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Lawyers exploiting ruling, state says

Calls requirement for chemists to testify costly

By John R. Ellement
Globe Staff / June 11, 2010

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WORCESTER — Prosecutors and a top state law enforcement official said yesterday that defense lawyers are exploiting a US Supreme Court ruling in a way that is slowing the wheels of justice, costing taxpayers more money, and sometimes hurting their own clients.

The law enforcement officials provided their assessment on the effects of the 2009 ruling, known as Melendez-Diaz after a drug suspect whose lawyer challenged a Massachusetts law that allowed some forensic evidence into trials without a technician appearing in court.

John A. Grossman, the Patrick administration’s top specialist on forensic sciences, said the state’s 35 chemists have been ordered to prepare for court 1,606 times, but actually testified only 184 times. He said chemists have to leave the lab to prepare for trial, even if they never testify.

“We are more than happy to testify where appropriate,’’ he said. “The problem is that we are expending a huge number of hours . . .and only 10 percent have actually led to testimony. . . . To use the chemists’ time in these lean economic times is an absurd result of the case.’’

In a joint interview at a meeting of the Massachusetts District Attorney’s Association, most of the state’s district attorneys echoed Grossman’s complaint.

They contended that the court’s requirement that chemists be available for defense questioning is costly and usually unnecessary, because there is no doubt the white powder seized by police is cocaine or some other illicit drug.

They also said the ruling was initially focused on illicit drugs and ballistic evidence, but has now been expanded by defense lawyers to include fingerprint and DNA evidence.

The high court’s 2009 ruling said that a state law that allows written reports to be used as evidence in forensic cases is unconstitutional, and it ordered that the specialists performing the tests must testify in the cases.

Berkshire District Attorney David Capeless said defense lawyers often insist that the chemist be at the courthouse, hoping that some schedule conflict will prevent them from showing up and that a judge will dismiss the case against their client.

“What it is doing is slowing the system of justice,’’ Capeless said. “We are not changing what we are doing in investigating cases. . . . But when it comes to the criminal justice system, the court system is where the monkey wrench comes in.’’

Capeless said the push for the chemists can delay trials — a burden to defendants who may be held on bail — but also unduly increases the costs of justice.

“The public is not getting what they deserve, justice,’’ he said.

But Boston defense lawyer John H. Cunha Jr., president of the Massachusetts Association of Criminal Defense Lawyers, flatly rejected the complaints from law enforcement.

He said chemists have to be on hand because an arm of the government is using its power against an individual citizen.

Each time that happens, the US Constitution demands that the person’s rights be protected, he said.

“My question is, ‘Who brought these charges?’ ’’ Cunha said. “The state did. So the state has to prove it. . . .

“To blame it on the defense is totally backward,’’ he said. “The defense does not bring the charges.’’

He also said that Massachusetts, like other states and the federal government, has been rocked by scandals in forensic laboratories in recent years, which increases the need for defense lawyers to make sure the lab work was done correctly.

“To just come in there with a piece of paper that says somebody is guilty is contrary to our system,’’ he said. “Cross-examination is supposed to test the evidence. . . . The US Constitution is not a technicality.’’

Also yesterday, the Patrick administration announced it had appointed a UMass Memorial Medical Center official to take over the State Police lab, a job that has been vacant since 2007 after mismanagement of forensic evidence was discovered.

Guy M. Vallarro will take over next month, leaving his post as vice president of clinical laboratories at the Worcester facility, where he oversaw a staff of 415 people, including 15 researchers.

John Ellement can be reached at ellement@globe.com.

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