Massachusetts Drug Lab Scandal Affects Thousands of Cases From 2003 to 2011

Over 8000 drug cases from Essex County alone are tainted by the scandal at The Department of Public Health’s Jamaica Plain Laboratory, where rogue employee Annie Dookhan, who worked there for nearly a decade, has been violating protocols and cutting corners.  Literally thousands of drug cases will have to be reviewed, and many will be reopened.  People are in jail who shouldn’t be, and people have drug convictions on their records who shouldn’t.

See the stories here, here and here.  If you have a drug conviction from between 2003 and early 2011, your case might have been tainted by this person.

Some 50,000 samples statewide were handled by Dookhan, and every single one of them is in question.

Said the Boston Globe:

The chemist, Annie Dookhan of Franklin, worked in the state Department of Public Health’s lab in Jamaica Plain from 2003 until her resignation in March. She was initially removed from her laboratory duties in June 2011, after supervisors discovered discrepancies with the logging of drug evidence that was being tested.

Dookhan was responsible for identifying drugs and weighing them.

Governor Deval Patrick ordered the laboratory closed after the State Police, which took over drug testing in Massachusetts July 1, discovered that problems at the lab were more widespread than first reported.

Breath Test Refusal Suspension News – Significant Change

If you refuse to take a breath test in Massachusetts, your drivers license will be suspended for 180 days, even if you have previously admitted to sufficient facts on a charge of operating under the influence.  This is a significant change from the way the law has been applied.  Until today, the Registry of Motor Vehicles would suspend your license for three years upon a test refusal if you had a Continuance Without a Finding on a prior OUI charge. No longer.

The Supreme Judicial Court ruled today that a “CWOF” on a charge of Operating Under the Influence of Liquor does not count as a prior “conviction” triggering the longer 3-year suspension for the refusal of a breath test.

The case is Souza v. Registrar of Motor Vehicles, et al., and the briefs can be found here.

The Most Important Lesson of the Casey Anthony Trial

Americans are “shocked”and “outraged” at the verdict of Not Guilty rendered by the jury in the Casey Anthony trial.  Nancy Grace is positively apoplectic on her “show”, and she and many of the “expert” commentators on the cable networks are speculating about just how stupid the jurors are.

You may be outraged, too.  If you are watching Nancy Grace right now, you may be agreeing with her that the “story” told by the defense was not plausible.  You may be wondering along with Grace, “where is the retribution for Little Caylee? Where is the justice?” You may have followed the trial on the cable networks, and listened to the myriad lawyers, jury consultants, psychologists, and former “law enforcement” personnel who shared their “expertise.”

You may agree with Casey Anthony’s former fiancee who is on TV right now saying that he is disgusted by the defense team in this case, because for them, “it was never about a search for the truth, it was about win at all costs.”

If you are doing any of these things, you are far from alone.  Sadly, the one lesson we can take away from this trial, the verdict, and the reaction to the verdict, is this:

Americans have absolutely no idea how their justice system works, or why it works the way it does.

They have no idea what “burden of proof” means. They have no idea that the rules of evidence allow some evidence to be presented to the jury and prohibit other evidence from being presented.  They have no idea what “beyond a reasonable doubt means.”  They have no idea that a jury is given instructions by the judge, very explicit and binding instructions, that tell them what must be proved to them in order to find a defendant guilty, what they may consider as evidence, how they may consider it, what they may not consider, and under what circumstances they can not find a defendant guilty.

Americans have no idea about the duty of the defense lawyer.  They have no idea that it is his or her professional responsibility to zealously defend the client, that his or her only job is to defend that client as vigorously and thoroughly as he or she can. And they have no idea how important that job is.

They have no idea that the purpose of a trial is not to avenge the death of a victim, but to determine whether the government has enough evidence to hold someone responsible for that death.  So that if a defendant is found not guilty, it has nothing to do with dishonoring a victim, or a failure of retribution.

Americans think that, if they, sitting in their living rooms watching cable, believe that a defendant is guilty, then the only “just” outcome of a trial is a guilty verdict.  They think that if the government “loses” and a defendant is found not guilty, then justice has been denied.

Americans think that if a prosecutor calls something “science”, then it must be science.  They think that if “law enforcement” says that something happened a certain way, then it must have.  They think that if someone on cable tv says something, then it must be so.  Hell, they  think that if someone is on cable tv, then he or she must know what they are talking about.

Americans are outraged by a not guilty verdict in a trial in which the prosecution couldn’t meet its burden of proof.  Where is the outrage when a man is released from prison after serving 27 years for three rapes that dna testing has now proved he didn’t commit. How about for the hundreds of other people exonorated after serving unimaginable prison terms?  We don’t even notice those cases.

You didn’t sit through every minute of every day of the trial. You didn’t listen to the all-important jury instructions.  If you had, then you would be in a position to judge the verdict.  But you didn’t, and neither did I. So we have to respect the verdict, and understand that our system is a product of our Constitution, of the freedoms and rights we celebrate so loudly in our politics. If you respect the Constitution, respect the verdict.

SJC Holds Registry Certificates Testimonial, Inadmissible

This is a big deal.  In order to convict someone of driving after suspension of their license, the Commonwealth has to prove that the person received notice of the suspension.  Until today, the government has been proving notice by offering into evidence a piece of paper, certifying that the attached notices had been mailed.  Courts have been admitting them as a business record. Not any more.

The Supreme Judicial Court of Massachusetts ruled today in Commonwealth v. Parenteau (not Mark Parenteau, for those of us old enough to remember the heydays of WBCN) that a certification that a notice of suspension of a driver’s license was mailed to the driver is testimonial, and not simply a business record, and therefore not admissible against the driver in court absent a live witness to be cross-examined.

This means that someone from the registry has to testify that a particular notice was mailed to the address it shows, or at least that the practice of the registry is to mail out the notices to the addresses of record.  Because it is going to be nigh-on impossible for the Registry to provide people to testify that they saw a particular notice go into the mail, this means that for a while the Commonwealth is not going to be able to prove these cases.

The Court did tell the Registry how to fix the situation, though:

We agree with the Commonwealth that the actual notice of the defendant’s license revocation, . . . constitutes a business record of the registry, created and kept in the ordinary course of its affairs. However, there is no evidence of the existence of a contemporaneous business record showing that the notice was mailed on that date. If such a record had been created at the time the notice was mailed and preserved by the registry as part of the administration of its regular business affairs, then it would have been admissible at trial. That would have been the correct procedure for the admission of a business record from the registry.

So the registry will have to start creating contemporaneous records of mailing of the notices, and those will become business records, I guess.  Of course, the only reason to keep those contemporaneous records is for future litigation, so they aren’t really business records, in my opinion, but that is a case for another day.

For now, it looks like people with charges of Operating After Suspension will be going to trial.

N.B.:  Defendants charged with Operating After Suspension for OUI might run into a different problem.  The dockets of their OUI cases, and if they plead, the green plea sheets, will in most cases indicate a license suspension and its duration.  I expect that courts will allow that type of evidence to satisfy the notice element in those cases.

The interesting twist, though, is those cases in which, for example, a defendant who has two prior OUI convictions is convicted of OUI Second Offense, because the Commonwealth wasn’t able to prove both of his priors.  His docket and green sheet will most likely show a two year loss of license, even thought the Registry will impose an eight year suspension, because its suspensions are determined by the number of priors in the Registry records, not necessarily the Courts’ sentence.

If that person is arrested three years after his conviction on OUI 2nd and is charged with driving while suspended for OUI, it may be impossible to convict him as the only evidence of notice of the Registry’s eight year suspension is their certification that it was sent, which is now inadmissible.

As with other criminal offenses, the notice element of OAS may be proven by circumstantial evidence in some cases, I suppose, but this ruling throws a big wrench in the prosecution of these cases, at least until the Registry institutes a fix.

Brave officers keep streets safe for the good people. . .

The homeless man in this video was charged with assault on a police officer and resisting arrest after he was uncooperative when being issued a citation for “drinking an alcoholic beverage.”

I bet the arraignment was interesting, as he was wheeled into court and the charge of assaulting a police officer and resisting arrest were read out.

I wonder what the police report says?  I would be willing to bet that in the report the guy in the wheelchair brandished some object, like a pipe or a knife, or ran the cops down with the chair.

Glad the brave officers are safe, though. . .

Here is how the Washington Post describes the vidoeo:

The video begins with the man in the chair, two officers alongside. A few seconds later, all three have pitched forward and are prone. Still later, the officers are standing while the man remains on the ground, with off-camera voices appearing to express dismay.

Wait, what?

The Post continues:

Metro issued a statement Sunday saying that the man, whom police have not identified, had resisted arrest, “which resulted in him falling out of his wheelchair.”

In the statement, Metro said transit police on routine patrol at the U Street Metrorail station in Northwest Washington on Thursday spotted the man in a wheelchair “drinking an alcoholic beverage.”

When asked to leave, the man refused, Metro said. The officers tried to issue a citation, but he “refused to comply.” The officers then told him that he would be placed under arrest, and he resisted, the statement said.

It said he was arrested in connection with an assault on an officer and drinking in public. He was taken to a hospital with a minor injury, the statement said.

Actually, they threw him on the ground and opened up his scalp.  But what the hell.  Everyone who reads the story will believe that the brave cops were just cleaning up the streets, and that the crazy homeless guy was probably out of control.  No one will bother to watch the video after reading the article, because, hey, its in the paper, so, it must be true.

And the “reporter” who wrote the “story” hasn’t offended any of the cops he eats lunch with and who feed him inconsequential “tips” so he can write a story every day and go home and relax.

Remember this the next time you read about an arrest in the newspaper or hear about it on TV.

Or forget about it, and go on about your day. Because it really doesn’t matter anyway, right?

Until it happens to you or someone in your family.

Johnny Pinchback Didn’t Do It

In case you missed it last week, another wrongfully-convicted prisoner was exonerated after a horrifying amount of time in prison.

​According to the Dallas Observer:

At around 10:30 on the night of March 22, 1984, two young girls were on their way home from a store in their Dallas neighborhood when they were approached by a man with a gun. He told them to go with him into a nearby field. He said he would shoot them if they did not comply. He tied the two girls together, then raped them both before fleeing on foot. After the assault, the girls walked to a nearby house, where they called Dallas Police.

According to Dallas County District Attorney Craig Watkins’s office, they were then taken to a hospital, where both girls were given rape exams. A few days later, on April 4, both were shown police photo spreads. And both said the same thing: Johnny Pinchback was the man who raped them. He insisted he was innocent. And on October 5, 1984, a Dallas County jury found him guilty of aggravated sexual assault and sentenced Pinchback to 99 years in prison.

Yeah, 99 years.

And we now know that he didn’t do it.

But, its OK, because he only served 27 of those years.

Take some time out of your day to think about that.

Out of State License Not an Excuse to Arrest

Kristian Chown was, and may be again, a part-time bartender in Hyannis, Massachusetts.  Back in 2006, he was driving his pickup truck when he was stopped for speeding by Sergeant Kevin J. Tynan of the Barnstable police department.  Sergeant Tynan recognized Kristian, as Tynan had been a patron at the bar, presumably while off-duty.  He had also been to Kristian’s house when Kristian and his girlfriend had engaged in, shall we say, an animated disagreement.

Imagine Sergeant Tynan’s surprise when Kristian handed him a shiny new driver’s license from New Brunswick, Canada.  Sergeant Tynan wasn’t buying it.  Sergeant Tynan had personal prior knowledge that the defendant previously had possessed a Massachusetts driver’s license (that had expired). Sergeant Tynan inquired why Kristian did not have a Massachusetts driver’s license. Kristian replied that he planned on going to the registry of motor vehicles the next morning to obtain one. (Everyone who gets stopped by the police is going to the registry in the morning, or to get an inspection sticker in the morning.)

Tynan arrested Kristian for operating a motor vehicle without a license. Not such a big deal, and that in itself wouldn’t lead to a Supreme Judicial Court decision, specifically Commonwealth vs. Kristian A. Chown.

But of course there’s more. During the subsequent inventory search of his truck, the Barnstable Police recovered “drugs, cash, and other items.”  As a result, Kristian was indicted for trafficking in cocaine and possession of marijuana with intent to distribute.

Kristian’s lawyer, being on top of things, moved to suppress Kristian’s arrest and the search of his truck because, you know, he actually had a license.  The trial judge agreed, but the Appeals Court didn’t, and Kristian found himself in the SJC, arguing whether Sergeant Tynan had probable cause to believe that Kristian was a resident of Massachusetts, and therefore needed to have a Massachusetts license.

The Commonwealth argued that Sergeant Tynan properly arrested Kristian for driving without a Massachusetts license because, based on the facts then known to Sergeant Tynan, he had probable cause to believe that Kristian was really a Massachusetts resident, and was driving without a Massachusetts license.

The Court, though, saw it differently.  In a nutshell, they held that the legal determination of residency for purposes of motor vehicle violations (ch. 90) is way too complicated and fact-specific to be made by a cop at the side of the road.

Here, when Sergeant Tynan arrested the defendant, although he suspected that the defendant was a resident of Massachusetts for various reasons, he had not conducted an investigation into the matter or obtained any of the relevant determinative information under and pursuant to [the statute that tells them what to look for]. Consequently, Sergeant Tynan did not base his decision to arrest on information that was “definite and substantial,” Commonwealth v. Santaliz, supra, in the context of the confines of the statutory scheme, in particular, G.L. c. 90, § 3 1/2 [the one that tells them what to look for], and thus, did not possess the requisite probable cause to arrest the defendant for operating without a Massachusetts driver’s license.

So a license from another state, and,  maybe, another country [?], is actually meaningful in the Commonwealth.  Even if the cop that pulls someone over has lifted a pint or two with the driver, he can’t arrest him for not having a Massachusetts license unless he has very specific information.  That  is because, in the words of the SJC,

a legal determination of residency (for purposes of G.L. c. 90) involves some investigation and as a practical matter is not one that can be made in the field based on suspicions that do not correspond to the various residency factors enumerated in [that statute].

See the opinion for the statutory details, but remember this one because it will be important.  We know that because the first place to post the decision, after the official court website, is MASSCOPS.

They know that this case will make it harder for them to find an excuse to search the cars of “strangers”.