Courtroom drug ban mulled

Massachusetts Trial Court leadership is taking the extraordinary step of moving to ban fentanyl and carfentanil from courtrooms — even as evidence — citing the lethal risks surrounding the ultra-potent drugs, according to a letter provided to the Herald.

“Given their demonstrated potency and toxicity, the risk of accidental exposure to these substances, and the training necessary to safely handle even those samples that have been securely packaged as evidence, we believe that a ban on these substances may be a necessary and reasonable measure,” wrote Paula Carey, chief justice of the Trial Court, in a letter outlining her concerns to Essex District Attorney Jonathan Blodgett earlier this month.

Carey also has spoken to other state prosecutors about her pitch to implement the courthouse drug ban.

The new policy is currently in draft form, and Trial Court leadership hopes to implement it early next month, according to spokeswoman Jennifer Donahue.

“The Trial Court is in the process of receiving comments from District Attorneys and the defense bar,” Donahue said in an email.

The ban would “undoubtedly impact the way that cases involving fentanyl and carfentanil are prosecuted, as the Commonwealth would not be permitted to introduce the actual substances in evidence as they would with other controlled substances,” Carey wrote.

One major concern surrounding the policy is how to balance the need to keep courthouses safe while protecting a defendant’s constitutional right to a fair trial.

“We are obviously examining how to balance what appears to be a safety issue with the critical ability for defendants to ensure that — at their trial or at their plea — that the evidence is in fact what the government claims it is,” said Anthony J. Benedetti, chief counsel of the state’s public defenders office.

Carey wrote that she hopes to discuss with prosecutors other ways they can present the evidence during drug cases. One idea, according to her letter, is stipulating with defendants to allow “photographs, video, or eyewitness testimony” to take the place of the actual substances.

“Both prosecutors and defense lawyers realize this issue needs to be dealt with immediately before any courthouse user is exposed to these potentially fatal substances,” said Martin W. Healy, chief legal counsel to the Massachusetts Bar Association.

The Massachusetts District Attorneys Association, which represents the state’s 11 top prosecutors, also supports the Trial Court’s initiative.

“The Trial Court will have some work to do with the defense bar, but the District Attorneys are ready to work with the judiciary to come up with procedures that get the evidence before the jury in a way that is safe for all involved and still allow the defense appropriate access to that evidence,” said MDAA president and Norfolk District Attorney Michael W. Morrissey in a statement.

Middlesex District Attorney Marian Ryan, the previous MDAA president, said in a statement that her office “will work with the Trial Court to implement the necessary protocols to minimize the risk of harm to civilians, courthouse staff and law enforcement officials.”

Even small doses of fentanyl or carfentanil can be lethal, according to Boston Police Commissioner William B. Evans, who supports the ban.

“Once it has been tested and once it has been verified as one of those substances, there is no reason for it to be in courtrooms,” Evans said. “The less anyone can be exposed to these drugs the better.”

Amid the opioid epidemic, Massachusetts had the second-highest number of fentanyl cases nationwide in 2016, according to a report by the Drug Enforcement Administration released last month.

In September, the DEA and state police reported the first Massachusetts cases of carfentanil — an elephant tranquilizer 100 times more powerful even than fentanyl — in drug samples submitted for analysis from Brockton, Boston, Lawrence, Hanson, Abington, Rockland, Kingston and Dedham.