1. The Annie Dookhan/Hinton Drug Lab fiasco 5 years out – Bridgeman II may yield a real remedy.  
Nancy J. Caplan
CPCS DRUG LAB CRISIS LITIGATION UNIT
Roxbury, Massachusetts
MACDL - March 24, 2017

2. Scandal breaks July, 2012 – MSP took over Hinton Drug Lab from DPH
Investigation of Annie Dookhan – chemist since quickly ensued
July 28, 2012 – Dookhan admits to extensive misconduct
August 30, DPH Hinton Drug Lab shut down per order of Gov. Patrick

3. Dookhan’s misconduct – 2004 – 2012
Dry labbing
Evidence tampering
Breach of chain of custody protocols
Forgery
Perjury
Falsification of lab records
False claims re: academic credentials

4. Annie Dookhan was “productive”
1st year “tested” 9,000+ samples
Over 3x average
2nd year 11,000+ samples
Double # of 2nd most productive chemist
“My colleagues call me superwoman”

5. Promises made -
September 20, 2012 – Patrick creates task force – David Meier as lead - to ID all affected
“The job of the office is to make sure no one falls through the cracks.”
Gov. Beacon Hill presser w/ Meier

6. Meier report/list – August 2013
86,000+ Dookhan involved samples
40,323 names
Generated based on review of Hinton data
Paper and digital

7. Meier report/list - deficiencies
No case docket numbers
No D birthdates or SSNs
Co-defendants – some or all missing
Because – effort based on Hinton data only
Drug receipt - only doc w/ D info
Police often failed to list all Ds
Didn’t call for DOBs or SSNs
List did not include data points necessary –
To determine case dispos
ID and locate effected Ds

8. CPCS demand for data February, 2014, April, 2014
AB letters to all Eastern Mass DAs
Give us docket #’s for Meier list entries
Police reports
All Ds
DOBs
Response: Nothing or not much

9. Commonwealth v. Scott, 467 Mass. 336 (2014)
Appeals (DAR) in 5 Dookhan-based new trials motions
D’s asserted due process violations
pleaded w/o knowledge of AD misconduct
pleas not knowing and voluntary
CPCS submitted amicus arguing for global remedy

10. Commonwealth v. Scott, 467 Mass. 336 (2014)
Referring to Dookhan’s misconduct over 8+ years
This particularly insidious form of misconduct, which belies reconstruction is a lapse of systemic magnitude in the criminal justice system

11. Scott framework –
Plea is involuntary and violates due process where there was:
1. Egregious government misconduct, in the D’s case, antedating his guilty plea
2. Material to D’s decision to plead guilty / Influenced his decision to plead guilty

12. Court concluded Dookhan’s MC was Egregious and
Scott framework –
Court concluded Dookhan’s MC was
Egregious and
Attributable to the government

13. Scott framework – Misconduct prong
Conclusive presumption of misconduct
Where Dookhan signs cert as analyst
B/c - Nexus between AD’s misconduct and a D’s case “may be impossible for [a] D to show”

14. Bridgeman v. SC & ECDAO, 471 Mass. 465 (2015)
211/3 petition (filed by ACLUM & Foley Hoag for 3 individuals)
CPCS allowed to intervene
Seeking:
Global remedy (undue delay = DP violation)
Exposure cap – Dookhan Ds’ fear of additional punishment chills exercise of post-conviction rights

15. Bridgeman I What did we get? Global remedy – not yet Exposure cap –
After convictions are vacated in Dookhan cases-
Com. held to the terms of plea bargain
If re-convicted, D can’t get a sentence more severe than originally imposed

16. Bridgeman I
Per SCDA Dan Conley’s office, they “have nothing to lose and everything to gain.”

17. Bridgeman I – Single Justice proceedings
Issue of ID and notification of Dookhan D’s
Not reported to full court
Had remained before Single Justice

18. Bridgeman I – Single Justice proceedings
As of early 2016, no complete, accurate, actionable list of Dookhan Ds (no docket #’s, no defendant DOB’s)
No notice
May, 2016 data produced by DA’s (5 others now joined)
24,000+ Dookhan-tainted convictions
20,000+ individuals
Few Ds had received relief (<2,000)

19. Bridgeman I – Single Justice Proceedings
Given those numbers:
Notice, promising counsel, untenable
CPCS – lacks resources to provide representation w/in reasonable time
Especially w/ imminent Farak crisis –
(8,000+ tainted convictions)
Case-by-case litigation for all Dookhan Ds would take too long, cost too much
Dookhan Ds had waited long enough for relief

20. Bridgeman I – Single Justice Proceedings
On our motion, question:
Must global remedy
e.g. vacatur and dismissal w/p of all Dookhan-tainted convictions,
NOW be implemented?
Reported to full Court

21. DA notice effort DAs unhappy with reserve and report
Told Botsford, J. they would unilaterally issue notice to Dookhan Ds
Starting , issued notice to ~21,000 Dookhan Ds
Notice highly problematic
Response rate extremely low
Triggered motions in less than 1% of cases

22. Bridgeman v. SCDAO et. al. 476 Mass. 298 (2017)
ACLUM/CPCS: Case by case approach cannot work
Global remedy – necessary exercise of superintendence power
24,000 cases after over 4 years
DAs: Stay the course
Scott and Bridgeman I provide an adequate remedy

23. Bridgeman II
DAs re: their notice effort
Few responded b/c
Didn’t want to open “closed chapter in their lives” before an “adverse impact” occurred
Triggered: lengthy lecture re: collateral consequences
See Court’s stem to stern critique of form and content of notice letter (at 319 – 322)

24. Bridgeman II
What we got – a new – 3 phase – protocol and a right to counsel for Dookhan defendants
“Case by case adjudication must be adapted to make it fair and practical”
“We rely on the exercise of the DAs’ sound discretion to reduce substantially the number of relevant Dookhan defendants.”

25. Bridgeman v. SCDAO et. al. 476 Mass. 298 (2017)
Phase I
W/in 90 days DAs shall file 3 letters w/ SJ

26. Bridgeman II
Letter 1
Ds who are not “relevant Dookhan Ds” b/c pleaded G before substances analyzed (Ruffin Ds – see 475 Mass (2016)
Letter 2 – cases of RDDs they move to vacate and dismiss w/p
Letter 3 – cases of RDDs they wish to preserve
w/ certification – DA has sufficient evidence - independent of Dookhan cert/analysis - to prove nature of substance BRD

27. Bridgeman II
“In light of the massive number of RDDs and the scope of the misconduct attributable to the government…it is only fair that the DAs make an individualized determination whether a conviction warrants burdening the court system with a MNT, CPCS with the assignment of counsel...and the taxpayers with payment...especially where the D has served the entirety of the sentence.”

28. Bridgeman II Phase 2 – Notice
30 days after expiration of 90 day period
Notice to letter 3 RDDs
Address deficiencies in DAs’ 2016 notices
Form to check box and request counsel (plus indigency affidavit)
CPCS hotline
Guidance letter from CPCS
Prepaid, self-addressed envelope
Plus – public notice campaign to “enhance effectiveness of mailing and attempt to reach those who might not receive it.”

29. Bridgeman II
Challenge created by substantial # of RDDs who haven’t been located -
“DAs have an obligation to take all reasonable steps to [locate these individuals] and provide [them] with notice …wherever they may be residing.”
As to all aspects of notice – the DAs must pay
They can reduce costs by reducing # of letter 3 RDDs

30. Bridgeman II
Phase 3
CPCS to inform court of all cases where received OAC and, after 60 days
Unable to assign counsel
Despite “best efforts”
Hearing before SJ triggered
If SJ determines RDD denied right to counsel
Due to CPCS’s inability to assign counsel – despite best efforts
Vacate and dismiss w/p (unless interests of justice dictate otherwise)

31. Bridgeman II – Single Justice proceedings
Per Botsford, J., deadlines will be enforced -
Absent “catastrophic acts of God.”

32. Bridgeman II – working group
2 DAs – Norfolk & Middlesex, 2 from CPCS/ACLUM team
Focus on notices – (much back and forth)
Consulted with class action notice expert
DAs learned the price tags for some media buys ($$$$)

33. Bridgeman II – working group
DAs will likely try to expand letter 1 eligibility
Not just Ruffin Ds
Ds who have litigated Dookhan R 30’s
Some counties will likely include -
Ds who appeared in drug lab sessions (w/ counsel?) but didn’t litigate their motions

34. Bridgeman II – working group
Big news (best for last)
DAs reported expectation that aggregate number of letter 3 RDDs will be
Under 1000
25 days still to go, not done until it’s done – but very encouraging

35. Bridgeman II
Thousands of Dookhan defendants may, finally, get relief from their fraud-tainted convictions.
“May it be so.”
Lenk, J., concurring opinion