In 2012, it was discovered that Annie Dookhan, a Massachusetts state drug lab technician, had falsified thousands of drug test results. Perhaps this would have been discovered before it became catastrophic, but supervisors seemed impressed with her productivity and dumped even more of the testing workload on her.
The end result of Dookhan's fakery was a caseload of well over 40,000 convictions that needed to be reexamined. It also resulted in Dookhan being sent to jail for three years. Dookhan is out now, but more than 20,000 of the possibly-tainted convictions still haven't been addressed. This makes it likely there are people still falsely incarcerated while the person who helped put them there is back on the streets.
Presiding over what's left of Dookhan's mess is Massachusetts' highest court. It has been weighing various solutions to expedite the processing of more than 20,000 possibly wrongful convictions. One suggestion is that all remaining convictions be immediately vacated, with the option left to state prosecutors to reopen any they feel are still legitimate.
State prosecutors, however, aren't nearly as willing to see 20,000 convictions overturned. Their suggestion is the complete opposite: that they be allowed to continue doing not much about it while people continue to do time for crimes they didn't commit, or live a less-full life thanks to a bogus felony conviction on their record. In fact, as Fault Lines' Josh Kendrick points out, the DA's office seems to feel wrongful convictions aren't really a big deal.
The DAs argued a majority of the affected defendants might not be interested in a remedy, because there was little adverse impact from a closed chapter in their life. The Court was skeptical of this argument, because it is
bullshit highly unlikely anybody wants to keep a wrongful drug conviction on their record out of convenience.
The court thinks even less of the DA's mass mailing attempt to notify those affected by Dookhan's drug lab fakery. From the decision [PDF]:
The shortcomings begin with the envelope itself, which identified the source of the letter as "RG/2 Claims Administration LLC," a source that would appear inconsistent with the words on the envelope, "IMPORTANT LEGAL NOTICE FROM THE COMMONWEALTH OF MASSACHUSETTS." Such an envelope invites the risk that the notice might be unopened and discarded as "junk mail."
Among the shortcomings of the letter itself are that it failed adequately to inform the Dookhan defendants that the Supreme Judicial Court has determined that they are entitled to a conclusive presumption that the drug analysis in their case was tainted by egregious government misconduct. Nor did it adequately inform them that, as a result, this court has determined that they are entitled to withdraw their guilty plea on drug charges if they can show a reasonable probability that they would not have pleaded guilty, and instead would have decided to go to trial, had they known of Dookhan's misconduct.
The letter also failed to inform the Dookhan defendants that they had a right to counsel if they sought to withdraw their plea or move for a new trial and that, if they could not afford counsel, one would be appointed for them. Instead, it invited them to speak to their original lawyer on the case and, if they did not know how to contact that lawyer, invited them to obtain that information from the relevant criminal clerk's office. The letter also invited them to contact the office of the district attorney who prosecuted them "[f]or more information." It did not provide a telephone number for CPCS or for any other entity that conducts criminal defense.
Not only that, but nearly 6,000 of these letters were returned as undeliverable and the DA's office sent out less than 1,000 second attempts to different addresses. Half-assing its way towards cleaning up thousands of wrongful convictions isn't something the court is willing to let the DA's office continue doing.
The court splits the difference. It's better than allowing the DA's office to slow-walk the conviction rollback, but it's not nearly as expedient as vacating the remaining 20-24,000 convictions. First off, the court puts a strict time limit on the reexamination of the remaining cases.
Upon the issuance of this opinion, each district attorney shall commence an individualized review of every Dookhan case in his or her district that was included on the list that the district attorney earlier submitted to the single justice. No later than ninety days after the issuance of this opinion, each district attorney shall file three letters with the county clerk.
This is something the DA's office has had years to do but still hasn't. Now, it will have to complete this task within the next three months. The first letter would identify any cases where defendants pled guilty before Dookhan signed the drug certification. These defendants would not be given a presumption of egregious government misconduct if their cases are reopened. The second letter would contain a list of any convictions the DA's office has proactively chosen to dismiss with prejudice, whether or not it feels the conviction might hold up under reexamination. The third letter would contain any convictions the state feels would still hold up in court despite Dookhan's misconduct. Recipients of the first and third letters would be given access to public defenders during legal proceedings.
After this face, new attempts to notify Dookhan defendants will begin, with a letter whose content, envelope, and delivery method will all have to be approved by the court.
The mailing should permit a relevant Dookhan defendant to declare, simply by checking a box, that the defendant wishes to discuss with counsel whether the defendant should attempt to vacate his or her drug conviction by filing a motion for a new trial, and should also include a form indigency affidavit for the defendant to fill out if he or she claims to be indigent and therefore qualifies for the assignment of counsel. CPCS is encouraged to draft and include within the mailing a separate letter providing the legal guidance and information that CPCS would generally provide to a relevant Dookhan defendant who would telephone its hotline.
Better still, the court says the prosecutor's office will bear the full cost of these efforts.
The financial burden of notifying defendants of egregious government misconduct that affected their criminal cases must be borne by the prosecuting district attorney's office, even if, as here, the fault belongs to the Hinton lab and Dookhan, not the prosecutors. Therefore, the cost of providing new and adequate notice, including but not limited to the cost of mailing, of locating missing defendants, and of publicity through social and other media, shall be borne by the district attorneys, with the allocation of those costs to be determined by the single justice. We recognize that this cost could be considerable, but that is a consequence of egregious government misconduct that affected more than 20,000 defendants.
And if the prosecutor's' office doesn't like seeing its budget eaten up by these efforts to right the lab's wrongs, it has everything it needs to control the bleeding.
We also note that a district attorney may reduce the amount of this cost by reducing the number of defendants identified in the third letter.
The concurring opinion reinforces this point: stemming the bleeding relies heavily on the state's willingness to vacate convictions:
Just as the success of the Bridgeman II protocol will depend on its timely and rigorous implementation, so too will its viability turn, at least initially, on the willingness of the district attorneys promptly to dismiss with prejudice a truly significant number of the roughly 20,000 relevant Dookhan defendants' cases -- at a minimum, those for simple possession in which sentences already have been served. Not doing so in the first phase of the protocol will of necessity add to the already staggering human and financial costs of the scandal and risk overloading the already strained public defense system.
And it adds this chilling hint of things to come:
In this regard, we cannot turn a blind eye to the potential costs of the looming crisis of thus far undetermined magnitude caused in western Massachusetts by Sonja Farak, yet another rogue chemist employed by a State laboratory.
The dissenting opinion says the route the court didn't take -- immediate vacation of all affected convictions -- is the only correct way to shift the burden where it should be: from the falsely-convicted defendants to the office that convicted them.
Contrary to the court's assessment of the case-by-case procedure offered as the solution to the problem the court is obliged to solve, it is neither the fairest nor the best alternative for remedying the manifest injustice to the defendants caught up in the Dookhan scandal and for restoring the integrity to our criminal justice system. It fails as the "fairest" alternative because it flouts the guiding principle that "in the wake of government misconduct that has cast a shadow over the entire criminal justice system, it is most appropriate that the benefit of the remedy inure to the defendants." [...] It also fails as the "best" alternative because it is simply unworkable as a timely and effective mechanism for addressing the due process claims of the thousands of defendants now deemed to have been convicted on Dookhan's tainted evidence. In short, the court's solution is too little and too late.
The court is too timid to adopt the only remedy that's going to save the state from a nightmarish future. A justice hinted there's another set of bogus convictions on the horizon, possibly on the same scale as the Dookhan misconduct. How the hell is the state going to handle concurrent, overlapping attempts to right its drug lab's wrongs? The only way it can stay ahead of the damage done by its drug lab is to do what the court is unwilling to order: begin vacating sentences en masse. But the DA's office seems to believe it's better than plenty of innocent people remain locked up, than one guilty man go free.