COST OF APPEAL DETERS DAS FROM ARGUING SOME CASES

On a late summer night four years ago, state and federal investigators made
the year's biggest drug bust in Suffolk County: more than $2 million worth
of cocaine stashed in an apartment along Revere Beach Boulevard.

But no one has been convicted of selling the 22 kilograms of cocaine,
partly because a judge ruled that the search was illegal. While such
rulings are not uncommon, Suffolk County prosecutors had concerns that
extended beyond matters of law: They said they couldn't afford to appeal.

Under a state law loathed by district attorneys, but unnoticed by the
general public, the DA's office would have to pay the legal fees of the two
alleged drug dealers if they appealed the judge's ruling, potentially tens
of thousands of dollars.

The Suffolk District Attorney's office asked the state's highest court to
exempt it from the requirement, but the court refused. Prosecutors are now
pursuing the appeal, in spite of the cost.

For nearly a decade, district attorney's offices have had to pay the fees
of defendants' lawyers when prosecutors appeal pretrial rulings that
suppress evidence and gut their cases. But district attorneys say that
budget cuts are making it all but impossible to continue doing so. In
response, Governor Mitt Romney has proposed eliminating the requirement in
the fiscal 2005 budget.

Daniel Winslow, the governor's chief legal counsel and a former Wrentham
District Court judge, said prosecutors are being forced to drop criminal
cases because they can't afford to foot the bills of high-priced defense
lawyers.

"The way the law is currently written, even a millionaire's lawyer would be
reimbursed by the Commonwealth for a valid appeal," he said.

But defense lawyers counter that when they are able to persuade a judge to
throw out key evidence, which usually results in cases being dismissed,
their clients shouldn't have to pay even more because the prosecution
doesn't like the ruling.

They say the law simply encourages prosecutors to be more discriminating
about the rulings they appeal. "It seems to me that the DA's office, by
having to make judgments about paying money, is a little bit more careful
about which cases they do appeal and don't just appeal wholesale because
they don't have to pay for it," said John H. LaChance, a Framingham defense
lawyer and former federal prosecutor.

The law in dispute applies only to prosecutors' appeals of rulings made
before a jury is sworn in. The provision was created, defense lawyers say,
to keep defendants from having to pay to relitigate issues, such as a
judge's finding that a search was illegal and that any evidence found
cannot be used.

The provision only applies in cases in which defendants can afford to hire
private lawyers; if the defendant is poor, he or she is represented by
public defenders with the Committee for Public Counsel Services, which
would handle the case if the prosecution appealed a ruling in a pretrial
motion.

Because prosecutors are loath to appeal motions to suppress evidence when
they must pay the defendant's legal fees, generally only poor defendants
are at risk of having the evidence reinstated on appeal, opponents of the
law argue.

"The practical effect has been that we only appeal cases where the client
is indigent, and people who are rich get a free pass," Brian J.S. Cullen,
former chief of the Suffolk district attorney's narcotics unit, told
Supreme Judicial Court Justice Robert Cordy last fall when he
unsuccessfully sought an exemption from the rule in the Revere Beach drug
case. "That's a problem."

The legislation proposed by the Romney administration says that the state
wouldn't have to pay defense lawyers' fees unless the prosecution loses the
appeal and the state Appeals Court determines the appeal was frivolous.

Although the original law has been around for decades, the state's
Administrative Office of the Trial Court picked up the tab for defense
lawyers' fees in such appeals until 1996, when the office announced it
could no longer afford to do so. The SJC then said that district attorneys
had to cover the cost.

But that's been tough, given budget cuts and the increasingly higher bills
of private defense lawyers.

From fiscal 2001 through fiscal 2004, the total budget of the state's 11
elected district attorneys has fallen from $75.1 million to $69.8 million,
according to the Massachusetts District Attorneys Association, forcing
staff cuts.

In Suffolk County, the budget for the district attorney's office has been
reduced by about 10 percent over two years, and the number of full-time
employees has dropped from 295 to 255.

Meanwhile, the bills for defense lawyers who handle so-called interlocutory
appeals have soared, according to prosecutors. Robert Thompson, chief of
appeals for the Plymouth district attorney's office, said one defense
lawyer's bill for the office's appeal of a pending 1997 cocaine case has
topped $16,000.

Thompson, one of the sharpest critics of the existing law, said that other
district attorneys have reported bills as high as $30,000.

As a result, some prosecutors say they have decided to forgo appealing some
suppression-of-evidence rulings, even though the District Attorneys
Association estimates that it wins 80 percent of such appeals.

Worcester District Attorney John J. Conte said through a spokesman that his
office weighs the fees when considering whether to appeal because "we just
don't have the money."

Cullen, who is now a civil litigator in New Hampshire but still heads the
Massachusetts State Prosecutors Association, estimated that the Suffolk
attorney's office opted not to appeal six to 12 cases last year because it
couldn't afford to do so.

The amount of drugs found in the Revere apartment four years ago is so
large that Suffolk County prosecutors have decided to appeal the judge's
ruling that threw out the 22 kilograms of cocaine as evidence, whatever the
cost.

"Knowing there's 22 kilos at stake, we certainly don't want to put these
people back on the street," said Cullen.