Bridgeman v. Dist. Attorney for the Suffolk Dist.

• Decision Date: 18 January 2017
• Docket Number: SJC–12157
• Citation: 67 N.E.3d 673
• Parties: Kevin BRIDGEMAN & others v. DISTRICT ATTORNEY FOR the SUFFOLK DISTRICT & others.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

67 N.E.3d 673

Kevin BRIDGEMAN & others¹

v.DISTRICT ATTORNEY FOR the SUFFOLK DISTRICT & others.²

SJC–12157

Supreme Judicial Court of Massachusetts, Suffolk..

Submitted November 16, 2016.

Decided January 18, 2017.

Matthew R. Segal ( Daniel N. Marx, Adriana LaFaille, & Carlton E. Williams also present) for the petitioners.

Benjamin H. Keehn , Committee for Public Counsel Services, Boston ( Nancy J. Caplan , Roxbury, & Eric Brandt , Boston, 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 , Boston, 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 , Boston, & Denise McWilliams for New England Innocence Project & another.

Janet Moore , of Ohio, & Patricia A. DeJuneas , Boston, for National Association for Public Defense.

Anthony A. Scibelli & Elizabeth A. Ritvo , Boston, for Boston Bar Association.

Daniel K. Gelb , Boston, Chauncy B. Wood, Naveen Ganesh, & Peter Walkingshaw , Boston, 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, 30 N.E.3d 806 (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, 5 N.E.3d 530 (2014) ; Commonwealth v. Charles, 466 Mass. 63, 64, 992 N.E.2d 999 (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. 111, §§ 12 –13 ). See also Scott, 467 Mass. at 338, 5 N.E.3d 530. 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, 5 N.E.3d 530. See Charles, 466 Mass. at 64, 992 N.E.2d 999. 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, 5 N.E.3d 530.

• The potential scope of Dookhan's misconduct encompassed testing samples in over 40,000 cases. Id. at 340, 5 N.E.3d 530. 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, 5 N.E.3d 530. 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, 992 N.E.2d 999.⁷ 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, 992 N.E.2d 999. To assist these judges in the adjudication of these cases, the Chief Justice of the Superior Court in ...