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Massachusetts Appeals Court Continues to Affirm Drug Convictions Won With the Help of Improper Expert Testimony

Twice in the past two weeks the Massachusetts Appeals Court has upheld the convictions of drug dealers despite acknowledging that the Commonwealth elicited improper testimony from their narcotics experts.  The cases are Commonwealth v. DeJesus and Commonwealth v. Almele.

In DeJesus, members of the Everett police department were conducting an investigation into the city’s crack cocaine marketplace.  An undercover officer used marked $20 bills to buy crack from an individual named Paulie.  The police suspected that Paulie was working for the defendant and when they later stopped and searched the defendant, they found the marked bills.  At trial, the Commonwealth called a drug detective from another police department to testify as an expert witness in street-level drug distribution schemes.  The expert testified that Paulie was a “middleman” and explained that his job was to deliver the drugs from the dealer to the buyer (after collecting the money).  Following an objection, the prosecutor asked the expert, “hypothetically,” whether someone who had acted in an identical fashion to Paulie was working as a middleman, and the expert said his opinion would be that Paulie was the middleman.  The defendant was convicted of possession of cocaine with intent to distribute.  The Appeals Court ruled that the expert’s opinion regarding a hypothetical set of facts that were identical to facts of the case should not have been permitted at trial.

In Almele, the defendant was charged with possessing various prescription pills with intent to distribute following a controlled buy with an undercover New Bedford police officer.  The drug deal had been set up by the defendant’s nephew, who was the alleged middleman.  At trial, a police officer who was not involved in the undercover drug deal testified as an expert.  He explained the role of middlemen (also known as “runners”) and talked generally about the drug trade in New Bedford.  He then testified that in his opinion, the drugs found in the defendant’s pocket were intended for distribution (rather than personal use).  The Appeals Court ruled that the answer in isolation was improper, but given the questions leading up to the answer, it was not a reason to reverse the conviction.

In both cases, the Appeals Court ruled that even if there had been errors in the Commonwealth’s presentation of evidence, the errors did not cause a substantial risk of a miscarriage of justice.  In other words, maybe there was error, but the error did not affect the outcome of the trial.  This is a conclusion often reached by appellate court when the case is strong and the error is minor.

The problem is that the errors in these cases aren’t minor.  In drug cases, the prosecutor often calls expert witnesses who are supposed to explain cryptic evidence to the jury.  For example, a drug expert might testify that a scrap of paper containing names and numbers is consistent with a ledger sheet that a drug dealer would use to keep track of his clients.  Such testimony is proper.  However, the prosecutor almost always follows up this testimony by asking the expert to give his or her opinion about whether the facts of the case are “consistent with” the defendant being a drug dealer.  This is nothing more than a veiled opinion about how the jury ought to decide the case, and it’s extraordinarily prejudicial to the defendant.  An experienced drug detective testifying as an expert witness is ordinarily charismatic and interesting.  Jurors are typically very interested in their opinions, and the risk that they might blindly accept their conclusions is high.  The introduction of improper expert testimony is really dangerous for a defendant, and these cases are illustrative.

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