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LACK OF access to prosecution witnesses is a common complaint. The DA’s Office understandably wants to protect its witnesses from potential intimidation, but defense attorneys often aren’t given the opportunity even to ask whether the person is willing to talk to them. In the case of Joseph Cousins, the judge told the prosecutor in April to let Cousins’s attorney, Willie Davis, interview a witness; five months later it still had not been arranged. Two weeks ago, with the trial looming in November, Davis filed a motion for "appropriate relief" for "failure of the Commonwealth to follow an order of the court."

Prosecutors are particularly cagey in the crucial early months of an investigation, trying to keep witnesses and police reports under wraps until after grand-jury testimony, says Michael Doolin, who represents three homicide defendants due for trial in this session. "In some ways, a game of hide-and-seek is played," Doolin says. Public defender Skinner, in a motion filed just two months ago in the Rodolfo Carr case — scheduled for trial December 7 — complained about a "lately disclosed Commonwealth witness." Wrote Skinner: "I had never heard of [the witness] and had never received any discovery concerning his claim."

But perhaps the biggest clog in the pipes involves reports about physical evidence. For one thing, police crime labs are so overburdened that tests can take forever. "I think it is a problem," agrees DelVecchio. "We wait six months to a year for a drug analysis." Shapiro says he once waited a year for DNA test results. "It’s not only DNA tests, but any kind of ballistics, chemical, or even drug tests often take months to get," he adds.

Although the Boston Police Department has reduced its lab backlog — particularly in comparison with the State Police labs — it has also had to redo much of its work lately. Questions about erroneous ballistics results forced a recent repeat of a batch of tests, Shapiro says; the embarrassing fingerprint error discovered in Stephan Cowans’s wrongful conviction led to retesting in that lab this year.

And then there’s the state’s Office of the Chief Medical Examiner (OCME), which has been exposed as a complete mess. In Tribbett’s case, Mondano is still banging his head against a wall trying to get materials specified in the OCME’s own procedural manual: dictation of notes, computer records, lists of people who had contact with the body, and so forth. Given what we now know about former chief medical examiner Richard J. Evans’s stewardship — he was sacked last December after revelations of travesties including a lost brain, a lost heart, and the wrong pair of eyes sent for testing — Mondano suspects that the items he has requested don’t exist because procedures were never followed in the first place. But instead of saying so, the office has hemmed and hawed endlessly. Ditto for the chain-of-custody documents Shapiro has been unable to get from the OCME in Powell’s case. Even in the best of cases, defense attorneys don’t see an autopsy report until about six months after the murder, says Doolin.

DEFENSE ATTORNEYS don’t accuse the DA’s Office of deliberately withholding evidence. But they do suspect that some prosecutors let things fall through the cracks until a court date nears. "When they are on a trial, they’re on their game," says John McGlone, a Boston attorney representing homicide defendant David Pepicelli. "But they have so many cases that until then, they don’t pay a lot of attention to the details." Mondano agrees. "They all hustle around from one case to another, knocking off what they can, when they can get to it," he says. Procopio agrees that the seven-man homicide unit is heavily burdened, but denies that it affects timely discovery.

On the other side, a limited number of defense attorneys, about a dozen, handle most of the city’s murder cases involving indigent defendants — a consequence of the low pay and the high standards for qualification. Judges and courtrooms are equally scarce. And a handful of Boston Police Department detectives works the bulk of these cases; Daniel Keeler alone was involved in nearly half the cases heading for the special session.

With so few players involved in so many cases, scheduling a hearing, let alone a trial, is a Herculean task — which turns every delay into an eternity. "You almost have to have the perfect storm" to find a date that’s open in everybody’s calendar, says Doolin. Hearings are often canceled because the testifying detective is needed elsewhere, or another trial has run long — and then it’s another month or two before everyone can get together. "The four-week to six-week bump on garden-variety matters is standard procedure," says Mondano.

John Powell’s trial was scheduled for trial December 14 as part of this special session, but Assistant DA Edmund Zabin is also prosecuting Rodolfo Carr, who stands trial on December 7. So Powell will have to wait until Judge Barbara Rouse’s next open date, January 31. And if one of the key players isn’t available that week, the trial easily could get pushed to the spring. Multiple defendants in a single case further exacerbate the scheduling problem. Pepicelli’s trial could have started in Judge Nancy Staffier Holtz’s courtroom last week, but his co-defendant is represented by Randy Gioia — who was busy defending Lord Hampton next door in front of Judge Rouse.

Conley’s office is extremely reluctant to sever defendants for separate trials. Nearly half of the homicide trials scheduled through December have multiple defendants. "We’re not going to agree to sever a case just because of scheduling," says Procopio. Six people are charged in the late-2001 murder of Io Nachtway. Prosecutor Pat Haggan insists on trying them together, so don’t hold your breath for the trial.

The DA’s Office is also notoriously unwilling to plea-bargain to avoid trials, defense attorneys say. In the past seven years, only a third of Boston’s resolved homicide cases were disposed of via guilty pleas, with the other two-thirds ending in a trial — far below the national average of about half pleas, half trials. "The prosecution is pretty uncompromising about pushing these cases to trial," says Shapiro.

The lack of compromise is often mutual, however. That’s because in Massachusetts, pleading down to second-degree murder means the possibility of parole — but realistically, it results in the same life sentence as for first-degree murder. "No one has been paroled on murder two in how many years?" asks Weymouth. "Cutting someone down from [murder] one to two doesn’t necessarily mean anything." Prosecutors seldom want to reduce a charge all the way down to manslaughter, so there’s very little middle ground on which to meet and avoid trial.

CHIEF JUSTICE DelVecchio hopes to change all this by decree. Or, in failing, she hopes to expose the endemic problems that demand fixing. Last month she released a standing order establishing prosecutorial time limits, in the form of a "presumptive case track" based on the charges, for all new criminal cases. Murders, according to the order, should now come to trial within 12 months of the defendant’s arraignment.

Yeah, right. "I have seen many initiatives come and go," says Mondano. Ultimately, if the underlying problems don’t change, judges will face legitimate requests for additional time and have to grant them in the name of a fair trial. "If you start to subordinate matters of substance to matters of procedure, you’re going to see cases turned over on appeal," Mondano says.

Which begs the question of whether this special session is doing exactly that — rushing cases through for the sake of doing so, not because everyone is ready for trial. DelVecchio rejects that argument. "If you’ve got murder cases that are two, three, four years old, you’re not pushing them to trial. They’ve aged like a fine wine," she says.

But even DelVecchio seems to know that her 12-month murder-prosecution time limit is unrealistic, when basic lab tests take six months or longer. That’s why she has not disbanded the committee she established to form the new time standards — she wants them to track the results and report on them. "We’ll find where the bottlenecks are," she says. "If we find that the bottleneck comes from the state lab, we can go to the governor and the legislature and say, ‘This is causing the ripple effect.’"

Whether anyone will respond is another question. But as James Tribbett enters his fifth year in a jail cell awaiting trial, it would be nice if someone at least started asking.

David S. Bernstein can be reached at dbernstein[a]phx.com