NEW DRUG CONVICTION REVERSED, AND US RULING IS CRITICIZED

At least a dozen drug and gun convictions have been overturned in
Massachusetts as a result of a controversial US Supreme Court ruling
six months ago that criminal defendants have a constitutional right to
cross-examine forensic experts who prepare laboratory reports,
according to prosecutors and defense lawyers.

The most recent reversal occurred yesterday, when a state Appeals
Court panel overturned the 2007 conviction of a Boston man for
trafficking cocaine in a school zone and ordered a new trial. The
panel ruled that Deniz DePina's lawyer should have had a chance at
trial to question state laboratory analysts.

Those analysts had certified in writing that police seized more than
14 grams of crack cocaine from a Roxbury apartment where DePina
allegedly sold drugs.

The cases in which convictions were reversed were pending before the
Appeals Court when the nation's highest court ruled, 5-4, that the
Sixth Amendment guarantee of a right to confront witnesses extended to
forensic analysis, such as laboratory reports that a powder seized by
police was cocaine. That June 25 ruling stemmed from a Boston drug
case and invalidated a Massachusetts law that allowed prosecutors to
routinely present such evidence without allowing defendants to
cross-examine the experts.

Prosecutors and defense lawyers say they expected dozens of
convictions to be reversed in coming months as a result of the Supreme
Court's ruling in Melendez-Diaz v. Massachusetts.

Plymouth District Attorney Timothy J. Cruz, whose office has had three
drug convictions overturned, according to court records, said
Melendez-Diaz is posing a hardship for prosecutors and state-paid
forensic scientists. The scientists now need to testify that illegal
drugs are indeed drugs and that guns involved in crimes actually fire.

"It is now being raised in virtually every pending appeal from a drug
conviction, regardless of whether it was raised in the trial court and
regardless of whether the nature of the substance was even contested
at trial," Cruz, president of the Massachusetts District Attorneys
Association, said in a statement.

Other prosecutors and defense lawyers said the ruling's impact will
probably diminish when law enforcement authorities arrange to make
sure that forensic experts are available to testify at trials.

"I don't think there will be a flood" of legal challenges, said
Christina Miller, chief of district courts and community prosecutions
for the Suffolk district attorney's office and coauthor of a recent
Boston Bar Journal article on the implications of the Supreme Court
ruling. "They will all eventually cycle through."

Several criminal lawyers also said that the Supreme Judicial Court is
considering appeals that could help determine how many cases are
ultimately reversed.

Among the issues the state's high court is weighing is whether
convictions should be overturned if defense lawyers failed to object
to the absence of forensic scientists at trial.

The new requirement could prove a logistical headache for the
state.

In 2007, Massachusetts district courts had 46,685 drug cases,
according to the Boston Bar Journal article. The two laboratories that
analyzed the drugs employed 23 people. If many defendants challenge
analyses that drugs are what police say they are, it would be daunting
for those analysts to testify throughout Massachusetts and continue to
do their lab work.

But Kathleen M. O'Connell, the court-appointed lawyer who won a new
trial for DePina, said making sure that defense lawyers get to
cross-examine analysts is no legal nicety.

In DePina's trial in Suffolk Superior Court, two certificates of
analysis identified rocks seized by police as crack cocaine and said
they weighed slightly over 14 grams. The weight was crucial because
the drug trafficking charge that he was convicted of required the
cocaine to total at least 14 grams.

"If you're deprived of cross-examination, prosecutors are allowed to
take shortcuts that can result in erroneous convictions," O'Connell
said. Her client was sentenced to three years in prison, followed by
two years in jail.

Brownlow M. Speer, chief appellate lawyer for the state Committee for
Public Counsel Services, said he believes that prosecutors will be
able to make analysts available to testify without considerable hardship.