Imagine, for a moment, you are one of the thousands of defendants whose cases were sullied by Annie Dookhan’s drug-lab skulduggery.
Shouldn’t someone let you know?
But who? Should it be the prosecutors who made cases using evidence her actions tainted? Or, less plausibly, the overburdened defense attorneys whose clients were harmed by her?
Incredibly, more than four years after Dookhan’s crimes were first uncovered, this simple question of justice remains unresolved. Thousands of those whose lives were affected haven’t been notified of their rights, including the possibility of a new trial. Many still have no idea they are Dookhan defendants.
The mess isn’t even close to being cleaned up. And what a mess it is.
The state chemist, who analysed drug samples for prosecutors, pleaded guilty in 2013 to filing false test results and mixing samples, casting doubt on some 20,000 cases.
They aren’t the most attractive lot, Dookhan’s victims — drug offenders in the main. But they have a right to know what may have been done to them.
After a hard push by advocates, including lawsuits, some district attorneys, who are ultimately responsible for Dookhan’s misconduct, have finally moved to give defense lawyers information that would help track down defendants who haven’t yet come forward.
But the DAs haven’t all tried hard enough. Some have provided thousands of docket numbers for defendants who might have been affected. Others are only now preparing to turn over that information (though most have been good at correcting tainted cases brought to their attention).
And none of the prosecutors have taken it upon themselves to notify defendants their cases might have been compromised, leaving that task to the cash-strapped Committee for Public Counsel Services, which simply cannot make a dent in the massive problem.
“We are still very, very, very far from any kind of realistic solution to this lab crisis in Massachusetts,” said Daniel Marx, a Foley Hoag attorney who, along with the ACLU and the CPCS, has sued two district attorneys in an effort to force them to do more.
In other places where there have been lab scandals — Texas, New York, California — prosecutors have voluntarily identified tainted cases and notified defendants, Marx said.
Prosecutors here say they can’t do that because it would constitute giving legal advice to defendants, which ethics rules prohibit. Nonsense. Notice doesn’t constitute advice, said Marx and others.
“Those are excuses,” he said. “There is no ethical bar to prosecutors doing in Massachusetts what prosecutors have done . . . around the country.”
Some prosecutors are willing to do more. Though her office has been slower to gather docket numbers for unresolved Dookhan cases, Middlesex District Attorney Marian Ryan took an aggressive approach to resolving the tainted cases brought to her attention.
“This is on us,” she said. She is open to notifying defendants, working alongside CPCS, if the court makes a path clear.
“I want people to be notified,” she said. “I don’t think we can dump 7,000 names at CPCS and say, ‘Good luck.’ ”
Some defendants would have been charged and convicted even without the tainted evidence. But some were wrongfully convicted, or given harsher penalties, because of it. The consequences of that can last a lifetime.
In court papers, CPCS estimated it would take 16 full-time paralegals a year to track down defendants in the Dookhan cases. Every hour they spend on that debacle is an hour they can’t give to other clients.
“Robbing Peter to pay Paul is not a reasonable, responsible, or constitutionally feasible approach,” chief counsel Anthony Benedetti said in an affidavit.
In papers filed this week, Marx and others asked Margot Botsford, the Supreme Judicial Court judge tasked with resolving the Dookhan mess, to decide whether prosecutors must notify defendants.
It’s time for the judge to put her foot down. Every day this drags on further harms the integrity of the justice system.
Dookhan is the government’s mess. Prosecutors should lead the cleanup.Yvonne Abraham is a Globe columnist. She can be reached at email@example.com. Follow her on Twitter @GlobeAbraham.