Prosecutors Cynically Attack the Rights of Thousands Convicted Under Drug-Lab Tests Scandal

Nov 18 2016

Prosecutors Cynically Attack the Rights of Thousands Convicted Under Drug-Lab Tests Scandal

November 18th, 2016

Imagine you’re arrested and charged with a drug offense. Threatened with a mandatory minimum, you accept the prosecutor’s plea deal and spend two years locked up, away from your family. When you get out the state takes away your driver’s license, and you struggle to find good work and housing. All because of a small amount of drugs in your pocket.

Now, imagine if the drug-lab chemist who tested the drugs in your case was herself later convicted of crimes, including tainting evidence in tens of thousands of drug cases over her eight years of employment with the state.

You’ve already served time you can never get back, but the conviction is on your record, making your life more difficult in innumerable ways. Even worse, you don’t know that you accepted a plea deal that rested upon tainted evidence.

That’s a bad scenario. But even worse happened to some of the 20,000-plus people whose convictions were tainted by chemist Annie Dookhan’s staggering misconduct during her spell working at Hinton Drug Lab in Boston, Massachusetts from 2003 to 2011.

Some people were deported from the United States: Torn from their families and communities, they are banned from ever returning. Others are probably still serving time in prison on sentences that were “enhanced” because of Dookhan-tainted prior convictions.

The state’s response to this colossal injustice has been to pin all the blame on Annie Dookhan—refusing to accept responsibility for a system that enabled and covered up her abuse for so long. (In another recent drug-lab scandal in Massachusetts, thousands more cases were impacted by chemist Sonja Farak, who for eight years used the Amherst drug lab as her personal pharmacy.)

Instead, the prosecutors who used Dookhan’s tainted evidence to convict more than 20,000 people of drug crimes—the majority simple possession—say it’s up to each and every one of those people to clear their own record. If they think they deserve a new trial, or want to try to wipe the conviction from their record, the prosecutors argue, they can get a lawyer and go back to court.

The ACLU of Massachusetts and the state public defender’s office, the Committee for Public Counsel Services (CPCS), don’t think that’s right.

In a lawsuit argued November 16 before the Supreme Judicial Court, the civil liberties attorneys and public defenders who are representing the victims asked the court to impose a global remedy: Vacate all the tainted convictions. If the prosecutors think keeping those convictions on people’s records is so important, they argued, they can go back through the list of cases and pick which ones they want to retry. But when the state prosecutes tens of thousands of people on fraudulent evidence, it cannot be the victims’ responsibility to obtain justice.

Besides, even if the public defender’s office thought it was appropriate to relitigate each and every case, it couldn’t do so. The cash-strapped agency is already running on fumes.

The prosecutors’ arguments against vacating the convictions, laid out on Wednesday in their oral arguments to the court, are shocking. In the packed Boston courtroom, members of the community in attendance audibly gasped at some of their more offensive and ludicrous remarks.

Some of their arguments contradict one another. They argue, on the one hand, that the problem has already been adequately addressed—even though tens of thousands of people have not gotten justice. Then they argue, on the other hand, that if the problem hasn’t been adequately addressed, it’s not their responsibility to figure out how to provide justice to the victims.

Other arguments are plain offensive. In their brief to the court, the prosecutors write, “The rights of competent defendants to self-determination—to decide for themselves whether to move to withdraw a guilty plea or seek a new trial—should not be nullified.” As if putting the burden of relitigation on the defendants is the compassionate thing to do.

The prosecutors also argue that even if the drug convictions are tainted, the victims of those tainted convictions may have had other convictions—apparently implying that, because these are “bad people,” their rights don’t matter very much and we should assume they’re guilty of something. Besides being repugnant, this argument is a straw man: No one has asked the court to dismiss any convictions besides the tainted ones.

They further argue that the collateral consequences of the tainted convictions aren’t such a big deal, really, and besides, all criminal convictions have collateral consequences. That’s just the way the system works. It’s fine.

Still more of the prosecutors’ arguments are circular. They say they have provided adequate notice to the victims of their rights to challenge their convictions (they have not), and that any victim who wants to can seek a public defender. But when the overworked and underfunded public defenders’ office balks at the possibility of 20,000 new clients demanding representation, the prosecutors say that they shouldn’t worry about it because not that many people will probably contact them anyway.

In their words: “Placing the responsibility upon individual defendants to come forward respects their having taken responsibility for their actions in the first place, and serves to channel the flow of motions and to avoid the speculative ‘flood’ that [the public defender’s office] has conjured.”

Finally, their arguments fly in the face of basic justice. The prosecutors say that if 20,000 people do contact the public defenders seeking justice—in other words, if the “flood” indeed arrives—the defenders should be able to handle all of those cases eventually, because there is no right to a speedy retrial.

In response to a question from Chief Justice Gants in court this week, the prosecutors argued that if the public defenders’ office doesn’t have the resources to relitigate all of these cases, they should go to the state legislature to ask for more money to fund the litigation.

And what if the state legislature does not provide this funding? Well, that’s not the prosecutors’ problem.

That raised the question of a right to counsel. Chief Justice Gants asked: Do these people even have a right to counsel if they come forward? The prosecutor replied before the court: “I think the Commonwealth disputes that, to an extent. That would depend on the case.”

“If there is a right to counsel but that right to counsel cannot be obtained,” Chief Justice Gants followed up, “what should a judge do?”

“Wait until counsel can be obtained,” was the prosecutor’s response. This, after the attorney representing the public defenders’ office told the court it would take “decades” for his office to relitigate these tens of thousands of cases.

Ultimately, the prosecutors’ underlying theme went something like this: Decent and honest drug warriors at every stage of the system worked hard to arrest, convict and incarcerate these thousands of people, and to monitor them post-release. It wouldn’t be fair to them, or to the system, to wipe away all that hard work.

The Annie Dookhan drug-lab case—all the arguments are now concluded, and we await a verdict—raises a number of interesting legal questions, but it also raises moral, philosophical and policy ones. After sitting and listening to intelligent lawyers on both sides lay out their cases, and hearing the justices pepper them with questions, testing their theories, I’m left wondering: Why are the prosecutors working so hard to “protect” these convictions? Why do they refuse to accept the obvious: that the state wronged these people and it’s up to the state to right that wrong?

Read more from The Influence:

“A Family of Drug Users”—Meet the New Leader of the Harm Reduction Coalition

The Ugly Campaign Against Prop. 64 Showed Why Marijuana Legalization Must Mean Social Justice

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I’m not sure what the answers to these questions are in their minds. But for the rest of us, the drug-lab scandals and the state’s response make ending the War on Drugs all the more urgent.

The case has demonstrated how the whole thing is a house of cards: built on too-often fraudulent evidence, mandatory minimum threats, and coercive plea deals. Zealous drug enforcement is a big part of the reason why approximately 94 percent of state-level criminal cases end in plea agreements, and never go to trial. The justice system more resembles an assembly line than it does a courtroom drama. What you see on Law & Order is fantasy.

From the warrantless surveillance used to track drug suspects, to the street cop who sets up a confidential informant drug buy, to the incarceration of people often locked up for nothing more than their addiction, justice plays little part.

Another question in my mind as I sat watching oral argument was this: Who benefits if the state keeps these convictions on people’s records, or forces them to appeal one by one? It’s difficult to escape the conclusion that the answer is no one except the police-prison-probation complex.

No matter how the court rules, the Annie Dookhan and Sonja Farak drug-lab scandals have piled on more evidence that the drug war is a racket with disastrous consequences for our families and communities—particularly for black and Latino people. It’s long past time we start practicing what we increasingly preach, and treat drug use as a public health issue instead of a crime.

Kade Crockford is the director of the Technology for Liberty Program at the ACLU of Massachusetts. Their work challenging the surveillance state is informed by the fact that the wars on drugs and terror—and the racism that animates them—are the primary drivers of new forms of government spying. 

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  • winsomeRefusenik

    It’s pertinent to note that the Annie Dookhan scandal occurred in Massachusetts, the same state in which 12-Step industry entrepreneur John F. Kelly heads the addiction program at Massachusetts General Hospital, which implemented a policy of screening every single patient for substance use disorder. Just think, you go to the hospital for a sprained ankle and come out with a diagnose on your insurance as a lifelong “alcoholic/addict” because you had more than three beers before going ice skating and are “in denial” that only alcoholics would do such a thing.

    Kelly has co-edited a book about addiction treatment with another high-ranking 12-Step strategist, William L. White. White has written/worked with physician Greg Skipper, who was convicted of drug charges himself, and Robert DuPont, the former Drug Czar and War on [People Who Use] Drugs entrepreneur who runs a drug testing/consulting business, Bensinger, DuPont & Associates with the former head of the DEA, Peter Bensinger.

    In a paper written by retired judge/attorney-turned drug counselor Charles W. Hemingway, “Mandated Attendance at 12-Step Meetings: Legal or Not?”

    Hemingway discusses the Inouye v. Kemna case in which a Buddhist parolee successfully sued state officials for violating his Establishment Clause rights by forcing him into 12-Step programs against his religious objection. In so many words, though of course Hemingway uses lawyerly equivocation, this paper essentially recommends that if someone objects to 12-Step programming, attendance and drug tests should be used as a pretext to terminate/violate the dissenter to undermine their objection to 12-Step (under Hemingway’s rhetorical façade, the dissenter is just using religious objection to 12-Step as an excuse for failed drug tests or non-attendance). Note that this tactic was unsuccessfully used against Barry Hazle, Jr. (Hazle v. Crofoot) when defendants claimed that his parole was violated because he was acting “passive aggressive” rather than due to his objection as an atheist against 12-Step treatment as a condition of parole. Fortunately, that court saw through the defendants’ scheme.

    In a similar situation, having dutiful and corrupt lab employees like Annie Dookhan to falsify drug tests can be used to protect fraudulent “treatment” which illegally mandates 12-Step involvement. It would be interesting to investigate possible connections between these labs and Massachusetts General Hospital and businesses Michael Botticelli has been involved with.

    The conflicts of interest between the drug testing, rehab, and Employee Assistance Programs and licensing boards are outrageous and largely unchecked. Courts are reluctant to intervene because they want the option of having an easily available pretext to charge and convict people if they want to, and often the courts themselves are illegally or extralegally involved in these “drug court” schemes which would be considered fraud under practically any other medical situation that didn’t involve the criminal justice system. The fraudulent rehabs must love misusing random drug tests with lax accountability to use as a false pretext against drug suspects if/when they complain against the rehabs’ illegal and fraudulent practices (as mentioned above), or to extend treatment durations, and thus how much money they receive, in response to failed drug tests.

    The addiction treatment industry’s overall strategy is to lock people into 5-year contracts of extensive drug testing, completion of 12-Step rehabs, and mandatory 12-Step (AA/NA) attendance, which is both fraudulent and unconstitutional since 12-Step is inherently religious. The recent report by Surgeon General Vivek Murthy, “Facing Addiction in America,” cites White, Kelly, and other 12-Step partisans like Keith Humphreys. That report is just further proof that the 12-Step totalitarian regime has firmly been in control during the Obama administration. Things will almost certainly get much worse under Trump, with theocratic entrepreneurs like those who control the addiction treatment industry continuing to abuse and financially exploit people in the midst of personal and legal problems.

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  • Dana Hall

    Instead of… “The rights of competent defendants to self-determination—to decide for themselves whether to move to withdraw a guilty plea or seek a new trial—should not be nullified.”

    How about… “The rights of competent defendants to self-determination—to decide for themselves whether or not to use a substance within their own bodies—should not be nullified.”

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  • blackirishblonde

    How strange that the story behind this debacle seems to be left out. Are the DA’s circling the wagon? “Chemists aren’t supposed to be doing favors on a case-by-case basis for a particular police officer or prosecutor.”
    This was brought to light because of the inappropriate contact between an ADA and Dookhan at the Norfolk County DA’s office.
    The sad thing is that the only reason this is not still occurring is that Dookhan broke down and confessed to her own actions. No one caught it for years. Appropriate procedures were not implemented and followed to prevent this from happening. The system is broken. Will it be fixed?
    Norfolk District Attorney Michael W. Morrissey admitted that he had seen only a few e-mails, and he had refused ­repeated efforts by investigators to provide him with copies of the rest of the correspondence, because he said they are “the subject of an ongoing investigation. “I don’t want to interfere.”
    Several state officials and prosecutors had expressed confusion over Morrissey’s refusal to accept the e-mails, noting that he should know if one of his subordinates had an inappropriate relationship that could jeopardize cases in his office.
    Dookhan appeared to be doing a favor for Norfolk law enforcement officials when she was caught in June 2011 taking evidence from 60 Norfolk drug cases out of a storage area without authorization.
    The Norfolk County prosecutor who carried on an unusual and sometimes personal e-mail correspondence with controversial state chemist Annie Dookhan abruptly resigned. Morrissey. stated“He doesn’t want to be that distraction. He wants the criminal justice system to work appropriately. The two of us came to the same conclusion. He offered his resignation, and I accepted.”

    So Dookhan gets punished and the DA and ADA of Norfolk County have no accountability. These same prosecutors have maintained that most of Dookhan’s defendants are not interested in opening “a closed chapter in their lives.”
    I guess it was that easy to “close that chapter of being inappropriate”” for the Norfolk District Attorney’s Office ~~~~move along , nothing to see here.