A PROJECT OF THE UNIVERSITY OF CALIFORNIA IRVINE NEWKIRK CENTER FOR SCIENCE & SOCIETY,
UNIVERSITY OF MICHIGAN LAW SCHOOL & MICHIGAN STATE UNIVERSITY COLLEGE OF LAW
A PROJECT OF THE UNIVERSITY OF CALIFORNIA IRVINE NEWKIRK CENTER FOR SCIENCE & SOCIETY,
UNIVERSITY OF MICHIGAN LAW SCHOOL & MICHIGAN STATE UNIVERSITY COLLEGE OF LAW
Approximately 19,000 defendants had their convictions vacated and charges dismissed in 2017 and 2021 after a chemist at the Massachusetts Crime Lab near Boston was found to have dry-labbed samples and breached several protocols to ensure quality control in testing.
Annie Dookhan began working as a chemist at the Forensic Drug Laboratory at the William A. Hinton State Laboratory Institute in 2003. She resigned in March 2012, a few months before the lab closed in the wake of the forensics scandal. Before closing, the lab’s chemists assisted both local and state police across eastern Massachusetts.
Almost from the beginning, Dookhan’s work attracted attention from her colleagues. They referred to her as “superwoman” because of her productivity. In her first two years at the lab, she analyzed approximately 700 samples a month, twice as many as the next-most-productive chemist.
In 2009, the U.S. Supreme Court ruled in Melendez-Diaz v. Massachusetts that allowing a prosecutor to submit a chemical drug test report without the testimony of the person who performed the test violated a defendant’s Sixth Amendment right to confront an adverse witness at trial. The ruling required chemists to spend more time in court and reduced the time available to analyze samples. Dookhan’s colleagues became suspicious when her productivity dropped far less than that of other chemists.
Beginning in 2010 and continuing through the spring of 2011, several chemists and lower-level supervisors brought concerns to their lab managers and union representatives. Their complaints detailed ways in which Dookhan failed to follow well-established lab procedures.
Nothing was done to address these complaints. The lab managers attributed these problems to Dookhan’s work ethic and her desire to be a good employee. A union official warned one chemist against defaming a fellow employee and union member.
Several months later, on June 16, 2011, lab supervisors found that Dookhan had violated the chain-of-custody protocols for 90 samples, then tried to cover up the violation by forging a co-worker’s initials. They confronted her with the logbook and the forged initials but she did not confirm or deny her involvement. The lab transferred her to a non-analyst position where one of her responsibilities involved drafting new versions of the very protocols she had apparently violated.
The lab managers kept quiet about the chain-of-custody breach. A report by the Massachusetts Office of the Inspector General, released in March 2014, speculated that these officials worried that a scandal might jeopardize federal funding from the U.S. Department of Justice.
Dookhan continued to test samples that she had been assigned prior to the discovery of the protocol breach. In the month after her transfer, she analyzed 181 samples, either as the primary or confirmatory chemist. Sometimes, she worked alone in the lab.
During this period, colleagues reported to supervisors that Dookhan forged a co-worker’s initials on a quality-control test on a mass spectrometer and separately falsified a calibration test on the machine. No evidence suggests that Dookhan’s boss, Julianne Nassif, the director of the Division of Analytical Chemistry, relayed those complaints to her superiors at the Department of Public Health.
Dookhan also continued to testify in court. She appeared 32 times between June 22, 2011, and February 9, 2012, just before the lab placed her on administrative leave. The resume she provided to prosecutors during their investigation said she continued to perform quality-control functions at the lab and also reported that she had a master’s degree in chemistry. Neither was true. The inspector general’s report said that the lab managers knew of this potential problem but again failed to act.
On July 1, 2012, a statewide reorganization initiative transferred the lab’s operations to the Massachusetts State Police. Two days after the transfer, several lab chemists told the state police about Dookhan’s problems and how they had been swept under the rug. The state police reported the information to Attorney General Martha Coakley’s office, which then began its own criminal investigation, interviewing 35 persons involved with the lab. The Attorney General’s office interviewed Dookhan on August 28, 2012, and she admitted to dry-labbing and to tampering with samples to make negative findings positive. Governor Deval Patrick closed the drug lab on August 30.
The Commonwealth arrested Dookhan on September 28, 2012, and charged her with obstruction of justice and falsely claiming to hold a degree from a college or university. Her indictment ultimately included 27 counts: 17 counts of tampering with evidence; eight counts of obstruction of justice; one count of perjury; and one count of falsely claiming to hold a degree. She pled guilty to all charges on November 22, 2013, and was sentenced to between three and five years in prison. She was paroled in 2016.
In her sentencing memorandum, Justice Carol S. Ball of the Superior Court in Suffolk County wrote that
Dookhan was a “tragic and broken person who has been undone by her own ambition. The Commonwealth concedes that her criminal behavior was driven by nothing more than a desire to be recognized as a productive employee. On the other hand, the consequences of her behavior, which she ought to have foreseen, have been nothing short of catastrophic. Innocent persons were incarcerated. Guilty persons have been released to further endanger the public, millions and millions of public dollars are being expended to deal with the chaos Ms. Dookhan created, and the integrity of the criminal justice system has been shaken to the core.”
Dookhan was the only official to be charged with a crime. But her misconduct, the lack of oversight that let it fester, and the failure to act quickly in its wake led to the resignations of four officials, including lab manager Nassif and Public Health commissioner John Auerbach. Another chemist lost her job when evidence showed that she also falsified her resume.
Even before Dookhan’s arrest, prosecutors and defense attorneys learned about the Commonwealth’s investigation into the drug lab and began trying to assess the ramifications of Dookhan’s misconduct for criminal convictions. One study later concluded that approximately 62 percent of the tainted drug convictions stemmed from possession alone, and that 90 percent of the cases had been resolved in low-level courts, either as misdemeanors or as felonies without indictment. The convictions still carried enormous burdens, making it difficult for defendants to get jobs or obtain access to services such as public housing. Defendants often had to pay substantial court fees.
After Dookhan’s arrest, defendants quickly filed motions to overturn their convictions. The court handled these cases individually; the state brought five judges back from retirement to hear these so-called “Dookhan cases.” Defense attorneys soon criticized that effort as “an earnest but doomed attempt to bail water with a teaspoon.”
On October 11, 2012, the Massachusetts chapter of the American Civil Liberties Union↗ and the state chapter of Families against Mandatory Minimums wrote to Attorney General Coakley. They asked the state to uniformly dismiss nonviolent Dookhan-related drug convictions where Dookhan had communicated directly with police or prosecutors, as well as all such cases that involved defendants who had served at least half of their sentence. The attorney general rejected the offer. Judges continued to meet defendants’ motions for new trials with uncertainty throughout 2012 and 2013.
That situation changed on March 5, 2014, when the Supreme Judicial Court of Massachusetts ruled in an appeal filed by attorneys for Rakim Scott, who had pled guilty to a drug crime while on probation. Scott wanted to withdraw his guilty plea, arguing that he would not have pled if he had known about Dookhan’s misconduct. A trial court had granted his motion, and the Commonwealth appealed to the Supreme Judicial Court.
In its unanimous ruling, the court said that Dookhan’s misconduct was too egregious and wide-ranging to be accurately tracked. It wrote: “Thus, even if Dookhan herself were to testify in each of the thousands of cases in which she served as primary or secondary chemist, it is unlikely that her testimony, even if truthful, could resolve the question whether she engaged in misconduct in a particular case. What is reasonably certain, however, is that her misconduct touched a great number of cases.”
The opinion created a presumption of misconduct for any case where Dookhan’s signature appeared. This eliminated the need for potentially thousands of similar defendants to relitigate the matter in individual motions for new trial.
While Scott’s case was being considered, the ACLU, later joined by private attorneys and the state’s public defender’s office, known as the Committee for Public Counsel Services, filed a case highlighting a separate issue. The case involved three defendants who were concerned that if they withdrew their guilty pleas, the state would charge them with more serious crimes carrying more severe sentences.
On May 18, 2015, the Supreme Judicial Court forbid prosecutors from that course of action.
“Any subsequent motions to withdraw those guilty pleas must be viewed as an inevitable result of the disclosure of Dookhan’s misconduct,” the court wrote. “That being the case, the Commonwealth cannot simply reprosecute the petitioners as if the plea agreements had never existed, thereby giving the Commonwealth a second bite at the proverbial apple in its efforts to convict the petitioners. Instead, the Commonwealth must be held to the terms of its plea agreements.”
The ACLU and others had also asked the court to dismiss all the tainted cases rather than requiring each defendant to litigate a motion to dismiss. They argued the case-by-case approach was too expensive and would take too long. The court said the current system needed to be given a chance to play out. “In our view, the implementation of a ‘one size fits all’ approach is not presently a workable solution.” The court asked the district attorneys to compile a list of all defendants with Dookhan-related convictions.
They identified more than 24,000 cases by May 2016. Around Labor Day of 2016, the district attorneys began sending notifications, eventually mailing 20,916 letters. They were unable to find addresses for 1,006 defendants.
District attorneys reported that 5,767 of the letters were returned unopened. Even after that, the response rates appeared quite low. In Bristol County, for example, the district attorney received only 39 telephone calls from approximately 2,200 letters. Other counties reported similar responses. The district attorneys said the results suggested that Dookhan defendants were not particularly interested in reopening their cases. Most had already served their sentences and allegedly just wanted to move on with their lives.
The ACLU and others returned to court to argue that the low response resulted from errors in the mailing itself. It looked unofficial. It used vague wording in English. The Spanish translation contained errors, using the Spanish verb for “vacating the premises” to explain the opportunity for “vacating a sentence,” and describing a clerk in criminal court as a criminal who works as a court clerk.
The Supreme Judicial Court changed course on January 18, 2017, and issued new orders under which the district attorneys must dismiss thousands of the Dookhan-related cases. It noted the “wholly inadequate” notices, which the court described as easily mistaken for junk mail. It gave the district attorneys 90 days to divide the Dookhan-related drug convictions into those they wanted to dismiss and those they believed they could prosecute successfully even without Dookhan’s tainted lab results.
The court's ruling established three lists of defendants. The first list were those defendants whose pled guilty to a drug charge prior to Dookhan's employment and therefore weren't entitled to relief. The second list were those defendants whose cases the district attorneys wished to vacate. The third list identified drug convictions that the district attorneys did not want to vacate, and the ruling required prosecutors to certify that "if a motion for a new trial were allowed, the district attorney could produce evidence at a retrial, independent of Dookhan's signed drug certificate or testimony, sufficient to permit a rational jury to find beyond a reasonable doubt that the substance at issue was the controlled substance alleged in the complaint or indictment."
On April 19, 2017, Supreme Judicial Court Associate Justice Frank Gaziano dismissed 21,587 cases tied to Annie Dookhan’s misconduct in the largest mass dismissal of convictions in U.S. history. The court dismissed more than 7,800 cases in Boston and Suffolk County alone. These were the cases on the the second list. According to research by the Massachusetts ACLU, 18,938 defendants were wrongfully convicted, including many who were wrongfully convicted at least twice. In addition, according to the ACLU, 247 Dookhan defendants were also wrongfully convicted due to misconduct in the other Massachusetts drug lab scandal, involving Sonja Farak.
Attorneys for the defendants celebrated the dismissals but also acknowledged the immense toll Dookhan’s misconduct had taken. “In many respects, the damage has been done. Jobs have been lost, people have been unable to get jobs, housing has been lost,” Anthony J. Benedetti, the chief counsel for the state’s public defenders, told the New York Times.
The Dookhan defendants filed a class-action lawsuit against the state of Massachusetts in March 2018, which was later amended. The defendants sought compensation for the costs of their convictions, including court costs, probation-monitoring fees, and the costs of getting their licenses reinstated. They also sought compensation for community service they were ordered to perform. Parties agreed to stay this litigation until May 2020 in an effort to reach a negotiated settlement.
Nine people also filed federal civil rights lawsuits against Dookhan and current and former state officials. These individuals sought compensation for their wrongful convictions or arrests. Eight of the nine individual lawsuits were dismissed or terminated, but one defendant prevailed. On June 16, 2017, a federal judge ordered Dookhan to pay Leonardo Johnson $2.1 million in damages for her misconduct that led to his conviction on drug charges.
According to Johnson’s lawsuit, he was arrested on November 15, 2008, after an undercover officer approached him in Boston’s Chinatown neighborhood asking for $20 of crack cocaine. Johnson said he didn’t give the officer cocaine but rather a small piece of a cashew nut. He told the buyer not to look too closely during the transaction. Johnson was then arrested and charged with distribution of cocaine, with an enhancement for an offense committed near a school.
He claimed in his lawsuit that Dookhan ran several tests showing the sample negative for cocaine. Eventually, on February 12, 2009, the sample tested positive. Johnson alleged that either the result was falsified or Dookhan’s misconduct contaminated the sample. Dookhan’s report at trial, which had also been signed by another chemist, made no mention of the negative tests.
Dookhan and the other chemist both testified at Johnson’s trial. Dookhan committed perjury about her level of education and about the drug sample. The other chemist also committed perjury when he said the confirming test was the only test that was run on the sample. Johnson was convicted on November 18, 2009 and sentenced to two years and one day in prison. After the drug scandal broke, Johnson filed a motion for a new trial, which was granted in 2013 and the charges were dismissed.
“I knew she was lying,” Johnson told the Boston Globe after U.S. District Judge Indira Talwani ordered Dookhan to pay him compensation. “Ain’t no way, no how a cashew can turn into crack.”
In 2020, Suffolk County District Attorney Rachel Rollins filed a motion to vacate 108 convictions in Suffolk County from the so-called "third list." In a statement, Rollins said that although her predecessor had certified to the court these convictions were supported by evidence beyond Dookhan's certification, justice required her to do more.
“All List Three cases are forever tainted by egregious and reprehensible government misconduct — even if fresh convictions were to be obtained without Dookhan’s involvement,’’ she said. “No defendant impacted by this ignominious chapter of Massachusetts law enforcement history should continue to bear the burden of Dookhan’s deceit, her sad and desperate need for attention, and the enormous amount of harm she inflicted upon so many.”
A single justice of the state's Supreme Judicial Court approved Rollins's motion on June 25, 2021.
- Ken Otterbourg