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SJC Punts Again on Global Remedy, But Adopts New Protocol to Resolve Dookhan Drug Cases More Quickly

Over the last several years, the Massachusetts criminal justice system has been rocked by misconduct in state-run drug labs. First, and so far most significant, Annie Dookhan, a chemist at the Hinton State Lab in Jamaica Plain, tainted over 42,000 state convictions by employing several different scientific shortcuts to boost her efficiency and productivity. Rather than meticulously testing each sample to determine whether or not it contained cocaine, heroin, or other suspected drugs, her practices over several years included “dry-labbing,” or combining samples from different cases and testing them all at once, then recording the results under each case; fabricating records that she tested and calibrated lab equipment as required by protocol, in order to save time; and contaminating samples that tested negative with drugs so that they would test positive. The Supreme Judicial Court has addressed cases involving Dookhan several times already. As if this were not disturbing enough, a second chemist at a different state lab, Sonja Farak, undermined the integrity of thousands of drug cases in Western Massachusetts over 8 years by using methamphetamine, cocaine, and a variety of other drugs while at work; stealing and consuming both standard comparison drug samples and drugs that were seized by police; and using lab equipment to manufacture crack cocaine. Between Dookhan and Farak, prosecutors have (presumably unknowingly) used fabricated or unreliable evidence to convict or induce guilty pleas from thousands of people in Massachusetts.

The SJC has made significant efforts to restore balance and public confidence in the justice system. In Commonwealth v. Scott, the SJC established a conclusive presumption of egregious governmental misconduct in any case where Dookhan had tested a drug sample. Any defendant who had pled guilty based on a drug testing certificate signed by Dookhan could withdraw their plea if they could establish “prejudice,” that is, that they might have gone to trial if they had known of Dookhan’s misconduct. The SJC later extended this presumption to defendants who were convicted a trial, though not defendants who entered a guilty plea before receiving the drug certificate generated by Dookhan. The SJC authorized several retired judges to return to service in order to rule on the deluge of motions to vacate convictions as the extent of the problem slowly became known. But even with these additional resources, progress was slow as each case had to be briefed and argued individually.

In 2015, the defense bar, including the Committee for Public Counsel Services and lawyers from the American Civil Liberties Union of Massachusetts, asked the SJC to implement a “global remedy” – that is, to make a strong statement about the integrity of the criminal justice system by wiping all of the Dookhan-tainted convictions off the books in one fell swoop. In the first Bridgeman case, the SJC refused, making some tweaks to the normal rules (such as by preventing any defendant from receiving a more severe sentence after withdrawing a plea on Dookhan grounds) but leaving the issue to case-by-case adjudication.

In January 2017, the SJC ruled on a renewed request in the Bridgeman case for a global remedy. More than 20,000 people still had drug convictions outstanding that had potential Dookhan issues, about five years after her misconduct first came to light. Attempts by prosecutors to reach these individuals were problematic and unsuccessful. The entire court recognized these problems, but a majority was unwilling to implement such a global remedy; only Justice Hines would have done so. Instead, the other Justices required the prosecutors to review all 20,000 cases within a few months, determine which of them they could not or would not reprosecute without the Dookhan-tainted drug evidence, and seek to dismiss them with prejudice. Of those not dismissed by the Commonwealth, most of the defendants would be entitled to prompt notice approved by the Court, representation by counsel, and an opportunity to seek to vacate their convictions.

In my view, the Court missed an opportunity to take a strong stand in support of the rights of defendants to a fair trial untainted by false evidence or governmental misconduct. Any compromise short of a global remedy sends a message that blatantly fabricated or unreliable evidence may contribute to a valid conviction, at least sometimes. While this would have provided a windfall to some defendants (who, by and large, have already served whatever sentence they got), the delayed justice of the case-by-case process is no justice at all, to say nothing of the huge strain it puts on prosecutors, defense lawyers, and courts alike. These drug convictions can have enormous consequences for future employment, immigration, and many other facets of life for individuals who may have made a mistake in the past. Even one wrongful conviction is one too many.

That said, given that only one Justice was willing to go as far as a global remedy, the protocol established by Chief Justice Gants is a positive step in the right direction. Although it does rely substantially on the good faith of prosecutors in the first instance, it imposes stringent time limits on them and also compels them to bear the costs of tracking down and notifying defendants with potential Dookhan cases. It is structured to give the prosecutors incentives to limit the number of cases they choose not to dismiss voluntarily. It respects the right to counsel by reaffirming the authority of the Court to take action if CPCS is too overwhelmed in some areas to provide timely access to counsel to all those entitled to it. There is also a strong implication that, if this protocol does not succeed, the global remedy may get more support next time. Hopefully the SJC’s action will work as designed, and then provide a roadmap for cases involving Farak and any future situations where the Court is called upon to right a similarly widespread wrong.

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