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Ruling puts gun verdicts at risk

Mass. convictions under scrutiny

By John R. Ellement
Globe Staff / November 28, 2009

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Dozens of gun possession convictions statewide could be overturned in the coming months as state judges interpret a narrow US Supreme Court ruling that found Massachusetts routinely violated the constitutional rights of drug defendants.

The 5-4 ruling by the nation’s highest court, issued this summer, forced Massachusetts prosecutors to abandon the state’s historic practice of using written lab reports in drug trials to prove that seized materials were illicit drugs.

Now they must have drug technicians available in courtrooms to testify and be cross-examined about procedure, and the state Appeals Court is applying the same standard to gun possessions.

And over the past several months, based on that ruling, the state Appeals Court has overturned a handful of gun possession convictions because ballisticians were not available to testify that the guns worked when they were test fired, according to attorneys and officials.

“There seem to be quite a few cases floating around in the two appeals courts in which the issue is present in one form or another,’’ said Brownlow M. Speer, the appellate expert for the state Committee on Public Counsel Services. “A lot of those cases will end up reversed now. How many that would be, I don’t know.’’

Last month, the Appeals Court tossed out the conviction of Isaiah I. Brown, who carried a .45-caliber pistol at his waist and never tried to hide it from anyone - including Boston police. He was convicted of gun possession in Boston Municipal Court in 2006, court records show.

Boston attorney Christopher MacLachlan, who successfully won a new trial for Brown, said defense attorneys have to try to do the same for clients in similar cases.

Moreover, he said, people should be able to exercise their constitutional rights, especially those who could lose their freedom upon conviction.

“A lot of times, it’s going to be completely fruitless,’’ MacLachlan said. “But it doesn’t mean you don’t have a right to do it.’’

MacLachlan and other attorneys interviewed this week said the ruling covers cases that took place roughly between 2005 and 2008 when the US Supreme Court got involved, but it was not clear how many of those convictions could be overturned.

After the Supreme Court’s ruling in June, prosecutors and the Patrick administration changed tack and began sending laboratory technicians to courtrooms, where they can be cross-examined by defense attorneys over how they operate their labs.

In anticipation of that ruling and its implications for gun cases, Suffolk District Attorney Daniel F. Conley said his office and Boston police have made sure ballisticians were on hand in all gun cases since January 2008, so those cases would not be vulnerable to reversal under the new rulings.

Conley said that in most gun cases, the issue that juries must decide is not whether the gun can fire a bullet but whether there is enough evidence linking the gun to a person, especially when the weapon is tossed from a car or thrown down during a foot chase. Using a report demonstrating that the gun works was a way to save money, he said.

“This was just a way to conserve resources,’’ said Conley, whose office is now operating at 2001 budget levels. “I don’t think there is going to be a flood of these cases, but we are committed to retrying them. It’s severely taxing on us, no question about it.’’

Next month, the Supreme Judicial Court will tackle another strand of the legal issues and eventually decide whether the principle should be applied retroactively to gun cases where the convictions have been upheld.

Meanwhile, John Grossman, the Patrick administration’s top official on forensic issues, said state ballisticians have appeared in court about 100 times so far this year - a huge increase over 2008, when they seldom were asked to come to court.

Grossman said the state will be able to handle any increase in demand for ballisticians. When none is available, he said, officers from local police departments could test fire weapons, although they lack the technical expertise to submit evidence to the national databases, so it would be difficult to keep lists current. The officers would also run the risk of injury from possibly unsafe weapons.

Grossman also said the administration has proposed changing state law to mirror federal law that requires prosecutors only to show that the gun was manufactured as a weapon, and not to prove it works properly.

“That would resolve the problem,’’ he said.

The Supreme Court case concerned the appeal of Luis Melendez-Diaz who was arrested with two other men in Boston in 2001 for allegedly dealing drugs. The three were placed in a police cruiser. Police officers searched the cruiser after the men got out and found 19 plastic bags of cocaine hidden.

Technicians at the lab at the state Department of Public Health made the determination that the substance was cocaine, prompting prosecutors to submit three “certificates of analysis’’ at trial. Melendez-Diaz objected to the admission of the certificates without the testimony of the analysts.

Justice Antonin Scalia, writing for the court, said such defendants have a constitutional right to confront lab analysts, in part because the experts may feel pressure to manipulate the evidence to favor prosecutors.