Monday, October 8, 2012

Drug lab scandal expected to delay cases, cost millions

The wave of destruction left by the alleged actions of disgraced former chemist Annie Dookhan reaches further than the defendants affected by polluted drug evidence.

Although state officials do not believe the 34-year-old longtime chemist at the Hinton State Lab in Jamaica Plain tainted any cases in Worcester County or west of Worcester, local attorneys, legal experts and others believe Ms. Dookhan will cause a delay in criminal cases and millions of dollars in state expenditures.

Annie Dookhan
Annie Dookhan
"It's going to be a financial tsunami from a variety of angles," said Boston-based lawyer Peter T. Elikann, a member of the Massachusetts Bar Association's Criminal Justice Section. "This is going to consume the court system for a least a couple of years."

The state is already asking district attorneys, the attorney general, administration for the courts, the state's public defenders and different state agencies for a potential cost estimate involved in the fallout of Ms. Dookhan's alleged actions.

Ms. Dookhan, of Franklin, is charged with obstruction of justice and falsely pretending to have a degree from a college or university. Authorities claim Ms. Dookhan tested more than 60,000 drug samples involving roughly 34,000 defendants in her nine years at the drug lab. The 100-page report involving the investigation shows Ms. Dookhan admitted to just looking at drugs instead of testing them.

District attorneys who had drug evidence tested at the Jamaica Plain lab, which was shut down as the scandal unfolded, are preparing a list of needed personnel to handle these cases — and a price tag to go with it. The district attorneys have not submitted a supplemental budget request as yet.

Worcester District Attorney Joseph D. Early Jr. said money will be needed for his office to pay for an appellate court prosecutor, a superior court prosecutor, one or two district court prosecutors and an administrator.

Mr. Early, president of the Massachusetts District Attorneys Association, said many district attorneys will push for more prosecutors.

"We are going to need more resources," he said. "We are pulling people from duties they already have."

It is believed the counties affected most will be Suffolk, Norfolk, Middlesex and Barnstable, which covers Cape Cod and the Islands. There are 1,141 individuals currently serving drug sentences in state or county prison or jail facilities who had drug evidence analyzed by Ms. Dookhan.

Mr. Early's office is reviewing 32 to 40 cases of people currently serving time, but as of a few days ago no connection to Ms. Dookhan was found. Mr. Early's office sends drugs to UMass Memorial Medical Center in Worcester for testing.

Whatever the cost, it appears the state is on the hook to pay. The polluted drug evidence flew in the face of the legal system and more than likely caused people to be jailed. The dollar amount for handling these cases on all sides and the associated civil suits expected to be filed is hard to predict, said state Sen. Stephen M. Brewer, D-Barre, chairman of the Senate Ways and Means Committee.

"It is hard to tell at the moment," he said. "It is somewhat of a moving target. Clearly it is a responsibility we take very, very seriously."

A rough estimate put forth by the senator was $10 million.

"Whatever it does take to administer fair justice, the commonwealth will honor that obligation," Mr. Brewer said.

The trial courts have already established judges designated to handle cases involved in the drug lab debacle. In Worcester County, Superior Court Judge James L. Lemire and Central District Court Judges Paul LoConto and David Despotopulos have been assigned to cases.

"We have established designated sessions for the purpose of assigning counsel and addressing the immediate liberty interests of the incarcerated defendants serving time in connection with a drug conviction stemming from a questionable drug analysis," the state Trial Court said in a news release last week.

"This is a terrible crisis. This is not only a crisis in the effects it has on individuals' lives, some people may be serving sentences or facing sentences because of enhancements," Worcester defense lawyer Peter L. Ettenberg said. "The diversion of attention to these old cases it just horrible. It has created a real problem for numbers of people: court staff, judges, prosecutors and the individual chemists."

The first wave of cases being reviewed by district attorneys offices involve those serving prison or jail time. The second wave will involve those in federal prisons. After that will be a review of people awaiting trial, those on probation and people who have been convicted and served their sentences.

In her interview with state police investigators, Ms. Dookhan claimed she faked tests for two or three years, according to investigation documents. She admitted to contaminating samples to receive a positive result for a specific type of drug, the investigation showed.

Lawyers are concerned the review of the potentially tainted cases will draw resources away from newer cases. Mr. Elikann said all the Jamaica Plain drug samples are going to the state police crime lab in Sudbury.

"I'm sure they'll try to be as efficient as possible," Mr. Elikann said. "It is believed there will have to be a terrific log jam. Things may move sluggishly for a while."

"The sad thing is that people were complaining about how long the drug tests were taking to be completed for the last several years," he continued to say. "It was already a fairly dire situation that was sort of the bane of the district attorneys offices and the judiciary."

Mr. Ettenberg, who didn't have an affected case as of a few days ago, believes chemists will be tied up testifying in court as well.

Jurors aware of the scandal might be more skeptical of drug certifications and chemists testifying now, defense lawyers said. In their investigation, state police spoke with supervisors at the drug laboratory in Amherst. The supervisor called the accusations involving the Jamaica Plain lab troubling because integrity is paramount in their line of work.

Scientific evidence used to be considered proof positive, Mr. Elikann said. That may change a little for jurors.

"Now they will have an extremely heightened awareness and possibly for better or worse, a much more dramatic skepticism," he said.

Jurors may have a short memory and not recall the scandal, Mr. Ettenberg said.

"Six months from now I don't think they are going to remember or care who this person is," he said. "I think it is going to depend on the person that is testifying."

Mr. Early, however, said jurors are intelligent, and have the ability to determine if a case in front of them was actually affected or a defense lawyer is trying to cast an unwarranted cloud.

But the Worcester district attorney is concerned the alleged misdeeds of Ms. Dookhan could create a perception that there were widespread transgressions with drug testing.

"I have an overall concern that what she has done will create a perception that drugs are not being tested in the proper manner," he said. "We know the other chemists are doing the work they are doing. It begs the question about the oversight, management and protocol of these facilities."

There is a review of the protocol. The state police investigation shows co-workers and others were concerned about Ms. Dookhan's work and the massive amount of tests she did at times.

"You really need to strive for failsafe perfection when it comes to taking people's freedom from them," Mr. Brewer said.

By Scott J. Croteau, Telegram & Gazette Staff,

Source: The Worcester Telegram & Gazette

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