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At Dorchester District Court, drug cases take up much of the docket. On one recent day, a man arrested for opiate possession nine months ago was asked to wait longer for a trial because the state couldn't get the chemists who analyzed the drugs to the stand.
Here’s the problem: A new Supreme Court ruling says the prosecution must put chemists and other forensic specialists on the witness stand to verify their reports. In Boston, there are only 12 chemists in the crime lab, and they test drugs in 45,000 cases a year.
Outside the courtroom, defense attorney Rudge McKenney said the ruling has created a horrendous backlog. "The minute the Melendez-Dias decision came down you could just see the havoc this was going to wreak on our day-to-day activities at the district court level," McKenney said.
Take the case of Carlos Rivera. He was caught selling cocaine and heroin near a Revere school in 2005. He was charged and convicted of drug trafficking and is serving 17 years in prison.
But two weeks ago, his conviction was overturned on appeal because it was based on eight documents prepared by chemists who tested and weighed the substances. In the new landscape of proof, a piece of paper isn’t enough. The person who performed the drug test should have been called to the stand.
"It changes what proof means," said defense attorney Kathleen O’Connell, who has successfully overturned several drug convictions on appeal. "For a long time we have trusted the results from state police-run crime labs," she said, but added, "we are learning more and more now about the failures of forensic evidence."
Last year, the National Academy of Sciences delivered a sweeping critique of the nation’s crime labs, indicating that scientists sometimes face pressure to sacrifice methodology for the sake of expediency. Two years ago, an administrator at the Massachusetts Crime Lab was fired for falsely reporting links between DNA and a crime scene.
Prosecutors say the crime labs are trustworthy but that there are too many drug cases and too few chemists. This makes cases hard to prove, said David Frank, a legal analyst with Lawyers Weekly. Now more alleged drug dealers are getting plea bargains or even getting off, he said.
Supreme Court Opinion: Melendez-Diaz v. Massachusetts (PDF)
It has also affected the appeals court.
"At the end of the day, there clearly have been some cases that have been dismissed because prosecutors could not get the chemist to the courtroom," Frank said.
Defense lawyers, on the other hand, say the effects are overblown. But Gov. Deval Patrick has responded to prosecutors’ complaints and filed a bill that would require defense lawyers to tell the state that they want a forensic analyst to testify, instead of it being mandatory.
Beacon Hill has not yet acted upon Patrick's bill. A similar law in Virginia is currently under scrutiny by the Supreme Court.
Meanwhile, prosecutors’ worst nightmares are coming true. Convicted trafficker Rivera will be retried, but he could be set free if chemists don’t testify again. There could be thousands of similar cases. And when they come back in the system, they will further delay trials, said Suffolk County District Attorney Dan Conley.
"[The delay will exacerbate delays by] six or seven months," Conley said. "It’s going to get worse."
Conley said that one way to solve the problem is to hire more chemists in the crime labs. But the state can’t afford to do that. And, Conley added, every time a trial is delayed, the public is paying for the defense counsel.
"Most defendants are provided with public counsel," Conley explained. "So every time a public defender comes into court and demands that the chemist be there and the chemist isn’t there and the court ascents to our continuance, that’s more money, you know, that the public is spending."
But money is not a good enough reason to deny a defendant his Sixth Amendment right to confront his accuser, say defense attorneys. And it doesn’t stop with drug cases. The Melendez-Diaz ruling also applies to gun cases with ballistic evidence, DNA cases, cases with fingerprint evidence and possibly other areas.
There is little else prosecutors can do, as even more evidence might not be enough.
In the case of Carlos Rivera, police found scales, packaging and other drug paraphernalia at his apartment. But because Rivera didn’t get to confront the chemist, his case goes back to trial to determine whether he was selling cocaine and heroine or baking soda.
This article was updated to reflect grammatical corrections.
This program aired on January 11, 2010.
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