her exposure at a time when there is a tremendous amount of upheaval in the political landscape," said Robert A. George, a criminal defense lawyer in Boston.

George, who has faced Coakley in court, said she also is well-suited to handle the case, given her background as a criminal prosecutor. Before being elected attorney general in 2006, Coakley was Middlesex district attorney for eight years and a prosecutor in the office for several years prior. She was involved in prosecuting several high-profile cases, including the 1997 trial of British au pair Louise Woodward on charges that she shook a baby to death.

"She's someone who could certainly argue a case at that level, and I'm certain she'll be courtroom-prepared to answer the types of questions to come her way," George said.

The last time the Massachusetts attorney general's office argued before the Supreme Court, in November 2006, Assistant Attorney General James Milkey argued on the state's behalf. In that case, the state was suing the federal Environmental Protection Agency for failing to regulate greenhouse gas emissions from vehicles. The Supreme Court ruled in Massachusetts' favor.

A spokeswoman for Coakley cited the attorney general's prosecutorial experience in explaining why she decided to argue the case. "This is a case that has important implications for the state of Massachusetts, and this is an area of the law that the attorney general has a great deal of experience in," said Coakley spokeswoman Melissa Karpinsky.

Today's case, which justices will hear at 1 p.m., involves Luis Melendez-Diaz, who was convicted in 2004 of drug trafficking. Boston police arrested Melendez-Diaz in November 2001 and seized a substance, which chemists at the state Department of Public Health later determined to be cocaine, from his car and from the buyer. Drug analysis certificates from the lab were presented as evidence in trial.

Melendez-Diaz is arguing that his Sixth Amendment right to confront his accusers was violated because prosecutors were not required to present the chemists in court to defend their findings.

"If the Supreme Court rules in favor of the defendant, this would be a significant [blow to] prosecutors throughout Massachusetts, because, just from a resource standpoint, it would be almost impossible for lab technicians to be available to testify," said David Frank, a former prosecutor in Suffolk and Bristol counties who has written about the case for Massachusetts Lawyers Weekly.

"There simply aren't enough technicians to be able to pull that off."

But George said that given documented problems with crime labs in Massachusetts, prosecutors should make the technicians available to defend their conclusions. A 2007 investigation of the State Police crime lab found that it had one of the biggest backlog of cases in the nation and that there was insufficient quality control to deal with errors.

"The testing is being done in secret, done in a place where often, if not always, the defense has nobody present during the testing, and then they're putting their imprimatur on their own work," George said.

In briefs filed for the Supreme Court case, Coakley argues that Melendez-Diaz could have subpoenaed the analysts as part of his defense or brought in his own specialists to counter their findings that the substance was cocaine.

Melendez-Diaz "had multiple opportunities to probe the validity of the drug testing and, if he so desired, cross-examine the analysts," Coakley wrote in the brief. "But, he strategically elected not to do so."

But lawyers for Melendez-Diaz say the Constitution requires prosecutors to make witnesses against the defendant available for cross-examination, and that it is not up to defendants to arrange the confrontation.

Lawyers for Melendez-Diaz include Mary Rogers of Salem and Jeffrey L. Fisher of Stanford Law School.

"Allowing the prosecution to present its case through extra-judicial declarations - subject only to defendants' subpoena power - deprives defendants of the ancient right to stand 'face-to-face' with adverse witnesses as the witnesses convey incriminating evidence on direct examination," lawyers for Melendez-Diaz wrote in a response brief filed with the Supreme Court in advance of today's hearing.

John C. Drake can be reached at jdrake@globe.com.