Articles Posted in Drug Crimes

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gavel-2-1236453-300x200The Supreme Judicial Court recently issued a decision in a petition filed under G. L. c.211, §3, ruling that the public defender’s office, not judges, have the independent authority to decide who represents indigdent defendants in court. In the decision – Deputy Chief Counsel for the Public Defender Division of CPCS v. Acting First Justice of The Lowell District Court – the SJC “affirm[ed] CPCS’s independent authority under G. L. c.211D [and S.J.C. Rule 3:10] to select and supervise attorneys for indigent defendants in the pilot program it had launched in the drug court session of the Lowell Division of the District Court Department (drug court).”

The background was as follows. Drug courts have been developed to provide the option of treatment as an alternative sentencing option “in cases where the underlying criminal behavior is thought to be motivated by a defendant’s substance abuse.” The “drug court model … favors a collaborative and nonadversarial approach to supervision of the drug court defendant.” “A judge is the leader of the drug court team,” which includes clinicians and treatment providers. Ordinarily, “[d]efense counsel has no formal role in the drug court sessions because in the post-adjudicative setting, the drug court defendant has no right to counsel. However, if a drug court defendant is issued a probation violation notice, defense counsel is appointed.” “In July, 2015, CPCS initiated a drug court pilot program (pilot), which, in a departure from [the usual] policy, permitted the assignment of counsel to indigent drug court defendants for every stage of the drug court proceedings.” “The impetus for the pilot” was the idea “that a drug court defendant’s likelihood of success in substance abuse treatment would be enhanced if defense counsel gained expertise in addiction issues and was familiar with the team’s view of the defendant’s participation. This pilot innovation permitted assigned counsel to participate in drug court ‘staffings’ [planning sessions] which ordinarily would not involve the presence of appointed counsel.” In September, 2015, “a disagreement between the Justice [of the drug court] and CPCS attorneys surfaced … in an incident involving one of the CPCS attorneys chosen to participate in the pilot…. [T]he upshot was that the Justice” determined “that this attorney would not be permitted to represent probationers in the drug court…. Eventually the Justice announced a categorical ban on CPCS attorneys in the drug court, effectively terminating the drug court pilot…. [The Justice] expressed the belief that CPCS attorneys in the Lowell office were ‘extremely hostile’ to the drug court mission and that they refused to ‘participate fully’ as team members.” In response to the judge’s actions, CPCS filed its c.211, §3, petition, “argu[ing] that under … c.211D and S.J.C. Rule 3:10, … CPCS has independent authority to assign counsel to indigent criminal defendants and that a judge may not remove assigned counsel without notice and the opportunity to be heard, or categorically exclude CPCS attorneys from assignments in the drug court.” The single justice reported the matter to the full SJC. Continue reading →

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school-bus-1431472-300x178The Appeals Court recently issued a decision – Commonwealth v. Cooper – clarifying what clarifies as an “accredited” preschool for the purposes of G. L. c. 94C, § 32J, the school zone statute. The defendant was convicted of drug distribution of a class E substance, in a school zone. In its decision, the Appeals Court ruled (1) that the evidence was sufficient to establish that the pills seized from the defendant at the time of his arrest were a class E substance (gabapentin); and (2) that the evidence was insufficient to establish “that the school furnishing the basis for [the defendant’s] school zone violation was an ‘accredited private preschool’ within the meaning of [G.L. c.94C,] §32J.”

The background was as follows. Undercover police officer “Munro told the defendant that she was looking to buy drugs” and the defendant told Munro that he had a prescription for a medication called gabapentin (a class E substance). Munro and the defendant made arrangements to meet for a sale at a restaurant. There, “Munro watched as the defendant removed yellow pills from a prescription bottle and placed them in a plastic bag. The defendant then handed the pills to Munro underneath the table at which they were seated, and Munro handed him the agreed-upon payment in exchange. Following the exchange, the defendant cautioned Munro to be careful when taking the pills, and not to consume more than five pills at once. He further explained that the pills were 300 milligram, quick-release capsules. During their conversation, Munro observed the defendant holding a prescription pill bottle, and saw the defendant’s name on the label.” In due course, “[t]he pills … were sent to the State police drug laboratory and examined by [a] chemist” who “determined that [they] were all the same color, appearance, and size, and [that] each bore the marking ‘G5027.’ Based on her examination … and after consulting reference materials maintained in the laboratory concerning the markings of prescription medications, [the chemist] concluded that [the capsules] contained gabapentin.” Regarding the school zone charge, there was evidence that the restaurant where the drug sale occurred was “located within 300 feet of the Bright Horizon Children’s Center,” a private preschool “licensed by the Department of Early Education and Care, as required for it to operate in Massachusetts.” On appeal from his conviction of possession of gabapentin in a school zone, the defendant argued (1) “that the Commonwealth’s failure to present evidence of a chemical analysis of the substance [in question] left the jury to speculate whether [it] was gabapentin”; and (2) that the fact that the Bright Horizon Children’s Center was licensed did not necessarily mean that it was “accredited” within the meaning of c.94C, §32J. Continue reading →

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in-the-lab-1-1251082-300x249A recent article at Slate.com addresses damning information about the Massachusetts state prosecutors’ failure to properly handle the drug scandals that have rocked Massachusetts over the past several years. Massachusetts has been the site of two of the country’s largest drug laboratory scandals which occurred as the result of egregious misconduct by two seprate state lab employees – Annie Dookhan and Sonja Farak. Their misconduct led to thousands of convictions based on faulty evidence.

According to the article, “prosecutors have badly botched the state’s response,” which has caused substantial delays in justice for defendants who may have been wrongly convicted of drug crimes based on tainted evidence.

In addition to the fact that some district attorneys dragged their feet when asked to identify possible Dookhan defendants and fought procedures to address the potential wrongful convictions in court, the article addresses misconduct by the Massachusetts Attorney General’s Office in their investigation of the Farak scandal.

The AGO began prosecuting Farak in early 2013. In the course of the prosecution, the office needed to determine how many cases had been impacted by Farak’s misconduct. Because Farak’s misconduct involved the theft and use of the drugs that she was testing, the time frame encompassed by her drug addiction was extremely important – any case that she touched during this time period would be suspect. The Slate article points out that if Farak used drugs for just a few months, she might have tainted just a few cases. If she used drugs for years, she might have tainted thousands.

In briefs recently submitted to the SJC, the Innocence Project, the ACLU of Massachusetts, and the New England Innocence Project, the AGO’s utter failure in fulfilling its investigative, ethical, and prosecutorial responsibilities was revealed.

According to the article, the briefs state that a state police officer found Farak’s handwritten worksheet from a drug treatment program, in which she admitted to drug use at work. In February 2013 the officer emailed the AGO’s lead prosecutor about this discovery. Despite clear evidence of Farak’s drug use, the AGO did not provide this evidence to defendants, or to district attorneys who were prosecuting people based on Farak’s tainted work, despite the fact that it was a plain breach of their ethical obligations to do so. Continue reading →

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balance-1172800-300x204The Supreme Judicial Court issued a recent decision, Bridgeman v. District Attorney for the Suffolk District, addressing cases impacted by the Annie Dookhan scandal. In its decision, the SJC announced a new protocol to address the unresolved drug cases that may have been affected by Dookhan’s misconduct.

The Court described the history of this matter as follows. “In Bridgeman v. District Attorney for the Suffolk Dist., 471 Mass. 465, 487 (2015) (Bridgeman I), the petitioners and the intervener, the Committee for Public Counsel Services (CPCS), asked that we exercise our broad powers of superintendence to vacate the thousands of drug convictions affected by Dookhan’s misconduct because the time and expense of case-by-case adjudication had become ‘untenable.’ We declined at that time to adopt their proposed ‘global remedy.’ However, the district attorneys have now provided the single justice with lists identifying more than 20,000 defendants who could be eligible for relief based on Dookhan’s misconduct but who have not yet sought relief from their drug convictions.” (Regarding the causes of the latter circumstance, the Court asserted that the notification letter sent to the relevant Dookhan defendants “by the district attorneys was wholly inadequate to provide the … defendants with the information necessary to knowingly and voluntarily decide whether they should explore with counsel the possibility of withdrawing their plea or moving for a new trial.”) “As a result of the number of potentially aggrieved defendants, the single justice issued a reservation and report to the full court that essentially invites us to reconsider whether the time has come for a global remedy or whether further steps must be taken to realistically implement the remedy of case-by-case adjudication of potentially thousands of motions for a new trial. After such reconsideration, we decline to adopt the district attorneys’ argument that we should stay the course we had previously set and take no further action to protect the rights of the ‘relevant Dookhan defendants.’ We also decline to adopt the petitioners’ request for a global remedy in which we would either vacate the convictions of all relevant Dookhan defendants with prejudice, and thereby bar any reprosecution, or vacate the convictions without prejudice, and allow the Commonwealth one year to reprosecute, dismissing with prejudice all cases not reprosecuted within that time period. We instead adopt a new protocol for case-by-case adjudication, which will occur in three phases, and order its implementation by the single justice in the form of a declaratory judgment.” Continue reading →

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In a recent decision issued by the SJC – Commonwealth v. Horne – the Court precluded “negative profiling” testimony. Specifically the Court held that it was improper to elicit testimony regarding the appearance of drug users, in conjunction with the argument that the defendant did not look like an addict and therefore must be a drug dealer.

The background was as follows. The automobile that the defendant was driving was stopped for a traffic violation. “The officer who conducted the stop … determined that the defendant’s driver’s license had been suspended.” When that officer, joined by another, attempted to arrest the defendant, he “forcefully resisted.” Eventually, the efforts of five officers were required in order to subdue the defendant and place him under arrest. “Thereafter, the arresting officers found nearby a clear plastic bag containing twenty-six individually wrapped ‘rocks’ of crack cocaine, totaling 3.87 grams. The defendant apparently had kept the bag in his boot, which came off during the melee.” An inventory search of the defendant’s vehicle revealed three cellular telephones, eighty-three dollars in cash, and a gun, but no drug paraphernalia. At the defendant’s trial, the Commonwealth’s expert, in addition to testifying about the packaging and valuation of illegal drugs and common practices of drug users and dealers, stated that the majority of crack addicts are “‘somewhat unkempt, very thin, physical appearances seem to be deteriorating, sometimes they’ll have rotted teeth or worn down teeth from constantly grinding their teeth based on the addiction.’” The prosecutor emphasized this testimony in his closing argument, stating “‘How do you know [the defendant] possessed [the crack cocaine] with the intent to distribute it, does he look like a drug addict?…. [C]rack cocaine addicts are skinny, they are thin, they have rotted teeth, they are drawn out. [The defendant is] a big man, he’s a big muscular man…. [The police officers] needed assistance to [subdue] him. He is not a drug addict; he possessed it with the intent to distribute it.’” “On appeal, the defendant argue[d] that it was error to allow [the expert] to testify as to the typical physical characteristics of crack cocaine addicts, maintaining that such testimony was inadmissible negative profiling evidence.” Continue reading →

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money-shot-1559546-300x200In Commonwealth v. Martin, the SJC addressed whether defendants whose convictions were vacated as a result of the Annie Dookhan drug lab scandal should be reimbursed for court fees paid prior to the allowance of the motion to vacate. The SJC decided against such reimbursement, stating that “there [was] no statutory authority” for the return of such monies.

The background of the case is as follows: in 2011, the defendant pleaded guilty to a drug offense and received a probationary sentence whose conditions required the payment of certain fees mandated by statute: “a one-time victim-witness assessment of fifty dollars, as well as a monthly probation supervision fee of sixty dollars and a monthly victim services surcharge of five dollars (collectively, probation fees).” One year later, “after the revelation of misconduct at the William A. Hinton State Laboratory Institute …, a judge granted the defendant’s unopposed motion to withdraw his guilty plea on the ground that Annie Dookhan, the subsequently discredited analyst at the center of the misconduct allegations, [had] performed the analysis of the substances seized during the defendant’s arrest.” Upon the granting of the defendant’s motion to withdraw his plea, “[t]he Commonwealth entered a nolle prosequi on the underlying complaint. Thereafter, the defendant filed a motion for return of property, including probation supervision fees ($780) paid during the term of probation and the victim-witness assessment (fifty dollars).” The motion was denied.

In its decision, the SJC rejected the defendant’s argument “that the language in [G.L. c.258B,] §8[,] requiring the return of the victim-witness assessment where a conviction is ‘overturned on appeal’ also applie[d] to this case where the conviction was vacated as a consequence of the judge’s order granting the defendant’s motion to withdraw his guilty plea.” The Court explained that “[h]ere, the defendant did not appeal from his conviction; rather, his conviction was vacated after a judge … granted postconviction relief through Mass. R. Crim. P. 30, … and the Commonwealth subsequently entered a nolle prosequi. That procedural difference is dispositive here. The plain language of §8 specifically limits persons entitled to a refund to those whose conviction or adjudication of delinquency was overturned on appeal.” The Court also rejected the defendant’s contention that G.L. c.276, §87A, “provide[s] [a] statutory basis for the return of probation fees where a defendant’s conviction is subsequently vacated.” In the Court’s view, the statute “is silent as to a defendant’s entitlement” to recoup probation fees. Continue reading →

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lab-1418866-225x300According to a recent news article on www.Masslive.com, questions remain as to who was responsible for the Commonwealth’s failure to disclose exculpatory discovery to defense attorneys in the Amherst drug lab scandal. The scandal came to light in 2013, after state officials determined that one of the chemists working in the lab – Sonja Farak – had been siphoning off drugs for her own personal use. Farak had been responsible for determining whether substances seized by the police were in fact a controlled substance and if they were, the type of controlled substance, and its weight.

As a result of Farak’s misconduct, a number of drug cases in which she was the chemist came under scrutiny. Defendants filed motions for new trials and/or moved for their cases to be dismissed. During the course of this litigation, hearings were held by a Superior Court judge, Jeffrey Kinder, in September 2013. Judge Kinder held the hearings to try to determine when Farak’s misconduct began in an effort to figure out how many drug cases might have been affected by her misconduct. During those hearings, an assistant attorney general told the court that all material relating to Farak had been during over to the Hampden County District Attorney’s office, who could in turn provide that material to defense attorneys. In the fall of 2014, however, it was determined that a number of exculpatory materials had not in fact been provided to defense attorneys. Specifically, when Farak was arrested in January 2013 for the drug thefts, a large quantity of mental health and substance abuse treatment records were found in her car. The records included information about her treatment for drug addiction dating back to over a year before her arrest. The records came to light after a defense attorney who represented a number of defendants whose cases involved testing by Farak was permitted to inspect evidence in the case. State police and the attorney general’s office had had the records since searching Farak’s car shortly after her arrest in early 2013. Further, these state officials repeatedly fought the defense attorney’s request to look at the evidence.

Continue reading →

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jail-1211438In Commonwealth v. Laltaprasad, the SJC ruled that G. L. c. 211E, §3(e), does not “authorize[] a sentencing judge to depart from the mandatory minimum terms specified by statute for subsequent drug offenses,” where “the Legislature has not yet enacted into law sentencing guidelines recommended by the Massachusetts Sentencing Commission.”

The background was as follows. After a jury convicted the defendant of possession with intent to distribute heroin and cocaine, “[t]he defendant pleaded guilty to the subsequent offense portion of each of these charges.” At sentencing, the “judge stated that she would depart downward from the mandatory minimum sentence provisions of the two subsequent offense statutes [G.L. c.94C, §32(b) and G.L. c.94C §32A(d)], each of which requires a minimum term of three and one-half years in State prison, and would impose instead a sentence of two and one-half years in a house of correction.” The Commonwealth moved unsuccessfully for reconsideration and then sought relief pursuant to G.L. c.211, §3. “The single justice reserved and reported the case to the full [SJC] without decision.”

At issue in this case was the proper interpretation of c.211E, §3(e), … part of a chapter of the General Laws entitled ‘Massachusetts Sentencing Commission’ that was added by the Legislature in 1996…. Section 3 of c.211E focuses specifically on the responsibility of the commission to recommend sentencing guidelines…. Although the sentence ranges to be set by the guidelines are to be presumptive in most circumstances, §3(e) provides: ‘Except for the crimes set forth in [G.L. c.265, §1, (murder)], the sentencing judge may depart from the range established by the sentencing guidelines and impose a sentence below any mandatory minimum term prescribed by statute if the judge sets forth in writing reasons for departing from that range on a sentencing statement … based on a finding that there exists one or more mitigating circumstances that should result in a sentence different from the one otherwise prescribed by the guidelines and below any applicable mandatory minimum term.’” In its appeal from the judge’s departure from the mandatory minimum sentence in this case, “[t]he Commonwealth argue[d] that the judge lacked authority to reach this result because the mandatory minimum sentence departure authorization in §3(e) only becomes operative when the [Massachusetts Sentencing] [C]ommission’s recommended sentencing guidelines are ‘enacted into law’ by legislative vote, as mandated by c.211E, §3(a)(1), and the Legislature has not done so to date.” Continue reading →

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The issue of Annie Dookhan, the disgraced state chemist convicted of tampering with drug evidence in thousands of criminal cases, was once again in the headlines this past week.

An article published by Courthouse News Service, addressed a recent hearing relating to the cases impacted by Dookhan’s misconduct. During the hearing, which took place before the full panel of the Supreme Judicial Court, the attorneys from the ACLU, the public defenders, and the Commonwealth’s district attorneys once again argued about how to most effectively handle the 34,000 plus cases tainted by Dookhan’s conduct.

The attorneys from the ACLU and public defenders asked the SJC to issue a blanket order vacating the sentences of all those impacted by Dookhan on the ground that the state’s district attorneys have failed to remedy the problem within a reasonable time frame. Matthew Segal, legal director for the ACLU of Massachusetts, argued that “What has happened since the exposure of Dookhan’s misconduct is a failure to deliver justice,” noting that it took four years for the DA offices to produce a list of those defendants affected. “What we’re talking about now is the integrity of the system itself.”

The article states that when the list of 24,481 cases in which Dookhan impacted the guilty verdict was released in May, the state sent out notices to 20,916 people, of which 5,762 came back as “return to sender.” Of the remaining letters, only 779 were mailed back. Susanne O’Neill of the Norfolk DA’s office argued that this was because many of those affected were only partially impacted by Dookhan, as other evidence also contributed to their convictions. She also argued that those who have already served their sentences would be reluctant to reopen that part of their lives.

O’Neill’s point, however, was quickly challenged by SJC justice Geraldine Hines, who responded “In what world does a defendant who has been convicted on evidence that we assume was attributable to government misconduct, in what world do they not want to make that right? It sounds like the Commonwealth is saying that this class of people doesn’t care. I cannot imagine that if people are given notice and are aware of their rights that they would not be like everybody else and want justice. Continue reading →

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hair-1481587The Appeals Court recently issued a decision – Thompson v. Civil Service Commission – finding that the Boston Police Department’s drug screening method for screening its officers is flawed.

The background of the case is as follows: the collective bargaining agreement between the Boston police officers’ union and the Boston Police Department provides for annual hair testing for drugs as part of the department’s substance abuse policy. The portion of the agreement that specifically pertains to the testing states that “sworn personnel of the Boston Police Department will be tested for drugs and/or alcohol under the following circumstances…the parties agree that all sworn personnel shall be subject to an annual drug test to be conducted through a fair, reasonable, and objective hair analysis testing system.” The agreement goes on to state that an employee “will be subject to termination” for a positive test result…” The plaintiffs in the case are a total of ten officers who submitted hair samples, tested positive for cocaine, and were terminated as a result. The union then filed suit on behalf of the officers to appeal their terminations and the case ultimately ended up before the Appeals Court.

In reviewing the case, the Appeals Court found that the Boston Police Department’s use of officers’ hair samples in drug screening is scientifically unreliable and reinstated six of the ten officers with back pay and benefits. In its decision, the Appeals Court conducted an inquiry into the scientific reliability of the hair test and found that a positive test result was not conclusive on the question of voluntary drug ingestion.  It further found that a positive result may in fact be due to contamination from environmental exposure as opposed to drug use by the officer. The Court specifically held that the risk of a false positive was significant enough to require additional evidence prior to terminating an officer for drug use. In terms of six of the officers who had been terminated as a result of the positive test results, the Appeals Court found that the additional evidence presented by the officers outweighed the results of the hair test.   Continue reading →