High court sends out SOS on evidence

Members of the state’s highest court heard an oral argument in October.
Members of the state’s highest court heard an oral argument in October.LANE TURNER/GLOBE STAFF/FILE 2018

The state’s highest court has used a recent opinion to send out an SOS to lawmakers that nothing short of “the integrity of our criminal justice system” is at stake because Massachusetts lacks adequate facilities to store post-trial evidence.

If the work of the Innocence Project and well-publicized advances in forensics and DNA identification have taught us anything over the past few years, it’s that courts, prosecutors, and police are not infallible — that justice sometimes needs a do-over. And that requires that the evidence used to convict a defendant must be preserved and made accessible.

Ruling in three criminal cases last month — each of which involved orders to preserve evidence used in those trials, including “two firearms, live ammunition. . . a BB gun, and a baby carriage” — the Supreme Judicial Court noted, “[u]nfortunately, most of the courthouses in this Commonwealth lack the facilities and trained staff to meet their statutory responsibility.”

The cases, all heard in Middlesex County, one of which was a murder case, ended with much of the evidence involved being sent back to the police departments — in Everett and Lowell — that had originally gathered it.


But writing for the court, Justice David Lowy addressed the broader issue:

“What is needed is a state-of-the-art facility staffed by trained professionals with appropriate organizational and retrieval capability and with climate control to preserve adequately forensic and scientific evidence. . . . There is a shared responsibility among the branches of government to solve this problem. No branch is capable of solving it alone.”

As the justice noted, there is currently a “hodgepodge of statutes and rules” governing the retention of evidence, including “biological material” being kept by various “government entities.” State Police get a specific piece of the action, being required to hold silencers, BB guns, and guns that have had their identification numbers removed, along with some other illegal weapons.


But court clerk’s offices remain the legal facility of choice for the moment even if, as one memorandum noted, “clerks are not trained in the proper handling of firearms and ammunition.”

Sure, staff training could be improved, as Lowy mentions, but the problem is indeed far broader.

There was a time when the State Police could probably have been given a broader role, but in the midst of the current overtime scandal, with its attendant fudging of records reflecting badly on its operations, that would be the unlikeliest of solutions.

As the SJC decision puts it, “we cannot order the Legislature to appropriate funds for a state-of-the-art storage facility, nor can we order the executive branch to build one.”

But the court’s plea has indeed already been heard on Beacon Hill. Within a week of the court’s decision, the House Ways and Means Committee moved to create a 17-member task force to investigate both the pre-trial and post-trial retention of evidence and report back on possible solutions no later than next March 31. Court personnel, including the chief justices of the SJC and the Superior Court, would be among its members.

The task force provision was attached to a supplemental budget bill — one of those guaranteed-to-pass-quickly pieces of legislation — indicating the degree of seriousness with which lawmakers are treating this. The provision deserves speedy Senate approval. Pending the results of the task force’s work, the Legislature also needs to be ready to put capital spending into a new facility.


Justice often hinges on the small things, or as Lowy called them, “the most routine tasks occurring well beyond the piercing eye of the public.” How the courts deal with evidence is one of those “routine tasks” that needs a long-term, 21st-century solution — one in which the other two branches of government must be willing and active partners.