Lawyer Asks Single Justice To Probe Problems With Probable-Cause Hearings

LOWELL - A Merrimack Valley attorney who described probable-cause hearings as "an absolute joke'' has asked the state's highest court to review probable-cause hearings in Middlesex and other counties noting that between December and January there were at least 75 probable cause hearings scheduled in Lowell District Court and none of them took place.

Defense attorney Christopher Spring, a former prosecutor, recently filed an appeal to a single-justice of the state Supreme Judicial Court on behalf of Luichy Pichardo, who was charged by Lowell police on Jan. 23 with trafficking in more than 18 grams of cocaine and other drug charges.

Spring argued that defendants, like Pichardo, often remain in custody for months unable to post high bail while prosecutors asked for repeated delays due to the lack of firearm and drug certifications.

In his research of cases, Spring found that between December and January, nine defendants charged in Lowell District Court for drug trafficking had a total of 31 probable-cause hearings schedule and each hearing was postponed.

The other postponements involved defendants charged with non drug-trafficking offenses, such as rape and assault charges, that did not need State Lab certifications. Prosecutors asked for delays in hearing in those cases as well, Spring said.

One defense attorney, whose name was withheld, described probable-cause hearings as going from an "endangered species to near extinction.''

Probable-cause hearings are designed to protect a defendant from being kept behind bars unless the government can make a preliminary showing that the charges against him are justified, Spring explained.

These hearings are used in serious cases where the charges have no district court jurisdiction, such as rape, armed robbery and drug trafficking. Those cases must be indicted by a grand jury and sent to superior court.

But prosecutors often answer they are not ready for probable-cause hearings and ask for a delay for "good cause,'' because they don't have the firearm certifications and drug certifications from the State Lab. The lab certifies a gun is a working firearm.

In drug cases, the State Lab certifies the type and weight of the drugs involved. In drug-trafficking cases that is important because suspects are charged based on the weight of the drugs, but the State Lab is backlogged with work.

In drug-trafficking cases that is important because suspects are charged based on the weight of the drugs.

Middlesex District Attorney Marian Ryan once described her office as being "at the mercy'' of the drug certs.

"The Middlesex District Attorney's Office invented this incorrect legal argument and it has been accepted by judges,'' Spring said.

Spring argues prosecutors are not required to have drug certs for either probable-cause hearings or grand jury indictments. He noted that local police departments posses tools to provide the drug information to prosecutors until the certifications become available.

The result is defendants who are typically held in jail for longer periods, unless a judge reduces the defendant's bail so her or she can be released or a judge dismisses the charges.

Ironically, Pichardo's drug-trafficking charges were dismissed on Monday by Lowell District Court Judge Stacey Fortes after Spring argued that this was his second probable-cause hearing and prosecutors wanted another delay due to unavailable drug certs.

"The judge made the right decision,'' Spring said, "but it's a much bigger issue than just one case.''