We hope by now you have seen BBA President Carol Starkey’s letter to our members, in which she makes the case that no matter how challenging we may find the tone of the national dialogue, the BBA remains committed to its mission. This includes our work to assure the protection of due process rights (including for non-citizens, who may be particularly concerned of late about their rights under the law), freedom from discrimination, and access to justice for all. One place we see these tenets in action is in our amicus work. From promoting diversity and inclusion to opposing capital punishment to protecting access to justice and attorney-client privilege, we have been, and we will remain, at the forefront of many of the biggest issues in the Commonwealth and country.
In the latest example, we watched oral argument this week on Bridgeman v. District Attorney for Suffolk County (SJC-12157). Our amicus brief argues for a global solution in the so-called Annie Dookhan cases—specifically that the Court should vacate, without prejudice, the adverse disposition on all drug related charges where Dookhan was the primary or secondary chemist, but that the Commonwealth should be granted a period of one year, or longer as the Court deems appropriate, to allow the District Attorneys to re-prosecute individual charges. Any charges not re-prosecuted within that time period should be automatically dismissed with prejudice and further prosecution barred.
This solution places the burden on the Commonwealth, rather than on Dookhan defendants, in addressing the adverse disposition affected by Dookhan’s misconduct. It is based in principles central to the BBA’s mission – access to justice and the fair administration of justice. Read more about our brief and the background of the Annie Dookhan scandal in our recent blog post.
Beyond the arguments contained in the BBA brief, its mere existence was cited at oral argument by Matt Segal, legal director for the American Civil Liberties Union in Massachusetts (ACLUM), as an example of the bar stepping up to meet the many challenges raised by the Dookhan scandal. Segal’s answer came in response to Justice David Lowy, who had asked whether the bar could “step up” to assist an overburdened Committee for Public Services (CPCS) in handling the remaining unresolved Dookhan cases, which we now know amount to upwards of 20,000.
Segal went on to explain that while the private bar, CPCS, and the courts have all done their part in a tremendous effort toward resolving the mess left by Dookhan, any further “stepping up,” such as through lawyer volunteers to represent Dookhan defendants, would be an inappropriate bail-out for the Commonwealth, which should bear sole responsibility for fixing the problem. Segal reminded the Court that, this case arises from the Commonwealth’s evidence, the very evidence that in turn has been tainted by a Commonwealth employee. We couldn’t agree more, and our brief makes that point as well.
- At what point does systemic misconduct rise to a level meriting the sort of global remedy contemplated here? Attorneys for Bridgeman argued that the sheer number of outstanding cases was important in implicating the integrity of the criminal justice system, conceding that if misconduct affected only one or even, say, 40 cases, they would have more confidence in the type of solution proposed by the District Attorneys of notifying defendants and handling each of their cases individually. The timing also played a role, as more than four years after the scandal came to light, Bridgeman’s attorneys were understandably unwilling to accept as a viable solution the possibility of re-sending notices to Dookhan defendants giving them the option of challenging their convictions because it would violate principles of timely administration of justice.
Attorneys for the District Attorney’s Office argued that the systemic misconduct had been and would continue to be effectively remedied through the diligent work of many individuals and institutions in the state.
- Can the justice system handle a case-by-case review of affected defendants? CPCS attorney Benjamin Keehn argued that his agency simply did not have the capacity or funding to handle the volume of cases that would be presented if even a fraction of the defendants seek to exercise their rights to try to challenge their convictions. The District Attorney’s Office countered that these concerns were speculative as it was up to defendants to come forward and based on early returns, few seem to be doing so. Defendants argued that this was due to shortcomings in the notice the DA’s Offices sent to defendants, because a large majority of defendants would be expected to come forward if they received and understood the notice.
The District Attorneys claimed that notice had been adequately provided and explained their contention that defendants were affirmatively choosing not to challenge their convictions, an assertion that was met with skepticism from Justice Geraldine Hines. They also argued that a decision in a prior Dookhan case, Commonwealth v. Scott, 467 Mass. 336 (2014), required defendants to demonstrate a reasonable probability that knowledge of Dookhan’s misconduct would have materially influenced his decision to tender a guilty plea. A global solution would, they argued, undermine this requirement.
- What role do collateral consequences play? Both Chief Justice Ralph Gants and Justice Barbara Lenk seemed clearly focused on the indirect impacts that potentially-tainted convictions are having, and may yet have, on Dookhan defendants. Of particular note is whether they may be susceptible to deportation as a result: Gants pointed out that while a case outcome of Continuance Without a Finding (CWOF) may not technically be an adverse disposition in the state, it could have grave implications for a defendant’s federal immigration status. Lenk later hit on the same point, explaining that Dookhan defendants could unjustly face deportation or other collateral consequences, such as challenges finding housing or jobs, as a result of such a conviction.
The BBA has considered such collateral consequences before in relation to this case and criminal justice reform generally. We are continuing that conversation and look forward to taking an active role in the upcoming legislative session, when we anticipate criminal justice reform legislation based in part on the recommendations of the Council of State Governments’ review of Massachusetts laws.
We are extremely proud of the work of our Amicus Committee on this case. They represent one small slice of the BBA’s membership, but, as with so many of our volunteers, their work touches directly on our core values. As President Starkey described, we are dedicated to our work supporting meaningful access to justice and protecting due process, and we hope you will join us in that commitment.
– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association