Massachusetts ACLU Director: Chemists Are Pressured to be Prosecutors
The American Civil Liberties Union says the drug lab crisis shows that pressure was put on chemist Annie Dookhan and others to help prosecute drug cases. The ACLU has filed a brief with the state Supreme Judicial Court as it reviews the legal process set up to review the potentially compromised criminal cases. The ACLU says the state could save money by releasing everyone involved in a case in which the drug evidence was tested by Dookhan.
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Matthew Segal: Together, we’re the Committee for Public Council Services which is the public defender organization in Massachusetts. We’re asking the SJC, the highest court, to step in and to give guidance to the lower courts about finding a more efficient and more just approach to these cases than we’re currently seeing in the lower courts.
Deb Becker: Why do you think that there is not a just and efficient system right now?
Well, it’s a massive, almost unprecedented crush of cases. Not only do we have thousands of cases already in the courts, but there are more to come because identifying the cases tainted by the scandal has proved to be so difficult. So, it’s not surprising that it’s created a bit of a mess in the lower courts and, on top of that mess, you have the fact that, from county to county, or court to court, there are going to be different procedures, different prosecutors, and so it’s hard to get a uniform and a fair approach. And it’s also about a scandal. This is about allegations of tremendous misconduct and if there had been only a few cases of misconduct, probably they would have been addressed by now, we would have moved on. But because it’s so many, cases are getting stuck. There are delays. People are waiting in lines of thousands to get their cases heard.
When you talk about the scope of this scandal, it’s been described as a rogue chemist who, perhaps, was overly ambitious and handled a lot more of these drug tests than her colleagues and that’s why the scandal is on the scale that it is. Do you think that’s an accurate description of what happened?
No. We’re not aware of anyone besides the one chemist, Annie Dookhan, who is alleged to have intentionally lied to people or to courts. But that doesn’t mean this scandal is about one rogue chemist. If people at the lab, if people throughout the criminal justice system, had been doing their jobs properly, it would have been impossible for Annie Dookhan to have had the effect she’s had on cases and on people throughout the Commonwealth. From the beginning, at that lab, the data show that she was doing more tests than anybody else, by far. It wasn’t a recent development. And there were all kinds of procedures in place to make sure that this sort of thing couldn’t happen. And the reason it happened is that, as far as we can tell, very few of those procedures were followed. And so you don’t have to believe that anyone else tried, as Annie Dookhan is alleged to have done, to intentionally mislead people. But – and we’re not saying that – but at the same time it’s not possible for this to have happened by the work of one person.
Do you think that these cases should be dismissed?
All of them?
Well, maybe not all. We, back in October as the litigation around this was first ramping up, we said that some cases would have to be dismissed in order to save the taxpayer’s money and deliver justice to people affected by the scandal and we identified a few categories of cases that we thought would make sense like people who were not convicted of violent crimes or people who’ve served the vast majority of their sentances. In the case of those people, the people who’ve served a lot of their time, right now what we’re talking about is running out the clock on their sentances before they can get relief and that really doesn’t make any sense. And that was just based on a common sense view in October and now what we’ve seen, since then, is a litigation that’s completely bogging down and it’s wasting money, it’s not delivering justice, and it’s not good for anyone. So, we think that it’s quite possible that the courts are going to have to identify some number or category of cases that need to be dismissed so that everyone can responsibly deal with the cases that aren’t dismissed.
Now, the initial estimate was 34,000 cases affected by tests that were done by Annie Dookhan, do you think that number is probably larger?
We are talking about a much larger number. The 34,000 number might turn out to be a fairly decent estimate of the cases that Annie Dookhan, herself, touched, but the number of cases in the lab stretches to many more tens of thousands, possibly as high as maybe 190,000, according to one estimate. We think that, at the very least, defendants in those other cases have grounds for seeking relief that are not frivolous.
Aside from asking the SJC for some clarity on this are you also talking with prosecutors to make sure that the procedures by which there is a relationship with the chemist and the labs and the prosecutors, that that is also something that’s uniformly understood by everybody involved?
That is something that we’re investigating. We have some concerns about the kinds of relationships and communications that were going on between police officers and prosecutors on the one hand and lab employees on the other. It’s clear that once a chemist tests a drug sample and determines that it’s illicit narcotics that she might have to get called for trial, she might have to do all kinds of things that would require her to talk to prosecutors. That’s not the kind of communication that concerns us. What concerns us is the suggestion in police reports that, before testing occured, people on the law enforcement side were emailing Annie Dookhan or calling her on the phone and it’s not surprising, if those communications were happening, that misconduct occured. It doesn’t mean that anyone on the law enforcement side was soliciting the misconduct or even thought that it was occuring but there’s a reason to separate the science part of this job from the prosecution part and we are not seeing a lot of evidence of that separation and that goes back to your earlier question, Deb, about whether one person could have done this. And the answer is that if better procedures were in place and actually followed, we don’t think one person could have done this.
So it was a system problem and a system failure?
Absolutely. And I think that’s not entirely debatable at this point. I mean, even on the prosecution side, you’ll hear prosecutors say that this was a systemic failure. What people disagree about is which system. And some want to say that it was the narrow system of managing Annie Dookhan and I think that’s clearly wrong. The entire lab in Jamaica Plain seems to have been run in a way that wasn’t conducive to good science and professionalism. And if it had been, Annie Dookhan probably would have been discovered much sooner. But even beyond the lab, there’s a criminal justice systemic problem here. Not just with what happened initially with some of these communications that we’re talking about but now in terms of how the criminal justice system is dealing with the problem. It’s hard for me to understand how it is a good use of taxpayer dollars to spend them re-litigating these cases, one by one, over and over again, to the tune of thousands and tens of thousands of cases. It’s not a good use of the time of our people on our criminal justice system and it’s certainly not a good use of money and it doesn’t deliver justice to the people affected by this scandal. I think it’s important for more people to understand how this is really playing out. There was a concern when this scandal first hit that it would lead to the release of many criminals and we would see a crime wave and we haven’t seen that. And that’s probably because very restrictive conditions have been put on people who’ve been released and it’s probably because the scandal largely affects, as far as we can tell, people who were already out. And so what we’re trying to understand is whether it’s really a wise use of resources to try to save all these convictions for people who are just trying to get on with their lives.
I think that law enforcement might say, we need to have a relationship with the chemist. We need to be able to say when court proceedings are happening and under the Supreme Court ruling that requires chemists to testify in court in some of these cases. They need to be able to arrange, you know, the date to get the chemist into court and all of those other things. Does that need to change, I guess? Or does the line need to be clearer, the wall need to be clearer between those two sides or – because many prosecutors, as we’ve heard in some of the hearings, don’t think that there’s any issue with that relationship between the chemist and law enforcement.
Right, a lot of the communications that you just described concern communications that would occur after a chemist has tested drugs. And I think the prosecutors make a good point about thsoe communications. Where the point is less good is in pre-testing communications. There might be circumstances where a prosecutor will need a rush on a request for something to be tested and that’s fine but that rush request can go to lab personnel other than the chemist who’s testing the drugs. According to the manual at the Hinton lab, chemists, the testing chemist like Annie Dookhan, was basically supposed to get just drugs and a bar code when they tested something. So, other people at the lab might have been told, and of course would have to know, where that sample came from, what case it was in, and so on. But the testing chemist is supposed to just be doing science and if something other than science is happening, if people are being influenced to think that this is an important case, this is a case that a prosecutor needs right away, then that can have a real result and, in fact, might have had a real result on whether a chemist followed science or not.
The biggest story about this scandal is just the sheer size of it. There have been other scandals, particularly in other states, where people have messed up, convictions have been thrown into suspicion. But we’re talking here about a huge number, so how we deal with that, whether we waste money or not, whether we waste lives or not, is going to be really important. And right now we’re not handling it right. If we say, ‘Each one of these cases is different. Each one of these cases needs to be reexamined.” What we’re really saying is we need to come in and spend millions upon millions of dollars to reexamine these cases and that money is money that we can’t afford to spend here in Massachusetts. And it’s also money that doesn’t deliver any good. It’s not helping to keep us safer. It’s not delivering justice to the people who were wronged and it’s not doing a whole lot of good for the reputation of this state as the home of justice.