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.