Cape Cod criminal defense attorney James Powderly is closely monitoring a developing situation which involves the alleged mishandling of tens of thousands of drug samples at a Jamaica Plan state crime lab. The Hinton State Laboratory Institute located in Boston, Massachusetts was ordered closed after revelations of breaches of protocol and testing procedures. The specifics of the improprieties, including whether or not the breaches were intentional, are yet to be disclosed. An ongoing investigation is underway involving the Massachusetts State Police and Massachusetts Attorney General’s Office.
News reports have identified the target of the investigation to be a chemist named Annie Dookhan. The full scope of the scandal is yet to be known, but over 34,000 cases were prosecuted using evidence from roughly 50,000 samples that suspected chemist Annie Dookhan handled in over nine years of work at the crime lab. Dookhan is suspected of violating protocols during evidence testing in drug cases and, in some cases, willfully manipulating evidence to the detriment of defendants. State Police Spokesman Davis Procopio said the investigation involved more than just sloppiness and cutting corners. The allegations included malfeasance and deliberate mishandling.
The scandal calls into question the validity of evidence used in an estimated 34,000 cases, opening the door to legal challenges from defendants with pending cases or already convicted on the basis of this evidence. The integrity of Dookhan as an expert witness is also of concern, as her testimony has been crucial in the convictions of numerous defendants, including a client of Powderly’s in January of this year. Most troubling is the recent revelations that the chemist had been placed on suspension and relieved of her duties since November 2011, something which was not disclosed to defense lawyers who had pending cases involving her analysis. In January of 2012, Dookhan appears to have been on suspension but still came to court and testified as an expert for the Commonwealth at a trial in Fall River Superior Court. Attorney Powderly, defense counsel in that case, had been given no notice that the Commonwealth’s drug expert was in fact the subject of an investigation and currently under suspension. Based on Dookhan’s testimony, the defendant was convicted and sentenced to the mandatory minimum period of incarceration of 15 years.
Under Massachusetts law, drug offenses, including possession, possession with intent, distribution and trafficking, must include proving an that the substance did in fact contain a designated controlled substance, for example cocaine or heroin. In order to sustain their burden of proving this beyond a reasonable doubt, prosecutors most commonly rely on the expert opinion of a State Laboratory Analyst. In trafficking cases (which carry significant mandatory minimum prison sentences) the prosecutor again most commonly relies on the State Laboratory Analyst for proving the actual weight of the substance. When a person is charged with a drug offense, the common practice would be for the suspected narcotics to be sent to the State Laboratory for analysis while the case is pending. Defendants will then be provided a “Certificate of Analysis” which essentially is an affidavit from the analyst attesting to his/her findings that the substance is a controlled substance and listing its gross and net weight. Prior to a United States Supreme Court case, Melendez-Diaz, these certificates were admissible under Massachusetts statute and would be sufficient to sustain a conviction without the necessity of the analyst actually having to testify at trial. The Supreme Court in Melendez-Diaz held this to be unconstitutional. The Supreme Court held these certificates to be affidavits created in anticipation of litigation and was therefore testimonial, triggering the defendant’s Confrontation Rights. As a result of this decision, the Commonwealth can no longer simply admit the chemist’s drug certification and will typically have to call the chemist as a witness in order to sustain their burden. The Melendez-Diaz case was a hotly debated issue where the Government contended the Confrontation Clause did not apply because the state chemist was providing neutral and reliable forensic testing. In the majority decision, the Court held: “Nor is it evident that what respondent calls “neutral scientific testing” is as neutral or as reliable as respondent suggests. Forensic evidence is not uniquely immune from the risk of manipulation. According to a recent study conducted under the auspices of the National Academy of Sciences, “[t]he majority of [laboratories producing forensic evidence] are administered by law enforcement agencies, such as police departments, where the laboratory administrator reports to the head of the agency.” National Research Council of the National Academies, Strengthening Forensic Science in the United States: A Path Forward 6–1 (Prepublication Copy Feb. 2009) (hereinafter National Academy Report). And “[b]ecause forensic scientists often are driven in their work by a need to answer a particular question related to the issues of a particular case, they sometimes face pressure to sacrifice appropriate methodology for the sake of expediency.”
As of today’s date, the specific nature of the allegations of misconduct have yet to be revealed. If there is substance to these allegations, what does this mean for criminal defendants who were prosecuted or are being prosecuted for drug offenses involving this chemist? Certainly the nature and extent of any misconduct will determine the remedies pursued by various litigants.