SJC Update: Dookhan Conviction Dismissals and ICE Detainer Oral Arguments

From time to time, we like to update you on recent key happenings at the Supreme Judicial Court (SJC). This month, we have two significant developments to share: one related to the dismissal of over 20,000 convictions based on tainted drug evidence, and the other related to the SJC hearing oral arguments on the legal force of an “ICE Detainer.”

Bridgeman v. District Attorney

On Tuesday, five years since reports of the misconduct of Annie Dookhan at the Hinton Drug Lab first emerged, thousands of individuals who had been convicted or pled on the basis of tainted evidence finally received some resolution. Following the holding in “Bridgeman II,” prosecutors just announced they were dismissing 21,587 drug convictions, likely the largest mass dismissal in U.S. history.

As you know, from our many past reports, the scandal arose from the 2012 discovery that chemist Annie Dookhan had for years mishandled thousands of drug samples, by, among other things, contaminating unknown drug samples with known drugs, failing to conduct tests on samples she then labeled as controlled substances, and falsifying evidence logs and reports.

In 2013, she pled guilty to 27 criminal counts, including perjury, obstruction of justice, and tampering with evidence, and served more than two years in prison. All the while, more than 20,000 individuals that were convicted or pled on the basis of the tainted evidence were living with the significant consequences that come along with a criminal conviction, including difficulty securing employment, housing, custody of their children, and public benefits. Because a Dookhan conviction often served as a predicate offense, many also faced harsher sentences for later charges.

Over the past few years, the courts struggled to determine how to offer justice based on the sheer volume of such cases, and Bridgeman v. District Attorney for Suffolk County eventually went to the SJC two times. In May of 2015, the SJC held that the Dookhan defendants who challenged their convictions could not be charged with more serious crimes if given a new trial. Additionally, even if convicted, they could not be given a harsher sentence than was originally imposed.

In the fall of 2016, Bridgeman was before the SJC again, this time to determine whether all the convictions based on tainted evidence should be dismissed or instead subject to a court-imposed deadline. The BBA submitted a brief, written by Amicus Committee Co-Chairs Elizabeth Ritvo, Brown Rudnick, and Anthony Scibelli, Barclay Damon, calling for a global remedy. We argued that the Court should vacate, without prejudice, the adverse disposition on all drug-related charges where Dookhan was the primary or secondary chemist, and that the Commonwealth should be allowed a period of at least one year to re-prosecute individual charges, with the remainder automatically dismissed with prejudice.

Overall, the brief was drafted based on two principles central to the BBA’s mission: access to justice and the fair administration of justice. The global remedy would secure justice for the defendants who had already been living with the consequences of a conviction based on faulty evidence. Also, because the criminal misconduct was that of a state employee, implicating the public confidence in the government and justice system, the burden should be on the Commonwealth and not the individual defendants, to right the wrong. Furthermore, a global remedy would begin to relieve the burden on the justice system of individually resolving more than 20,000 cases.

In January, the SJC released its decision, agreeing that the Commonwealth should bear the burden, but declining to adopt a global remedy. The decision called for a three-step protocol where: 1) the District Attorneys were given 90 days to vacate and dismiss with prejudice those cases that would or could not be re-prosecuted; 2) adequate notice was to be approved by the Single Justice and sent to all defendants whose cases had not been dismissed; and 3) the Committee for Public Counsel Services (CPCS) would assign counsel to all indigent defendants who wished to explore the possibility of moving to vacate their plea or for a new trial.

The 90-day first step just came to an end, and prosecutors announced Tuesday that over 20,000 cases would be dismissed with prejudice. Overall, this brings the State, and the Dookhan defendants, much closer to a final resolution. The BBA is proud to have played a part and applauds the dismissal. BBA President Carol Starkey stated, “We thank the District Attorneys for their recognition that a different course of action, more than five years after the scandal first came to light, is necessary to protect the fairness and integrity of our criminal justice system.”

President Starkey noted that “[f]or far too long, thousands of Massachusetts residents have lived under a cloud created by the misconduct of a rogue state employee, carrying a criminal record that may have prevented them from securing jobs, housing, benefits, and even legal immigration status. Today’s actions lift that cloud and allow the Dookhan defendants to move forward.”

As Dookhan takes a step toward comprehensive resolution, another case garnering nationwide attention just appeared before the SJC for oral arguments….

Commonwealth v. Sreynuon Lunn

On April 4, the SJC heard arguments on whether it is permissible for state and local authorities to hold people on “ICE detainers.” These detainers, from the federal Office of Immigration and Customs Enforcement (ICE), request federal, state, or local officials to hold individuals for up to 48 hours beyond when they would otherwise be released, on the basis that ICE has “determined that there is a reason to believe the individuals is an alien subject to removal from the United States.”

Sreynuon Lunn entered the US in 1985 as a refugee, receiving lawful permanent resident status in the early 1990s. He was ordered deported in the early 2000s on account of criminal convictions. Cambodia, however, would not accept Lunn back, and he was released from federal custody in October 2008. Eight years later he was arrested again on unarmed robbery charges. ICE lodged a detainer request with state authorities, but on February 6 state prosecutors elected not to prosecute Lunn and the case was dismissed from Boston Municipal Court. Lunn’s attorney asked for him to be released but the judge declined, and Lunn remained in court lock-up until ICE agents took him into custody several hours later. While the case is now moot as a result of Lunn’s detention, the SJC took it up “because the case raises important, recurring, time-sensitive issues that will likely evade the full court’s review in future cases.”

At oral arguments, the SJC heard from three attorneys, one on behalf of the Department of Justice (DOJ), one on behalf of the Commonwealth, and one on behalf of Lunn. Joshua Press, for DOJ, argued that without a law prohibiting state officials from detaining people at the request of ICE, authorities did not misstep by enforcing the requested detention and that detainer requests reflect principles of comity between various law enforcement agencies.

Jessica Barnett, deputy chief of the Criminal Appeals Division for Attorney General Maura Healey, presented the state’s argument that state agencies lacked the authority to comply with ICE, noting that keeping an individual in custody after the case is otherwise resolved was the equivalent of a fresh arrest without sufficient legal justification. She argued that “probable cause for civil removability is simply not a basis for arrest under Massachusetts law.” Emma Winger of CPCS, attorney for Lunn, echoed that, but also argued that the detainer process violates constitutional guarantees of due process because it amounts to custody without judicial oversight.

This case is significant for a number of reasons, not least because it may be the first State Supreme Court to reach the issue. It is also being considered in a time of great uncertainty around immigration given recent federal events, including the issuance of controversial executive orders and warnings from Attorney General Jeff Sessions that those cities and towns that do not comply with federal immigration law may lose federal funding.

ICE Presence in Courthouses

The argument also occurred on the heels of reports across the country that ICE officials were showing up at courthouses in order to reach undocumented immigrants. One of the first of such stories was the arrest of a woman in Texas who was seeking a protective order against an allegedly abusive boyfriend. The reports of ICE’s presence at courts have brought sharp criticism, not only from the attorneys of the immigrants being targeted by ICE, but also judges, including the Chief Justices in California, Washington, and New Jersey.

Much of this criticism centers around a concern that ICE arrests at courthouses can undermine the judicial system. As Washington Chief Justice Mary Fairhurst wrote in her letter to Secretary of Homeland Security John Kelly, “When people are afraid to appear for court hearings, out of fear or apprehension by immigration officials, their ability to access justice is compromised. Their absence curtails the capacity of our judges, the clerks and court personnel to function effectively.” This chilling effect was also highlighted by New Jersey Chief Justice Stuart Rabner who wrote to Secretary Kelly that “witnesses to violent crimes may decide to stay away from court and remain silent. Victims of domestic violence and other offenses may choose not to testify against their attackers. Children and families in need of court assistance may likewise avoid the courthouse. And defendants in state criminal matters may simply not appear.”

Overall, with the nation watching how ICE and state officials will interact, the Lunn case could not come at a more important time. As usual, we’ll continue to keep a close eye on this and all other matters impacting access to, and the fair administration of, justice.

We may even have the chance to discuss the issue of ICE showing up at courthouses with our Massachusetts Congressional Delegation in D.C. next week. President Carol Starkey and President-Elect Mark Smith are headed down as part of ABA Day, where they will be advocating for civil legal aid through federal funding of the Legal Services Corporation and for increased access to legal services for homeless veterans.

Stay tuned for updates on the BBA advocacy in Washington!

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association