Can Defendants Convicted by Tainted Evidence Ever Truly Be Free?

As Massachusetts begins to unravel the fallout of 40,000 convictions obtained with tainted evidence, a bigger question looms: Can the state really do justice by those defendants?
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(Photo: Dean Calma/IAEA)

(Photo: Dean Calma/IAEA)

“You know, there’s a lot of psychological things they do to you in [prison],” says Timothy Taylor, “just to try and break you down.”

Taylor, 50, is one of the “Dookhan defendants”: the people who were convicted with evidence tested by chemist Annie Dookhan at the Hinton Drug Lab in Boston. Between 2003 and 2012, these 24,000 cases, spanning seven districts, accounted for nearly one in six drug cases in Massachusetts over the course of a decade. The majority of them were for simple possession. Dookhan was arrested in 2012 after it was revealed that she had fabricated evidence, forged signatures, and altered drug samples. In 2013, Dookhan pleaded guilty and was sentenced to three to five years in prison, with two years probation. She was paroled in 2016.

Dookhan was not the only drug technician to fabricate evidence. Sonja Farak of the Amherst Drug Lab was arrested within months of Dookhan, for gross misconduct spanning the course of a decade. The offenses ranged from stealing to using and manufacturing drugs in the lab. Between Dookhan and Farak, over 40,000 convictions were procured with tainted evidence.

Now, four years after Dookhan’s arrest, prosecutors’ hands have been forced by the state’s highest court into clearing this mess up. On January 18th, 2017, the Massachusetts Supreme Judicial Court ruled that prosecutors had 90 days to decide which of the 24,000 cases would be dismissed and which they wanted to re-prosecute. The court also ruled that the burden of this work, both financial and otherwise, rested with the prosecutors. How the state will proceed in addressing the cases tainted by Farak’s conduct between 2002 and 2013 is still being sorted out.

The Massachusetts drug lab scandal has exposed a rift in the way the justice system works. For the state, this is the result of two bad apples and not enough oversight in the labs, something that’s already been fixed with the removal of the two problematic lab technicians. But for advocates and many defendants, making this right is not as simple as deciding whether to dismiss the tainted cases; they’re seeking reparations, and an acknowledgment of harm done from the state. They also see these two technicians as but a symptom of a much larger problem that is rooted in the justice system itself, and the ways law enforcement and society perceive drug crimes.

Taylor was serving a five- to seven-year sentence on a 2009 trafficking conviction he’d already been working on appealing when he found out about Dookhan’s arrest. He checked his paperwork and Dookhan’s name was signed on the drug certificate. Taylor maintains his innocence in the case, explaining that he pleaded guilty because he was facing 16 to 30 years in prison if the case went to trial. Faced with a sentence of that length, “I pled out; I took the five to seven.” But in light of Dookhan’s conviction and the questionable nature of any drug lab testing performed at the Hinton drug lab, Taylor withdrew his guilty plea. He is currently waiting re-trial.

The state has argued that few Dookhan defendants would want to be notified about the potential to appeal their convictions because they wouldn’t be interested in “re-opening a closed chapter in their lives,” something the Supreme Judicial Court challenged in its January 18th ruling, citing “the serious and pervasive collateral consequences” associated with the convictions.

“We don’t know what deal people would or would not have taken based on the fact that they were being told that their drugs were being evaluated by these drug labs that were involved in this scandal.”

Taylor is evidence of the collateral consequences Dookhan defendants face. Since his release from prisonthree years ago, he has been homeless. His public-housing application is on hold until he appeals his conviction. The only work he’s been able to find is flipping burgers at Five Guys. When he was arrested, he says he was in the process of trying to adopt his son; while he was incarcerated, another family did just that. Before his arrest, he says he had been stably housed, looking to open his own restaurant, and doing advocacy and education around rights for former offenders. “I used to go in front of the Boston Common in front of 11 delegates from different states to say this is the problem, [Criminal Offender Record Information reform] needs to be addressed,” Taylor says. The roadblocks he now faces are ones he’s all too familiar with.

The fallout from these cases is complicated. Many first-time offender Dookhan defendants have been convicted of second offenses since. And repeat offenders in all states have been proven to receive harsher sentencing — a sentencing Dookhan defendants like Taylor allege have already been and could continue to be influenced by the tainted evidence.

The complicated nature of all of this is part of why advocates and defense lawyers are pushing for all 24,000 cases to be dismissed. The American Civil Liberties Union in particular has been calling for mass dismissal since Dookhan’s arrest in 2012, when it partnered with Families Against Mandatory Minimums in urging the state to dismiss all Dookhan convictions to avoid “protracted litigation.”

Jake Wark, press secretary for the Suffolk County district attorney’s office, says that, earlier in the procedural history of the Dookhan proceedings, the court laid out a framework asking if the defendant would have pleaded guilty if they’d known that Dookhan’s certification of drugs was unreliable. “For a lot of defendants, the answer is still yes because they know they were in possession of an illicit substance,” Wark says.

But Jason Lydon of the No Drug Arrests Collective disagrees. “We don’t know what deal people would or would not have taken based on the fact that they were being told that their drugs were being evaluated by these drug labs that were involved in this scandal,” he says. Taylor is adamant: “Had I known Annie Dookhan was doing what she was doing, I would never [have] pleaded guilty.”

The state sees itself as a victim of Dookhan and has said as much in its arguments, citing the time and budgets it feels have been squandered to re-examine such a large number of cases. “That kind of mindset makes me think the state will do the bare minimum possible,” says Oren Nimni, an attorney at Community Law Office who has advised clients with Dookhan convictions.

Drug reform advocates like Lydon say the real victims here are not what they see as a corrupt legal system, but the lives of those who are affected by, in Lydon’s words, “a system built to uphold white supremacy.” The NDAC is pushing for all of the cases touched by both Dookhan and Farak to be dismissed, but they’re also asking for more than that. “There needs to be a clearing of records, but also reparations,” Lydon says.

They’re calling on the state to provide financial reparations for individuals who were incarcerated, as well as a complete effort by prosecutors and district attorney’s offices to ensure that Dookhan defendants who lost public housing are re-homed, and any whose convictions triggered immigration issues to have said investigations halted. “[Defendants] could conceivably seek [reparations], but they would have a pretty high burden of proving that they were factually innocent, which would be the standard for compensation under the state’s wrongful conviction law,” Wark says.

The NDAC sent a letter to the district attorney’s office that was signed by over 40 organizations; citizens sympathetic to the cause have been flooding the district attorney’s offices with phone calls as well. Despite the pressure, Lydon says they’ve received no response from the state.

Last week, it was announced that the majority of the cases handled by Dookhan will be vacated by mid-month. It’s predicted that only a few hundred cases of the 24,000 will be attempted to be re-tried. Susanne M. O’Neil, a Norfolk County assistant district attorney, told the Boston Globe, “I think the court will be happy with the numbers.” The NDAC, however, is not. “One hundred percent of the tainted convictions should be dismissed and then people should be paid reparations for the harm they experienced and the injustice they endured as a result of their tainted conviction,” says Mallory Hanora, a member of the NDAC.

Evidence shows that, in both Dookhan and Farak’s cases, attempts were made at various points to cover up or ignore evidence of their misconduct . A report by the inspector general shows that, as early as 2009, colleagues of Dookhan’s had raised concerns about her work. But it wasn’t until 2011 that Dookhan was actually caught, after managers discovered she breached chain-of-custody protocols, took shortcuts while testing, and forged lab docs. Meanwhile, colleagues of Dookhan’s that blew the whistle about her misconduct were silenced when supervisors told employees “not to tell anyone about the breach,” and that it was “a personnel matter.” It was not until the next year that Dookhan was finally arrested.

Meanwhile, in Farak’s case, evidence that was seized from her car on the day of her 2013 arrest was deemed “irrelevant” and a “fishing expedition” by prosecutors. The state police said they had released all their evidence pertaining to Farak. It wasn’t until after Farak was sentenced that 289 pages of previously unreleased material, including evidence from Farak’s car, surfaced. Assistant Attorney General John Verner admitted that the materials contained “potentially exculpatory information” that his office had “an obligation” to disclose. Those documents showed that Farak’s misconduct went back eight years, not four months, as prosecutors claimed during her trial. Meanwhile, then-Attorney General Martha Coakley attempted to downplay the case, saying the allegations “do not implicate the reliability of testing done or fairness to defendants.” An investigation into the Farak case determined there was no evidence of prosecutorial misconduct.

But the NDAC would also like to see prosecutors sanctioned and disciplined for their role in the scandal. “They knew what was happening,” Lydon says. “There should be a record of that.” And, in the case of Farak, where there is clear evidence that the state was much more involved in obfuscating evidence, the NDAC says it’s clear that we’re seeing a pattern of abuse of power.

The state feels better oversight alone will solve this problem going forward. As a result of the scandal, the oversight of the drug labs has been put in the hands of the state police, which is an accredited crime lab with very strict procedures. Prior to Dookhan’s arrest, the Department of Public Health oversaw the labs. Questions as to why testing responsibilities were initially placed with the Hinton and Amherst public-health labs that were not accredited lie with the Department of Public Health, Wark says.

Wark expressed dismay that the prosecutors have not gotten more credit for the work they’ve put into “seeing that a just outcome” is reached. “The Suffolk and Essex county prosecutors in particular have been recognized and praised by the [Supreme Judicial Court] … for voluntarily and affirmatively providing a great deal of labor and staffing resources toward resolving the case and identifying all the affected defendants,” he says. But the NDAC points out that the district attorneys took this action under pressure from both the public and the Supreme Judicial Court — the court’s ruling ordered them to dismiss the majority of the cases, saying they would dismiss more if the district attorneys didn’t dismiss a sufficient amount, in order not to overburden the Committee for Public Counsel Services. To the NDAC, this discredits any attempt by the district attorney’s offices to take credit for their willingness to right the wrong caused by these tainted convictions.

In the meantime, Taylor continues to wait for his day in court. “It only took me one year to get convicted, but [I’ve been waiting three years now for a new trial].” But he’s waited too long to give up now. “I’ve got to have hope.”

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