A 6-point plan for resolving 24K 'Dookhan' drug cases.

Annie Dookhan, a former Massachusetts chemist accused of tampering with results at a state crime lab, speaks with her lawyer Nicolas Gordon before her arraignment at Norfolk Superior Court in Dedham (January 9, 2013).

Credit: Associated Press

A 6-Point Plan For Resolving the 24,000 Tainted 'Dookhan' Drug Cases

November 16, 2016

On Wednesday the Supreme Judicial Court of Massachusetts at long last will directly address the issue of how to settle the fate of roughly 24,000 “Dookhan defendants”—people whose criminal convictions are tainted by the actions of Annie Dookhan, the former state crime lab chemist who routinely tampered with evidence from 2003-2012.

Back in June, the American Civil Liberties Union of Massachusetts and the Committee for Public Counsel Services requested that a single justice of the Court, Margot Botsford, “report” a question to the full bench about whether to devise a holistic remedy that would vacate these convictions entirely or, at a minimum, impose a court-imposed deadline to resolve the cases. Justice Botsford granted that request and the Court as a whole is slated to hear oral arguments on this issue.  Prosecutors oppose the desire for global dismissal.  Instead, they believe that the better course is to provide notice to each defendant alerting them about the option of a new trial.  This would permit prosecutors to take an individualized approach to each case, e.g., dismiss some cases yet retry offenders perceived to be serious and/or dangerous.  At bottom, the SJC faces a crucial (and vexing) normative question: do mass improprieties in the criminal justice system warrant a global, one-size-fits-all answer or a more tailored solution to each case? 

I wrote about this issue at the time of the hearing in front of Justice Botsford, but feel compelled to reiterate many of my points because the stakes are so high—for the defendants involved and for our criminal justice system writ large.  Simply put, I hope the SJC pursues comprehensive dismissal.

First, a tailored approach would be futile.  At this point in time, it is impossible to determine what Dookhan did or did not do in any particular case.  Seeking new trials in specific cases would not promote the ends of justice.  Rather, it would likely generate plea bargains from risk-averse defendants or produce dubious trial outcomes.

Second, on a practical level, this is important to the lives of the Dookhan defendants.  While many of them have already served their sentences, there are dire collateral consequences to those convictions.  Criminal records affect sentencing in other cases, immigration status, access to public housing, employment opportunities, voting rights, and so on.  These defendants must grapple with aftereffects of their convictions every day, regardless of whether they have long since served the sentences imposed for those offenses. 

Third, one cannot ignore the possibility that some of the affected defendants are innocent.  Yes, a vast portion of the defendants presumably committed the underlying drug offenses, most of which related to possession.  Yet without credible drug certifications in their cases there is lingering doubt, uncertainty that cannot be removed at this late date.  If someone sells what he believes to be cocaine, and the substance turns out to be sugar, that is an attempt crime—a different, much less serious offense from a completed transaction. This troubles me.

Fourth, all of these flawed convictions emerged because of a single forensic analyst employed and supervised by the Commonwealth.  It is irrelevant that most of the convictions resulted from guilty pleas.  If the legal community had known about Dookhan’s behavior back then, the course of those plea processes would have played out much differently.  Some would have gone to trial or struck a better deal. 

Fifth, the government must do better when it comes to crime labs.  Another scandal has surfaced involving a drug chemist at the Amherst lab, Sonja Farak, and an estimated 18,000 cases may be compromised by her indiscretions.  To some extent, Dookhan and Farak are like apples and oranges; they worked in different labs and seem to have had different motives.  But inadequate oversight by the Commonwealth allowed both of them to engage in rampant misconduct. Dismissing the convictions of the 24,000 Dookhan defendants might prompt the government, once and for all, to improve its supervision of forensic analysts.

Sixth, the system lacks the resources to handle such a potentially enormous influx of drug cases.  Our public defenders’ office, the Committee for Public Counsel Services, is already overworked and underpaid.  Even if we assign cases to private attorneys, I don’t see how the numbers add up, both in terms of the quantity of available lawyers with the requisite experience and the cost of paying them from government coffers.

We owe the Dookhan defendants—all of them, guilty or innocent—justice.  A global remedy advanced by the SJC is the best way to achieve a modicum of it.

A professor of law at Northeastern University, Daniel S. Medwed is a legal commentator and analyst for WGBH News.

 


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