Norfolk DA: Drug Lab Scandal Likely “Biggest Hit” to Criminal Justice in State History
Although it doesn’t have the most cases affected by the drug lab crisis, Norfolk County has had some of the most high-profile issues related to the crisis. About 5,000 cases are affected in Norfolk county, or about about 20 percent of all cases out of that office.
Between 50 and 75 people have been released from jail and at least two have been re-arrested. The whole issue of Annie Dookhan first came to light in Norfolk County when the Department of Public Health warned about a “breach of protocol” involving a chemist at the now-closed Hinton Drug Lab.
The DPH said its internal investigation found that to be an “isolated incident” and it had full confidence in the lab. But a short time later, the entire lab was closed. Also in Norfolk County, Assistant District Attorney George Papachristos resigned after the publication of some email exchanges between him and former chemist Annie Dookhan.
Some of the emails appeared flirtatious and showed an interest — online at least — between chemist and prosecutor. At one point, Dookhan’s husband warned Papachristos to stay away. Morrissey says the emails were just informal communication between two colleagues. Even so, he has advised the other prosecutors in his office to be more careful when emailing those involved in their cases.
We did reiterate and have additional training on the use of email and disclosures, and reminded people that this is business. And obviously that emails that you would have that would affect a case can under certain circumstances become discoverable — so, act accordingly.
Michael Morrissey was elected District Attorney for Norfolk County in 2010. Prior to his election, Morrissey was a State Senator from the Norfolk and Plymouth Districts for eight years. He is a lifelong Quincy resident. Norfolk County includes Braintree, Franklin, Quincy, Randolph, and Weymouth.
Deb Becker: Can you tell me how the drug lab scandal has affected you? How many cases and what you’ve done to deal with it?
Michael Morrisey: Well, we figure over 5,000 cases and every once in a while, another case shows up. It’s a lot and it goes back ten years so our records are incomplete after six years, even though we’re only required to hold district courts three years, we held them six years. Older cases are still a little bit more complicated because we may have to piece documents together from attorneys’ files or from the court. So we still do some of that every day.
Five thousand cases.
It’s about 20 to 25 percent of the workload of the district attorney’s office in Norfolk County on a yearly basis.
And those are all cases where Annie Dookhan was the chemist involved in the testing?
She had some kind of involvement, as a primary or secondary chemist.
And what are you doing? What did you have to do to identify those cases? Did you have to – we saw your war room here, which is a room full of boxes where all of these cases are — did you have to hire extra people?
Well, the first thing we did was we called the sheriff and we had him confirm for us anybody he was holding on a drug charge or awaiting trial. And then we identified a subset of people who were in prison, whose liberty interests were at stake. And then we immediately tried to find the attorneys handling those cases to find out whether or not they had any information as to whether or not Annie Dookhan was somehow involved in those cases. Where Annie Dookhan was, and we had information that she was involved, and we sought to release, we immediately reached out to those defense attorneys and sought the release of those individuals, pending a further investigation. So the people who had liberty interests at stake went to the top of the list. And then we tried doing the same thing with the state prison system. They’re a little slower to react, to get the information through the czar that the governor had. But with the attorneys here that had cases that we knew were drug cases that we could identify individuals, we then also did the same there. So we let some 55 to 75 people out of jail.
Then we started gathering cases. So we took everybody that worked in the district courts that would give us an hour or two here and there, and went through and combed through all the files that we had that were available to us – either active or that were in storage — and we had them all shipped here to the main office in Canton. And we set up a war room down in the large conference room on the basement level. And then we divided the five district courts in Norfolk County, and we divided the shelving according to district courts, and then alphabetized the cases by names regardless of the year, over a ten year period, if we have records that go that far. Then we started building the database and getting information at that time, The governor’s people started coming in and we started using some of their information and the information we had gathered to build a more complete database system. And then we indicated our willingness to work with the bar association and the courts to try to get through what I would consider is probably the biggest hit that the criminal justice system has taken probably in the history of Massachusetts, with so many people’s liberty interests at stake because of the actions of a single individual.
You think this is the biggest hit?
Has to be. Because I think there’s 60-something-thousand samples. We all have cases. It’s predominantly an Eastern Massachusetts problem. Essex County and Middlesex County were somewhat fortunate that in 2009, that they were able to move their direct samples to the state drug lab. In Norfolk County, I do have a State Police drug unit made up of four, now five, people. They take their samples to the State Police Drug Unit. So some of the most serious cases, we’ve been able to maintain because we’ve sent the samples to the State Police Drug Lab, which is nationally accredited. The samples that are at risk tend to be — most of the work done by the local departments in the 28 communities of Norfolk County.
Of the 50 to 75 people that you’ve let out of jail, have any been re-arrested that you know of?
I think one was arrested in seven days, and I think there may have been another one within three days, so the short answer is that I believe that all of the district attorneys have had rearrests, which you hate to see because if someone finally caught a break in the criminal justice system and thought that maybe they might have learned something from the past little history that they had. But some people don’t learn too easily.
Do you think that this whole issue poses a threat to public safety?
Well, I think not catching criminals is posing a risk to public safety, putting people back out. I know some of my friends in the legislature often think that a lot of the drug cases of people we have locked up are non-violent drug offenders, and that’s just not true. I think the people who do get locked up, particularly here, and I suppose Suffolk County – I think what the Suffolk County D.A. would tell you is that — it’s not as bad here, but Suffolk has bigger problems than I have. They have more cases and, I think, more serious problems. I mean, the fear is that some of those people who may have been involved in armed assaults or other issues do pose a significant danger.
But the releasing of people because of Annie Dookhan and what happened at the drug lab, do you think that there’s a compromise to public safety or anything like that because of this or do you think you’ve been able to handle it pretty well?
Well, again, I don’t have to handle it. The police out on the street every day have to handle it. I think it’s added to the workload that they have to deal with. I mean, if you think about the Willie Horton case, that one individual probably cost Mike Dukakis the election for president. And so, that was someone who’d been released on a weekend furlough who ended up committing, obviously, a very serious violent crime. And so, did they think he was a risk to public safety when they let him out? The answer was probably not. But he was. And so, if some of these people who are released – I mean, I anticipate that you’ll be doing a story sometime in the near future that someone who got out of one of the county or state facilities because of Annie Dookhan who has committed another violent act. Do I think that you’ll be reporting that? The answer is yes. Do I think it presents a risk to public safety? There are some bad people who are affected by this. Sorry to say there’s some great police work that is going down the drain, you know, people put themselves at risk. I keep my fingers crossed that stupid people will continue to do stupid things, and the police will catch them and we will then deal with some of those people appropriately. But I’m sure it’s taxing some of their resources, too.
I want to go back to how you’ve dealt with the whole thing. You’ve had to hire people – clerks, lawyers, administrative people – just to go through these cases. How many and what do you think it’s cost you?
Well, the first way was hire administrative people. People who could file and build databases and pull files and organize it, because that was the most important thing, is to collect the data and and then bring someone in to coordinate that effort. I believe that we have hired approximately seven people. That will drop down a little. I think you’ll see less administrative help needed now that the system is in place and you may find more legal help necessary as we start to deal on a case-by-case-basis with all of the cases that we have identified that deal with Annie Dookhan. And the larger threat is what about the rest of the lab? That, I think, is an open question.
They’re doing a forensic audit of the laboratory now and the procedures that we used. If the forensic auditing company, which is an independent company appointed by the Inspector General, comes back and delivers some bad news about the overall operation, the management, the oversight, the procedures and lack thereof concerning the lab, then that may shape a different direction we will go which will place increasingly larger demands on the District Attorneys office to resolve more and more cases. We’re waiting to see what happens there, but we know that the focus right now is on Annie Dookhan. Given what we know about the alleged actions she was involved in and her own admissions, that we think it rises to the level that we had to deal with people’s liberty interests first and then dealing secondarily with cases where she was involved.
And so, that’s where you are right now, looking at cases, however she was involved and trying to figure out if those should be retried or…
Right. Or how can you reach an agreement? Do we drop the case altogether? What do we do with the case? I think there are some people who are going to show up that may have had a case here ten years ago that may have had a relatively clean record and all of a sudden they’re going to get grabbed again for a drug case and they’re going to be looking at a second subsequent offense. And they’re going to say ‘Geez, I had a drug conviction eight years ago’ and it’s going to turn out to be Annie Dookhan. We’ve already seen that. We’ve had people that we released from prison that were being held because they were considered, I think, more of a risk because they had a second or third subsequent. And it wasn’t the case that we had them on that was an Annie Dookhan case, it was the first case. So that’s probably going to have disappeared. So the question is, is there reason for holding the person given their background history? Is the threat they allegedly rose not showing up or been diminished because they’re not as bad a person as you thought they were based upon their record?
And so it’s even worse in the federal system where they build their sentencing structure very heavily upon a person’s criminal history. And if that history starts disappearing and the rungs of the ladder start disappearing then the sentences have to come down. It presents a unique challenge that people who are – that they’ve faced a first offense and would have been treated differently. Now, looking at a second offense, we treat it differently because of what we had. Now you had to look at it again and say, ‘Oh, you can’t treat them like that because of what we now now.’
I’m wondering if you think – or what you think of the suggestion that many of these cases should be dismissed outright if she was involved – some have even suggested if the Hinton Lab was involved – that the cases should be dismissed because anything from that lab should be considered tainted.
That’s – I don’t agree with that approach. But I do agree that we have to look at all the cases on a one-by-one basis and make an evaluation and work with the defense bar to ascertain what steps we may have to take. The review by the forensic examiner may change how we look at some of the cases as well, so we have to – it would be premature to offer any kind of opinion until I get to see the report. We expect the preliminary report to be filed by late summer as to what really happened at the lab by people who are in the lab business and I think if they do a very strong, favorable report about the work of the other ten chemists, then I’d tell you the issue is confined to Annie Dookhan.
If, on the other hand, they have some bad things to say about the lab, that’s going to obviously cause us to look differently at the approach we’re going to have to take. So, we’re at a little bit of a wait and see right now. I don’t reject that. I mean, at the end of the day, could that happen? Possibly. Possibly. But it’s not just – A lot of these cases aren’t just drug cases. What about the person who goes into the CVS and there’s an armed robbery. And they received a sentence and the sentence was predominantly based upon the drug charge. And so they got probation on the armed assault that they’re involved in. So we know that the drugs that she stole were tested by Annie Dookhan. Although, maybe you could get the pharmacist to say what they were or whatever, but assume for argument’s sake that the drug side of the case is a problem. So that disappears. Well, what about the armed robbery? Are you going to just throw that out, too? I don’t think we are. I mean, we have video tape, she went in, she robbed a pharmacy.
But cases that are strictly drug cases that deal with Annie Dookhan, those are gone?
I think that they are. They’re very hard to save. So, we’re looking to see whether there’s admissions or other things that may affect another cases. But I think it may become increasingly harder not to dismiss or take action that would protect people’s liberty interests.
There have been some folks who’ve pointed to the state of Texas, which has had a smaller problem, but still a problem, with its drug lab. It set up a special appeals court and many of the cases have just been thrown out apparently, according to reports from there. And they think Massachusetts should do the same. And they think it’s a waste of money to try to retry them and go through all of this when you have such a black mark like Annie Dookhan.
Well, on many cases, the drug samples have been thrown out, so then where are you? And even if you had the drug samples around, what’s the level of confidence you have that they weren’t tampered with? So there’s a lot of issues that they have to think about on every case. But I don’t think that – there isn’t anybody here in the commonwealth who has taken the approach to just throw them all out. I think that the prudent thing to do at this time is obviously focus on the Annie Dookhan cases because of what we do know. And then when we find out more information on the rest of the lab, then we’ll draw our own conclusions as to what actions we may have to take. As I said to you, at the end of the day, a lot of those cases could end up getting dismissed. But I don’t think – the ones that should be dismissed, I think, are being dismissed, at least in Norfolk County. And the ones that should stay around, are staying around.
This really first came to light in Norfolk County. There was first a problem noticed with 60 cases? Or 90 cases?
60 cases, 90 samples.
90 samples, 60 cases from here. What happened?
Initially, I think, if I have the dates right – I think in June of 2011 or ’12 – it seems like I’ve been living with it for a long time.
I think it was ’11.
June 2011, Annie Dookhan took 90 samples out of the evidence locker and broke the chain of custody. When drugs are taken to the lab, they go from the local police to the lab, an officer to evidence officer so there’s always a constant accounting of who had possession of the evidence. And there was a day in June of 2011 when the evidence officer wasn’t present and it appeared that Annie Dookhan gained access to the evidence locker and took 90 samples out, performed testing on the drugs, and put the samples back in, signed the book without the oversight and approval of the evidence locker. That took about six months to reach the commissioner’s office and so in December of 2011, it reached the commissioner’s office. And then shortly after that, then it had reached the secretary and/or the governor’s office in January of 2012. In late January, early February, then we received a call from the governor’s legal counsel that there was a problem in the lab with samples, which based upon what they had learned to date, appeared to affect just Norfolk County, and they explained to me what I just explained to you.
At that point, we asked them was the integrity of the testing in question and was it purely a breach of the protocol of the custody of the drugs or what was the nature of the problem? Allegedly at that time that they did a study and an investigation of that and they indicated to us – I think there’s a letter floating around – that there was a breach of the chain of custody, but the integrity of the sampling was consistent with the practices and protocols that they would expect. Now, given what I know now, I’d tell you that probably was not a very good investigation. Because in June of 2012, the state police, as part of a legislative change, the legislature had decided some time prior to that – that the drug functions, testing performed by the Hinton Lab would now be moved to the State Police laboratory, which was nationally accredited and certified. So pursuant to that, they came in and they did an audit and during that audit, they noticed I think what they thought were some abnormalities and things that stood out to them, which, I think, triggered a series of questionings and eventually them to approach and to confront Annie Dookhan.
So, after that 60 case issue, were you satisfied? Did you think, it’s ok or were you suspicious about anything that came out of the lab? Or did you have to do anything differently?
Well, there were two things: I notified all the district attorneys of the problem and their nature so we had made a clear decision that we’d never put Annie Dookhan on the stand ever again after that – whether she had been suspended or not, whether she had active cases – that I would not subject her and would not put her on the stand because I thought that she was unreliable and her credibility would obviously be zero. So, then at that time, we were having problems with Annie Dookhan cases as a result of that and it just compounded itself, the information that we learned in really August of 2012.
What are you hoping to hear from the SJC? Do you think the SJC can help?
Well, they can clarify that the court’s trying to streamline the process to make it easier for us to dispose of and deal with cases that people have. Some of it is that we will need at the end of the day, even if you have the prosecutor’s stamp of approval, you still have to get a court to OK the actions that the parties wish to take. And some of those trying to speed up the process and identify steps that can or can’t be taken, the magistrates have been called in who are retired, experienced judges who tend to know their way around. And so whether or not – how much power and the scope of what power they have and how much help they can be is really at issue right now as to what the Supreme Court will rule. Because we’d hate to think that we were relying upon the actions of a special magistrate retired judge and find out three years from now, oh that judge didn’t have the power to do what we wanted to do, and that would not go well.
So I think the prudent thing to do is to get the Supreme Court, our highest court, to put their stamp of approval on what are the legitimate powers of these magistrates. What can and can’t they do? Or we’re just going to end up being back in the courts. I mean, they’re trying not to clock up the dockets and to deal with this in a straightforward manner and to give it the attention it needs and deserves. And I think that makes some sense and I applaud the courts for the work they’re doing. But we don’t want to just through the technical side of things to make an error and compound our own problems. I think you have to – what do they say – you have to walk before you can run? So we’re walking.
How many judges do you have reviewing these cases in special court sessions, do you know offhand?
I think I have three. I think there’s a Superior Court, maybe one or two Superior Court magistrates. And Judge [Mary] Hogan Sullivan and Judge Mark Coven, who are well-versed, experienced judges who’ve been around for a while in the district court are sitting in Dedham on a regular schedule handling – Mark runs the Quincy District Court, Judge Hogan Sullivan runs the Dedham District Court. And so we’ve got two good people that know the system and can move a case and cut to the chase. So we’re very fortunate that I think we have some good judges in place to help us deal with the problem.
So you feel pretty confident at least in the way the process is going right now?
It is. I mean, people have to I think have a little bit more patience in some respects. That those people who had true liberty interests at stake, I think, are out, you know, who are affected by this. Whether we have to add to that if something were to happen with the rest of the lab, we’ll deal with that when it comes. But based upon the information that we had, we back in February of 2012, we immediately contacted the defense bar. We were very open with them. We gave them copies of the letters and the information we got from the Public Health. We gave them a copy of the investigation we asked them to do and we told them to come forward and we’d be happy to deal with them on their cases. And in a number of cases, we dismissed cases. We didn’t think that we could prove the weights or prove that they’re drugs, even though Annie Dookhan is alleged should have properly done the work, we wouldn’t put her on the stand and therefore, couldn’t prove our case in a number of instances and wouldn’t do that.
Now, throughout all of this, there’s been some discovery evidence released in the case against her that includes emails, a lot of emails between Annie Dookhan and prosecutors, some prosecutors in your office. And people have raised questions about those emails: the informality of them, the friendly nature of them, and question the professionalism. She talks about various cases, and some have said, ‘Is a chemist supposed to know exactly what the case involves? Or does this cross a line of what the chemist’s role is in a case? Is the chemist supposed to be an unbiased scientific tester? Or is the chemist supposed to be more a witness for the prosecution? Do you think that this raises those questions? And how do you explain it?
Well I think that they’re generally thought of to be more as a witness for the prosecution. I think, having tried predominantly civil cases for years, I think it would be a mistake for anybody to put a witness on the stand, particularly an expert, without having the opportunity to talk to them about their opinion and/or their findings. I would consider that malpractice. So, their own written rules and regulations suggest that lawyers talk to the chemist prior to the time that you need them for trial so as to reduce the period of time you’re going to keep them out of the lab. So their own written protocol suggest that you have to do that. I would tell you that that is a practice that a good, prudent lawyer would talk to anybody that they’re going to put on the stand. If you don’t understand their results, how they got there, how to interpret them, you want to find out for the first time when you put them on the stand? I don’t.
I’d fire someone for anything less than that if they weren’t prepared and didn’t understand and hadn’t had the opportunity to talk to their witness. It’s our burden, so generally speaking, thought to be our witness. Now as to some of the communications, I think some of it is generational. I’m older, so I pick up the phone. But even your own business has changed. You were telling me earlier you can take a video and send it in by the press of a button, where before you had to deliver it, cut and splice and paste using razor blades. Well, younger people tend to email and/or text and I think that’s the nature of the communication. I prefer a phone. But some of the attorneys obviously have relationships with people. I mean, there are experts I’ve dealt with over the years that I have personal relationships with, I mean, I’ve just had so many cases with them I’ve gotten to know the person and maybe my conversation would be a little less formal. But the problem I think is that some of the emails are probably unprofessional, but there’s no evidence that any of the writings or any of the district attorneys whether here or in any other county did anything wrong. One of the district attorneys was even questioned by the Attorney General’s office and cleared of any wrongdoing.
And that was Mr. Papachristos.
He stepped down, though.
He did. I think that he’s a professional and he recognized that he didn’t want to be the focus of what the real problem was: and that was Annie Dookhan and the lab. So he decided that he didn’t want to divert attention away from what the real problem was: the person who was performing or not performing the work they should have been doing. He can also say he’s the only one that has actually been cleared by the Attorney General, as a practical matter. There’s no evidence that anything that anybody wrote anything that even that you have seen or even that you have seen or has been produced that would have shaped or changed or affected the outcome of a single case. Now, whether or not it looks that they’re too informal or too friendly, that I would say, obviously, is probably less than professional. And so Mr. Papachristos decided that the better thing for him to do at this time would be for him to leave so that the focus stays on the problem, Annie Dookhan.
But nothing inappropriate in any of those communications, you say?
No, there’s no one. In fact, Mr. Papachristos, I think, only met Annie Dookhan once in a courtroom setting. And that was the only contact that he actually had with her: he met her one day in a case. And I don’t think she even testified. You have to remember that after 2009, Melendez v. Diaz one of the things that happened is that you had the right to face your accuser, and that includes the blood, the ballistics, and the drug chemists. So more and more people would, obviously, they would hold your feet to the fire, force you to bring the chemist to court. And then when you showed up with the chemist and you said, ‘Your Honor, we’re ready for trial, the Commonwealth’s ready. We have Mr. Traub, the chemist from the state lab here. We’re ready to go.’ And then the guy would look at you and say, ‘That’s the chemist?’ And we’d say, ‘Yes.’ And they’d say, ‘Your honor, we’d like to take a plea.’ Because we’re ready to go and we have the chemist. How do you get the chemist there? You talk to them. And if you don’t talk to them, they don’t show, you lose the case, it’s dismissed.
But should the chemist know the specifics of the case, I guess?
I dunno. I mean, it depends. What they’re able to testify: that’s all here say, that doesn’t come in. They can only testify to their personal knowledge. So the question really is: What did you see? What did you test? What is the weight? What is the result? And a good attorney is not going to let them talk about anything else about the case: the search, the seizure, how they got the drugs. They don’t know that. They may have inadvertently learned that from an assistant or a police officer or whoever, but they can’t testify to that. So, the jury never hears that, the judge never hears that. So at the end of the day, what does that matter because they’re limited to that narrow focus of what they’re profession says they can offer an opinion on.
Because of the whole email thing, have you told prosecutors, for example, watch your emails to people, maybe you shouldn’t be so friendly? Or have you had to make any other changes?
Well, no, I mean, those are common sense changes. I think there are two things: first of all, coming out of a private law firm, we do training on a regular basis. And after this, we did reiterate and have additional training on the use of email and disclosures and reminded people that this is a business and obviously, that emails that you would have that would affect that case can under certain circumstances become discoverable so act accordingly. I think people, think they saw that first hand. I think everybody in the system saw that the informality that may have occurred on the part of not just a single prosecutor, but a few prosecutors, has sent the message loud and clear to people that you have to be professional in your approach. So I think that has been a plus. I think some of it generational. I would call someone. I type slow and it would be a waste of time. I click and point. So I mean, for me it’s easy to dial a phone and talk to someone. So I think that it’s important to have a relationship. But I want people to actually – I don’t want to discourage them from still interacting with the lab, who they have to work with as their partners in this case. And I think that having that relationship and being able to talk to someone as you and I are speaking now, is much more important than sending an email or a text. So we’ve tried to at least reiterate: don’t be afraid to call someone. If you have a question, and you think it’s business-like, call them up and get the answer.
When you describe this to your colleagues, how do you describe it? What do you say?
Well the other district attorneys all, they understand it.
What about folks who aren’t in Massachusetts?
Well, as you’ve said, there have been certain hiccups and bumps along the road in a number of jurisdictions, but most people have now heard about the problems in the lab in Massachusetts. I’ve interacted with other district attorneys a couple different places and they now fully understand the gravity of the problem that occurred here. So I think it has forced some people to examine the protocols in their own labs, the oversight, the checks and balances that are going on in the labs to make sure that we truly get the right type of evidence being introduced at a trial. I mean, we don’t want tainted evidence. And we don’t want to convict people in violation of law and their constitutional rights. And that’s the hardest part, I suppose, that there are people who you and I both know there are people who are guilty that I’m letting go.
That’s gotta be difficult.
Well, you keep your fingers crossed as well that, as I said, they won’t do anything stupid. Are they a risk to public safety? I hope not. But if you don’t do that, then you’re going to have a lawless society and where are we going to be? That’s why this country was founded on certain individual freedoms and liberties. It seemed to work well for over 200 years so why should we stand in the way? There’s a whole body of law out there and court decisions that dictates the type and kind of evidence that is legal and not legal. So we should follow the constitutional principles and I think that’s what people expect.