Training Related to Dookhan and
Other DPH Cases
October 2012
CJB12
Faculty
Anne Goldbach, Esq., program co-chair
Cathleen Bennett, Esq.
Terry Nagel, Esq.
Ashley Hague, Esq.
Wendy Wayne, Esq.
MASSACHUSETTS BAR ASSOCIATION
Training Related to Dookhan and
Other DPH Cases
Sponsored by the Criminal Justice Section, Juvenile and Child Welfare Section, Young Lawyers
Division, and in collaboration with the Committee for Public Counsel Services
TABLE OF CONTENTS
Page
CHAPTER 1: SUGGESTIONS FOR USING THE MODEL MOTIONS DPH DRUG LAB CASES ........... 1
CHAPTER 2: AFFIDAVIT IN SUPPORT OF DPH DISCOVERY MOTION ............................................ 2
CHAPTER 3: DOOKHAN STAY-- AFTER CONVICTION ...................................................................... 7
CHAPTER 4: DOOKHAN STAY—AFTER PLEA .................................................................................... 9
CHAPTER 5: DPH DRUG LAB SAMPLE DISCOVERY MOTION ....................................................... 11
CHAPTER 6: IMMIGRATION ADVISORY, HABES AND INTAKE FORM DPH DRUG LAB CASES . 18
CHAPTER 7: MOTION FOR NEW TRIAL AND AFFIDAVIT DPH DRUG LAB CASE ........................ 26
CHAPTER 8: MOTION FOR POST-CONVICTION DISCOVERY DPH DRUG LAB CASE.................. 30
CHAPTER 9: MOTION TO DISMISS DPH DRUG LAB CASES........................................................... 34
CHAPTER 10: MOTION TO WITHDRAW GUILTY PLEA AND AFFIDAVIT DPH DRUG LAB CASE41
© 2012 Massachusetts Bar Institute
This material was prepared for a Massachusetts Bar Institute education program in October 2012 and reflects the
laws in effect at that time. Due to the changing nature of the law, this material should not be used as a final
authoritative legal source. Any editorial remarks contained in this material represent the views of the authors
and do not necessarily reflect the views of the association.
Copyright of the individual materials rests with the individual authors.
Copyright of the book in this form rests with the Massachusetts Bar Institute.
CHAPTER
ONE
SUGGESTIONS FOR USING THE MODEL MOTIONS
You should carefully read the accompanying model motions, and then edit them to conform the
allegations and requested relief to the circumstances of your own case.
Keep in mind that the judge may see many similar motions in rapid succession, and may
become inured to the serious constitutional violations in individual cases if it appears that
attorneys are merely signing their names to a form motion.
With regard to the Motion for New Trial and the Motion to Withdraw Guilty plea, keep in mind
that Rule 30 does not require any hearing before the judge rules. In the present circumstance,
it is unlikely that your motion will be denied without a hearing, but do not just assume that you
will have a chance to offer any exhibits beyond those attached to the original motion.
If you have relevant and helpful lab documents, police reports, or transcripts, make them
exhibits to the motion. If the motion is denied without a hearing, the Appeals Court record will
then offer some prospect of remand or reversal.
1
CHAPTER
TWO
COMMONWEALTH OF MASSACHUSETTS
____________, ss.
__________________________ DEPARTMENT
No. __________________________
COMMONWEALTH
v.
______________________
AFFIDAVIT IN SUPPORT OF MOTION FOR PRODUCTION OF DISCOVERY
INFORMATION RELATIVE TO THE DPH DRUG LAB
AND THE ABOVE-CAPTIONED CASE
Now comes defense counsel in the above-captioned case and states the following in
support of his Motion for Production of Discovery Information Relative to the DPH Drug Lab
and the Above-Captioned Case:
1.
I was appointed to represent the defendant in this matter.
2.
[Note: This paragraph to be changed and adapted to each case litigated.] Annie
Dookhan was the chemist who completed most of the drug analysis certifications in
his case. She was also the one who notarized the remaining drug analysis
certifications which she did not herself complete. She has also testified about the
weight and composition of the substance. She also testified that she was the one
responsible for quality assurance throughout the lab.
3.
The Commonwealth has publicly acknowledged in the media, as well as in open court
on other cases, that Annie Dookhan has been fired and is currently under
investigation for serious improprieties at the lab, including, inflating drug weights,
contaminating drug samples to ensure positive results, and falsifying drug analysis
findings. She has broken the chain of custody for Commonwealth drug evidence in a
number of pending and closed cases. Her drug analysis certifications are rendered
suspect in that she has been accused by law enforcement officials of falsifying the
weight and content of samples. Analysis of drugs performed in any laboratory in
which she worked is suspect, considering her position as chemist in charge of quality
2
assurance.
4.
I have reviewed the 101 pages released by the Massachusetts Attorney General’s
office relative to the investigation into the DPH lab, which includes the following
information:
a. All notations taken out of the “AGO State Lab Investigation” packet, Case# 2012034-2589-0052. Page and paragraph numbers are noted. Sworn statement
(pg.77): “I, Annie Dookhan, had taken out samples of safe and tested them
without being signed out as proper procedure. I also went in the Evidence Log
book and postdated and filled the log book in. I signed my initials and an
Evidence Officer’s initials in the book. That was my mistake and I can’t deny
that. I also batched, put similar samples together, and tested some and not others;
I “dry labbed.” I have been doing it for 2-3 years. At times, a few, I had to add a
sample that came back from Mass Spec to make it what I said it was. I would get
the sample from a known sample. I would try to clean it, the original, up first but
if it didn’t I would need to take something, drugs, from another case. I
intentionally turned a negative sample into a positive a few times.”
5.
From these pages 101 pages released by the Massachusetts Attorney General’s
office relative to the investigation into the DPH lab, information relative to the
investigation of chemist Annie Dookhan includes the following :
a. Dookhan forged other chemists (pg. 5, #2; pg.7 #6; pg.8 #14; pg.15, #9, pg. 22,
#4; pg. 29, #12 and 14; pg. 40, #3; pg. 45, #2; pg. 72, #4) and even evidence
officer (pg.15, #8; pg. 22, #6; pg. 25, #2; pg. 37, #6; pg.72, #3) initials in an
unknown number of instances, including on Quality Assurance and Quality
Control documents (pg. 5 #s 2, 3; pg. 22, #5; pg. 31, #3; pg. 40, #3, pg. 45, #2).
b. She ignored lab procedures by loading and running her own samples on the
GCMS (pg. 5 #s 3, 4; pg. 40, #4; pg. 46, #3).
c. Dookhan failed to properly run QC/QA test samples (pg. 22, #5), instead
purposefully making up test result numbers on the “Quality Control Daily Injector
Test on the GC/MS.” (pg. 8, #13; pg. 22, #5)
d. Dookhan maintained a level of production of test results that concerned
supervisors and co-workers (pg. 19 #4; pg. 21, #1; pg. 35, #7; pg.45 #2), often
analyzing more samples in a week than they did in a month (pg. 19, #4; pg. 35,
#7).
e. She was submitting racks upon racks of sample vials to the confirmatory chemists
(pg. 22, #2), and leaving many samples out on her bench top (pg. 73, #8 and 9).
f. Dookhan exhibited a pattern of failing basic laboratory procedures (pg. 22, #2),
including documentation issues (pg.7 #11), failing to calibrate balances (pg. 31,
3
#2; pg. 23, #9; pg. 42, #4), and having a work space filled with numerous vials
open to cross contamination (pg. 7, #12; pg. 22, #2; pg. 73, #8).
g. Dookhan was also allowed to access the evidence office computers to enter and
look up data (pg.12, #5; pg. 23, #6; pg. 32, #8; pg. 34, #2; pg. 38, #12; pg. 46, #4;
pg. 72, #6; pg. 90, #2), even after she was suspended from lab duties (pg. 46, #5;
pg. 72, #6), and lacking training (pg. 12, #5; pg.29, #13).
h. Dookhan engaged in the practice of “dry labbing,” looking at the samples instead
of testing them with the presumptive testing (pg. 24, #16; pg. 73, #7 and 10).
i. Annie Dookhan was not using the proper method of inspecting slides prepared for
a microscope (pg 19, #5; pg. 32, #6; pg. 21, #1; pg. 42, #2) This resulted in an
unknown number of samples coming back as heroin when she had supposedly
tested it and found it to be cocaine and vice versa (pg 7, #8; pg. 23, #8 and 11).
She would then alter these samples cocaine or heroin, or in one instance THC, so
that they would come out the way she wanted (pg. 6, #s 5, 6; pg. 7, #9; pg. 23,
#10; pg. 73, #9).
j. Dookhan was contacted directly by ADAs about specific samples to potentially
analyze them quicker, potentially out of order (pg.29, #11; pg. 24, #14; pg. 32, #4;
pg. 37, #3; pg. 40, #5; pg. 42, #5; pg. 72, #6), despite lab policies forbidding both
this contact and action (pg. 24, #14; pg. 72, #6).
k. Dookhan accessed the labs numerous times while suspended (pg. 23, #12; pg. 35,
#6; pg. 40, #5; pg. 46, #5; pg. 86, #3).
l. Dookhan’s key opened the safe (pg. 16, #17; pg. 32, #7; pg.50, #5), and she may
have known the code (pg. 32, #8; pg.42, #3). Despite policy, she may have been
receiving evidence (pg. 32, #8) and may have been trusted with the ability to open
and close the lab (pg. 32, #7; pg. 42, #4).
m. Dookhan’s false claim to have a Master’s (pg. 71, #1) was discovered around
June 2010, but no action was taken (pg. 30, #15). Other issues with her CV
existed. (pg. 35, #4)
6.
The following information from the same 101 pages reveals additional
information regarding the DPH lab in general, including the following:
a. The Laboratory had a culture of lax oversight, as many issues with Dookhan were
allowed to continue for years, even having her responsible for training (pg 31, #2
and #3), and for some QA/QC procedures (pg. 22, #2; pg. 51, #2). This
culminated with the assignment of Dookhan to a special project of writing or
updating the lab’s Standard Operating Procedures (SOPs), even after her
suspension for not following procedure. (pg. 15, #9; pg. 35, #6; pg. 55, #3; pg.
4
59, #3; pg. 86, #3;
b. Numerous lab personnel expressed concerns with Dookhan’s workload and
documentation errors (pg. 8, #13; pg. 15, #9 and #10; pg. 19, #4; pg. 21, #1; pg.
22, #5; pg.45, #2; pg. 73, #7), blatant forgeries (pg. 5, #2; pg.7 #6; pg.8 #14;
pg.15, #9, pg. 22, #4; pg. 40, #3; pg. 45, #2; pg. 72, #4), and questionable test
results (pg 7, #8; pg. 23, #8 and 11), but no action was taken.
c.
When chemists were audited, there is confusion as to whether or not samples
were retested or if paperwork was simply reviewed. No record of how a sample
could be resubmitted is given, and the number of these retests doesn’t seem to be
tracked. There didn’t seem to be a procedure in place to handle retests. (pg. 14
#5, 6; pg. 22 #3).
d. The Laboratory evidence room and evidence safe were accessible to chemists (pg.
28, # 7; pg. 37, #9; pg. 12, #4). The procedures to restrict access were ignored
and circumvented (pg. 16, #15; pg. 37, #9, pg. 38, #11; pg. 39, #2). The safe was
found open and unattended (pg. 28, #6; pg. 38, #11), was left propped open when
it was “busy,” (pg. 28, #6) was accessible by codes and keys that had not been
changed in over a decade (pg. 28, #3). An unknown number of chemists had keys
to the safe, though they might not have even known it (pg. 26 #4; pg. 16, #16; pg.
37, #8; pg. 12, #4). Further, the palm reader access point to the evidence room
might not have been recording those who entered (pg. 17 #19, pg.96, #10).
e. The lab supervisors who discovered the June 2011 breach decided not to notify
anyone (pg. 15, #8), compounding their already questionable lack of interest in
the misdeeds of Dookhan (pg.19, #s 5,6,7; pg. 22, #6; pg. 55, #2). No written
findings of her resubmittals or other QC/QA issues were recorded (pg. 11, #2; pg.
29, #12).
f. The method of samples being checked in and out suffered from lack of oversight,
as whole sets of numbers could be pulled by Dookhan without anyone noticing
(pg. 28, #7; pg. 29, #12; pg. 36, #1 and 2; pg. 73, #8; ). Further, the evidence
officers appear to have a pattern of laxity when it came to tracking samples and
access to the evidence room and safe, computer terminals (pg. 32, #8; pg. 38, #12;
pg. 42, #3; pg. 46, #4; pg. 90, #2 and 3), and written logbooks (pg. 25, #2 and 3).
g. After the 2011 incident, when it was clear that an unknown number of keys
opened the safe (pg. 12, #4; pg. 26 #5; pg. 28, #4; pg. 37, #8; pg. 38, #12; pg. 46,
#6), no investigation was recorded. Shirley Sprague claims Chuck Salemi started
checking keys (pg. 26 #4; pg. 20, #9), and perhaps switching them out (pg. 20,
#9). Chuck Salemi claims that Julie Nassiff said she was doing it for Dookhan
and a few others (pg. 16, #17; pg. 28, #4), but no plan to check every key was
made (pg. 17, #18). Many of the keys were never checked (pg. 10, #1; pg. 39, #2;
pg. 84, #3).
5
h. The Lab did not appear to have or to enforce any safeguards or policies to prevent
ADAs and police officers from contacting a specific chemist about specific cases
(pg. 29, #11; pg. 37, #3; pg. 72, #5).
i. The Jamaica Plain lab and the Amherst labs were performing the same tests under
the same supervision and management, but evidentially were operating under
different SOPs (pg. 55, #3; pg. 59, #3)
Signed under the pains and penalties of perjury,
_______________________________ Date: _______
6
CHAPTER
THREE
COMMONWEALTH OF MASSACHUSETTS
DEPARTMENT OF THE TRIAL COURT
<county>, SS.
__________ Court
CRIMINAL DIVISION
Docket # ________
Commonwealth
v.
<defendant>
MOTION FOR STAY OF EXECUTION OF SENTENCE
DPH DRUG LAB CASE
NOW comes the above defendant, and respectfully requests pursuant to Mass. R. Crim.
P. 31 that the execution of his sentence be stayed, and that he be immediately released from
custody, pending resolution of his Motion for New Trial now pending before this court.
The defendant states as his grounds for this request the following:
1.
The defendant was convicted of <offense(s)> after trial on <date> and received a
sentence of < sentence>.
2.
Chemist Annie Dookhan, who [testified at trial] or [carried out the testing on the alleged
controlled substance] or [acted as quality control manager in the laboratory where the
testing was carried out] has been identified by law enforcement officials as a person
who intentionally contaminated drug evidence to ensure positive tests, inflated drug
sample weights, falsified drug analysis findings, and fraudulently altered chain of
custody documents during a time period relevant to this case. As a consequence of that
investigation, two other laboratory supervisors have been suspended, and the drug
laboratory in Jamaica Plain has been completely closed down.
3.
As a result of the misconduct of Ms. Dookhan and/or other employees of the lab, which
is imputed to the Commonwealth, the defendant was deprived of due process by the
failure of the Commonwealth to provide true and accurate discovery, in violation of the
Sixth and Fourteenth Amendments and Article 12. Brady v. Maryland, 373 U.S. 83
(1963).
4.
The misconduct of Ms. Dookhan constitutes newly discovered exculpatory evidence.
7
5.
At a minimum, the question whether Ms. Dookhan’s misconduct renders the
defendant’s guilty conviction unconstitutional or otherwise unlawful is a claim with
“some reasonable possibility of success,” and presents an issue “worthy of presentation
to an appellate panel.” Commonwealth v. Levin, 7 Mass. App. Ct. 501, 504 (1979).
6.
The defendant has no history of prior convictions or defaults.
7.
The defendant presents no significant danger, has a good likelihood of success on the
merits, and will comply with such conditions as the court might set.
Wherefore, the defendant asks that the above-described relief be granted.
By:
CERTIFICATE OF SERVICE
I, ______, hereby certify that I served a copy of the foregoing Motion by first class mail,
postage prepaid upon the office of the District Attorney, <address> on this date.
Dated: ________________
_____________________________
8
CHAPTER
FOUR
COMMONWEALTH OF MASSACHUSETTS
DEPARTMENT OF THE TRIAL COURT
<County>, SS.
__________ Court
CRIMINAL DIVISION
Docket # ________
Commonwealth
v.
<defendant>
MOTION FOR STAY OF EXECUTION OF SENTENCE
DPH DRUG LAB CASE
NOW comes the above captioned defendant, and respectfully requests pursuant to
Mass. R. Crim. P. 31 that the execution of his sentence be stayed, and that he be immediately
released from custody, pending resolution of his Motion to Withdraw Guilty Plea now pending
before this court.
The defendant states as his grounds for this request the following:
1.
The defendant pled guilty to <offense(s)> on <date> and received a sentence of <
sentence>.
2.
Chemist Annie Dookhan, who [carried out the testing on the alleged controlled
substance] or [acted as quality control manager in the laboratory where the testing was
carried out] has been identified by law enforcement officials as a person who
intentionally contaminated drug evidence to ensure positive tests, inflated drug sample
weights, falsified drug analysis findings, and fraudulently altered chain of custody
documents during a time period relevant to this case. As a consequence of that
investigation, two other laboratory supervisors have been suspended, and the drug
laboratory in Jamaica Plain has been completely closed down.
3.
As a result of Ms. Dookhan’s conduct, the defendant’s guilty plea was not knowing and
voluntary, and therefore violates the Sixth and Fourteenth Amendments and Article 12.
4.
As a result of the misconduct of Ms. Dookhan and/or other employees of the lab, which
is imputed to the Commonwealth, the defendant was deprived of due process by the
failure of the Commonwealth to provide true and accurate discovery prior to his guilty
plea, in violation of the Sixth Fourteenth Amendments and Article 12. Brady v.
Maryland, 373 U.S. 83 (1963).
9
5.
The misconduct of Ms. Dookhan constitutes newly discovered exculpatory evidence.
6.
At a minimum, the question whether Ms. Dookhan’s misconduct renders the
defendant’s guilty plea unconstitutional or otherwise unlawful is a claim with “some
reasonable possibility of success,” and presents an issue “worthy of presentation to an
appellate panel.” Commonwealth v. Levin, 7 Mass. App. Ct. 501, 504 (1979).
7.
The defendant has no history of prior convictions or defaults.
8.
The defendant presents no significant danger, has a good likelihood of success on the
merits, and will comply with such conditions as the court might set.
Wherefore, the defendant asks that the above-described relief be granted.
By:
CERTIFICATE OF SERVICE
I, ______, hereby certify that I served a copy of the foregoing Motion by first class mail,
postage prepaid upon the office of the District Attorney, <address> on this date.
Dated: ________________
_____________________________
10
CHAPTER
FIVE
COMMONWEALTH OF MASSACHUSETTS
____________, ss.
__________________________ DEPARTMENT
No. __________________________
COMMONWEALTH
v.
______________________
MOTION FOR PRODUCTION OF DISCOVERY INFORMATION
RELATIVE TO THE DPH DRUG LAB AND THE ABOVE-CAPTIONED CASE
Now comes the Defendant in the above-entitled matter and moves this Court, pursuant to
Rules 14 and 23 of the Massachusetts Rules of Criminal Procedure, Brady v. Maryland, 373 U.S.
83 (1963), and its progeny, and Commonwealth v. St. Germain, 381 Mass. 256 (1980), to order
the Commonwealth to provide the Defendant with the following information relevant to the
charges of ____________________________________________. As grounds therefore,
counsel for defendant states that the controlled substances in this case were tested by the Hinton
State Laboratory Institute, also known as the Department of Public Health Drug Lab. This drug
laboratory has been shut down and is under investigation for allegations of malfeasance and
deliberate mishandling of drug evidence (see attached affidavit of counsel.)
Case Specific Discovery Information:
1. A copy of the complete laboratory file, documenting the receipt, processing, analysis and
reporting of all tests on the substances seized in this case, as well as any and all
supporting, relevant documentation, including but not limited to:
a. Written confirmation that the Department of Public Health State Laboratory
Institute Policies and Procedures Drug Analysis Laboratories Updated September
29, 2004 (“DPH Policies and Procedures”) were the policies and procedures
followed by evidence officers and chemists at the time the substance seized in this
case was received, analyzed and transferred back to the submitting agency.
11
b. If the response to item “a” is that the DPH Policies and Procedures were different,
then request is made for a complete copy of the policies and procedures followed
by evidence officers and chemists in this case. In addition, a request is made for a
copy of any of the changes made to the policies and procedures subsequent to this
case.
c. The identity of the DPH Laboratory Evidence Officer who received the substance
seized in this case on August 25, 2011 and whose signature/initials appear on the
BPD Drug receipt (illegible).
d. A photocopy of the manila envelope bearing a bar coded sticker with the evidence
control number affixed to the envelope. See DPH Policies and Procedures,
Submittal Procedure, Subsection 4.
e. A photocopy of the Laboratory Control Card generated from the data on the drug
receipt and placed in the manila envelope referenced in item “d”. See DPH
Policies and Procedures, Submittal Procedure, Subsection 7.
f. Documentation reflecting the date, time and name(s) of the chemist(s) assigned to
preliminarily test and analyze the substance seized in this case. See DPH Policies
and Procedures, Submittal Procedure, Subsection 8.
g. A detailed description as to how a particular chemist is assigned to test a
particular sample as referenced in item “f” and production of any documents
generated by the DPH in the assignment process in this case.
h. All records and logs (in paper or electronic form) of all transfers of evidence
within the laboratory, as well as all transfers between the laboratory and the
submitting agency, including, but not limited to, those reflecting the assigned
chemist(s) removal of the substance seized in this case from the laboratory
evidence safe, those reflecting its return to the laboratory evidence safe and those
reflecting its post-analysis transfer back to the submitting agency. See DPH
Policies and Procedures, Chain of Custody, Subsection 2.
i. The total number of samples (i.e., substances) signed out of the laboratory
evidence safe by each of the chemists involved in this case on the respective days
that testing was performed on the substance seized in this case.
j. A detailed description of the security and storage measures, policies and
procedures and/or protocols followed by chemists once samples are signed out of
the laboratory evidence safe.
k. Information describing whether Annie Khan (Dookhan) was present in the DPH
laboratory on the day(s) that the substance seized in this case was signed out of
the laboratory evidence safe for either preliminary testing or confirmatory
analysis.
l. A list and curriculum vitae of all the chemist(s), assistants, evidence officers and
laboratory workers at the DPH lab including those who handled the substances in
this case.
m. Identification of all evidence officers who assisted in signing out drug evidence in
this case to the chemists and identification of all evidence officers who received
drug evidence after testing, including qualifications and status as members of law
enforcement.
12
n. A copy of all lab protocols and procedures pertaining to chain of custody,
weighing, and preliminary and confirmatory testing, that were used in testing
controlled substances in this case.
o. A description of the methods employed by the laboratory and staff to track
samples (such as a bar code system) used at the Hinton State Laboratory Institute
in effect at the time drugs were tested in this case.
p. A list of any and all local, state, national government certification, accreditation,
and licenses received by the Hinton State Laboratory Institute, as well as any
certifications, or accreditations received by independent, or non-governmental
organizations that were in effect at the time of testing drugs in this case.
q. Documentation of the weekly, daily, and hourly quality assurance or “QC” checks
at the Hinton State Laboratory Institute at the time the evidence was tested in this
case.
r. A description of the evidence lockers or containers used by chemists at the Hinton
State Laboratory Institute while in possession or custody of the drugs, including
rules, regulations and practices regarding the security of these containers or
lockers and access to the lockers by other chemists and/or supervisors at the time
evidence was tested in this case.
s. Proficiency testing results for the chemists, assistants and laboratory
workers who handled or conducted any testing on controlled substances
that were tested in this case.
t. Any handwritten notes produced by the chemist, assistants and laboratory
workers who handled the substances in this case.
u. All log entries and computer tracking entries and tracking numbers
relative to the receipt of the drug evidence, transfer of the drug evidence to
a chemist or chemists, and return of the drug evidence to the evidence
office or officer.
v. Documentation regarding the delivery and receipt of the substance in this
case to the lab, as well as any documentation or notations recording the
processes of weighing, drawing, and preparing testing samples from the
substance in this case.
w. A description of the method used to draw, cut, obtain or prepare the actual
sample[s] tested in this case.
x. Documentation for any preliminary or screening tests, and identification of
the individual(s) who conducted these tests.
y. Documentation for any confirmatory testing, and identification of the
individual(s) who conducted such testing.
13
z. Identification of the equipment used to conduct preliminary and
confirmatory testing, as well as copies of operation manuals, training
manuals, and records of maintenance and calibration for the same.
aa. Data, printouts, and information produced by the equipment documenting
any “blank run(s),” instrument settings and initial conditions, or
calibration of the equipment between samples, to include any such “blank
run[s],” or calibration performed before and after the sample test in this
case.
bb. If applicable, identification of the manufacturer and model type of the
“column” used in the chemical analysis, as well as an indication of the
number of “runs” on that column preceding the test of the sample in this
case.
cc. Laboratory reference standards, including but not limited to the certificate
of analysis used to match retention times of given substances in the
equipment, any reference standards used by the laboratory for comparison
with the sample in this case. This includes documentation of any
standards, references, or reagents used in testing prepared in-house or
purchased from any outside vendor.
dd. A statement of the mathematical certainty or probability of the reported
results of chemical analysis or testing.
ee. Records and documentation of the adulterant standard, as well as any data,
instrumental tracings, printouts, graphs, or documentation indicating the
presence of adulterants in the test sample.
ff. A copy of any and all error logs generated in the lab at the time that the
substance in this case was tested, and documentation of any cause for
subsequent retesting.
gg. Lab records of standard deviation rates for given substances.
Drug Laboratory Investigation:
2. With respect to the investigation of reported breaches of protocol, mishandling of
evidence, misappropriations of evidence and/or sample contamination at the Hinton State
Laboratory Institute:
a. Copies of all document as well as description of the person or persons who
discovered the first breach of protocol and how it was discovered.
b. All information and documentation indicating that the first breach of protocol was
brought to the attention of chemist Annie Dookhan, including dates and times.
14
c. All information and documentation with regard to the reports to supervisors
regarding that breach of protocol.
d. All information and documents with regard to the investigation by the
Massachusetts State Police Crime Lab conducted pursuant to their audit of the
Hinton State Laboratory Institute which has apparently revealed widespread and
numerous irregularities, breaches of protocol, lab errors and/or fraud.
e. A complete list of all chemists who worked on these cases with Annie Dookhan
as a preliminary or confirmatory chemist.
f. Any documents, research or information regarding verification of
qualifications of chemists, assistants, evidence officers and laboratory
workers at the DPH lab.
g. A description of the evidence room, evidence safe, chemist drug lockers or
containers used by chemists at the Hinton State Laboratory Institute as
they existed between 2003 to 2012, including a description and recordings
regarding the palm print readers and keys to get in the evidence safe
h.
Rules, regulations and practices regarding access to and the security of
the evidence safe, evidence office and chemists’ drug containers or lockers
between 2003 and 2012.
i. Any reports or communications regarding breaches of rules, regulations
and practices pertaining to the DPH drug evidence room, evidence safe
and chemists’ lockers.
j. All documentation or information pertaining to communication between
Annie Dookhan and police officers, evidence room officers, and
prosecutors, including any and all records of emails, phone records, notes,
memos, and the like, whether or not considered work-product or otherwise
confidential.
k. Copies of all computer tracking entries and log book entries for all cases worked
on by Annie Dookhan and all other chemists in any capacity.
l. A list of all notaries at the DPH drug lab and their notary log books.
m. A copy of all protocols, procedures, and security methods, including Quality
Control and Quality Assurance, that were used at the lab from 2003 to 2012,
including those developed in response to the discovery of the original breach of
protocol in June, 2011.
n. Any and all audit reports describing or supporting allegations that chemists at the
lab 1.) didn’t properly conduct preliminary tests on drug evidence, 2.) failed to
test drugs against correct controls, 3.) failed to use the correct controls potentially
15
causing false positive hits on drugs, and 4.) mishandled the weighing of drugs
causing potentially inflated or erroneous results.
o. Personnel records pertaining to chemist Annie Dookhan and all other chemists
from 2003 to the present, including all training, testing, drug testing for personal
use, proficiency scores, warnings, reprimands, remedial actions or disciplines.
p. Whether the chemists/analysts were subject to urine, blood analysis, and/or other
screening method to check for possible substance abuse and/o use of illegal drug
substances. Whether such urine, blood, and/or other screening method revealed
any possible drug substance abuse and and/or use and any disciplinary actions
were taken as a result.
q. Whether CORI and/or other background checks were done prior to the hiring of
any of the analysts and whether they were updated.
r. A map of the entire DPH lab to scale with notations indicating what each room
was used for and where each analyst worked, with whom, and where the
computers were kept.
s. A detailed description of the evidence room and evidence safe, what was kept in
each, and how was items were stored, including information regarding what other
types of evidence were kept in the same evidence room or safe.
t. Any and all information indicative of irregularities, breaches of protocol, lab
errors and/or fraud in the testing of drug evidence by all chemists employed at the
Hinton State Laboratory Institute between 2003 and 2012.
u. Copies of all correspondence, reports, policies, and measures taken by all
individuals at the Hinton State Laboratory Institute to address possible
breaches of protocol, mishandling of evidence, misappropriation of
evidence and/or sample contamination related to all individuals involved
in testing controlled substances in this case.
v. All protocols, procedures and directives relative to any types of contact
between chemists and prosecutors and police
w. All protocols, procedures and directives relative to any types of contact
between the DPH evidence office and evidence officers and prosecutors
and police.
x. A list of any and all local, state, national government certification,
accreditation, and licenses received by the Hinton State Laboratory
Institute, as well as any certifications, or accreditations received by
independent, or non-governmental organizations that were in effect
between 2003 and 2012.
16
The information requested is essential to afford the Defendant the opportunity to prepare
his defense and to confront the evidence against him, specifically the testimony of the chemist or
lab technician who conducted the drug analysis in this case. See Melendez-Diaz v.
Massachusetts, 129 S. Ct. 2527 (2009). This information is also necessary in order to provide
effective assistance of counsel at trial. See Sixth and Fourteenth Amendments, U.S. Constitution;
Articles XI and XII, Massachusetts Declaration of Rights.
Respectfully submitted,
_____________________________
17
CHAPTER
SIX
The Commonwealth of Massachusetts
Committee for Public Counsel Services
Immigration Impact Unit
21 McGrath Highway, Somerville, MA 02143
TEL: 617-623-0591
FAX: 617-623-0936
[email protected]
ANTHONY J. BENEDETTI
CHIEF COUNSEL
WENDY S. WAYNE
DIRECTOR
DOOKHAN/DPH HINTON LAB DRUG CASES
AND IMMIGRATION CONSEQUENCES
October 10, 2012
In addition to the countless ways the Annie Dookhan/DPH Hinton lab scandal has impacted thousands of
criminal defendants throughout Massachusetts, potentially tainted drug convictions likely have resulted in
numerous deportations of noncitizens. Moreover, an unknown number of noncitizens are currently facing
immigration detainers, in removal proceedings, or in immigration detention with final orders of removal
based on Dookhan/Hinton lab drug convictions.
Drug convictions are the most common crimes that cause noncitizens to be deported. Anything
more than simple possession of drugs, including marijuana (i.e., subsequent possession, possession
with intent to distribute, distribution, and trafficking), is considered an aggravated felony.
Aggravated felonies cause virtually mandatory deportation, even for longterm legal permanent
residents, as well as permanent exile from the U.S. In addition, any drug conviction permanently
bars a noncitizen from admission to the U.S. The devastating impact of drug convictions on
noncitizens (both lawful and those without lawful status) is impossible to overstate.
Due to the severe immigration consequences resulting from controlled substance convictions, vacating a
Dookhan/Hinton lab drug conviction will significantly impact the immigration status and removal
proceedings of many noncitizens. There are additional considerations and issues facing such clients,
however, that must be addressed prior to filing any motions to stay sentences, motions for release on
bail, and motions to vacate convictions in criminal court. This advisory discusses those issues and
concerns.
If a client is in criminal custody (pre-trial or serving a criminal sentence)
Ø Check for an immigration detainer prior to arguing for release on bail
If a client has an immigration detainer, it is important to understand and advise the client that if s/he is
released from pre-trial detention, s/he will be transferred directly into immigration custody. Once in
18
immigration custody, it is very difficult to bring a client into state court to resolve a criminal case or for
a hearing on a motion for new trial (see below and Appendix A for more information). If a client is
deported without resolving a criminal charge, a pending case makes it significantly more difficult to
return to the U.S. legally.
If an immigration detainer has been lodged against a client held on bail or serving a sentence, the client
is entitled to a copy of the detainer. However, if it is not in the client’s possession, counsel can contact
the records department at the institution where s/he is being held and ask if there are any “wants or
warrants” holding the client other than bail or the sentence. Do not ask directly if there is an immigration
detainer, because if one has not lodged, this may alert the institution to potential immigration issues.
If an immigration detainer has been lodged against a client held pre-trial, there are likely grounds of
removability unrelated to the pending drug case. Therefore, before arguing for release, counsel needs to
have a conversation about the client’s priorities. For instance, if a client is undocumented, s/he is
deportable simply for being undocumented. If the client is also facing a lengthy prison sentence if
convicted, s/he may choose to be released to immigration custody now and be deported before having to
serve the criminal sentence. In contrast, if a client is eligible for some form of relief from removal, s/he
may want to remain in criminal custody until the pending case is resolved, because open cases can
negatively impact a relief application.
Ø Analyze the specific immigration consequences to the client
As with any criminal case, a defense attorney has a duty under Padilla v. Kentucky to analyze the
immigration consequences to the client. The specific consequences flowing from a particular case
depend on the interplay between the client’s immigration status, prior criminal record and pending
charges.
Expert assistance: The CPCS Immigration Impact Unit (IIU) is available to assist CPCS staff
attorneys and bar advocates on analyzing the immigration consequences in individual cases. The IIU
is also available to assist clients with Dookhan/Hinton lab drug cases requesting stays of removal,
continuances of pending immigration proceedings, and seeking immigration representation on
motions to reopen prior immigration proceedings (counsel should fill out the IIU intake form,
attached as Appendix B). Privately retained defense attorneys should seek the assistance of private
immigration attorneys, but may contact the IIU for assistance finding such immigration expertise.
If a client is in immigration custody (in removal proceedings or with a final order of
removal)
Clients with Dookhan/ Hinton lab drug cases who are in immigration custody present the most urgent
situations, particularly if such cases form the bases of removal. After a client is deported, it is much
more difficult to proceed on a motion to vacate without the client’s presence in court. Moreover, even if
successful on a motion to vacate a conviction that forms the basis of removal, it is extremely difficult to
bring a client back to the U.S. to reopen immigration proceedings (the First Circuit has held that
jurisdiction does not exist to hear a motion to reopen immigration proceedings for someone who is no
longer in the U.S.).
19
2
Ø Clients currently in immigration proceedings
If a client is currently in immigration proceedings, it is critical to know whether the Dookhan/ Hinton
lab drug case is the basis for removal or whether it is a bar to any form of relief from removal for which
the client would otherwise be eligible. If counsel has not done so already, it is imperative to analyze
immediately the immigration consequences facing the client as a result of the Dookhan/Hinton lab drug
conviction and advise the client of such consequences. See above if expert assistance is needed.
If the Dookhan/Hinton lab drug case is the basis for removal or is a bar to relief from removal, the client
should ask the immigration judge to continue the removal proceedings while s/he pursues a motion to
vacate in criminal court. Defense counsel should provide the client with evidence that the case involves
the Dookhan/Hinton crime lab to present in support of a continuance (e.g., the drug certificate, a
certified copy of the motion to vacate if it has been filed, or a letter explaining the status of the criminal
case and when a postconviction motion will be filed). Immigration judges do not routinely continue
removal proceedings for postconviction motions in criminal court; however, immigration judges in
Boston will consider continuing removal proceedings that are based on or significantly impacted by the
Dookhan/Hinton lab scandal.
There is no right to appointed counsel in immigration proceedings; therefore, the majority of clients
represent themselves. If a client has an immigration attorney, defense counsel should confer with the
attorney and provide him/her with status updates and copies of any motions and documents filed in the
criminal case. If the client does not have an immigration attorney, defense counsel should seek expert
assistance for the client to file a motion to continue the immigration proceedings. See above if expert
assistance is needed.
Ø Clients with final orders of removal
If a client has a final order of removal (i.e. immigration proceedings are completed, but client remains in
the U.S.), it is critical to understand the basis for the removal order. If the order of removal was based
solely on a Dookhan/Hinton lab drug conviction OR if such conviction barred any possible relief from
removal, the client needs to file a motion to reopen the immigration proceedings and request a stay of
removal ASAP. For clients in this situation, defense counsel should seek expert assistance immediately
as discussed above.
Local immigration officials have agreed to consider individual requests for stays of removal in cases
described above prior to the filing of motions to reopen. Contact the IIU for additional information and
assistance.
If a client is unable to hire an immigration attorney to pursue a motion to reopen the immigration
proceedings, the Political Asylum/Immigration Representation (PAIR) Project has established a pro
bono panel for limited representation on motions to reopen for noncitizens impacted by Dookhan/Hinton
lab drug cases. Contact the IIU for additional information and assistance.
Finally, counsel should consider contacting the client’s consulate and requesting that travel documents
not be issued until the motion for new trial/motion to vacate the conviction has been adjudicated.
Whether or not this will delay a client’s removal depends on the individual case. Consulates will likely
request proof of filed postconviction motions before they will consider not issuing travel documents.
20
3
Additional concerns for noncitizen clients
Ø Bringing clients into criminal court from immigration detention
Clients are entitled to be present for hearings on postconviction motions, and it is clearly preferable for them
to be there. It can be quite difficult, however, to have a client transported into state court when s/he is in
immigration detention. Neither state nor federal transportation officials have explicit responsibility for
transporting federal detainees to state court proceedings, but a procedure has been developed that appears to
be more successful when the client is held in immigration detention near the state court to which s/he is
being transported. The current procedure for requesting transport of a client in immigration detention is
attached to this advisory as Appendix A.
If a client is facing imminent deportation and/or counsel is unsuccessful at bringing the client into court for
the postconviction motion hearing, note that Mass.R.Crim.P. 30(c)(6) allows a judge to rule on a motion for
new trial/motion to vacate a conviction without the presence of the defendant.
Ø Prioritizing postconviction motions for noncitizen clients
Special sessions have been created in Massachusetts state courts to prioritize motions for stay of execution
of sentence and release on bail for defendants held in criminal custody due to Dookhan/Hinton lab drug
cases. For the reasons discussed above, counsel for noncitizens should insist also on expedited hearings for
their clients on the substantive motions for new trial/motions to vacate after consultation with the clients.
Motions filed for noncitizen clients should indicate clearly in the titles of the motions that they involve
imminent immigration consequences. For example, the title of a motion for a client in immigration custody
should include “DPH DRUG LAB CASE FOR IMMIGRATION DETAINEE.”
21
4
APPENDIX A
HABEING DEFENDANTS FROM IMMIGRATION CUSTODY
TO MA CRIMINAL COURTS
September 2012
As many of you know, most defendants who are being held in immigration custody are not
transported to criminal courts for hearings, trials and other court dates. The IIU has learned of
recent updates to the procedure for habeing defendants into state court. If you want your client to
be transported, here is a procedure you can try (it may or may not be successful):
Ask the state court judge to issue TWO HABES:
1. “ICE – ERO, 10 New England Executive Park, Burlington, MA 01803.” Habe
should be faxed to Officer Hector Torres, Supervisory Enforcement Agent at 781359-7587. The habe should request that ICE notify the county Sheriff’s
Department for the county in which the criminal case is being heard to arrange
transportation to the court.
In response to the habe, ICE will either transport the defendant to Suffolk County House
of Correction at South Bay or will make the detainee available for pick up from the ICE
detention facility where the detainee is being held (the second is likely if the ICE facility
and the state court are in the same county). It is then the responsibility of the county
Sheriff’s Department to transport the defendant from South Bay or the ICE facility to the
court where the case is being heard and return the defendant to ICE custody after court.
After the habe is faxed, trial counsel should call Officer Torres (781 359 7631) to learn
whether the detainee will be transferred to South Bay for pick up by state law
enforcement officers OR whether the detainee will be held in another ICE facility to
await pick up.
2. The Sheriff’s Department for the county in which your case is being heard. This
habe should request that the Sheriff’s Department transport the defendant from
ICE custody at Suffolk House of Correction (or the facility where the detainee is
being held) to the court. It should further request that the Sheriff’s Department
contact ICE to coordinate transportation at 781-359-7500.
.
NOTE: This procedure applies only to detainees in immigration facilities in New England and
does not always work, as neither immigration nor state transportation officers are required by
law to transport inmates in federal immigration detention to state courts.
22
Appendix B - CPCS Immigration Impact Unit Intake Form
Name of person requesting assistance: _________________________ Phone #/email: ___________________
Background Information of Immigrant
Full name:_________________________________________ Date of birth:_________________
Alien number (eight or nine digit number starting with A that is on green cards and any documents issued by
immigration):________________________ Place of birth:________________________________
Immigration Status History
Date 1st entered U.S.:______________
Immigration status when 1st entered U.S. (visa, green card,
entered unlawfully, refugee, etc.):_________________________
[Juveniles only] Entered U.S. with whom (name and contact information):___________________________
Current immigration status [permanent resident (green card), visa, TPS (work permit),
asylum, etc.]:________________________________________________
Date obtained current status (exact date, if known):__________________
Does client have any pending applications with immigration? Yes__ No__ If yes, what kind of
application:_________________________________________________
Has defendant left U.S. since first entry: Yes__ No__
If yes, list all dates left and returned: _________________________________________________________
Family in U.S., including parents, spouses, children, siblings, or fiancé(e) (please list relationship to client, age, and
immigration status):
If any parents are U.S. citizens, how old was client when parent became citizen:_______________________
List any grandparents who are U.S. citizens:____________________________________________________
Is client afraid to return to home country? If yes, why?____________________________________________
Does client suffer from any life-threatening illnesses or significant mental health problems?______________
___________________________________________________________
Has client ever come into contact with U.S. immigration: Yes ___ No ___
Date(s) and description
of contact: ______________________________________________________________________________
Does client have a final order of removal from an immigration judge? Yes _____ No______
If yes, please provide date and location of order: ________________________________________________
23
CPCS Immigration Impact Unit Intake Form
Additional Information
Is client in custody? Yes___ No___ If yes, where? ________________ If in immigration detention, date placed in
custody: _________________________
Does client have an immigration detainer? Yes__ No__ If yes, please attach copy if available.
Does client have an immigration attorney? If yes, name and contact info: ________________________
___________________________________________________________________________________
By what date do you need to discuss this matter? ____________________________________________
**PLEASE SEND THE FOLLOWING DOCUMENTS BY FAX, EMAIL OR REGULAR MAIL**
• Updated CORI. List on attached sheet all out-of-state offenses that are not on CORI. If unable
to send CORI, complete attached sheet, including all CWOFs and dismissals (use additional
pages if necessary);
• Complaints or indictments for pending case(s). If unavailable, complete attached sheet (use
additional pages if necessary);
• Any available immigration documents (including detainer and any documents regarding client’s
status, such as green card, work permit or visa).
COMPLETED FORMS AND DOCUMENTS SHOULD BE SENT TO:
CPCS
Immigration Impact Unit
21 McGrath Highway
Somerville, MA 02143
Phone: 617-623-0591
Fax: 617-623-0936
[email protected]
-24
2-
rev. 11/10
CPCS Immigration Impact Unit Intake Form
Criminal History
Date
State
Length and type of sentence (including
CWOFs, fines, fees, costs, restitution, and
probation)
Charge and statutory section
Pending Charges
Date of
offense
State
Charge and statutory section
Upcoming deadlines
-25
3-
rev. 11/10
CHAPTER
SEVEN
COMMONWEALTH OF MASSACHUSETTS
DEPARTMENT OF THE TRIAL COURT
<County>, ss.
COMMONWEALTH
v.
_______________ COURT
CRIMINAL DIVISION
DOCKET #:
)
) DEFENDANT’S MOTION FOR NEW TRIAL
) DPH DRUG LAB CASE
)
)
<Defendant
NOW COMES the defendant in the above captioned matter and respectfully
requests pursuant to Mass. R. Crim. P. Rule 30 that this court set aside the verdict and
order that a new trial be held. The defendant states as his grounds the following:
1.
The defendant was convicted of <offense(s)> after trial on <date> and received
a sentence of < sentence>.
2.
Chemist Annie Dookhan, [who testified at trial] or [carried out the testing on the
alleged controlled substance] or [acted as quality control manager in the
laboratory where the testing was carried out] has been identified by law
enforcement officials as a person who intentionally contaminated drug evidence
to ensure positive tests, inflated drug sample weights, falsified drug analysis
findings, and fraudulently altered chain of custody documents during a time
period relevant to this case. As a consequence of that investigation, two other
laboratory supervisors have been suspended, and the drug laboratory in
Jamaica Plain has been completely closed down.
3.
The Commonwealth relied upon tainted drug analysis documents and testimony
to carry its burden of proof at trial in this case.
4.
As a result of the misconduct of Ms. Dookhan and/or other employees of the lab,
which is imputed to the Commonwealth, the defendant was deprived of due
process by the failure of the Commonwealth to provide true and accurate
discovery in violation of the Fifth and Fourteenth Amendments and Article 12.
Brady v. Maryland, 373 U.S. 83 (1963),
5.
To the extent the prosecution knew or had reason to know that Ms. Dookhan had
engaged in a course of misconduct prior to the trial in this matter, the
prosecution relied on false evidence, and the conviction cannot stand. See
Napue vs. Illinois, 360 U.S. 264 (1959).
26
6.
Pursuant to Superior Court Rule 61A, the defendant states that this issue has not
previously been the subject of direct or collateral post-conviction review. A direct
appeal <has, has not> been taken from this matter. The following motions for
collateral review have been filed in this matter on other issues:
_______________.
7.
The defendant accompanies this motion with a Motion for Discovery pursuant to
Mass. R. Crim. Pro. 30(c)(4) and will seek to supplement this motion at a later
date when more facts are discovered about Ms. Dookan’s misconduct and that
of others at the laboratory.
8.
By filing this motion at this time based on the urgency of this newly-discovered
evidence, the defendant does not intend to waive any other claims.
9.
An affidavit of counsel, with exhibits, is attached hereto in support of this motion
and is incorporated by reference.
WHEREFORE the defendant respectfully requests that the court order a new
trial in this matter; and further that the court allow the defendant to supplement
this motion with additional material uncovered by further investigation of the drug
lab investigation, and discovery received from the Commonwealth.
Respectfully submitted,
THE DEFENDANT
by his attorney
By:___________________
27
COMMONWEALTH OF MASSACHUSETTS
DEPARTMENT OF THE TRIAL COURT
<County>,ss.
COMMONWEALTH
v.
_______________ COURT
CRIMINAL DIVISION
DOCKET #:
)
)
)
AFFIDAVIT IN SUPPORT OF
DEFENDANT’S MOTION FOR NEW
TRIAL
)
<Defendant>
Now comes defense counsel in the above-captioned case and states the
following in support of his Motion to Withdraw Guilty Plea:
1.
I was appointed to represent the defendant in this matter up through trial, after
which he received a prison sentence of _______for ______. He
2.
Annie Dookhan was the chemist who completed most of the drug analysis
certifications in his case. She was also the one who notarized the remaining
drug analysis certifications which she did not herself complete. She has also
testified about the weight and composition of the substance. She also testified
that she was the one responsible for quality assurance throughout the lab.
3.
The Commonwealth has publicly acknowledged in the media, as well as in open
court on other cases, that Annie Dookhan has been fired and is currently under
investigation for serious improprieties at the lab, including, inflating drug weights,
contaminating drug samples to ensure positive results, and falsifying drug
analysis findings. She has broken the chain of custody for Commonwealth drug
evidence in a number of pending and closed cases. Her drug analysis
certifications are rendered suspect in that she has been accused by law
enforcement officials of falsifying the weight and content of samples. Analysis of
drugs performed in any laboratory in which she worked is suspect, considering
her position as chemist in charge of quality assurance. See Exhibit hereto
“Dookhan Press Items .”
Signed under the pains and penalties of perjury,
_______________________________ Date: _______
28
CERTIFICATE OF SERVICE
I, ______, hereby certify that I served a copy of the foregoing Motion by first class mail,
postage prepaid upon the office of the District Attorney, <address> on this date.
Dated: ________________
_____________________________
.
29
CHAPTER
EIGHT
COMMONWEALTH OF MASSACHUSETTS
DEPARTMENT OF THE TRIAL COURT
<County>,ss.
_______________ COURT
CRIMINAL DIVISION
DOCKET #: __________
COMMONWEALTH
v.
<Defendant>
DEFENDANT’S MOTION FOR POST-CONVICTION DISCOVERY
IN DPH DRUG LAB CASE
Now comes the Defendant in the above-entitled matter and moves this Court,
pursuant to Rule 30(c)(4) of the Massachusetts Rules of Criminal Procedure, to order
the Commonwealth to provide the Defendant with the following information relevant to
the charges of ____________________________________________. As grounds
therefore, counsel for defendant states the following:
1.
The controlled substances in this case were tested by the Hinton State
Laboratory Institute, also known as the Department of Public Health Drug Lab.
2.
This drug laboratory has been shut down and is under investigation for
allegations of malfeasance and deliberate mishandling of drug evidence, as is set
forth in the affidavit of counsel in support of the defendant’s motion for postconviction relief from the guilty finding or verdict, filed this day in accordance with
Rule 30(c)(3), which motion and affidavit are incorporated herein by reference.
Wherefore the defendant requests that the Commonwealth be ordered to provide the
following discovery:
1. A copy of the complete laboratory file, documenting the receipt, processing,
analysis and reporting of tests on the substances seized in this case, as well as
supporting, relevant documentation, including but not limited to:
a. A list and curriculum vitae of all the chemist(s), assistants, evidence
officers and laboratory workers who handled the substances in this
case.
30
b. Identification of all evidence officers who assisted in signing out drug
evidence in this case to the chemists and identification of all evidence
officers who received drug evidence after testing, including
qualifications and status as members of law enforcement.
c. A copy of all lab protocols and procedures pertaining to chain of
custody, weighing, and preliminary and confirmatory testing, that were
used in testing controlled substances in this case.
d. A description of the methods employed by the laboratory and staff to track
samples (such as a bar code system) used at the Hinton State Laboratory
Institute in effect at the time drugs were tested in this case.
e. A list of any and all local, state, national government certification,
accreditation, and licenses received by the Hinton State Laboratory Institute,
as well as any certifications, or accreditations received by independent, or
non-governmental organizations that were in effect at the time of testing
drugs in this case.
f. Documentation of the weekly, daily, and hourly quality assurance or “QC”
checks at the Hinton State Laboratory Institute at the time the evidence was
tested in this case.
g. A description of the evidence lockers or containers used by chemists at the
Hinton State Laboratory Institute while in possession or custody of the drugs,
including rules, regulations and practices regarding the security of these
containers or lockers and access to the lockers by other chemists and/or
supervisors at the time evidence was tested in this case.
h. Proficiency testing results for the chemists, assistants and laboratory workers
who handled or conducted any testing on controlled substances that were
tested in this case.
i.
Any handwritten notes produced by the chemist, assistants and
laboratory workers who handled the substances in this case.
j.
All log entries and computer tracking entries and tracking numbers
relative to the receipt of the drug evidence, transfer of the drug
evidence to a chemist or chemists, and return of the drug evidence to
the evidence office or officer.
k. Documentation regarding the delivery and receipt of the substance in
this case to the lab, as well as any documentation or notations
recording the processes of weighing, and drawing testing samples
from the substance in this case.
l.
A description of the method used to draw or cut or otherwise obtain
the actual sample[s] tested in this case.
31
m. Documentation for any preliminary or screening tests, and identification
of the individual(s) who conducted these tests.
n. Documentation for any confirmatory testing, and identification of the
individual(s) who conducted such testing.
o. Identification of the equipment used to conduct preliminary and
confirmatory testing, as well as copies of operation manuals, training
manuals, and records of maintenance for the same.
p. Data, printouts, and information produced by the equipment
documenting a “blank run,” or calibration of the equipment between
samples, to include any such “blank run[s],” or calibration performed
before and after the sample test in this case.
q. If applicable, identification of the manufacturer and model type of the
“column” used in the chemical analysis, as well as an indication of the
number of “runs” on that column preceding the test of the sample in
this case.
r. Laboratory reference standards, including but not limited to the
certificate of analysis used to match retention times of given
substances in the equipment, as well as
any reference standard
used by the laboratory for comparison with the sample in this case.
s. A statement of the mathematical certainty or probability of the reported
results of chemical analysis or testing.
t. Records and documentation of the adulterant standard, as well as any
data, instrumental tracings, printouts, graphs, or documentation
indicating the presence of adulterants in the test sample.
u. A copy of any and all error logs generated in the lab at the time that the
substance in this case was tested.
v. Lab records of standard deviation rates for given substances.
32
Respectfully submitted,
CERTIFICATE OF SERVICE
I, ______, hereby certify that I served a copy of the foregoing Motion by first class mail,
postage prepaid upon the office of the District Attorney, <address> on this date.
Dated: ________________
_____________________________
33
CHAPTER
NINE
COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss.
SUPERIOR COURT
NO.
COMMONWEALTH
v.
DEFENDANT’S MOTION TO DISMISS –
DPH DRUG LAB CASE
The Defendant moves for dismissal in the interests of justice based on the fact that
there are no circumstances under which the Commonwealth can prove that the substances
it seeks to introduce into evidence in this case have any bearing on the guilt or innocence
of this Defendant, cannot be shown to be relevant or material, and will thus be
inadmissible. Specifically, the Defendant’s right to due process and a fair determination
of the facts as guaranteed under the Fifth, Sixth and Fourteenth Amendment to the United
States Constitution and Article XII of the Massachusetts Declaration of Rights has been
violated as a result of the grave, intentional and material misconduct by the
Commonwealth’s agent, Annie Dookhan, and the Commonwealth’s agency, the
Department of Public Health (DPH).
I. FACTS
[Substitute Facts]
The Defendant is charged with distribution of a Class B substance. Subsequent to
his arrest, the substance was submitted to the Massachusetts drug testing DPH lab in
Jamaica Plain (“lab”) during Annie Dookhan’s tenure.
In a sworn statement to State Police investigators, Annie Dookhan confessed the
following, “I, Annie Dookhan, had taken out samples of safe and tested them without
34
being signed out as proper procedure. I also went in the Evidence Log book and
postdated and filled the log book in. I signed my initials and an Evidence Officer’s
initials in the book. That was my mistake and I can’t deny that. I also batched, put
similar samples together, and tested some and not others; I ‘dry labbed.’ I have been
doing it for 2-3 years. At times, a few, I had to add a sample that came back from Mass
Spec to make it what I said it was. I would get the sample from a known sample. I
would try to clean it, the original, up first but if it didn’t I would need to take something,
drugs, from another case. I intentionally turned a negative sample into a positive a few
times.” See AGO State Lab Investigation, p. 77. [Hereinafter “Reports”.]
While the prosecutor reports that Annie Dookhan did not sign off on the
certificate in the instant case, the substance is fatally tainted because:
a) Dookhan forged the initials of other chemists (pg. 5, #2; pg.7 #6; pg.8 #14;
pg.15, #9, pg. 22, #4; pg. 29, #12 and 14; pg. 40, #3; pg. 45, #2; pg. 72, #4) and
even evidence officers (pg.15, #8; pg. 22, #6; pg. 25, #2; pg. 37, #6; pg.72, #3) in
an unknown number of instances, including on Quality Assurance and Quality
Control documents (pg. 5 #s 2, 3; pg. 22, #5; pg. 31, #3; pg. 40, #3, pg. 45, #2).
b) She ignored lab procedures by loading and running her own samples on the
GCMS (pg. 5 #s 3, 4; pg. 40, #4; pg. 46, #3).
c) Dookhan failed to properly run QC/QA test samples (pg. 22, #5), instead
purposefully making up test result numbers on the “Quality Control Daily Injector
Test on the GC/MS.” (pg. 8, #13; pg. 22, #5).
d) Dookhan maintained a level of production of test results that concerned
supervisors and co-workers (pg. 19 #4; pg. 21, #1; pg. 35, #7; pg.45 #2), often
analyzing more samples in a week than they did in a month (pg. 19, #4; pg. 35,
#7).
e) She was submitting racks upon racks of sample vials to the confirmatory
chemists (pg. 22, #2), and leaving many samples out on her bench top (pg. 73, #8
and 9).
f) Dookhan exhibited a pattern of failing basic laboratory procedures (pg. 22, #2),
including documentation issues (pg.7 #11), failing to calibrate balances (pg. 31,
35
#2; pg. 23, #9; pg. 42, #4), and having a work space filled with numerous vials
open to cross contamination (pg. 7, #12; pg. 22, #2; pg. 73, #8).
g) Dookhan was also allowed to access the evidence office computers to enter
and look up data (pg.12, #5; pg. 23, #6; pg. 32, #8; pg. 34, #2; pg. 38, #12; pg. 46,
#4; pg. 72, #6; pg. 90, #2), even after she was suspended from lab duties (pg. 46,
#5; pg. 72, #6), and lacking training (pg. 12, #5; pg.29, #13).
h) Dookhan engaged in the practice of “dry labbing,” looking at the samples
instead of testing them with the presumptive testing (pg. 24, #16; pg. 73, #7 and
10).
i) She was not using the proper method of inspecting slides prepared for a
microscope (pg 19, #5; pg. 32, #6; pg. 21, #1; pg. 42, #2) This resulted in an
unknown number of samples coming back as heroin when she had supposedly
tested it and found it to be cocaine and vice versa (pg 7, #8; pg. 23, #8 and 11).
She would then alter these samples cocaine or heroin, or in one instance THC, so
that they would come out the way she wanted (pg. 6, #s 5, 6; pg. 7, #9; pg. 23,
#10; pg. 73, #9).
j) Dookhan was contacted directly by ADAs about specific samples to potentially
analyze them quicker, potentially out of order (pg.29, #11; pg. 24, #14; pg. 32, #4;
pg. 37, #3; pg. 40, #5; pg. 42, #5; pg. 72, #6), despite lab policies forbidding both
this contact and action (pg. 24, #14; pg. 72, #6).
k) Dookhan accessed the labs numerous times while suspended (pg. 23, #12; pg.
35, #6; pg. 40, #5; pg. 46, #5; pg. 86, #3).
l) Dookhan’s key opened the safe (pg. 16, #17; pg. 32, #7; pg.50, #5), and she
may have known the code (pg. 32, #8; pg.42, #3). Despite policy, she may have
been receiving evidence (pg. 32, #8) and may have been trusted with the ability to
open and close the lab (pg. 32, #7; pg. 42, #4).
m) Dookhan’s false claim to have a Master’s (pg. 71, #1) was discovered around
June 2010, but no action was taken (pg. 30, #15). Other issues with her CV
existed. (pg. 35, #4).
n) The Laboratory had a culture of lax oversight, as many issues with Dookhan
were allowed to continue for years, even having her responsible for training (pg
31, #2 and #3), and for some QA/QC procedures (pg. 22, #2; pg. 51, #2). This
culminated with the assignment of Dookhan to a special project of writing or
updating the lab’s Standard Operating Procedures (SOPs), even after her
suspension for not following procedure. (pg. 15, #9; pg. 35, #6; pg. 55, #3; pg.
59, #3; pg. 86, #3).
36
o) Numerous lab personnel expressed concerns with Dookhan’s workload and
documentation errors (pg. 8, #13; pg. 15, #9 and #10; pg. 19, #4; pg. 21, #1; pg.
22, #5; pg.45, #2; pg. 73, #7), blatant forgeries (pg. 5, #2; pg.7 #6; pg.8 #14;
pg.15, #9, pg. 22, #4; pg. 40, #3; pg. 45, #2; pg. 72, #4), and questionable test
results (pg 7, #8; pg. 23, #8 and 11), but no action was taken.
p) When chemists were audited, there is confusion as to whether or not samples
were retested or if paperwork was simply reviewed. No record of how a sample
could be resubmitted is given, and the number of these retests doesn’t seem to be
tracked. There didn’t seem to be a procedure in place to handle retests. (pg. 14
#5, 6; pg. 22 #3).
q) The Laboratory evidence room and evidence safe were accessible to chemists
(pg. 28, # 7; pg. 37, #9; pg. 12, #4). The procedures to restrict access were
ignored and circumvented (pg. 16, #15; pg. 37, #9, pg. 38, #11; pg. 39, #2). The
safe was found open and unattended (pg. 28, #6; pg. 38, #11), was left propped
open when it was “busy,” (pg. 28, #6) was accessible by codes and keys that had
not been changed in over a decade (pg. 28, #3). An unknown number of chemists
had keys to the safe, though they might not have even known it (pg. 26 #4; pg. 16,
#16; pg. 37, #8; pg. 12, #4). Further, the palm reader access point to the evidence
room might not have been recording those who entered (pg. 17 #19, pg.96, #10).
r) The lab supervisors who discovered the June 2011 breach decided not to notify
anyone (pg. 15, #8), compounding their already questionable lack of interest in
the misdeeds of Dookhan (pg.19, #s 5,6,7; pg. 22, #6; pg. 55, #2). No written
findings of her resubmittals or other QC/QA issues were recorded (pg. 11, #2; pg.
29, #12).
s) The method of samples being checked in and out suffered from lack of
oversight, as whole sets of numbers could be pulled by Dookhan without anyone
noticing (pg. 28, #7; pg. 29, #12; pg. 36, #1 and 2; pg. 73, #8; ). Further, the
evidence officers appear to have a pattern of laxity when it came to tracking
samples and access to the evidence room and safe, computer terminals (pg. 32,
#8; pg. 38, #12; pg. 42, #3; pg. 46, #4; pg. 90, #2 and 3), and written logbooks
(pg. 25, #2 and 3).
t) After the 2011 incident, when it was clear that an unknown number of keys
opened the safe (pg. 12, #4; pg. 26 #5; pg. 28, #4; pg. 37, #8; pg. 38, #12; pg. 46,
#6), no investigation was recorded.
u) The Lab did not appear to have or to enforce any safeguards or policies to
prevent ADAs and police officers from contacting a specific chemist about
specific cases (pg. 29, #11; pg. 37, #3; pg. 72, #5).
37
II. ARGUMENT
"The untainted administration of justice is certainly one of the most cherished
aspects of our institutions. Its observance is one of our proudest
boasts…Therefore, fastidious regard for the honor of the administration of justice
requires the Court to make certain that the doing of justice be made so manifest
that only irrational or perverse claims of its disregard can be asserted."
Mesaroah v. United States, 352 U.S. 1, 14 (1956)(citations omitted).
The Commonwealth has actual notice that during the time the evidence in this
case was stored and tested at the DPH/Jamaica Plain Lab, Annie Dookhan had unfettered
access to the evidence locker and in unknown numbers of cases (1) tainted evidence, (2)
reported substances were positive although they had tested negative, (3) added
substances to increase the overall weight, (4) failed in her role as Quality
Control/Assurance to run test samples and calibrate the instruments used by all DPH
chemists, (5) forged the names of her colleagues, (6) left numerous vials open to cross
contamination, and (7) perjured herself before the judges and juries of this
Commonwealth as to her testing and her credentials.
Given the overwhelming evidence that Annie Dookhan tampered with evidence
and had unsupervised access to the evidence in the lab, the State and Federal
Constitutions bar the Commonwealth from prosecuting the Defendant in this case. This
is because a conviction obtained through the use of false evidence, known to be such by
representatives of the state, must fail under the Fourteenth Amendment. Napue v. People
of the State of Illinois, 79 S.Ct. 1173, 1177 (1959); United States v. Vozella, 124 F.3d
389, 391 (2d Cir. 1997); Commonwealth of the Northern Mariana Islands v. Bowie, 243
F3d 1109, 1122 (9th Cir. 2001). If it becomes known to the Commonwealth that false
evidence was used to obtain an indictment, it is the duty of the prosecutor to so advise the
court and request a dismissal. Commonwealth v. Salman, 387 Mass. 160, 167 (1982);
38
Commonwealth v. Lincoln, 368 Mass. 281, 285 (1975) (finding a basis for dismissal
where the prosecution played an “ignoble part”, by using or permitting the use of tainted
testimony to help convict an accused.)
Prosecutors have a free-standing ethical and constitutional obligation as
representatives of the government to protect the integrity of the court and the criminal
justice system. See Mooney v. Holohan, 294 U.S. 103 (1935); Berger v. United States,
295 U.S. 78, 88 (1935). The Commonwealth’s position - that it can simply retest the
substances - ignores Dookhan’s access to all substances, as well as her unprecedented and
intentional evidence tampering, her negligence, her forgery, and her perjury, all of which
tainted the entire pool of evidence that passed through the lab and makes retesting
impossible. See Mesaroah v. United States, 352 U.S. 1, 14 (1956)(“It is the duty of the
Court to ‘see that the waters of justice are not polluted. Pollution having taken place
here, the condition should be remedied at the earliest opportunity.’”); United States v.
Basurto, 497 F.2d 781 (9th Cir. 1974).
Under these circumstances, retesting the substances and presenting the results of
the new tests as material evidence, without regard for the obvious taint, constitutes willful
blindness and violates the defendant’s due process rights. See United States v. Vozella,
124 F.3d at 392; Commonwealth of the Northern Mariana Islands v. Bowie, 243 F3d
1109, 1117-1118 (9th Cir. 2001); Commonwealth v. Salman, 387 Mass. at 167 (1982);
Commonwealth v. Lincoln, 368 Mass. at 285 (1975)
III. CONCLUSION
Given the overwhelming evidence that Annie Dookhan tampered with unknown
39
numbers of samples, had access to the evidence in this case, failed to exercise her
responsibilities as supervisor in charge of Quality Control and Assurance, and perjured
herself in the courts of the Commonwealth, it is impossible for the prosecution to ever
determine whether the substance it claims was distributed by this Defendant actually was
that substance. As such, the constitutional principles inherent in the “fastidious regard
for the honor of the administration of justice” (Mesaroah v. United States, 352 U.S. at 14)
requires that justice be executed in this case and that the matter be dismissed.
Respectfully Submitted,
CLIENT
By his attorney,
ATTORNEY
40
CHAPTER
TEN
COMMONWEALTH OF MASSACHUSETTS
DEPARTMENT OF THE TRIAL COURT
<County>,ss.
_______________ COURT
CRIMINAL DIVISION
DOCKET #:
COMMONWEALTH
)
)
DEFENDANT’S MOTION TO
WITHDRAW GUILTY PLEA
DPH DRUG LAB CASE
)
)
)
v.
<Defendant>
NOW COMES the defendant in the above captioned matter and respectfully
requests pursuant to Mass. R. Crim. P. Rule 30 that this court vacate his guilty plea,
and order that this matter be restored to the trial list. The defendant states as his
grounds the following:
1.
The defendant pled guilty to <offense(s)> on <date> and received a sentence
of < sentence>.
2.
Chemist Annie Dookhan, who [carried out the testing on the alleged controlled
substance] or [acted as quality control manager in the laboratory where the
testing was carried out] has been identified by law enforcement officials as a
person who intentionally contaminated drug evidence to ensure positive tests,
inflated drug sample weights, falsified drug analysis findings, and fraudulently
altered chain of custody documents during a time period relevant to this case. As
a consequence of that investigation, two other laboratory supervisors have been
suspended, and the drug laboratory in Jamaica Plain has been completely
closed down.
3.
As a result of Ms. Dookhan’s misconduct, the defendant’s guilty plea was not
knowing and voluntary, and therefore violates the Fifth and Fourteenth
Amendments and Article 12.
4.
As a result of the misconduct of Ms. Dookhan and/or other employees of the lab,
which is imputed to the Commonwealth, the defendant was deprived of due
process by the failure of the Commonwealth to provide true and accurate
discovery prior to his guilty plea, in violation of the Fifth and Fourteenth
Amendments and Article 12. Brady v. Maryland, 373 U.S. 83 (1963).
41
5.
The misconduct of Ms. Dookhan constitutes newly discovered exculpatory
evidence.
6.
Pursuant to Superior Court Rule 61A, the defendant states that this issue has not
previously been the subject of direct or collateral post-conviction review. A direct
appeal <has, has not> been taken from this matter. The following motions for
collateral review have been filed in this matter on other issues:
_______________.
7.
The defendant accompanies this motion with a Motion for Discovery pursuant to
Mass. R. Crim. Pro. 30(c)(4) and will seek to supplement this motion at a later
date when more facts are discovered about Ms. Dookan’s misconduct and that
of others at the laboratory.
8.
By filing this motion at this time based on the urgency of this newly-discovered
evidence, the defendant does not intend to waive any other claims.
9.
An affidavit of counsel, with exhibits, is attached hereto in support of this motion
and is incorporated by reference.
WHEREFORE the defendant respectfully requests that the court order a new
trial in this matter; and further that the court allow the defendant to supplement
this motion with additional material uncovered by further investigation of the drug
lab investigation, and discovery received from the Commonwealth.
Respectfully submitted,
THE DEFENDANT
by his attorney
By:
_____________________
42
COMMONWEALTH OF MASSACHUSETTS
DEPARTMENT OF THE TRIAL COURT
<County>,ss.
_______________COURT
CRIMINAL DIVISION
DOCKET #:
COMMONWEALTH
v.
)
)
)
)
AFFIDAVIT IN SUPPORT OF
DEFENDANT’S MOTION TO
WITHDRAW GUILTY PLEA
<Defendant>
Now comes defense counsel in the above-captioned case and states the
following in support of his Motion to Withdraw Guilty Plea:
1.
I was appointed to represent the defendant in this matter up through trial, after
which he received a prison sentence of _______ for ______.
2.
Annie Dookhan was the chemist who completed most of the drug analysis
certifications in his case. She was also the one who notarized the remaining
drug analysis certifications which she did not herself complete. She was also
listed a witness for trial by the Commonwealth.
3.
The Commonwealth has publicly acknowledged in the media, as well as in open
court in other cases, that Annie Dookhan has been fired and is currently under
investigation for serious improprieties at the lab, including inflating drug weights,
contaminating drug samples to ensure positive results, and falsifying drug
analysis findings. She has broken the chain of custody for Commonwealth drug
evidence in a number of pending and closed cases. Her drug analysis
certifications are rendered suspect in that she has been accused by law
enforcement officials of falsifying the weight and content of samples. Analysis of
drugs performed in any laboratory in which she worked is suspect, considering
her position as chemist in charge of quality assurance. See Exhibit attached
hereto, “Dookhan Press Items.”
Signed under the pains and penalties of perjury,
___________________________
43
Date:
CERTIFICATE OF SERVICE
I, ______, hereby certify that I served a copy of the foregoing Motion by
first class mail, postage prepaid upon the office of the District Attorney,
<address> on this date.
Dated: ________________
.
44
_____________________________