The Supreme Judicial Court recently heard oral arguments concerning how the Commonwealth should handle the cases affected by the misdeeds of Annie Dookhan, the former state crime lab chemist who engaged in a pattern of tampering with evidence. The joint efforts of prosecutors, the ACLU of Massachusetts, and others have established more than 24,000 cases tainted by her handiwork from 2003-2012. What should be done about the convictions in those cases?
At this month’s hearing, the ACLU and the Committee for Public Counsel Services asked a single justice of the Court—Margot Botsford—to “report” a question to the full bench on whether to fashion a comprehensive remedy that would dismiss all of the convictions or at least install a court-imposed deadline to settle the matter. Prosecutors are resistant to the idea of global dismissal. Instead, they want to provide individual notice alerting the affected defendants about the option of a new trial. Such an approach would allow prosecutors to take a case-by-case approach, potentially retrying cases against offenders perceived to be serious and/or dangerous.
Justice Botsford indicated she is likely to ask the Court to consider the issue in September. Last year the SJC refused to craft a comprehensive remedy “at this time.” Bridgeman v. District Attorney for the Suffolk Dist., 471 Mass. 465, 487 (2015). But the identification of the pertinent defendants has changed the calculus. Now that we know the identities of the harmed parties, the debate has shifted from the practical to the normative: do mass improprieties in the criminal justice system warrant a global, one-size-fits-all solution or a more tailored approach to each case? In my view, comprehensive dismissal is the optimal result. Here’s why:
First, the tailored approach would be an exercise in futility. Given the sheer volume of cases and the passage of time, it would be virtually impossible to determine what Dookhan did or did not do in any particular case. Raising the specter of new trials in certain cases would not advance justice; it would probably only yield plea bargains from risk-averse defendants or consume scarce resources in those cases that went to trial without any promise of a fair, much less accurate, outcome.
Second, this truly matters to the 24,000 affected individuals. While many of the “Dookhan defendants” have already served their sentences, they are all living with the collateral consequences of those convictions. The presence of these convictions on their criminal records impacts sentencing in other cases, immigration status, access to public housing, and employment opportunities, among other things. This is not a theoretical debate about whether one’s slate should be wiped clean; the defendants continue to live with the real-world aftereffects of these convictions every day.
Third, keep in mind the question of innocence. A sizable number of the defendants presumably committed the charged drug offenses, but without reliable drug certifications in their cases one simply cannot be sure. If someone sells what he believes to be cocaine to a buyer, and the substance turns out to be talcum powder, that is an attempt crime at best—a different offense from a completed drug transaction. That is the fundamental tragedy of the Dookhan scandal. Residual doubt about the question of guilt or innocence lingers, doubt that cannot be cleared up at this late date.
Fourth, with respect to the Dookhan defendants who are actually guilty, all of their convictions occurred against the backdrop of government malfeasance and emerged through a flawed process. It doesn’t matter that most of them were obtained through guilty pleas. Had the legal community known about Dookhan’s actions at the time, many defendants would have taken alternative courses of actions, e.g., gone to trial or negotiated a more favorable deal.
Fifth, the government must be inspired to do a better job of monitoring its crime lab scientists. Another scandal has surfaced involving a drug chemist at the Amherst lab, Sonja Farak. Although Dookhan and Farak operated in different labs and appear to have had different motivations, they share a connective thread: they managed to perpetrate their misconduct due in part to lackluster oversight. Complete dismissal of the Dookhan cases would send a strong signal that the courts—and the people of Massachusetts—will not tolerate the behavior of government employees who intentionally compromise the validity of evidence. Vacating thousands of convictions might spur the government to further revamp the structure of its crime labs with an eye toward preventing future scandals.
As the English legal scholar William Blackstone famously stated centuries ago, it is “better that ten guilty persons escape than that one innocent suffer.” The Dookhan defendants have suffered enough, whether guilty or innocent. We owe them justice on a global scale.
