The Look Of Crack

The Massachusetts Supreme Judicial Court reversed a drug distribution conviction because “negative profiling” evidence was admitted

At trial in this case, the Commonwealth attempted to prove that since the defendant did not match the physical characteristics of a drug addict, he must be a drug dealer. On appeal, the Commonwealth maintains that this use of profiling evidence was permissible because it did not explicitly compare the defendant to the profile of a drug dealer. Contrary to the Commonwealth’s assertion, however, such so-called negative profiling evidence — where the goal is to demonstrate that a person does not fit a particular profile — falls squarely within the scope of the profiling evidence we have long prohibited…

Given the well-established proscription against the use of profiling evidence, the admission of [Sergeant Detective and expert William] Feeney’s testimony concerning the physical characteristics of crack cocaine addicts was error. Moreover, as we stated in Day, 409 Mass. at 723, the use of such evidence was “inherently prejudicial” to the defendant…

We may assume that Feeney’s testimony was inherently prejudicial to the defendant. The impact of the testimony was magnified by the prosecutor’s closing argument, in which the profiling testimony was presented as a key factor in demonstrating that the defendant intended to distribute the cocaine. The first thing the jury heard as to why the defendant did not possess the cocaine for personal use but intended to distribute it was that his physical appearance showed that he was not a drug addict. The prosecutor stated, “How do you know he possessed [the cocaine] with the intent to distribute it, does he look like a drug addict?” The prosecutor then continued to emphasize the profiling evidence, contrasting the defendant’s size, strength, and physical appearance, with the “drawn out” appearance of a typical “skinny” crack cocaine addict with “rotted teeth.”

The deceptively intuitive appeal of this entreaty provided it with a “superficial plausibility . . . [that] masked its profound flaws.” Commonwealth v. Ferreira, 460 Mass. 781, 788 (2011), quoting Commonwealth v. Ferreira, 77 Mass. App. Ct. 675, 685 n.6 (2010) (Milkey, J., dissenting). While the prosecutor went on to argue the impact of other items of evidence, the simplest and most direct evidence, from the standpoint of the jury, sat a few feet away from them at the defense table. We think it unlikely that the profiling evidence was only of minor significance to the jury.

The Commonwealth’s remaining evidence, while clearly sufficient to support the conviction, was not overwhelming.

(Mike Frisch)