For years now, the criminal justice system in Massachusetts has operated under a dark cloud of distrust generated by the Annie Dookhan scandal and reinforced by the actions of  Sonja Farak and others. Yet, other key actors have further chipped away at public trust in the institutions surrounding the state drug labs scandals: Massachusetts prosecutors. Nonetheless, the state’s highest court just handed these lawyers the responsibility for ensuring justice for the roughly 20,000 so-called “Dookhan defendants.” The decision shows how profoundly the Court misunderstands the state of criminal justice in Massachusetts.

The scandal’s details have been well-covered elsewhere. Dookhan worked at the state’s drug lab in Jamaica Plain from 2003 through 2012, and produced utterly unreliable results. Although red flags were first raised about Dookhan’s work in 2009, she was allowed to continue testing evidence for criminal cases for two more years before she was suspended. Dookhan eventually was arrested and charged, pled guilty to tampering evidence, and was sentenced for three-to-five years for her crimes. She admitted that she had purposely falsified test results in many cases over the years she worked at the lab. Later, it emerged that she had been in direct touch with Massachusetts prosecutors; as the Boston Globe reported, “[s]he was also far from the impartial analyst her job description demanded, regularly doing favors for prosecutors while treating defense attorneys warily, asking prosecutors if she should even respond to their requests.”

The State’s failure to maintain the integrity of its lab led to thousands of people being convicted of drug crimes based on unreliable evidence. The crucial question Dookhan’s crimes raised was: what should the state do to remedy the harm caused to such an enormous group of people, the vast majority of whom had both already served their time and were convicted of low level possession crimes?

How did Massachusetts prosecutors respond to this large-scale injustice? Well, for one thing, rather than rigorously pursuing just outcomes, they actively resisted producing docket numbers of affected cases and threatened not to honor plea deals if defendants challenged their convictions, until the ACLU of Massachusetts stepped in and successfully protected clients from exposure to longer sentences than their original plea deals contemplated if they reopened their cases.

Then, in September of 2016 the DA offices of Massachusetts sent a confusing, intimidating letter to defendants purportedly informing them of the State’s potential errors in their cases. The unsigned letter, with no letterhead, sent from a “Claims Administration” office, postmarked from Philadelphia, invited defendants to call the same DA offices that had prosecuted them to discuss their case, warning them that such a call may return their case to “active status.” So welcoming, right?

The ACLU went to court again, arguing that the only fair and appropriate remedy would be for the Supreme Judicial Court to vacate and dismiss all the Dookhan convictions—particularly given the years of bad-faith actions taken by District Attorneys against the Dookhan defendants.

Well, that didn’t happen. Instead, the Supreme Judicial Court in Massachusetts took a different course in an opinion it handed down this week. Defense attorneys and civil rights lawyers maintained that the Court should grant a “global remedy”—essentially ensuring that every individual whose case was potentially implicated received the benefit of having their convictions vacated (either with or without prejudice). On the other side, the district attorneys have claimed that defendants, once notified about the fact that Dookhan’s misconduct may have made a difference in their cases—should have the burden to come forward and challenge their convictions if they please. Rather than taking either of these proposed paths, the Court adopted a middle-ground position. It decided that: (1) prosecutors should, within 90 days, review each of the 20,000+ cases individually and voluntarily dismiss ones that it could not or would not reprosecute; (2) within an additional 30 days, prosecutors must adequately notify remaining Dookhan defendants about the scandal and their right to a lawyer to consider challenging their convictions; and (3) the public defender’s office will assign lawyers to those individuals seeking counsel and will let the lower court know if it is unable to provide assistance because it is overburdened by the number of cases (in which case that court may need to fashion a global remedy). In short, the Court doubled down on the wisdom of a case-by-case solution for a problem of unprecedented magnitude.

Step one is problematic for several reasons. Most obviously, it defers to the discretion of the very prosecutors who have been complicating the remedial process for years. Not only did the Court recognize that the DAs’ original letter to the defendants look like “junk mail,” the State could not even locate over 1,000 individuals’ addresses. More than 5,700 of the letters the prosecutor’s vendor originally sent—over 25%!—were returned as undeliverable. The State’s “follow-up” effort only resulted in the re-sending of some 964 notices.

The Court appropriately took the prosecutors to task for this paltry effort to notify the people who were potentially wronged by the State.

The district attorneys contend that our previous decisions have provided an adequate remedy to the relevant Dookhan defendants. This argument relies on the key premise that the notice mailed to the Dookhan defendants adequately informed them that Dookhan’s misconduct affected their criminal case and that, as a result, they may seek to vacate their drug conviction. We reject this premise; we agree with the Bridgeman petitioners that the notice sent by the district attorneys was wholly inadequate to provide the relevant Dookhan defendants with the information necessary to knowingly and voluntarily decide whether they should explore with counsel the possibility of withdrawing their plea or moving for a new trial. The shortcomings begin with the envelope itself, which identified the sourceof 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. Nor did it adequately inform them that, if they had been convicted of a drug charge at trial, they are entitled to a new trial if the admission in evidence of their drug analysis might have significantly influenced the jury in reaching their verdict. . . . 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.

Reading this language, it seems like the Court would recognize what happens when prosecutors are free to decide how to remedy a wrong that could embroil them in years of litigation and costly work. The answer: not much. (To avoid a real remedy and circumvent costs, prosecutors earlier made “contradictory” and “circular” arguments.)  The Court’s decision to ultimately defer to the prosecutorial discretion of these actors is puzzling if not downright disappointing.

The opinion rhetorically enlists the parties in a joint venture of pursuing justice and righting the grievous wrongs perpetrated by an unhinged individual. It openly acknowledges that its solution “rel[ies] on the exercise of the district attorneys’ sound discretion to reduce substantially the number of relevant Dookhan defendants.” While these extreme circumstances may suggest that this case presents a special opportunity for the parties to come together, the Court naively overlooks the State’s fundamental commitment to finality, mass incarceration, and letting people bear the burden of governmental misconduct. How else could one view the State’s claim that the very low response rate to its initial “notice” (READ: junk mail to those who just looked at the envelope; intimidation to those who read the contents) reflects that most defendants “face no adverse impact at all” from the stain of their criminal convictions?

No adverse impact at all? Collateral consequences are real. Those convictions almost certainly mean that defendants have suffered a range of severe penalties: lost access to public housing; deportation; disqualification from jobs and government benefits; lost financial aid; longer mandatory sentences for other crimes. The majority opinion acknowledges these consequences, too, but does not acknowledge the significance of the fact that prosecutors tried to diminish these consequences to avoid providing a real remedy. There is something invidious about remedying a harm that may have resulted in the loss of access to housing by mailing notices to those now-bunk addresses without any supplemental public notice.

Although prosecutorial discretion is basically unreviewable, the Court justifies its remedy by noting that the State’s failure to dismiss a substantial number of cases at the first step will mean that the public defender will be overwhelmed to the point that the lower court will have to grant the global remedy the prosecutors so desperately seek to avoid. Holding out the possibility that a global remedy will become necessary down the line could in theory scare the prosecutors into taking real action during step one. The dissent called this theory into question: “without some basis for a reasonable belief that the district attorneys will follow through on the suggestion to dismiss thousands of cases with prejudice, the court does not inspire confidence in the success of the model.” Given the case’s history, there is no basis for that belief.

The majority opinion and the concurring opinion repeatedly specify that Dookhan and the crime lab, not the prosecutors, deserve the full blame for this massive criminal justice disaster. While there is no doubt that Dookhan is culpable and the source of this miserable situation, it is shortsighted to overlook the fact that prosecutors have the power to address the widespread injustices. It is also disturbing to essentially deny that the harm was done by a mismanaged state agency that is a core part of the criminal justice system. For over five years since Dookhan’s firing, and seven since her coworkers tried to warn the lab about her actions, the harm has continued. In the words of the dissent, “the need to adopt a swift and sure remedy for the harm caused by her deceit presents itself with palpable urgency. The time has come to close the book on this scandal, once and for all, by adopting a global remedy.” Unfortunately, the book remains open, perhaps for several more years; the echoes from this case’s fallout will ring out for much longer than that.

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