Thousands of criminal cases, already at risk of being overturned because of alleged mishandling of drug testing by a state chemist, may have another problem: The drugs may have been routinely destroyed by police, which could lead to new trials and reduced sentences for people convicted of drug offenses years ago.
If the drugs are not available to undergo a new round of laboratory testing, drug convictions could be overturned, or new, lower, sentences may be requested, according to the Committee on Public Counsel Services, the state’s public defender agency.
Under a 2009 US Supreme Court ruling known as Melendez-Diaz that was sought by the agency, the chemist who tests contraband drugs must testify at trial. Paper tests results alone will no longer qualify as admissible evidence.
“There would be no ability to retest the drugs’’ if they have been incinerated by police, said Anne Goldbach, forensic resources director for the public defender agency. “And because of Melendez-Diaz you cannot go forward with just a certificate from a drug lab.’’
She added, “We don’t know what’s been destroyed at this point. But one can anticipate that the defense attorneys will be seeking to vacate sentences, or seeking motions for a new trial in those cases that are already settled.’’
Earlier this week, Massachusetts State Police sent district attorneys in eastern Massachusetts a list of 50,000 drug samples -- involving 34,000 criminal cases -- for which former Department of Public Health chemist Annie Dookhan of Franklin conducted the testing that confirmed the substances were illicit drugs and also provided the weight of the seized drugs.
Dookhan was briefly removed from laboratory duties in June 2011, after supervisors discovered discrepancies in the logging of drug evidence. This year, State Police took over the lab and discovered more problems, which they have yet to specify publicly, with tests Dookhan performed between 2003 and 2012 at the Jamaica Plain lab. Dookhan was reinstated later in 2011 but was fired this summer when the new problems surfaced.
Governor Deval Patrick has since ordered the laboratory closed.
The most cases affected will be in the office of Suffolk County District Attorney Daniel Conley, where 22,677 samples may have been tainted or mishandled, although the number of criminal defendants involved has not yet been established.
The Boston Police Department, who sent drug evidence to the DPH lab except for cases originating from a joint investigations with federal law enforcement, has suspended the destruction of contraband drugs because of the ongoing inquiry into the DPH lab, a police spokeswoman said.
“During the pendency of the internal audit of cases, we have stopped all drug evidence destruction,’’ Cheryl Fiandaca said in an email response. “Together with the District Attorney’s office we are reviewing and auditing the number of cases that may have been affected to determine the appropriate course of action.’’
Fiandaca said the department only “destroys drugs after a final adjudication and the exhaustion of appeals. The destruction requires a court order and is done on a case by case basis.’’
State Police spokesman David Procopio said his agency destroys the drugs only after the criminal case is completed, and only with the support of a court order.
He said that while the State Police does test drugs at its lab, in most cases the contraband drugs are sent back to the local police departments that seized them during their investigations. Those departments then decide, on their own, when to store, or destroy, the contraband drugs.
According to the office of Norfolk District Attorney Michael Morrissey, the lab investigation may affect 4,500 criminal cases, and the office of Essex District Attorney Jonathan Blodgett said it is identifying the defendants linked to 8,451 samples studied by Dookhan.