Heard: November 16, 2016.
action commenced in the Supreme Judicial Court for the county
of Suffolk on January 9, 2014.
case was reported by Botsford, J.
Matthew R. Segal (Daniel N. Marx, Adriana LaFaille, &
Carlton E. Williams also present) for the petitioners.
Benjamin H. Keehn, Committee for Public Counsel Services
(Nancy J. Caplan & Eric Brandt, Committee for Public
Counsel Services, also present) for Committee for Public
Quentin R. Weld, Assistant District Attorney, for District
Attorney for the Essex District.
Susanne M. O'Neil, Assistant District Attorney, for
District Attorney for the Norfolk District.
Vincent J. DeMore, Assistant District Attorney, for District
Attorney for the Suffolk District.
following were present but did not argue:
J. Bender & Hallie White Speight, Assistant District
Attorneys, for District Attorney for the Middlesex District.
M. McKenna, Assistant District Attorney, for District
Attorney for the Plymouth District.
S. Glenny, Assistant District Attorney, for District Attorney
for the Cape & Islands District.
M. Katz, for Massachusetts Association of Criminal Defense
Lawyers, amicus curiae.
following submitted briefs for amici curiae:
S. Dowdy & Christine C. Mumma, of North Carolina, John
Roddy, & Denise McWilliams for New England Innocence
Project & another.
Moore, of Ohio, & Patricia A. DeJuneas for National
Association for Public Defense. Anthony A. Scibelli &
Elizabeth A. Ritvo for Boston Bar Association.
K. Gelb, Chauncy B. Wood, Naveen Ganesh, & Peter
Walkingshaw for National Association of Criminal Defense
Lawyers & another.
Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy,
& Budd, JJ.
again confront the tragic legacy of the misconduct of Annie
Dookhan when she was employed as a chemist at the William A.
Hinton State Laboratory Institute (Hinton lab). In
Bridgeman v. District Attorney for the
Suffolk Dist., 471 Mass. 465, 487 (2015) (Bridgeman
I), the petitioners and the intervener, the Committee
for Public Counsel Services (CPCS), asked that we exercise
our broad powers of superintendence to vacate the thousands
of drug convictions affected by Dookhan's misconduct
because the time and expense of case-by-case adjudication had
become "untenable." We declined at that time to
adopt their proposed "global remedy." However, the
district attorneys have now provided the single justice with
lists identifying more than 20, 000 defendants who could be
eligible for relief based on Dookhan's misconduct but who
have not yet sought relief from their drug convictions. As a
result of the number of potentially aggrieved defendants, the
single justice issued a reservation and report to the full
court that essentially invites us to reconsider whether the
time has come for a global remedy or whether further steps
must be taken to realistically implement the remedy of
case-by-case adjudication of potentially thousands of motions
for a new trial.
such reconsideration, we decline to adopt the district
attorneys' argument that we should stay the course we had
previously set and take no further action to protect the
rights of the "relevant Dookhan
defendants." We also decline to adopt the
petitioners' request for a global remedy in which we
would either vacate the convictions of all relevant Dookhan
defendants with prejudice, and thereby bar any reprosecution,
or vacate the convictions without prejudice, and allow the
Commonwealth one year to reprosecute, dismissing with
prejudice all cases not reprosecuted within that time period.
instead adopt a new protocol for case-by-case adjudication,
which will occur in three phases, and order its
implementation by the single justice in the form of a
declaratory judgment. In the first phase, the district
attorneys shall exercise their prosecutorial discretion and
reduce the number of relevant Dookhan defendants by moving to
vacate and dismiss with prejudice all drug cases the district
attorneys would not or could not reprosecute if a new trial
were ordered. In the second phase, new, adequate notice shall
be approved by the single justice and provided to all
relevant Dookhan defendants whose cases have not been
dismissed in phase one. In the third phase, CPCS shall assign
counsel to all indigent relevant Dookhan defendants who wish
to explore the possibility of moving to vacate their plea or
for a new trial. If the number seeking counsel is so large
that counsel cannot be assigned despite CPCS's best
efforts, the single justice will fashion an appropriate
remedy under our general superintendence authority for the
constitutional violation, which may include dismissing
without prejudice the relevant drug convictions in cases
where an indigent defendant is deprived of the right to
recognize that the implementation of this protocol will
substantially burden the district attorneys, CPCS, and the
courts. But we also recognize that Dookhan's misconduct
at the Hinton lab has substantially burdened the due process
rights of many thousands of defendants whose convictions
rested on her tainted drug analysis and who, even if they
have served their sentences, continue to suffer the
collateral consequences arising from those convictions. And
we recognize as well that, more than four years after
Dookhan's misconduct was revealed, more than 20, 000
defendants who are entitled to a conclusive presumption that
egregious government misconduct occurred in their case have
yet to receive adequate notice that they may have been
victimized by Dookhan's misconduct, that they may file a
motion to vacate their drug conviction, and that they have a
right to counsel to assist them in the preparation of such a
motion. The remedy we order, challenging as it is to
implement, preserves the ability of these defendants to
vindicate their rights through case-by-case adjudication,
respects the exercise of prosecutorial discretion, and
maintains the fairness and integrity of our criminal justice
system in the wake of a laboratory scandal of unprecedented
began her employment in November, 2003, as a chemist at the
Hinton lab, a forensic drug laboratory that was overseen by
the Department of Public Health (department). See
Commonwealth v. Scott, 467 Mass.
336, 338 (2014); Commonwealth v.
Charles, 466 Mass. 63, 64 (2013). Allegations of
misconduct regarding her work surfaced in June, 2011, which
triggered an internal review and then a formal internal
investigation by the department in December, 2011.
Charles, supra. The department concluded
that "Dookhan failed to follow [Hinton lab] protocols
for the transfer and documentation of samples for testing,
and subsequently created a false record of said
transfers." Id. Dookhan was placed on paid
administrative leave and then resigned from her position,
effective March 9, 2012. Id.
July, 2012, the Legislature transferred oversight of the
Hinton lab to the State police. See St. 2012, c. 139, §
56 (replacing G. L. c. 22C, § 39); St. 2012, c. 139,
§ 107 (repealing G. L. c. Ill. §§ 12-13). See
also Scott, 467 Mass. 338. In August, 2012, the
State police initiated a more extensive investigation of the
Hinton lab, which "revealed numerous improprieties
surrounding Dookhan's conduct in the lab."
Id. at 339. See Charles, 466 Mass. at 64.
Based in part on Dookhan's confession of misconduct on
August 28, 2012, the State police investigation revealed,
among other misconduct, the following:
• Dookhan "admitted to 'dry labbing' for
two to three years prior to her transfer out of the [Hinton]
lab in 2011, meaning that she would group multiple samples
together from various cases that looked alike, then test only
a few samples, but report the results as if she had tested
each sample individually." Scott,
• She admitted to "contaminating samples
intentionally, including turning negative samples into
positive samples on at least a few occasions."
• She admitted that she removed samples from the
evidence locker in breach of Hinton lab protocols, postdated
entries in the evidence log book, and forged an evidence
officer's initials. Id.
• She falsified reports intended to verify that the gas
chromatography-mass spectrometer machine used in
"confirmatory" drug testing was functioning properly
before she ran samples through the machine. Id. at
• The potential scope of Dookhan's misconduct
encompassed testing samples in over 40, 000 cases.
Id. at 340. This number is so large because Dookhan
"reported test results on samples at rates consistently
much higher than any other chemist in the [Hinton] lab."
jury indicted Dookhan on seventeen counts of tampering with
evidence, eight counts of obstruction of justice, one count
of perjury, and one count of falsely claiming to hold a
graduate degree. Dookhan pleaded guilty to all of the
indictments on November 22, 2013, and she was sentenced to
from three years to five years in State prison, followed by a
probationary term of two years. Scott, 467 Mass. at
337 & n.3. The revelations regarding Dookhan's
misconduct triggered the filing of hundreds of motions for a
new trial and for a stay of execution of sentence in cases
where the defendant was convicted of a drug crime based on a
drug analysis conducted by the Hinton lab. Charles,
466 Mass. at 65-66. To address this onslaught of motions, the
Chief Justice of the Superior Court in October, 2012,
assigned specific judges in seven counties to preside over
special "drug lab" sessions. Id. at 65. To
assist these judges in the adjudication of these cases, the
Chief Justice of the Superior Court in November, 2012,
exercised her authority under Mass. R. Crim. P. 47, 378 Mass.
923 (1979), to appoint five retired Superior Court judges as
"Special Judicial Magistrates of the Superior
Court" to preside over postconviction motions related to
the Hinton lab. Id. at 66.
Scott, 467 Mass. at 337-338, we considered the
appropriate legal standard where a defendant, in response to
government misconduct in his or her case, moves to withdraw a
guilty plea or an admission to sufficient facts to warrant a
finding of guilty. We adopted the two-pronged test in
Ferrara v. United States, 456 F.3d 278, 290 (1st
Cir. 2006), which requires a defendant who seeks to vacate a
guilty plea because of government misconduct to show
"both that 'egregiously impermissible conduct . . .
by government agents . . . antedated the entry of his
plea' and that 'the misconduct influenced his
decision to plead guilty or, put another way, that it was
material to that choice.'" Scott,
supra at 346.
considering whether the defendant had satisfied the first
prong of this test, we concluded that, because Dookhan
"made a number of affirmative misrepresentations by
signing [certificates of drug analysis (drug certificates)]
and testifying to the identity of substances in cases in
which she had not in fact properly tested the substances in
question, " Dookhan's misconduct was
"egregious." Id. at 348. We also concluded
that, even though there was no indication that any prosecutor
knew of her egregious misconduct, Id. at 350 n.7,
her misconduct is "attributable to the government"
for purposes of a motion for a new trial, Id. at 350
& n.7, because as a primary and secondary chemist she
"participated in the investigation or evaluation of the
case" and "reported to the prosecutor's office
concerning the case." Id. at 349, quoting
Commonwealth v. Martin, 427 Mass.
816, 824 (1998).
recognized the dilemma that a defendant would face in
attempting to prove that the laboratory analysis in his or
her case was tainted by Dookhan's misconduct. See
Scott, 467 Mass. at 339, 351-352. We noted that
Dookhan acknowledged "that she may not be able to
identify those cases in which she tested the samples properly
and those in which she did not." Id. at 339.
"Thus, even if Dookhan herself were to testify in each
of the thousands of cases in which she served as primary or
secondary chemist, it is unlikely that her testimony, even if
truthful, could resolve the question whether she engaged in
misconduct in a particular case." Id. at 352.
Because it was "reasonably certain . . . that her
misconduct touched a great number of cases, "
Id., but "may be impossible" for any
defendant to prove that the drug analysis in his or her case
was tainted by her misconduct, Id. at 351, we
recognized that her "particularly insidious form of
misconduct, which belies reconstruction, " resulted in
"a lapse of systemic magnitude in the criminal justice
system." Id. at 352.
resolve this dilemma, we exercised our power of "general
superintendence of all courts ... to correct and prevent
errors and abuses" under G. L. c. 211, § 3, and
held that, where Dookhan signed the drug certificate in a
defendant's case as an assistant analyst, that is, as the
primary or confirmatory chemist, see Scott, 467
Mass. at 353 n.9, a defendant who seeks to vacate his or her
plea after learning of Dookhan's misconduct "is
entitled to a conclusive presumption that egregious
government misconduct occurred in [his or her] case."
Id. at 352. The consequence of the conclusive
presumption of egregious government misconduct is that a
defendant can satisfy the first prong of the Ferrara
test simply by showing that Dookhan signed the drug
certificate in his or her case as an assistant analyst.
Id. at 353.
emphasized in Scott that the "special
evidentiary rule" of a conclusive presumption is
"sui generis" -- "a remedy dictated by the
particular circumstances surrounding Dookhan's
misconduct" that was "intended to apply only to
this narrow class of cases in which a defendant seeks to
withdraw his or her guilty plea after having learned of
Dookhan's misconduct." Id. at 353-354. We
declared that "it is most appropriate that the benefit
of our remedy inure to defendants" where, as here, there
is "government misconduct that has cast a shadow over
the entire criminal justice system." Id. at
352. The remedy of a conclusive presumption, we concluded,
takes into account "the due process rights of
defendants, the integrity of the criminal justice system, the
efficient administration of justice in responding to such
potentially broad-ranging misconduct, and the myriad public
interests at stake." Id.
not relieve a defendant of the burden to satisfy the second
prong of the Ferrara test by demonstrating that he
or she suffered prejudice by pleading guilty or admitting to
sufficient facts without having learned of Dookhan's
misconduct, i.e., we did not conclusively presume such
prejudice. Id. at 354-355, 356. The defendant,
therefore, bears the burden of proving "a reasonable
probability that he [or she] would not have pleaded guilty
had he [or she] known of Dookhan's misconduct, " and
instead would have chosen to go to trial. Id. at
355. We noted that, "[u]nlike evidence of the particular
scope of Dookhan's misconduct, evidence of the
circumstances surrounding the defendant's decision to
tender a guilty plea should be well within the
defendant's reach." Id. at 354 n.11.
Commonwealth v. Francis, 474 Mass.
816 (2016), we reviewed the denial of a defendant's
motion for a new trial where the defendant had been convicted
at trial of drug charges after drug certificates were
admitted in evidence that were signed by Dookhan as an
assistant analyst. We concluded that the conclusive
presumption of "egregious government misconduct" is
not limited to motions to withdraw guilty pleas, but that,
where the defendant has been convicted at trial, "[t]he
consequence of the conclusive presumption is that we deem it
error to have admitted the drug certificates or comparable
evidence regarding Dookhan's drug analysis where the
defendant had no knowledge of Dookhan's misconduct and
therefore no opportunity to challenge the admissibility or
credibility of that evidence." Id. at 817.
Commonwealth v. Ruffin, 475 Mass.
1003, 1003-1004 (2016), we declined to apply the conclusive
presumption of "egregious government misconduct"
where the defendant had pleaded guilty before
Dookhan had signed the drug certificate as an assistant
analyst, because her misconduct cannot be said to have
affected the defendant's plea where the plea occurred
before the misconduct.
after our opinions in Scott, Francis, and
Ruffin, the defendants who are entitled to the
conclusive presumption of "egregious government
misconduct" are those who pleaded guilty to a drug
charge (or admitted to sufficient facts to warrant a finding
of guilty) or who were found guilty of a drug charge at trial
after Dookhan signed a drug certificate in their
case as a primary or confirmatory chemist. We refer to these
as the "relevant Dookhan defendants."
Bridgeman I, 471 Mass. at 473-494, we considered two
sets of issues raised by relevant Dookhan defendants who
potentially were eligible for relief from their convictions
because of Dookhan's misconduct, but who had not yet
moved for postconviction relief. The first set of issues
identified concerns that were discouraging these defendants
from seeking that relief. The most significant was the risk
that, if their motion for a new trial were granted, the
Commonwealth could reprosecute them not only on the charge to
which the defendants had pleaded guilty but also on any
charge that was dismissed at the time of the plea, and seek a
more severe sentence, especially where the dismissed charge
carried a mandatory minimum sentence upon conviction.
Id. at 472-473. Drawing broadly on the need to
"ameliorate [the] damaging effects" of
Dookhan's misconduct, Id. at 474, we held that
"a defendant who has been granted a new trial based on
Dookhan's misconduct at the Hinton . . . lab cannot be
charged with a more serious offense than that of which he or
she initially was convicted under the terms of a plea
agreement and, if convicted again, cannot be given a more
severe sentence than that which originally was imposed."
Id. at 468.
second set of issues in Bridgeman I concerned the
fairness and practicability of attempting individually to
resolve the multitude of motions for a new trial that
potentially could be brought by the Dookhan defendants. We
allowed the motion to intervene filed by CPCS under Mass. R.
Civ. P. 24 (a), 365 Mass. 769 (1974), recognizing that
"[i]t has a substantial and immediate interest in these
proceedings given its current and future responsibility for
providing representation to thousands of indigent Dookhan
defendants who want to pursue postconviction relief from
their drug convictions." Bridgeman I, 471 Mass.
at 485-486. We then addressed CPCS's contention that,
because so many cases were affected by Dookhan's
misconduct, the "time and expense of proceeding on a
case-by-case basis has become untenable, " and we
therefore should implement a "global remedy" to
resolve these cases pursuant to our broad powers of
superintendence under G. L. c. 211, § 3. Bridgeman
I, supra at 487. Under the global remedy that
CPCS proposed, we would vacate the convictions of all Dookhan
defendants. Id. CPCS offered two alternatives: we
could vacate the convictions with prejudice, and thereby bar
any reprosecution; or we could vacate the convictions without
prejudice, and allow the Commonwealth one year to
reprosecute, dismissing with prejudice all cases not
reprosecuted within that time period. Id.
declined in Bridgeman I to implement a global remedy
"at this time." Id. We noted that
"while ' [i]t certainly is true that we cannot
expect defendants to bear the burden of a systemic lapse, ...
we also cannot allow the misconduct of one person to dictate
an abrupt retreat from the fundamentals of our criminal
justice system.'" Id., quoting
Scott, 467 Mass. at 354 n.11. We also noted that we
had already provided "meaningful solutions" to
resolve these cases in Scott and Charles,
and that, in Bridgeman I, we were removing the
barriers that made defendants reluctant to file motions to
withdraw their guilty pleas. Id. at 480, 487. And we
noted that some district attorneys had made progress in
providing CPCS with the docket numbers of the cases in which
Dookhan was the primary or confirmatory chemist, and
encouraged the remaining district attorneys with such cases
to assist the single justice in obtaining docket numbers for
their districts. Id. at 481. We recognized that
"efforts to provide postconviction relief to Dookhan
defendants [had] been hampered by the inability of CPCS to
ascertain which cases may have been tainted by Dookhan's
misconduct, " and that "[t]he ability of CPCS to
identify clients and to assign them attorneys who will
represent their interests in postconviction proceedings is
crucial to the administration of justice in the Hinton . . .
lab cases." Id. at 480. We remanded the case to
the single justice for further proceedings consistent with
the opinion. Id. at 494.
single justice joined as respondents the district attorneys
for the Cape and Islands, Middlesex, Norfolk, and Plymouth
districts, and allowed the motion of the district attorney
for the Bristol district to intervene. The single justice
ordered the district attorneys to produce lists with the
names, docket numbers, and personal identifying information
for every "adverse disposition concerning every G. L. c.
94C charge" of the "Dookhan
defendants." In May, 2016, the district attorneys
produced lists that contained the names of more than 20, 000
defendants with more than 24, 000 cases where they had
pleaded guilty to a drug charge, had admitted to sufficient
facts to warrant a finding of guilty of a drug charge, or had
been found guilty at trial of a drug charge where Dookhan had
tested the alleged drugs as the primary or confirmatory
single justice also asked the parties to attempt to agree on
the content of a letter of notice to the Dookhan defendants
informing them that their drug cases had been potentially
tainted by Dookhan's misconduct. After the submission of
the lists, however, the Bridgeman petitioners and
CPCS would not agree to any notice that
presumed case-by-case litigation, because they contended
that, given the large number of Dookhan defendants and the
limited resources of CPCS, the notice could not truthfully
inform the Dookhan defendants that attorneys were available
to represent them in these cases. They asked the single
justice to reserve and report to the full court the question
"whether all cases involving misconduct by Annie Dookhan
should be dismissed or subjected to a court-ordered
deadline." The district attorneys opposed the
reservation and report, arguing that the notices would
provide all Dookhan defendants the opportunity to seek
relief. They also contended that the Bridgeman petitioners
"significantly overstate the apparent degree of
interest on the part of the Dookhan defendants in revisiting
settled cases." The single justice issued a reservation
and report on August 16, 2016.
district attorneys advised the single justice before the
issuance of the reservation and report that they intended to
send notices regardless of whether the case was reported to
the full court. On August 29, 2016, the district attorneys
filed in the county court a letter attaching the notice they
intended to send on or before September 1. The Bridgeman
petitioners informed the district attorneys that the notice
was misleading and poorly translated. At a hearing on
September 6, the single justice invited the district
attorneys to delay sending the notice, but the district
attorneys announced that the mailing had already begun. On
September 7, CPCS filed an emergency motion asking the full
court to halt further dissemination of the notice; the court
denied the motion but ordered the district attorneys to keep
records of all documents and communications arising from the
notice was mailed in an envelope with the return address of
"RG/2 Claims Administration LLC, " and a post
office box in Philadelphia, Pennsylvania, along with the
words "IMPORTANT LEGAL NOTICE FROM THE COMMONWEALTH OF
MASSACHUSETTS" near the return address. The notice
informed each defendant that, according to court records, he
or she was convicted of one or more drug offenses in a
specified county between 2003 and 2011; that it has been
determined that Dookhan tested the drugs in the case; and
that Dookhan "admitted to misconduct in her work at the
[Hinton] lab." It advised the defendant that, because
Dookhan tested the evidence, he or she has certain rights,
specifically, "the right to challenge the drug
conviction(s) listed in this notice" and that "if
[the defendant is] tried and convicted again, [he or she]
will not face any punishment greater than what [he or she]
already received." The notice asked the defendant to
contact his or her original lawyer on the case if he or she
has any questions, and also invited the defendant to speak
with a new lawyer. The notice further invited the defendant,
should he or she not know how to contact the original lawyer,
to get that information at the criminal clerk's office
where the case was adjudicated, and provided the Web site
address where the physical address of the relevant court can
Spanish translation of the notice was included on the bottom
of the page. According to the Bridgeman petitioners, this
translation "contained numerous errors and was not
readily understandable to a person who speaks Spanish but not
English." The district attorneys have not offered
any evidence to rebut these claims or to defend the quality
of the translation.
district attorneys' vendor mailed 20, 916 letters to
Dookhan defendants. The vendor was unable to locate the
addresses for 1, 006 defendants, and 5, 767 of the letters
that were sent were returned undelivered. For those letters
returned undelivered, the vendor searched for a secondary
address and sent out an additional 964 notices. As of October
24, 2016, the over-all response rate to these mailings was
• In the Bristol district, where approximately 2, 200
cases were identified, the district attorney received
thirty-nine telephone calls and three motions were filed.
• In the Cape and Islands district, where approximately
1, 300 cases were identified, the district attorney received
thirty-nine calls and one walk-in inquiry. No motions were
• In the Essex district, where approximately 4, 200
cases were identified, the district attorney received
forty-six telephone calls and twelve walk-in inquiries. Seven
motions were filed.
• In the Middlesex district, where approximately 3, 500
cases were identified, the district attorney received
seventy-seven telephone calls and seven walk-in inquiries.
Two motions were filed.
• In the Norfolk district, where approximately 2, 300
cases were identified, the district attorney received
approximately one hundred inquiries. Seven motions were
• In the Plymouth district, where approximately 2, 000
cases were identified, the district attorney received
sixty-five inquiries, including three walk-ins. One motion
• In the Suffolk district, where approximately 8, 600
cases were identified, the district attorney received 322
telephone calls and walk-in inquiries. In response, the
office has moved to vacate and enter a nolle prosequi in 175
of these cases. No motions to withdraw a ...