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Coakley had tough time in court

Fails to mention loss in Washington

By Frank Phillips
Globe Staff / October 23, 2009

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It was a bold decision to argue the case herself, as Attorney General Martha Coakley chose to represent Massachusetts personally before the US Supreme Court last year in a nationally watched case involving the right of criminal defendants to challenge crime lab reports in court.

Coakley, who is seeking the Democratic nomination for US Senate, studied hard, prepared with Harvard Law School scholars, and practiced with Supreme Court specialists. But all that preparation did not prevent a bruising during her appearance last November, as the nine justices, legendary for their tough scrutiny, sharply questioned Coakley and challenged her command of the facts.

Ultimately, in a 5-to-4 decision in June, the court ruled against the state.

For Coakley, who has built her career as a prosecutor, an appearance before the nation’s highest court would seem to be a defining moment of her professional life. But Coakley makes no mention of it in her Senate campaign biography.

The issue before the court was whether defendants had a constitutional right to cross-examine forensic experts who prepare laboratory reports on illegal drugs and other scientific evidence used at trial. In a case involving a convicted drug dealer, Luis E. Melendez-Diaz of Boston, Massachusetts defended a law that allowed prosecutors to present such evidence without allowing defendants to cross-examine experts.

Coakley, who had had relatively limited experience in appellate law cases, and other prosecutors argued that requiring lab analysts to testify on their reports would place a huge burden on the courts, the labs, and the technicians. Drug prosecutions “would essentially grind to a halt,’’ she told the court in her 30-minute appearance.

Justice Anthony Kennedy asked Coakley to explain why California, where lab technicians do take the stand, had not experienced such a burden. She responded that California was one of the 35 states supporting Massachusetts in the case. But Chief Justice John G. Roberts, in an awkward moment, had to point out later that California was not one of the 35.

Pressed by Kennedy, Coakley said she had no substantive knowledge of California’s experience. “I don’t have enough information about the way California works or doesn’t work,’’ she said.

That prompted Justice John Paul Stevens to interject, “Well, it seems to me it’s a very important point.’’

In addition, she had trouble dealing with two other justices’ questions over distinctions between crime lab reports and eyewitness testimony, and, at one point, Kennedy pounced when Coakley began to respond to a question. “That’s a nonanswer,’’ he interrupted, with clear irritation.

Lyle Denniston, a veteran Supreme Court reporter who observed the session, said Coakley fared “very poorly.’’

“She simply flubbed it,’’ said Denniston, who has reported on the court for more than 50 years for the Globe and other newspapers, and now writes for SCOTUSblog, a blog of record on the court. “If you come before the Supreme Court, they expect you to know the record cold.’’

In an interview, Coakley dismissed the criticism, though she said, “I don’t deny it was a difficult experience.’’

“I feel I made a good argument,’’ she said.

She asserted that her performance has no bearing on her ability to advocate for Massachusetts in the Senate. “I think it speaks to the fact I am willing to tackle those issues and advocate for what I think is important,’’ she said.

Coakley added that her decision to present the case personally saved taxpayers a large legal bill. Otherwise her office would have had to hire an expensive lawyer with a record of arguing cases before the court.

Coakley had not gone unprepared. She was prepped by two well-known Harvard Law School professors, Alan Dershowitz and Charles Ogletree. Her top aide, David S. Friedman, clerked with one of the court’s justices after graduating from Harvard Law and sat next to her at the hearing. The national attorneys generals organization arranged a special practice session with four lawyers steeped in Supreme Court appearances.

Maryland’s attorney general, Doug Gansler, who was present at the session and is supporting Coakley’s Senate candidacy, said he feels she successfully tackled a very complicated criminal justice issue and that her demeanor was “very measured and thoughtful.’’ He acknowledged that she faced some rough questioning from the justices, but said, “I didn’t see anything out of the ordinary.’’

“That is the nature of an appellate argument,’’ Gansler said.

It is not unusual for attorneys general to argue their cases personally before the Supreme Court, legal specialists say. Linda Greenhouse, who covered the Supreme Court for 30 years for The New York Times, said making oral arguments before the Supreme Court justices is “really challenging.’’

“It’s unusual when an attorney general shines in an argument,’’ she said.

The Supreme Court’s June decision found that lab analyses should be considered testimony, and that defendants therefore had a right to challenge the analysts in court. As a result, prosecutors are now required to make crime lab analysts available for cross examination.

Greenhouse, now a lecturer at Yale Law School, said that her appearance should not be blamed for the loss of the case.

“It’s a rare case that is lost because of the oral argument,’’ Greenhouse said.

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SOURCE: Supreme Court