Fault Lines
22 October 2017

Another Non-Solution To The Massachusetts Crime Lab Problem

January 20, 2017 (Fault Lines) – The criminal justice system will always have problems. Not because it is flawed, but because the people it relies on to run are flawed. The recent wave of crime lab problems is a prime example of the havoc one flawed person can wreak on the system. Nowhere is the problem more pronounced than in Massachusetts.

For the last several years, the state has been reeling from the actions of Annie Dookhan, a drug analyst who ended up in prison for her misdeeds at the Hinton State Lab in Jamaica Plain. Over 40,000 drug cases were affected, and now the courts must figure out how to fix the problems with these cases. It’s turning out to be a pretty arduous task.

The revelations regarding Dookhan’s extensive misconduct started out innocently enough. In June of 2011, a coworker discovered a number of drug samples were not properly checked out of the drug safe. Suspecting trouble, Dookhan attempted to forge the name of another drug analyst to cover up her involvement. She was quickly caught. Realizing the problem was growing, Massachusetts State Police investigators began a more extensive review of the problems at the crime lab.

The State Police investigation revealed far more than problems with checking out drugs. Dookhan admitted to “dry labbing” samples. “Dry labbing” is an innocuous way of saying the analyst just looked at the samples and called them drugs, without actually testing them. She would also put different samples together and test some of them. If one was positive, she called them all positive. Dookhan tampered with testing vials to make sure they matched her “dry labbing” results. To top it off, Dookhan lied about her education, claiming to have a Master’s in Chemistry from the University of Massachusetts, when she had never even been enrolled in Master’s level classes.

Dookhan pled guilty in 2013 and received three to five years in jail. Her excuse in court was ambition. Apparently she thought faking drug lab results would help her get ahead in the prosecution world. But that same ambition caused nothing short of a disaster in the Massachusetts court system.

Prosecutors had asked that Dookhan serve 5 to 7 years in prison, but [Suffolk Superior Court Judge Carol] Ball kept to her earlier decision that she would sentence the chemist to 3 to 5 years, finding that, while Dookhan was a “broken person who has been undone by her own ambition,” the consequences of her crimes were still “nothing short of catastrophic.”

Dookhan was released from prison last year. Ironically, she finished her sentence long before the majority of the people victimized by her fake drug tests found any relief. The Massachusetts courts are still struggling with how to right Dookhan’s wrongs, and seem to be making little progress.

The Supreme Judicial Court of Massachusetts, the Commonwealth of Massachusetts’ highest court, issued an opinion earlier this week in the latest attempt to remedy the Dookhan scandal. The opinion is long on the kind of rhetoric that warms the heart of a defendant or a defense lawyer. But it will most likely result in little progress being made in fixing the fallout from Dookhan’s scam.

Bridgeman v. District Attorney for the Suffolk District addressed a civil action brought to craft a solution to the cases affected by Dookhan. It sought a global remedy calling for all cases affected to be vacated. On the other side were the District Attorneys, who argued the opposite extreme, asking that no further action be taken and they be allowed to just mosey along with the current review. The Court landed somewhere in the middle. In crafting an opinion that tried to be all things to everyone, it most likely will accomplish nothing.

The Court noted that 4 years after the misconduct, nearly 24,000 affected cases remain unresolved. The DAs argued a majority of the affected defendants might not be interested in a remedy, because there was little adverse impact from a closed chapter in their life. The Court was skeptical of this argument, because it is bullshit highly unlikely anybody wants to keep a wrongful drug conviction on their record out of convenience.

The Court used four relevant principles in crafting a solution. The government must shoulder the burden of remedying the conduct, since their agent did it. The Court also recognized the procedural issue requiring a defendant to move for a new trial if that defendant wanted relief. The Court also recognized that a dismissal with prejudice was a remedy of last resort. Which means, “We don’t want to do that.” Finally, the Court realized that the large number of affected defendants called for a remedy that was fair, just, timely, and practical.

The opinion laments that the Court is faced with only poor choices. Rather than use their judge-powers to fashion a not-poor choice, they went on to pick one of those poor choices. The convictions tainted by Dookhan’s misconduct will be addressed in three phases.

Phase 1 requires the DA to review all 24,000 cases in 90 days and decide which cases they will vacate and which cases they will not vacate. This is especially enlightening. It’s always nice to see a court order something be done in three months that seemingly couldn’t be done in 48 months. The judge magic might not be able to come up with an uncrappy solution, but it can stop time.

After all 24,000 cases get vetted by the very party that just argued there was no need to do anything else, Phase 2 begins. A letter gets sent to affected defendants.* The letter should be clearer than the earlier, apparently useless, letter. And if the letter doesn’t work, find their old lawyer’s address. And if that still doesn’t work, use social media. Imagine the joy of the wrongfully convicted when they open their fancy laptop and log on to the Twitter and get twitted that they are now free to challenge their years-old drug conviction.

The third, and final, phase will identify all the defendants who could not be assigned counsel. The single court justice assigned to clean up this mess will consider each case and make a finding why the conviction should not be vacated.

In other words, a complicated, unwieldy, impractical system for addressing this catastrophe is being replaced with a complicated, unwieldy, impractical system. Sounds a little crazy.

Three justices spoke up, two to concur and one to dissent. Concur in the appellate world means “I passive-aggressively agree with you but don’t think you are correct.” The final paragraph of the opinion is classic judging.

Recognizing what Dr. Martin Luther King, Jr., once called “the fierce urgency of now,” we must act swiftly and surely to staunch the damage and to make things as right as we can. The Bridgeman II protocol draws upon the deep roots of our jurisprudence to craft a response that, consistent with fundamental principles, will bring this deplorable episode forthwith to a just resolution once and for all. May it be so.

In case you missed that, the Court said “may it be so.” Pretty serious. Almost religious. Let there be justice. All those big, judgy words fail to recognize that the numbers are just too high. The same old solution isn’t going to work. But, on the other hand, they did say “may it be so.”

The dissent seems to be the lone voice of reason, as dissents so often are. Regarding the wholesale crack in the Massachusetts criminal justice system, Justice Hines recognized what was needed:

…a fair and timely approach to the resolution of these cases.

Pretty simple. Recognizing the prosecutors had already taken years to resolved less than 10% of the affected cases, the dissent found the solution to be a global remedy.

This makes the most sense. Vacate all 24,000 convictions. Let the DAs spend their review time figuring out who to recharge, if they want to recharge defendants, instead of which convictions to vacate. It’s the only real solution to this problem, and the only way all the collateral consequences that went along with those convictions can be solved in a “fair and timely” way.

The dissent ends with a question voicing its frustration at the slow progress of the justice system in this case:

If not now, when?

 If the Massachusetts court system keeps sticking with a failed plan, the answer is simple. Never.

*By affected defendants, the Court means those who didn’t plead guilty before Dookhan performed their drug analysis, since they pleaded guilty and there was no possibility that it was a plea of convenience in the face of what could happen to them later.

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