Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

United States And Massachusetts Supreme Courts Agree, Drug/Gun Cases Are Overturned And Prosecuting Attorneys Are Worried

The Boston Criminal Lawyer Blog has often warned you that you want to have an experienced criminal defense attorney advise and, if necessary, defend you if you find yourself to be a target or a criminal defendant. I have given you many reasons for this. Today’s story reveals one more.

Sometimes, the law, as applied by the courts, is wrong. This is the stuff about which appeals are made. So, in short, you want to have an attorney who not only knows what the law is…but what it should be.

Our case in point is a recent group of rulings by the Massachusetts Supreme Judicial Court. In the rulings, at least eight Plymouth County cases were overturned pursuant to the United States. Supreme Court ruling last summer that it wasn’t enough to use lab analysis paperwork as evidence – the chemists and ballistics experts (in gun cases) who did the tests have to testify, too.

Two Friday rulings by the state Supreme Judicial Court may open the door for even more of those cases to be appealed, said Plymouth County District Attorney Timothy J. Cruz. The rulings held that even if the defense attorney didn’t formally object to the paperwork as evidence or questioned whether the items tested were drugs, the case can still be tossed out.

Prosecutors had argued that since the defense never questioned whether the items were drugs, the convictions should stand. Such is usually the rule. Except in cases of “incompetent counsel”, the failure to object to something during trial usually does not preserve that issue for appeal.

That ruling is important because it raises the possibility that even more convictions can be overturned.

“I think we are going to face some real challenges,” Cruz said.

Norfolk County District Attorney William Keating said the number of cases that may be overturned remains to be seen. “It does open the door to other cases, but not as much those of recent vintage,” he said.

Keating said the problem could have been avoided years ago if the state had hired more chemists and other experts.

The U.S. Supreme Court, in a 5-4 decision last summer, ruled that using just laboratory analysis certificates as evidence violated a defendant’s right to confront witnesses, so chemists have to testify.

The court ruled that might make it “burdensome” for prosecutors, but that’s not enough to relax the law.

In a Brockton case overturned Friday, the court found that even though the defense didn’t object to the drug analysis certificates admitted as evidence – and even referred to the substances as “drugs” in his opening statement – a new trial is needed.

A similar argument was made in overturning a Springfield drug conviction involving a 2005 arrest.
Cruz said the decision can be far-reaching.

“Now, we find ourselves in a position of destroying legitimate drug convictions,” he said.

Attorney Sam’s Take:

Gee, now isn’t that a question akin to the old question of whether a tree makes a noise if it falls in the forest and nobody is around to hear it! Mr. Cruz says that the new ruling might destroy “legitimate” drug convictions. Of course, I thought the whole point was that they were not so “legitimate” after all.

Yes, those Constitutional safeguards can be a real hindrance sometimes, cant they? I mean, give people things like due process of law and next thing you know, they want to be able to confront their accusers!

You see, under our system of law, the government must prove its case beyond a reasonable doubt. It has the burden. One of the defendant’s rights is to confront and cross examine the witnesses against you. It is what one might calle testing the evidence.

Have you ever tried to cross-examine a lab report? I mean, I am pretty good…but even I don’t get many answers no matter what questions I ask pieces of paper.

“Yeah, but Sam, it’s just a chemist or some other kind of expert. Why do you need to cross-examine them?”

Well, they actually are providing evidence without which the prosecution cannot get a conviction. Being human beings….they can tend to make mistakes and have biases..

“Well, maybe. But do you really need to cross-examine them? I mean, why would they be anything but completely honest in their reporting?”

Gee, I don’t know. Maybe because they work for the prosecution? I mean, I know that we all want to believe that no Commonwealth representatives would ever lie, color their findings or make mistakes. But, in over 25 years of practicing law in Realityville, I cannot subscribe to those assumptions.

On the other hand, it does seem to be a bit unfair to prosecutors that, when playing by the rules that were in place at the time, they lose their convictions because of a change in the law. However, in many places, New York, for example, this has always been the state of the law. Further, they do not really “lose” their convictions. They merely have to re-try the cases. If the cases were so strong, one would expect the same result.

And then…there is the detail of weighing said inconvenience with a person’s life or liberty…!

“But, Sam, isn’t this going to cause a lot of extra expense to a system that is already underfunded and overly burdened?”

Probably. Gee, maybe it’s time we took time out to really look at how we handle these cases and see if there is a more efficient way of doing things…or do you think that might be going alittle too far?

But, I guess, I digress. This is not the Sam Goldberg Let’s Change The System Blog. I’m supposed to deal with criminal justice reality as it is. So, looking at the system as it is, the lesson is clear. Sometimes the law makes sense to the average consumer…sometimes it does not. Sometimes it even changes. This is why you need an experienced and gifted criminal defense attorney to be able to understand the legal landscape, as well as the principles on which it is based, and protect you as best as you can be protected.

I like to think I am one such person. So, if you have a criminal case and would like to discuss it with me, please feel free to give me a call at (617) 206-1942.

For the full story upon which today’s blog is based, please see http://www.enterprisenews.com/news/cops_and_courts/x905411660/SJC-tosses-out-more-drug-cases-including-Brockton-conviction

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