Massachusetts State House.
Boston Bar Journal

From Lab Scandals to Police Scandals: Lessons in Resolving Government Misconduct in Criminal Cases

February 09, 2024
| Winter 2024 Vol. 68 #1

By Matthew Segal and Jessica Lewis

Just over a decade ago, the arrests of two state chemists who helped prosecute thousands of people for drug crimes—Annie Dookhan and Sonja Farak—rocked the Massachusetts justice system. The fallout from those scandals has been extraordinary. Litigation overturned some 61,000 tainted drug charges across more than 35,000 cases. A lawsuit has secured the return of $14 million in fines and fees extracted from criminal defendants in affected cases. And three former state prosecutors have now been disciplined—one with disbarment.

This is an embarrassing chapter in the Commonwealth’s history, and it is tempting to put it behind us. But we should not do that.

When resolving the lab scandals, the Massachusetts Supreme Judicial Court (“SJC”) crafted powerful legal tools for addressing misconduct in criminal cases. The SJC has returned to those tools repeatedly, and it did so most recently in January, in a case challenging the Hampden County District Attorney Office’s response to damning allegations of misconduct within the Springfield Police Department. If advocates and courts continue to use these tools to address government misconduct—whether by chemists, prosecutors, or police officers—we might remedy, or even prevent, future wrongful convictions.

The Drug Lab Litigation

The Dookhan and Farak scandals have been described in numerous venues—from a Task Force convened by the Boston Bar Association to a Netflix docuseries. The following overview highlights the remedies the SJC developed to address the fallout.

For many years, Dookhan invented test results by “eyeballing” samples instead of testing them. That is, she fabricated evidence. Farak, meanwhile, was seemingly living with an addiction that she likely shared with many people she helped prosecute. Farak stole, used, and even manufactured drugs while working at a state lab.

But after Dookhan and Farak were arrested, in late 2012 and early 2013 respectively, justice came very slowly for the people they helped prosecute. That is because these scandals, which started with bad science, were exacerbated by bad law—law that makes it hard for wrongfully convicted people to get justice.

Legal rules typically make wrongfully convicted people bear the burden of undoing their convictions. After the Dookhan and Farak scandals broke, no one notified the defendants convicted and imprisoned based on the chemists’ test results. No one made sure that all those defendants had lawyers. And the defendants who had the wherewithal to challenge their prior convictions had to grapple with the fact that successful challenges could revive charges that had previously been dismissed. If courts had allowed that to happen, the people who dared to challenge their Dookhan convictions could have wound up spending even more time behind bars.

This was a recipe for keeping all those wrongful convictions in place, making it harder for impacted people to find jobs and housing, and to move on with their lives. So public defenders, criminal defense lawyers, and the American Civil Liberties Union of Massachusetts (“ACLUM”) litigated cases to shift the burden to the state to prove the integrity of the convictions.

Over the years, the SJC did exactly that. In 2014, the court announced a “conclusive presumption” of government misconduct in all Dookhan cases, which was pivotal because Dookhan could not recall which cases she had tainted, and defendants could not possibly identify them. The presumption applied in every case where Dookhan had certified that the substance at issue was an illegal drug.

In 2015, the court called on prosecutors to identify Dookhan’s cases, and created an “exposure cap.” Under the exposure cap, if a defendant successfully challenged their prior guilty plea in a Dookhan case, and the Commonwealth chose to re-prosecute them, the Commonwealth was barred from securing harsher punishment than was imposed after the initial (tainted) plea. The cap meant that defendants could challenge their Dookhan-tainted convictions without having to worry that they could wind up worse off if they got re-convicted.

In 2016, prosecutors finally delivered a list of over 20,000 still-unresolved Dookhan cases. ACLUM then showed that in 62% of those cases, the only drug conviction was for possession.

In 2017, the Court called on prosecutors to dismiss “large numbers” of Dookhan’s cases. Prosecutors responded with lists that led to the court-ordered dismissal of drug charges in more than 20,000 cases—the largest single dismissal of wrongful convictions in U.S. history.

In 2018, the court ordered the dismissal of every case where Farak signed a drug certificate, plus numerous other cases involving drug samples processed at the lab where Farak had worked. An earlier SJC decision, calling on the Commonwealth to investigate the true scope of Farak’s misconduct—which, remarkably, the Commonwealth had failed to do—paved the way for those dismissals.

This series of decisions and dismissals share an important theme: they resulted from the SJC placing the burden of identifying and undoing wrongful convictions—on the state—instead of on wrongfully convicted people.

Broader Implications: Extending the Drug Lab Precedents

These drug lab precedents can and should be applied more broadly to address misconduct in the criminal justice system. In the past year or so, the SJC issued two monumental decisions that begin to show us how to do just that.

In December 2022, the SJC took a page from the drug lab playbook when it was asked to help resolve cases involving misconduct committed by the Office of Alcohol Testing (“OAT”) relating to breath tests used in drunk driving prosecutions. As in the drug lab scandals, it was impossible for defendants to prove how the misconduct unfolded in their specific cases. So the SJC used a tool it fashioned in the drug lab litigation: it held that defendants affected by the OAT scandal—all 27,000 of them—were entitled to a conclusive presumption of government misconduct.

As in the drug lab cases, this conclusive presumption means that defendants in these cases need not prove that the OAT’s misconduct occurred in their individual case. Instead, courts will presume that their cases involved flawed breath test evidence, and those breath tests results will be excluded from use at any subsequent trial.

The drug lab and OAT decisions also demonstrate the importance of the court tailoring each solution to the problem at hand. With Dookhan’s cases, the court allowed prosecutors to re-prosecute some cases. With Farak’s cases, due to the presence of attorney misconduct, the court dismissed all impacted cases. And with the OAT scandal, the court did not order any mass exonerations, and instead allowed case-by-case litigation to proceed against the backdrop of presumptive government misconduct. But with every scandal, the Court made sure of one thing: that the burden of systemic misconduct by government actors would not be shouldered by the criminal defendants against whom that misconduct was perpetrated.

Logically, the same principles should apply when government misconduct of undetermined scope and gravity is committed, as it sometimes is, by police officers. And the SJC recently confirmed that this logic is correct.

In the Field: Remedying Police Misconduct

In Massachusetts and nationwide, there have been important discussions about police misconduct and its impact on judicial proceedings. Like a rogue chemist, a rogue police officer or department can raise questions about whether they have arrested and helped to secure convictions against people who may be innocent—for example, with a provable pattern of providing false testimony, a demonstrated history of systematically withholding evidence of the use of excessive force, or by repeatedly losing or destroying evidence.

Public discussions about police misconduct often ask whether police departments can or will reform themselves. But one lesson of the Massachusetts drug lab scandals is that when a member of a prosecution team commits misconduct of unknown scope and scale, the state—not just the wrongdoer’s supervisor or department—must investigate. And police officers, no less than chemists, are members of prosecution teams. Just as a chemist who falsely certifies test results can cause people to be wrongfully convicted of drug crimes, police officers who make false allegations against the people they encounter can cause them to be wrongfully convicted of crimes. If, for example, a police officer uses excessive force against an arrestee, they might be tempted to justify that force by falsely alleging that the arrestee resisted arrest or assaulted the police.

And so, faced with evidence that Springfield Police Department (“SPD”) officers committed systemic misconduct that may have impacted the judicial process, the SJC has fashioned a remedy designed to start the work of removing the taint of that misconduct from criminal convictions. In so doing, it confirmed that the obligation to act to remedy government misconduct impacting judicial proceedings is triggered not only by misbehaving chemists but by misbehaving police officers as well.

The case, Graham v. District Attorney for the Hampden District, concerned the legal system’s muted response to evidence of misconduct within the SPD. In July 2020, the U.S. Department of Justice (DOJ) issued a report alleging a pattern or practice of excessive force by the SPD’s Narcotics Bureau, which was covered up by false reporting. As the Graham briefing laid out, in the three and a half years since the DOJ report’s release, no one on behalf of the Commonwealth investigated the DOJ’s allegations. And unlike Dookhan and Farak, the officers implicated by the report largely remained employed by the SPD.

So, in April 2021, the Committee for Public Counsel Services, the law firm Goulston & Storrs, the ACLUM, and the national ACLU sued the Hampden County District Attorney’s Office (HDAO), which prosecutes people with the help of SPD officers. The lawsuit alleged that officers may have facilitated wrongful convictions to conceal their own misconduct.

But the lawsuit did not seek mass exonerations. Instead, it pointed to some of the more tailored remedies imposed during the drug lab cases, particularly the SJC’s holding that the Commonwealth had a legal duty to “thoroughly investigate the timing and scope of Farak’s misconduct.” Plaintiffs argued that the Commonwealth similarly had such a duty as concerns the potential misconduct by SPD officers alleged in the DOJ report.

The Court agreed. The SJC held that “the duty of the district attorney’s office to investigate unquestionably was triggered by the DOJ report’s findings.” And the Court further held that the HCDAO violated that duty by “failing to gain access to all documents known to have been reviewed by the DOJ.” Expressly relying on its drug lab cases, the SJC explained that the duty to conduct a thorough investigation arises whenever the prosecution “learn[s] that a member of the prosecution team has been accused of misconduct.”

To remedy the HCDAO’s violation of its duty to investigate, the SJC ordered the HDAO to obtain and disclose, “in an electronic format with optical character recognition,” all SPD records known to have been reviewed by the DOJ. That is more than 100,000 pages.

Beyond demonstrating that the HCDAO had fallen short of its duty to investigate police misconduct, the proceedings in Graham also revealed two other troubling aspects of the HCDAO’s approach to evidence of police misconduct, according to the SJC’s ruling. First, when judges found that police officers gave untruthful testimony in cases handled by the HCDAO, the HCDAO did not disclose those findings in other cases against the implicated officers unless the HCDAO agreed that the officers had been untruthful. Second, when the HCDAO learned of evidence that a police officer had committed misconduct, but the HCDAO wasn’t sure which of two or more officers committed the misconduct, the HCDAO simply withheld the evidence in cases involving all of the officers under suspicion. The SJC held that both of these practices violated the HCDAO’s duty to disclose potentially exculpatory evidence.

In the wake of the SJC’s decision in Graham and the disclosures that will result from it, the defense bar can work to determine the impact of the SPD’s misconduct. But the lessons of the SJC’s cases, from the drug lab litigation through Graham, go beyond any one scandal. And they need to be learned by all stakeholders in the criminal legal system, preferably before being sued. The SJC has created an important legacy: a range of tools for remedying, and possibly even deterring, wrongful convictions by any and all members of a prosecution team.

The question is: Will we use them?

Matthew Segal, a senior staff attorney with the ACLU’s State Supreme Court Initiative, previously served as Legal Director of the ACLU of Massachusetts and was counsel in the cases leading to the Dookhan and Farak mass exonerations. Jessica Lewis is a staff attorney at the ACLU of Massachusetts. Both are counsel in Graham v. District Attorney for the Hampden District.