Pubdate: Sat, 27 Mar 2010
Source: Boston Globe (MA)
Copyright: 2010 Globe Newspaper Company
Contact: http://bostonglobe.com/news/opeds/letter.aspx?id=6340
Website: http://www.boston.com/globe/
Details: http://www.mapinc.org/media/52
Author: John R. Ellement

RULING ON DRUG CASES COULD SPUR APPEALS

Hundreds of drug cases could be appealed and some  convicted drug
dealers could win early release because  of a ruling by the state's
highest court yesterday that  retroactively applies a new
constitutional principle to  drug trials held from 2005 to 2009,
lawyers said.

In a closely-watched, 6-to-1 decision, the Supreme  Judicial Court
moved to clear up confusion created last  year when the US Supreme
Court ruled that Massachusetts  routinely violated the rights of
defendants in drug  trials by not having a chemist testify in person
that a  seized substance was in fact an illegal drug.

Neither the state nor the federal court had made it  clear how far
back the ruling in the case, Commonwealth  v. Melendez-Diaz, should
apply. The SJC said yesterday  that it should apply from 2005, when
Massachusetts law  permitted trials without chemists, to last year
when  the nation's highest court invalidated the practice.

The SJC also said the appeal will be available to drug  defendants
even if the defense did not object at the  time of the trial, settling
a key question that has  bedeviled both attorneys and prosecutors for
months.

"We place little weight on defense counsel's decision  not to
challenge the admission of the drug  certificates," Chief Justice
Margaret H. Marshall  wrote for the majority.

The SJC fractured 4 to 3 on some issues, but ruled 6 to  1 on the
question of how far back to go. The lone  dissenter, Justice Francis
X. Spina, said the majority  is now punishing prosecutors who followed
the law on  the books at the time and now risk seeing convictions
tossed out.

Spina said retroactivity should have been limited to  cases where the
defense formally objected during the  trial. "There is nothing
burdensome about an  objection," Spina wrote. "It is a
well-recognized,  easy, and painless requirement to continue
litigating  an issue."

Hampden District Attorney William Bennett, whose office  prosecuted
the case decided by the SJC yesterday,  Commonwealth v. Vasquez, said
he expected some  convicted drug dealers to be released, and that
hundreds of cases statewide would be affected.

"It's going to lead to the release of some," he said.

But he added, "Not every case that goes up [for appeal]  is being
reversed, but we are seeing quite a few of  them."

Bennett said his office, when it can, will retry drug  cases and use
the new rules of evidence. That's his  goal for Jorge Vasquez, who was
convicted in 2005 for  running a drug operation in
Springfield.

Vasquez's attorney, Jon Maddox, said in a telephone  interview that
Vasquez looks forward to challenging all  the evidence against him. If
Vasquez were not currently  serving a seven-year term for an unrelated
drug  conviction, Maddox said, Vasquez would be freed from  prison by
the SJC's decision yesterday.

Maddox also said, "We are probably talking about a few  hundred cases
that would be entitled to an appeal. . .  . It's a significant victory."

He said his estimate was based on a conversation with  the state's
public defender agency, the Committee for  Public Counsel Services,
which has closely followed the  issue. 
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MAP posted-by: Jo-D