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A WBUR SPECIAL REPORT

BadChemistry

Annie Dookhan And The Massachusetts Drug Lab Crisis

Former Middlesex DA: Bad Lab Protocols Likely To Expand Volume Of Tainted Cases

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Above: Then-Middlesex District Attorney Gerard Leone speaks with Deb Becker in February 2013.

View: District Attorney Says Wider Range Of Drug Lab Cases May Be Dismissed

Former District Attorney Gerard Leone says there are about 9,000 cases in Middlesex County affected by the drug lab crisis. The county includes many of the larger urban areas outside of Greater Boston and is the most densely populated county in the state. Middlesex County moved its criminal drug testing out of the Hinton Drug Lab in 2009 after the state police lobbied to do the testing at their lab in Sudbury, which is in Middlesex County.

Before Leone left office for private practice earlier this year, he assigned teams to review all drug testing done at the Hinton Drug Lab since 2003, when chemist Annie Dookhan started working there. He said:

We’ve moved away from it being one rogue chemist to a lab that had insufficient practices, policies and protocols to an extent that leads us to believe that there are more cases that are going to be compromised than those signed off on by Annie Dookhan.

Leone was elected Middlesex County district attorney in 2006. He graduated from Harvard University and Suffolk Law School. Before his election, Leone was a prosecutor for the offices of the United States attorney, the Massachusetts attorney general and the Middlesex district attorney. Middlesex County includes Cambridge, Everett, Lowell, Malden, Marlborough, Medford, Melrose, Newton, Somerville, Waltham, Watertown and Woburn.

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Gerard Leone: Based upon all of the information that we’ve been provided by the Department of Public Health and the Attorney General’s office, it looks to be approximately 9,000 impacted cases here and what we’re doing is we’re working affirmatively by assigning teams to both the District and Superior Court to identify all of those cases, not just that Annie Dookhan worked on, but all of those cases since 2003 that were JP lab cases, or cases out of the Hinton Laboratory

Deb Becker: Why look at every case from the lab?

Well, what we’ve found through the discovery and information that’s been provided to us is that there are inadequacies and insufficiencies within the lab that went beyond Annie Dookhan which causes us concern as it relates to how justly and fairly these cases were worked on and then provided to us from the lab.

And we’ve spoken with some DAs who say that they’ve had to create almost what they’re calling “war rooms” in their offices to go through all of these cases as they continue to look at exactly how to proceed from here.

Yeah, we’ve prioritized custody cases, people who are in custody or who’ve been convicted. obviously people’s liberty is at stake and has been curtailed or taken away that has to be a priority so those are the cases that we’ve prioritized but we’re taking a look at everything across the board. We’ve created these working rooms or “war rooms” if you will only because it provides space to segregate and identify the cases that our teams are working on. We’ve got specialized units that we’ve created where we have lawyers, appelllate and trial lawyers, as well as paralegals and support staff who identify and prioritize just these cases.

Three full time lawyers, four part time lawyers, one support staff person full-time and one paralegal full-time. Now, we’ve taken people in the office and diverted them to work on cases but we’ve also hired some people so that we could bolster the team. It’s difficult, you start with people who are understaffed, overworked, and underpaid and you’re asking them to do more in other areas where, there was no fat here.

Collectively the district attorneys are very concerned about that because we have very lean budgets to begin with. We’re dealing with a situation which had nothing to do with us in it’s making and we’re having to do the best we can in dealing with it but we haven’t been provided any additional resources to deal with the problems yet.

Since you started reviewing the cases, do you know how many have been reviewed by a judge and do you also have those separate, special sessions in court for a judge to review these things?

We have a special session in the superior court in Woburn to deal with the superior court matters. We then have a session in every single district court – we have 10 district courts here in Middlesex – that deal with the pending cases there. And there is also, for the district courts, a drug lab session set up in Cabmrbidge where they’re dealing with post-conviction matters.

And how many cases have you gone through, then? Do you know, in your special sessions? And how many folks may have been released because of this?

15 people have been released thus far. We have 250 cases that are presently active in those sessions in our courts and of those 250 cases, approximately 50 have been resolved so far. So we’ve worked thorugh about 20 percent of 250 cases. But as the math will dictate here, we have 250 cases in the sessions you’ve got 9,000 approximate cases, we’ve got a long way to go.

This will go on for years, both direct and collateral consequences, sure. I’d like to think, though, that we’ve spent several weeks now building to where we are so that we’ll now be able to move more quickly. We’ll now be able to move more cases through the system. And as far as this office is concerned, and my philosophy is concerned, as early as next week, we’re probably going to be able to apply a more broad standard as it relates to how many cases we’re just going to have to null prosse or dismiss.

Really? So you think more of them will be dismissed?

Oh, many more cases will be dismissed. As I said, we’re prioritizing those custody cases but as we identify cases at the Hinton Lab in Jamaica Plain and we realize that there were inadqeucies and in practices, protocols and policies, it may be that a wide swath, if not all of the cases that were done by the JP lab between 2003 and 2012 may not be prosecuted.

And do you think that compromises public safety?

Oh, it certainly compromises public safety. People who are being released, remember, aren’t being released because they’re innocent. Some of them may be, but the vast majority of cases we’ve looked at thus far are cases where the defendants did what’s alleged, we just can’t prove it beyond a reasonable doubt and/or to go forward with a prosecution wouldn’t be fair and just under circumstances. So, they may be released to the street, but it has little to do with guilt or innocence, it has more to do with failures of government, in particular, the Department of Public Health.

We’ve certainly moved away from it being just one rogue chemist to a lab that had insufficient practices, policies and protocols, to an extent that leads us to believe that there are going to be more cases that are compromised than just those that were analyzed or signed off on by Annie Dookhan.

When you describe this to colleagues outside of Massachusetts, maybe your colleagues who aren’t district attorneys, what do you say? How do you talk about what happened at the drug lab?

Well, I talk about the frustration. The frustration and how systemic a failure this has been. The frustration for law enforcement agents and law enforcement officers who are in harms way every day trying to make the streets safe and this type of back-end situation after they’ve made their cases make cases that are not prosecutable. That is extremely frustating. And it’s extremely disconcerting.

Do you think that you’re working to have a uniform system? To make sure that these cases are handled the same if they can be?

We always prioritize uniformity and consistency across Middlesex County. There’s 1.5 million people here. We’re the largest county in the state. It’s urban, suburban and rural, we want our decisions to be uniform and consistent across the county. I would hope the justice isn’t zipcode driven. That we come up with some standards that provide for fairness and justice as it relates to how we’re dealing with these cases. I’m confident in how we’re dealing with them here and I’m always open to hearing from the defense bar about ways that we’re approaching this and I’ve listened.

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