Massachusetts Supreme Judicial Court Reverses Drug Conviction Because of Prosecutor’s Improper Profiling of the Defendant

In an important decision delivered today, the Massachusetts Supreme Judicial Court reversed a drug dealing conviction after the prosecutor was permitted to elicit testimony from a police witness that the defendant did not “look” like a crack cocaine user (and, therefore, must be a dealer).  The name of the case is Commonwealth v. Horne. 

In September of 2012, Boston cops stopped the car the defendant was driving for traffic violations.  After learning the defendant’s driver’s license was suspended, the cops attempted to remove him from the car and arrest him.  The defendant fought back and resisted arrest before being subdued by a total of five police officers.  After the scuffle, the police located nearby a plastic bag containing 26 individually wrapped rocks of crack cocaine (worth between $10 and $20 each).  The Commonwealth theorized the defendant had kept the drugs in his boot, which came off during the scuffle.  During a subsequent search of the defendant’s car, the police found three cell phones, $83 in cash, and a gun in the trunk.  He was charged with possession of cocaine with the intent to distribute (subsequent offense), resisting arrest, assault and battery on a police officer, and several firearms offenses.  A Suffolk Superior Court jury acquitted the defendant of the gun charges but convicted him of everything else.  The defendant appealed the drug conviction and argued the prosecutor had introduced improper expert testimony that he (the defendant) did not fit the physical profile of a crack addict.  The Appeals Court upheld the conviction but on further appellate review, the Supreme Judicial Court reversed.

In every case charging a defendant with possession of drugs with the intent to distribute, the prosecutor calls a “street-level narcotics expert” to testify.  These so-called experts are drug detectives from local police departments who are permitted to tell juries that certain evidence related to the defendant’s case (for example, the presence of large amounts of money or weapons or packaging materials) are “consistent with” drug dealing activities.  While the experts are not supposed to offer an opinion about the defendants’ guilt, it is crystal clear to juries that the experts are testifying in support of their belief that the defendants are drug dealers.  Massachusetts appellate courts have repeatedly permitted this type of testimony in an embarrassing line of cases that should be reversed.  What is absolutely impermissible, however, is testimony that a defendant fits the profile of a certain class of criminals.  Profile evidence is most often seen in child abuse cases where the Commonwealth wants to introduce evidence that the defendant fits the mold of a child molester.  The Supreme Judicial Court long ago outlawed such testimony.  In this case, the prosecutor was permitted to ask his street-level narcotics expert what types of physical characteristics might be associated with a crack cocaine user.  The witness said people who use crack are usually very thin, have rotting teeth, may be unkempt, and often have physical appearances that look to be deteriorating.  The defendant, on the other hand, was a muscular, large man who did not possess the characteristics attributed to a drug addict.  The SJC ruled the evidence was improper “negative profiling” evidence.  The Court pointed out that simply because a defendant fits a profile does not prove the defendant committed a particular crime.  The Commonwealth argued on appeal that the evidence did not explicitly compare the defendant to a drug dealer (but only that he did not appear to be a drug user).  The Court correctly rejected the Commonwealth’s argument, ruling that the expert’s testimony fell squarely within the scope of profiling evidence that has been prohibited for more than two decades.

As a result, the defendant’s drug dealing conviction was reversed and the case was sent back to the superior court for retrial.