The Aftermath of the Massachusetts Drug Lab Scandal and the Dismissal of 21,000 Cases

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Lawyer 2 Lawyer – Law News and Legal Topics

The Aftermath of the Massachusetts Drug Lab Scandal and the Dismissal of 21,000 Cases

04/28/2017

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Carlton Williams: What happened is because of the people that might know a case named Melendez-Diaz which is a litigation that came out of Massachusetts courts, went up to the next day in Supreme Court, because of that case and because of some other things there was a strain — and because of there weren’t drugs, I will also say, there was a strain put on these forensic drug testing labs. So, there was actually some consolidation that was happening, the State Police were going to be — labs were moving around, I will say, and sort of consolidating. When that happened some things, some behaviors, some practices that were not particularly appropriate obviously, started to come into light where no one had really taken much notice of them before

Sandra Guerra Thompson: It’s not unique to have forensic fraud but I would say that of the problems that I have encountered in my research, I would say, forensic fraud is by far the least common of the big problems that I believe plague police crime labs, but it does happen and has happened in other places as well. Is it a result of the war on drugs? I would say, not really; personally, I don’t think that that’s really the cause of it. This happened to be in a drug lab but we’ve seen forensic fraud in other disciplines within forensic labs, it could be in serology, DNA, whatever, different areas, so it’s certainly not unique to drug labs.

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Intro: Welcome to the award-winning podcast ‘Lawyer 2 Lawyer’, with Jay Craig Williams and Robert Ambrogi, bringing you the latest legal news and observations with the leading experts in the legal profession. You are listening to Legal Talk Network.

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Bob Ambrogi: Welcome to ‘Lawyer 2 Lawyer’ on the Legal Talk Network, this is Bob Ambrogi, coming to you from Massachusetts, where I write a blog called Law Sites. I also co-host another Legal Talk Network program called ‘Law Technology Now’ with Monica Bay.

J. Craig Williams: And I am Craig Williams coming to you from Southern California, I write a blog called May I Please the Court.

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On April 18, the Supreme Judicial Court of Massachusetts dismissed more than 21,000 drug cases connected to the drug lab scandal that involved Annie Dookhan, a former chemist of a crime lab in Massachusetts who admitted to falsifying evidence by many accounts, there has never been such a large scale dismissal of cases in a single swoop in the history of United States.

J. Craig Williams: And Bob after an investigation into Annie Dookhan and her work at the Hinton State Laboratory Institute, she admitted to altering and faking tests in order to cover up her frequent dry-labbing or visually identifying samples without actually testing them over her 8-plus years career. The cases involve defendants from eight different counties in Massachusetts and in many instances people had been already sent to jail and some even deported.

Bob Ambrogi: So while the scope of this drug lab scandal is perhaps unprecedented, it’s certainly not the first such scandal in our country, there have been other drug lab scandals including in Houston, St. Paul, Oklahoma City and San Francisco, among other places.

Today on ‘Lawyer 2 Lawyer’ we are going to take a look at what happened here in Massachusetts and its impact on drug cases, attorneys, defendants, and talk more about what goes on inside a crime lab.

To help us do that today we have two guests, first of all let me welcome to the program Carl Williams. Carl is staff attorney for the ACLU of Massachusetts. He was previously a criminal defense attorney with Roxbury Defenders Unit of the Community for Public Counsel Services. Carl and his colleagues at the ACLU of Massachusetts represented the petitioners, thousands of people in these cases affected by the drug lab scandal and it was their work that brought about the results that we are going to be talking about today. So welcome to ‘Lawyer 2 Lawyer’ Carl Williams.

Carlton Williams: Thank you, thanks for having me.

J. Craig Williams: And Bob, we want to note here that we have reached out to the Supreme Judicial Court of Massachusetts as well as the Cape & Islands District Attorney’s Office, but both were unavailable as of our show time we hope to have them on our future show.

(00:05:03)

But in the meantime, our next quest is Sandra Guerra Thompson, she is the Director of the Criminal Justice Institute at the University of Houston Law Center. Since joining the faculty in 1990, she has taught and written in the areas of criminal law, criminal procedure, wrongful convictions and evidence, and back in 2015 Sandra wrote a book entitled ‘Cops in Lab Coats: Curbing Wrongful Convictions with Independent Forensic Laboratories.’ Welcome to the show, Sandra.

Sandra Guerra Thompson: Thanks, nice to be here.

Bob Ambrogi: Carl, we could probably spend the entire show talking about the Annie Dookhan case and the series of events that led up to the latest developments in this case, it’s almost worthy of a John Grisham novel in some ways, but I wonder if you could for our listeners who aren’t familiar with what happened here and how we got to this point if you could give us kind of the nutshell version of what happened with Dookhan.

Carlton Williams: So what happened is, in 2003 a forensic chemist that worked at a laboratory testing alleged drug samples or in criminal cases began doing four different things, one was called dry-labbing, that is just looking at a sample that is related to be drugs and making a guess that what it was. When she was actually supposed to be doing chemical test on that, it’s called a GCMS test. So she was dry-labbing, she was also sometimes adding weight to samples, so when a sample was maybe 98 grams and if it were over 100 grams prosecution would be, there would be a much more serious sentencing regime, she would add weight to samples, she also tainted samples, that is, at one point she put cocaine in a heroin sample, so it test positive for heroin, and she also lied about her credentials and she also prejudiced to self-understand in relation to these cases saying, yes, I did test that, yes it was 100 grams of cocaine. Somewhat based on those other three things I mentioned. So she was doing those things over 8 years, from 2003 to 2011, that affected tens of thousands of cases.

Five years ago the ACLU Massachusetts demanded that all of the relevant county prosecutors dismiss these cases because due process wasn’t afforded to these people, people were not aware of the fact that this behavior was going out in their cases, the district attorneys chose not to do that, two years after that, about three years ago now, we filed a petition to this — our Supreme Judicial Court representing three clients, who were affected by this drug lab scandal and asked the same thing, said these cases should be dismissed, it took us basically two series of litigations to finally get to a point where the SJC, our Supreme Judicial Court, told DAs that they needed to come up with a very substantial list from these folks to dismiss a very substantial amount of them and then decide what of those cases they believe they could re-prosecute.

And that’s what happened just this week, DAs came up with a list of almost 22,000 cases to be dismissed and 319 cases that they chose to re-prosecute, so that’s where we are today, and we believe that to be the largest dismissal of criminal cases, based on one court filing in the history of United States. We might be wrong about that, but from what we understand, it’s the largest.

Bob Ambrogi: And just to follow up on that, can I just ask how it came to light, what Dookhan had been doing?

Carlton Williams: Right, so it did for quite a while, like I said the 8 years, but what happened is because of the people that might know a case named Melendez-Diaz which is a litigation that came out of Massachusetts courts, went up to the next day in Supreme Court, because of that case and because of some other things there was a strain — and because of there weren’t drugs, I will also say, there was a strain put on these forensic drug testing labs. So, there was actually some consolidation that was happening, the State Police were going to be — labs were moving around, I will say, and sort of consolidating. When that happened some things, some behaviors, some practices that were not particularly appropriate obviously, started to come into light where no one had really taken much notice of them before and when some of those came to light a lot of defense attorney started to ask some questions, saying, hey, does that affect my case and initially the district attorney said that it was limited to only one county in a very small number of cases, and then through discovery process this defense attorney started pulling up more-and-more of that and then there was ultimately a prosecution of Ms. Dookhan in one of our superior courts and she was sentenced some prison time for her actions.

Bob Ambrogi: So, Sandra, is this unique to Massachusetts or is this something that we see nationwide and how does the war on drugs play into this?

Sandra Guerra Thompson: Well, it’s not unique to have forensic fraud but I would say that of the problems that I have encountered in my research, I would say, forensic fraud is by far the least common of the big problems that I believe plague police crime labs, but it does happen and has happened in other places as well.

(00:09:58)

Is it a result of the war on drugs? I would say, not really; personally, I don’t think that that’s really the cause of it. This happened to be in a drug lab but we’ve seen forensic fraud in other disciplines within forensic labs, it could be in serology, DNA, whatever, different areas, so it’s certainly not unique to drug labs.

J. Craig Williams: What kinds of protections are there — what kind of oversight is there over these drug labs generally, Sandra, I mean clearly in this case — of the Dookhan case, there were inadequacies in oversight and what was going on, it looked like there were some red flags that were being ignored as I understand the case. How do we know this isn’t going on, on a much greater level?

Sandra Guerra Thompson: Well, that’s a wonderful question, and I would say that there are few things. So you have supervisors within labs and they should be the first line of defense, there should be quality managers who are establishing standard operating procedures and making sure that those things are followed. I mean, there are lots of layers of protections that should be in place, and increasingly, we see labs becoming accredited and the accreditation standards for those labs have been increased as well, because of things like Annie Dookhan, because of the Houston Police Department Crime Lab and a lot of the scandals that have happened around the country which by the way have also been discovered via DNA exonerations in really serious cases.

So all of these scandals have brought so much attention to the police crime labs that they’ve had to go back and increase standards for accreditation. So, hopefully, some of this stuff gets caught, but if you have a dysfunctional lab and you don’t have these controls in place which was what was going on in Massachusetts, then you’re right — I mean she might not have been the only one and there may have been others in other labs that have not come to light as of yet.

J. Craig Williams: So, Carl, what’s the remedy for this, are we going to be seeing public defenders asking for independent labs to be established so that they can cross-check these crime labs?

Carlton Williams: I think there’s a number of test remedies certainly just public defenders I worked with 12:21 Defender System for many years in Massachusetts and defended many of these cases before we knew what was happening in some afterwards.

One thing I will just mention is, there is another drug lab scandal going on in Massachusetts where tens of thousands of cases were affected. A woman who was addicted to drugs, her name is Sonja Farak, and that is brewing now. And I would just to back up a little bit, this is a result of the war on drugs, because if we saw this type of behavior for eight years in any other field where people were not being treated like the grist of the mill, people who were just treated – who were treated as non-human beings, people you just lock up, mostly Black people, mostly Brown people, mostly almost all poor people, this never would have happened.

Think of if this was a legal ethics investigator and someone came out with a fake report on me, we would sue them, they would stop, they would be fired, they may be imprisoned; if it were about anything else, this would not have happened.

I actually didn’t interview about five years ago and someone said, well, do you think this kind of thing is endemic to the war on drugs? I said, of course it is, and I said, you will see another thing like this happen in a few years probably, not of this size, but you’ll see another thing happen. And that was — I don’t — that did happen, there is this other — this Amherst Drug Lab scandal, and there are a number of other evidence scandals. There is a woman who is stealing drugs and guns, a police officer — allegedly a police officer brings she is stealing drugs and guns from an evidence warehouse and doing whatever with them, drugs, guns, money, clothing, she had clothing from the evidence warehouse at her house.

So I think these things happen more when we’re dealing with populations that are considered to our way in our society, and that is, Black people, Brown people, and poor people.

Bob Ambrogi: So who was it who was turning a blind eye to this situation, was it the courts, the prosecutors, the defense attorneys, everybody?

Carlton Williams: Yes, the system, because the system looks at this, prosecutors, defense attorneys, judges, police, police investigators, jailers, to everyone in this, they said, oh, that’s another Black person going into the system, looks like a drug dealer to me, makes sense, don’t give him mandatory minimum, but we’ll give him half of it. And when the person said, hey, what about this? Why don’t we look into this? And some of these people — some of these drug tests actually had come back — there are some that came back negative, we’ve seen negative certs that people weren’t never informed of later.

Bob Ambrogi: So I was just kind of say what’s your impression of that, I mean, this idea that the system turns a blind eye to a lot of these cases because they just assume these people are guilty?

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Sandra Guerra Thompson: I think there’s a lot of truth to that, absolutely, and I think that Carl and I are not actually disagreeing on a lot of things, I would say though that it’s not just the war on drugs that it’s a broader concern about laboratories associated with police departments that are headed by a police chief or some head of a law enforcement agency of some sort, who’s maybe not really qualified to run a lab and where analysts view themselves as working for the police to get convictions, and I would just say that it’s a broader concern than just the drug crimes because we see the same kind of bias and lack of funding within departments and lack of proper controls that allows for thefts and for frauds to go undetected, all of these things are endemic to crime labs and they affect all kinds of cases.

I mean, it so happens that we have thousands and thousands of drug cases. So when you have an Annie Dookhan or when you have someone who’s stealing drugs, which is another — it’s a different kind of problem in a drug lab, but it also occurs, you don’t have a well-managed laboratory where these things are going to be caught and that has been a big problem with police crime labs. But I would say that it’s not just in the drug cases, it’s in lots of cases where we see — we’ve had all kinds of exonerations in many different areas, rapes, murders, robberies, because the evidence wasn’t very good.

Whose fault is it? I agree, it’s the system, it’s not only the courts and the prosecutors, but it’s the defense attorneys who — also everyone sort of gave the forensic analyst a pass and assumed that whatever results that they gave were correct and now we’re having to take a step back and really reconsider this.

J. Craig Williams: So, Carl, how does this play into the overall view and in some way I guess perhaps an old saw that cops have a script when they get onto a stand and they know what to say and testify accordingly in order to get convictions?

Carl Williams I mean, I think that’s — so you are talking about how that works with analysts?

J. Craig Williams: No, I mean, how does the concept of just do anything to get a conviction, do we see this throughout the system on the enforcement side?

Carlton Williams: I mean, we see this now with these cases. Even though these almost 22,000 cases are getting dismissed we hear a prosecutor saying, well, these are bad guys, these are bad guys. And I’ll just sort of — folks may not know, 60% of these cases of the original 24,000 cases, 60% of those cases were people who possess drugs, simply possess drugs. And we’re living in a state that believes — there’s a problem with the opioid crisis, I would say there’s a problem with crisis with other drugs also, but we’re imprisoning, we’re probationing, we are arresting people who use drugs, who just use drugs, 60% percent of these people were people who use drugs and 90% of these people were people in the lower courts, our juvenile district and municipal courts.

So these weren’t the most serious cases, only 10% of them were ever indicted, and also put out that a number of these cases were children, were people who were child offenders. And I think that when we look at who gets prosecuted to pullout the bigger picture, who gets prosecuted for crimes in Massachusetts and who gets — who commits those crimes, we know that who uses drugs and who buys and sells drugs across the United States, that is, people buy drugs from people who are like them racially, economically and geographically, and people sell drugs to people who are like them economically, racially, and geographically. But that’s not who we see arrested for these charges, and I think that goes to a very deep problem actually agreeing with other folks into a very deep problem in our criminal justice system that is deeply focused on race, deeply.

J. Craig Williams: Well, before we move on to our next segment we’re going to take a quick break to hear a message from our sponsors, Bob.

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J. Craig Williams: And welcome back to ‘Lawyer 2 Lawyer,’ I am Craig Williams with Bob Ambrogi and I today is Carl Williams, the staff attorney for the ACLU of Massachusetts and Sandra Guerra Thompson, the Director of the Criminal Justice Institute at the University of Houston Law Center.

We have been discussing the drug lab scandal in Massachusetts that led to a dismissal of over 21,000 tainted drug cases.

And Sandra, in the scheme of dismissals that are occurring what happens in the situations where the dismissal essentially amounts to a technicality from the standpoint that the defendant actually was guilty?

Sandra Guerra Thompson: Well, I mean, it shouldn’t allow the person to have their record expunged and if the jurisdiction also has some kind of law that provides for compensation for a person who is wrongly convicted then they might be entitled to compensation as well, perhaps, but otherwise, if you have already served the time there is not much that could be done about that other than some kind of compensation.

Bob Ambrogi: Well, Carl, what about that, I mean, from what I have read, this dismissal of these 21,000 or more cases, in some ways it’s just the start of another phase of this, it sounds like there is an issue about actually reaching all of the affected defendants — there are other cases that still remain to be possibly adjudicated in some way, so what happens from here going forward with these cases?

Carlton Williams: Well, I will just say Massachusetts doesn’t really have a process for expungement at all unless you can actually prove that it was mistaken identity like your twin brother did it or something. So there isn’t a possibility for expungement for these folks unless the law changes, and as to — I am in a little bit of a tough position in terms of talking about compensation for folks, I don’t want to say, hey, yes, call me, but people can certainly seek counsel if they want to talk to a lawyer to take that up or if they want to file something themselves, people can certainly try to look into that, I think there are some couple of hurdles to get over, but that’s the things people can look into.

I will say, some of these folks have been deported, some people are in Cape Verde or Dominican Republic or Haiti, because these convictions led to their deportation from the United States and the idea that — the egg is cracked, putting it back together doesn’t exactly work for some of these folks, and then there are also lower levels of community based or collateral consequences that are affecting these people. People lost their licenses, people lost their jobs, people’s families had to move out of public housing because of these charges, and it’s not just, oh, go back and reapply for the job or go back and for those years that you couldn’t drive a car, go back and be able to. People have dramatically changed their lives, because they were affected by these changes in convictions.

Bob Ambrogi: What’s the process even for letting them know, I mean, do they all know at this point or have they all been reached or is there an effort on going to contact them?

Carlton Williams: No and yes, they all do not know, if we think some people are out of state, some people are out of countries, some people have passed away, it seems to actually not to be the position of the district attorneys not to dismiss the cases of the people who are dead. So there will be mailings to folks to let them know. We are also talking about doing some — we have actually put out a lot of stuff on social media to let people know about this and there actually is a hotline that people can call at the Committee for Public Counsel Services, has a number of people can call into to find out if they are one of the people whose cases have been dismissed or one of the people who — the case is going to try to be re-prosecuted, and people can contact the public defender, and that’s the Committee for Public Counsel Services here in Massachusetts to find out they have a database and they can look up some of the name and say, yes, your case of 2006 was dismissed, congratulations.

And I think that’s important, because if people are facing those consequences because they say, oh, I have this conviction from back in the day, I might not want to apply for that job, or I might not want to be able to try to get a barber’s license because I am a felony conviction, knowing that is very important information.

J. Craig Williams: Sandra, as far as the notice issues are concerned would it be appropriate for a civil class action for all of these 21,000 individuals and then the court to order some type of private investigator perhaps to be involved in order to be able to notify everybody, I mean, how do you remedy to note a situation, and as part of that question we would like to take this moment to wrap up and get your final thoughts as well as your contact information so our listeners can reach out to you, thank you.

(00:24:58)

Sandra Guerra Thompson: Sure, well, with regard to getting notice out, it’s a real challenge and we really haven’t developed good procedures for doing that. I think in Texas we see district attorneys sending out thousands of letters, letting people know that cases have been affected and that they should — and actually telling them they should call the public defenders office. But this is a big challenge for a system as to whether they can file a lawsuit, that’s really a matter that’s better addressed by other guests, but I am happy to talk to people if they are interested in how we are handling this in Texas, and I can be reached at the University of Houston Law Center, my e-mail address is [email protected].

J. Craig Williams: Great. Well, thank you very much. We will toss it over to you, Carl, as well to wrap up and get your final thoughts as well as your contact information.

Carlton Williams: I think the really key thing to look at here is that this is about essential parts of the criminal justice system and how we meet out justice in the United States, and at different points we see pressure points and we see things sometimes pop, this is one of those or two of those places where the system popped, and I think we need to be on a lookout for these, I think we need to challenge what is happening in these — I don’t want to say individual instances, but these mass instances, but also the way the system runs in general, because injustices occur, they lead to the mass incarceration system that we see in the United States where we have more people per capita than anywhere else in the world, and this is one of the piece, this is one of the business like on the factory line of that.

So we at the ACLU Massachusetts are committed to when we see these types of injustices, when we see these challenges to do process, that we are going to fight like hell against them, and in that, if you get in touch with me, you can find us online at the  HYPERLINK “http://www.aclum.org” aclum.org, people can find me online on Twitter @carltonwillams and [email protected].

J. Craig Williams: Great, well thank you very much, that brings us to the end of our show. I am Craig Williams with my co-host, Bob Ambrogi. Thank you for listening, please join us next time for another great legal topic. When you want legal, think ‘Lawyer 2 Lawyer.’

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