In the five years since scandal enveloped the state’s Hinton Drug Lab—after the misconduct of Annie Dookhan was discovered—we’ve covered the fall-out many, many times. Last week, the Supreme Judicial Court (SJC) rendered its highly-anticipated “Bridgeman II” decision addressing the crisis. But as with any story on the Dookhan cases, a little history is in order first…
Those links above collectively tell the story of a rogue chemist who mishandled drug samples, failed to conduct tests on samples she nevertheless labeled as controlled substances, contaminated unknown suspected drug samples with known drugs before running tests to identify those unknown drugs, and falsified evidence logs and reports, among other misdeeds. Dookhan was sentenced to three-to-five years in prison in 2013, after pleading guilty to obstruction of justice, tampering with evidence, and other charges, and she was released early last year. Case closed.
Except that even now, upwards of 20,000 defendants are still living with the fallout from criminal records stemming from adverse dispositions in cases in which Dookhan was a chemist of record. These are people who were convicted or pled on the basis of what we now know to be tainted evidence, and they are living with the consequences: difficulty obtaining employment, public housing, benefits, drivers’ licenses, and so on. Many faced harsher punishment later because a Dookhan conviction was a predicate offense. For some, their custody of children, or even their very presence in the country is at stake.
But the courts have struggled to find a solution: How to offer justice across so many cases, short of simply vacating all remaining charges in one go—the so-called global remedy that the SJC has resisted?
David Meier of Todd & Weld was named by then-Governor Patrick to lead a task force that would seek to identify all the “Dookhan defendants.” He ultimately produced a list of 40,323 individuals … but that was incomplete and based on only partial information.
Special magistrates—including current BBA Council member Judge Margaret Hinkle (retired)—were appointed by the Superior Court to handle hundreds of cases but were able to process only a fraction of the full universe, with a focus on those who were then still in custody.
Last year, after a comprehensive list of affected defendants was finally compiled and agreed upon by all stakeholders, notice was sent to all of them, at their last known addresses, by the District Attorneys in each case, advising of their rights to appeal based on Dookhan’s influence on their cases. But the response has been limited.
Meanwhile, Bridgeman v. District Attorney for Suffolk County was making its way to the SJC, not once but twice. In May 2015, in the first Bridgeman case (“Bridgeman I”), the SJC ruled that Dookhan defendants cannot be charged with more serious crimes if given a new trial and, if convicted, cannot be given a harsher sentence than was originally imposed.
By last October, the case was back before the SJC, with the Court seeking amicus briefs on:
Whether the persons who were convicted of drug-related charges and in whose cases … Dookhan signed the certificate of drug analysis as the analyst … are entitled to a comprehensive remedy, including, whether all cases involving misconduct by Dookhan should be dismissed or subjected to a court-imposed deadline.
The BBA filed a brief calling for a global remedy that places the burden on the Commonwealth to re-prosecute within a set time period (to be determined by the Court) any cases that have not been re-adjudicated since 2012, when the scandal first came to light. If cases are not re-prosecuted within that time period, the brief calls for their dismissal with prejudice, barring further prosecution.
Our interest was twofold: to facilitate access to justice for all defendants in criminal cases, and to ensure the timely, fair, and efficient administration of justice. Not only would a global remedy secure justice for the defendants, but it would also start to relieve the significant burden on a justice system that was otherwise facing the prospect of addressing more than 20,000 unresolved cases one-by-one. The burden should rest with the Commonwealth rather than these individuals, we argued, because the widespread and systemic nature of Dookhan’s misconduct, as a state employee, implicates public confidence in the government and justice system.
Our brief stated that while the courts have worked admirably and diligently to handle these cases, now that the full and pervasive scope of Dookhan’s misconduct is more fully understood, it is clearly an exceptional circumstance meriting the SJC’s use of its extraordinary powers to impose a global remedy. We conclude that “the net result of the current process will be that a certain and significant number of adverse dispositions that were obtained by ‘egregious’ [the SJC’s word] misconduct attributable to the Commonwealth will remain intact. Thus, by default, many Dookhan defendants will continue to suffer the consequences of ‘egregious’ government misconduct and, absent a global remedy, such misconduct will not be remedied or abated in any systemic or comprehensive way.” This outcome is unacceptable and inconsistent with due process and undermines the integrity of the criminal justice system.
In a majority opinion written by Chief Justice Ralph Gants, the Court once again declined last week to adopt a sweeping global remedy, ordering instead a three-step protocol, to be implemented by Justice Margot Botsford as single justice:
In the first phase, the district attorneys shall exercise their prosecutorial discretion and reduce the number of relevant Dookhan defendants by moving to vacate and dismiss with prejudice all drug cases the district attorneys would not or could not reprosecute if a new trial were ordered.
In the second phase, new, adequate notice shall be approved by the single justice and provided to all relevant Dookhan defendants whose cases have not been dismissed in phase one.
In the third phase, CPCS shall assign counsel to all indigent relevant Dookhan defendants who wish to explore the possibility of moving to vacate their plea or for a new trial.
If the number seeking counsel is so large that counsel cannot be assigned despite CPCS’s best efforts, the single justice will fashion an appropriate remedy under our general superintendence authority for the constitutional violation, which may include dismissing without prejudice the relevant drug convictions in cases where an indigent defendant is deprived of the right to counsel.
So … not entirely what we had advocated for but nonetheless a significant step toward that comprehensive resolution—while holding out the potential for lifting the remaining cloud over the Dookhan defendants and allowing them to move on with their lives. The Court agreed with our argument that continuing to place the burden on these defendants to come forward one at a time—to say nothing of the burden on the courts—is no longer a viable option, in spite of the DA’s arguments that the notice they sent served its purpose and no extraordinary action need be taken, and that a different course of action, five years after the scandal first came to light, is necessary to protect the fairness and integrity of our criminal justice system.
The DA’s were given 90 days to inform the single justice in which cases they “could produce evidence at a retrial, independent of Dookhan’s signed drug certificate or testimony, sufficient to permit a rational jury to find beyond a reasonable doubt that the substance at issue was the controlled substance alleged in the complaint or indictment.”
Justice Geraldine Hines, for her part, filed a dissenting opinion, in which she stated that
the need to adopt a swift and sure remedy for the harm caused by her deceit presents itself with palpable urgency. The time has come to close the book on this scandal, once and for all, by adopting a global remedy. While I agree, as the court notes, that a global remedy is “strong medicine” … the continuing violation of the rights of the defendants affected by Dookhan’s misconduct and the damage to the integrity of our criminal justice system demand no less.
The three-step protocol, she said,
is simply unworkable as a timely and effective mechanism for addressing the due process claims of the thousands of defendants now deemed to have been convicted on Dookhan’s tainted evidence. In short, the court’s solution is too little and too late. The only fitting end to this blight on the integrity of our criminal justice system is vacatur and dismissal with prejudice of the convictions of all relevant Dookhan defendants.
It should also be noted that Justice Barbara Lenk, joined by Justice Kimberly Budd, trod a middle path in a concurrence with the majority, expressing her impatience:
I write separately to underscore that, in those five years, and despite the time and efforts of so many, we have managed to address fewer than 2,000 of the estimated 20,000 or more cases involving Annie Dookhan-tainted evidence. We cannot go on this way. …
I share the dissenting Justice’s frustration with the unacceptably glacial systemic response to date and join in her view that extraordinary measures are now in order. … [H]owever, I regard the protocol announced today … as promising to be such a measure, but only if implemented in a manner that countenances no further delays. … [T]here must be strict compliance with its stringent timelines and requirements. Only this will forestall the need for a “Bridgeman III” and different measures.
And indeed, the single justice has already held a hearing earlier this week, to begin to implement the new protocol.
As you can see, the Dookhan scandal is one that has taken many turns in the past five years. When will the last chapter finally be written for all the defendants whose lives she upended? We still can’t say … but after last week’s ruling, and this week’s hearing, that day at least feels closer.
— Michael Avitzur
Government Relations Director
Boston Bar Association