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Bridgeman v. District Attorney for Suffolk District

Supreme Judicial Court of Massachusetts, Suffolk

January 18, 2017

KEVIN BRIDGEMAN & others [1]
v.
DISTRICT ATTORNEY FOR THE SUFFOLK DISTRICT & others. [2]

          Heard: November 16, 2016.

         Civil action commenced in the Supreme Judicial Court for the county of Suffolk on January 9, 2014.

         The 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 Counsel Services.

          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.

         The following were present but did not argue:

          Robert J. Bender & Hallie White Speight, Assistant District Attorneys, for District Attorney for the Middlesex District.

          Gail M. McKenna, Assistant District Attorney, for District Attorney for the Plymouth District.

          Brian S. Glenny, Assistant District Attorney, for District Attorney for the Cape & Islands District.

          Aaron M. Katz, for Massachusetts Association of Criminal Defense Lawyers, amicus curiae.

         The following submitted briefs for amici curiae:

          Joseph S. Dowdy & Christine C. Mumma, of North Carolina, John Roddy, & Denise McWilliams for New England Innocence Project & another.

          Janet Moore, of Ohio, & Patricia A. DeJuneas for National Association for Public Defense. Anthony A. Scibelli & Elizabeth A. Ritvo for Boston Bar Association.

          Daniel 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.

          GANTS, C.J.

         We once 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.

         After 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."[3] 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.

         We 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 counsel.

         We 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 magnitude.[4]

         Background.

         Dookhan 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.

         In 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, supra.
• She admitted to "contaminating samples intentionally, including turning negative samples into positive samples on at least a few occasions." Id.
• 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"[5] drug testing was functioning properly before she ran samples through the machine. Id. at 339-340.
• 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." Id.[6]

         A grand 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.[7] 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.

         In 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.

         In 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).

         We also 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.

         To 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.

         We 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.

         We did 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.

         In 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.

         In 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.

         Consequently, 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."[8]

         In 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.

         The 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.

         We 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.[9] 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.

         The 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."[10] 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 chemist.[11]

         The 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[12] 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.

         The 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.

         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.[13] 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 be found.[14]

         A 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."[15] The district attorneys have not offered any evidence to rebut these claims or to defend the quality of the translation.

         The district attorneys' vendor mailed 20, 916 letters to Dookhan defendants.[16] 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 extremely low:

• 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 filed.
• 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 filed.
• In the Plymouth district, where approximately 2, 000 cases were identified, the district attorney received sixty-five inquiries, including three walk-ins. One motion was filed.
• 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 ...

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