In 2011, the Massachusetts Department of Public Health (“DPH”) discovered that state lab chemist Annie Dookhan had tampered with drug samples and falsified drug analyses submitted to DPH’s Hinton drug testing lab in Boston, where she was employed as an analyst, and that the tainted results were then used as evidence in criminal trials. Her misconduct began in 2003 and extended until the end of 2011. Over the course of the next two years the understanding of the scope of her misconduct grew, until it became apparent that over 40,000 criminal cases were affected. Multiple litigations later, the Supreme Judicial Court issued an opinion (its third involving Dookhan) which tried to find a middle way between wholesale dismissal of the cases she had a hand in analyzing and painstaking, time-consuming and expensive case-by-case determination of the impact of her misdeeds. As my colleague discussed at the time, in Bridgeman v. District Attorney for Suffolk District, the SJC fashioned a remedy in light of four principles:
- The government must bear the burden of taking “reasonable steps” to remedy egregious misconduct on its part;
- Relief from a conviction generally requires a convicted defendant to file a motion for relief;
- Dismissal of a criminal conviction “with prejudice”, i.e. without the option to re-file charges, is a remedy of last resort; and
- Where the misconduct affects large numbers of defendants, the remedy must be not only fair, but timely and practical.
Despite the extraordinarily broad impact of the tainted drug analyses resulting from Dookhan’s misconduct, the Court did not agree that the behavior was such egregious misconduct that it should presume that every defendant was prejudiced and should automatically have his or her case dismissed. Further, the Court did not agree that this should be done without requiring the defendants to in fact file a motion seeking relief.
In a nod to the fourth of its principles, the Court required the District Attorneys initially to assess the outstanding cases and decide (a) which cases were not affected by Dookhan’s misconduct, and (b) which of those that were they would, without requiring a defendant to file a motion, seek to vacate and dismiss with prejudice. (As it turned out, the District Attorneys effectively dismissed almost all the cases pursuant to this second step, eliminating the need for the remaining steps.)
With respect to any remaining defendants that the District Attorneys would seek to retry, the Court required a letter to go out, in a form approved by a Single Justice, to each such defendant, together with a letter from CPCS (the state’s public defender organization) and a simple box to check off if the defendant wished to explore a new trial with counsel and a stamped envelope to send the request back.
Finally, if it turned out that the number of defendants who wished to challenge their convictions was so great that CPCS was unable to assign counsel to represent them, the Single Justice, after hearing, could dismiss the case against any defendant who did not obtain an attorney.
Nineteen months later, the Court decided to impose the blanket remedy of dismissal it had rejected in the case of Dookhan’s misconduct in a second massive lab misconduct case, this one involving Sonia Farak, an analyst at DPH’s Amherst Lab between 2004 and 2012. As in the Dookhan case, Farak contaminated thousands of criminal drug analyses on which convictions were based. Unlike the Dookhan case, Farak did so because she was an addict, and she took for personal use both the drugs submitted by police departments for analysis (sometimes covering up by replacing what she took with non-drug substances, sometimes altering the quantities on the certifications) and also the control drugs the lab used for comparison to certify that the submitted drugs were in fact controlled substances. She did this, not only with her own cases, but with other cases in her lab, and she did it for an extended period of time.
Another difference the Court found significant was that Farak was not the only person who committed misconduct in her case. She was prosecuted by the Attorney General’s office, and the Assistant Attorney General assigned to the case, and another assistant assigned to respond to motions by criminal defendants seeking discovery about Farak’s role in their respective convictions, hid that they had information that Farak’s misconduct began substantially earlier than had first been supposed, going back to 2004. That information was withheld from defendants seeking new trials and from the trial court hearing their cases, resulting in the denial of new trial motions that should have been allowed.
This second level of egregious misconduct, by lawyers for the Commonwealth leading to wrongful denials of new trial motions was enough to swing the Court to the more radical remedy in the Farak case: “The government misconduct by Farak and the assistant attorneys general was ‘so intentional and so egregious’ that harsher sanctions than the Bridgeman II protocol are warranted.” The involvement of prosecutors in perpetrating misconduct led the Court to impose a much more far-reaching remedy for the Farak defendants than the Dookhan defendants were afforded. Further, because Farak was contaminating drug sample as well as drug standards that other analysts were handling, the Court ordered all cases in which drug certifications came from the lab Farak worked in from 2009 on to be dismissed, and all cases starting in 2004 for methamphetamine convictions to be dismissed, because Farak started tampering with methamphetamine drug standard samples starting in 2004 and with multiple submitted drugs and other standard samples starting in 2009.
Stepping back and looking at both cases and the complicated remedies the Court fashioned in the first case, the systemic issues were not at the forefront of the Court’s decision in either case. Neither of these women could have engaged in such long-standing and wide-ranging misconduct if the drug labs had been properly run, supervised and audited. According to the Bridgeman II decision, evidence about the Hinton lab, where Dookhan worked, revealed “massive deficiencies by [DPH] in its oversight and management of the Hinton lab. These deficiencies included a lack of accreditation and inadequate chemist training; distant or uninterested supervisors; inconsistent testing practices; deviation from chain-of-custody guidelines; and faulty security. This environment ‘gave Dookhan the freedom to start making and following her own rules.’” Evidence about Farak’s lab was that it was even more lax, if possible, as the Court noted: “The Amherst lab was ‘more laid back [than the Hinton lab],’ and had ‘basically . . . no oversight. . . . [E]very employee had unfettered access to drug standards, police-submitted samples, and the computer inventory system. Between 2006 and July, 2012, officials from DPH visited the Amherst lab only once or twice.” Apparently there were no inventories of the drug standards, because when the State Police took over the lab, in July, 2012, they ordered the lab head to inventory the standards and he “noticed that the standards were more depleted than he had expected.”
The lesson from this wholesale neglect of any standards or protocols in what purported to be scientific test labs is that the problem was not Farak, it was not Dookhan, it was not even the prosecutors who withheld evidence of the extent of Farak’s misconduct. If Farak and Dookhan had not done what they did, someone else eventually would have. Their behavior was reprehensible, and the behavior of the lawyers in the Farak case was reprehensible, but the suffering of the tens of thousands of defendants who were wrongfully convicted based on this tainted evidence was caused by the extraordinary neglect and lack of any control placed on these labs by DPH. The focus on individual misconduct in deciding how far to go in fashioning a remedy is misplaced. The remedy should have been the same in both cases, because both cases stemmed from the same original sin—the state failed to properly set up and manage these labs, whose job was to determine whether a crime was committed.