Articles Posted in Drug Crimes

Published on:

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 →

Published on:

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 →

Published on:

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 →

Published on:

OLYMPUS DIGITAL CAMERA

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 →

Published on:

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 →

Published on:

questions-1308019According to an article in The Patriot Ledger, questions have arisen about the Braintree Police Department’s oversight of evidence held in their custody. While town officials have been relatively quiet about what is happening, the article states that the town has hired an outside investigator to conduct an audit of all evidence held by the police department. Braintree’s mayor, Joseph Sullivan, issued a short statement earlier this week in response to an inquiry from The Patriot Ledger, saying that “[t]he evidence review is active and ongoing.” The mayor further stated that upon the completion of the review, “all findings will be communicated to the Norfolk County [D]istrict [A]ttorney’s office and at the appropriate time released to the public.” The mayor made no indication as to what triggered the audit and his statement said that he would have no additional comments. Braintree’s chief of police likewise declined to provide any information, stating that he was “not in a position to elaborate.”

The article further states that the Norfolk County District Attorney is aware of the review. The DA made his own statement saying that he has “been made aware of the ongoing internal investigation at the Braintree Police Department” and that, “[a]t this time, [the DA’s] office is not involved in the internal investigation. Although the mayor, the police, and the DA’s office appear to be in the know, other town officials do not appear to be as well informed. The Patriot Ledger reached out to the town council president shortly after the mayor issued his statement and he said that he was unaware of the audit and the mayor’s statement was “the first [he’s] heard of it.” The town council president added that the council will likely have “to wait until the investigation is completed” before taking any action. Continue reading →

Published on:

dutch-weed-1251539According to an article in the MetroWest Daily News, a Worcester man was recently arrested for various driving offenses because he admitted to officers that he had been smoking marijuana while operating his car. This past Wednesday, several officers were working on a detail on Union Avenue in Framingham when a passing Toyota sedan drew their attention. The article specifically states that all the officers noticed an “extremely strong odor of burnt marijuana” coming from the car as it passed. One of the officers pulled over the driver and spoke to him. The driver acknowledged that he had been smoking marijuana and handed the officer a joint. The driver went on to state that he “always” smokes and drives because it “relaxes” him. The officer then told the driver that it is “illegal to drive under the influence of marijuana” and proceeded to arrest him. The defendant was ultimately charged with driving under the influence of drugs (marijuana) and driving to endanger. Police also cited him for possession of less than an ounce of marijuana, as the driver provided the officers with a small bag of marijuana.

For the Commonwealth to obtain a conviction against the defendant for operating under the influence of drugs, it would have to prove the following beyond a reasonable doubt: (1) that the defendant operated a motor vehicle; (2) that he operated it on a public way; and (3) that while the defendant was operating the vehicle, he was under the influence of marijuana. As to the third element, someone is under the influence whenever he has consumed enough marijuana to reduce his ability to operate a motor vehicle safely by diminishing his alertness, judgment, and ability to respond promptly. This would include anyone who has consumed enough marijuana to reduce his mental clarity, self-control and reflexes, and thereby left him with a reduced ability to drive safely. The Commonwealth is not required to prove that the defendant actually drove in an unsafe or erratic manner, but it must prove that the defendant had a diminished capacity or ability to drive safely.

For the Commonwealth to obtain a conviction against the defendant for driving to endanger (under the same statute), the Commonwealth would have to prove the following beyond a reasonable doubt: (1) that the defendant operated a motor vehicle; (2) that he did so on a public way; (3) that he did so in a negligent manner so that the lives or safety of the public might have been endangered. As to the third element, a person acts negligently when he fails to use due care, that is, when he acts in a way that a reasonable person would not act. This can happen either by doing something that a reasonably prudent person would not do under those circumstances, or by failing to do something that a reasonably prudent person would do. The defendant acted negligently if he drove in a way that a reasonable person would not have, and by doing so created an unnecessary danger to other people, a danger that he could have avoided by driving more carefully. A person can be found to have driven negligently even if no accident resulted, and even if there was no one else actually on the road to be put in danger. A person is negligent if he drives in a way that has the potential to cause an accident or to endanger anyone who might be on the road. Continue reading →

Published on:

various-abusive-drugs-489543-mAccording to an article on the American Civil Liberties’ website, thousands of criminal defendants impacted by the Annie Dookhan/Hinton Drug Lab scandal still have not received justice.  The article states that in May 2015, the Supreme Judicial Court issued a decision in Bridgeman v. District Attorney for Suffolk County.  The decision stated that Dookhan defendants have the right to challenge their convictions without fear of further punishment.  Specifically, the ruling stated that criminal defendants who brought a motion to vacate a conviction based on Dookhan related issues could not face more serious charges, or longer sentences following the allowance of such a motion.   The SJC then sent the case to SJC Justice Margot Botsford to determine how defendants would be identified and notified of their rights.  Justice Botsford subsequently issued a ruling requiring state prosecutors to produce lists of Dookhan defendants.  Despite her order, however, prosecutors have been slow – extremely slow – to respond.  Justice Botsford held a hearing on May 11, 2016 to discuss the need to notify defendants.  This past week, almost five years since Dookhan’s misconduct was uncovered, and one full year after the issuance of Bridgeman, prosecutors have finally issued the requisite lists.

The lists identify more than 24,000 drug cases in which people were convicted, or had other adverse dispositions, as a result of tainted drug testing completed by Annie Dookhan.  These Dookhan cases appear to account for 25 percent of all drug prosecutions that led to convictions in the seven counties that used the Hinton State Lab during Dookhan’s tenure, and one in six of such drug prosecutions in the Commonwealth, over a 10-year period.  Despite these staggering numbers, the vast majority of the defendants in these 24,000 cases have not received any official notice that Dookhan worked on their case, let alone legal representation to help them challenge their tainted convictions.

These revelations follow on the heels of a report issued last week from the Massachusetts Attorney General’s Office, written at the request of the Massachusetts Supreme Judicial Court, which found that Massachusetts is also confronted with a second enormous lab scandal arising from misconduct by chemist Sonja Farak at another state drug lab, in Amherst.  According to the report, Farak used drugs daily during her eight years on the job, and her misconduct likely affects thousands more cases. Continue reading →

Published on:

dutch-weed-1595294According to an article in the MetroWest Daily News, three men fled from the vehicle they were traveling in during a traffic stop in Framingham earlier this week. The article states that the police pulled the car over for a traffic violation on Hollis Street. Although the driver initially pulled the car over, he then restarted the vehicle and attempted to get away from the police. The driver cut through the Tedeschi’s parking lot and turned down an alleyway next to Auto Brite Car Wash. The alley, however, is a dead end and the three men were trapped. Officers ordered the driver and the two passengers out of the car and proceeded to search it. The police recovered nearly three ounces of marijuana and several digital scales. All three of the men were arrested. The driver was charged with failure to stop for police, driving with a suspended license, driving to endanger, possession of marijuana with the intent to distribute, and conspiracy. The two passengers were charged with possession of marijuana with intent to distribute and conspiracy.

To charge the men with possession with intent to distribute marijuana under G. L. c. 94, § 32C, the Commonwealth would have to prove the following beyond a reasonable doubt: (1) that the substance in question was in fact marijuana; (2) that the defendants possessed some perceptible amount of that substance with the intent to distribute it to another person; and (3) that the defendants did so knowingly and intentionally. As to the second element, the jury is allowed to consider the following factors in determining whether the defendants had the requisite intent to distribute: (1) the quantity of drugs that were possessed; (2) the purity of the drugs; (3) the street value of the drugs; (4) the defendants’ financial resources; (5) how the drugs were packaged; (6) whether other items were found along with the drugs which might suggest drug sales, such as cutting powder or packaging materials, scales, or large amounts of cash; (7) whether there is any evidence suggesting that a sale was in progress; (8) whether there is any evidence that these drugs were part of a larger stash of drugs; and/or (9) whether there is any evidence that the defendant repeatedly traveled at short intervals to known drug centers.  As to the third element, a defendant acts knowingly and intelligently if he acted consciously, voluntarily and purposely, and not because of ignorance, mistake or accident. Continue reading →

Published on:

dutch-weed-1251539According to an article in the MetroWest Daily News, three men were arrested earlier this week and charged with robbery in Marlborough. The article states that the three defendants met the alleged victim outside a Burger King for the purpose of buying marijuana from him. When the alleged victim presented the drugs, the three defendants reportedly reached into their pockets and pretended to have weapons. One of the defendants then reportedly grabbed the marijuana from the alleged victim while the other two defendants allegedly pushed him and attempted to steal his cellular telephone. The defendants then reportedly drove off in a silver vehicle. The alleged victim called the police and provided them with a description of the vehicle and the license plate number. Officers stopped the car a short distance away. Inside the vehicle, the officers found a bag of marijuana. Following the stop, the alleged victim identified the three men in the car as the people that robbed him. The driver was charged with unarmed robbery, use of a motor vehicle without authority, and conspiracy to violate the drug laws. The other two defendants were charged with unarmed robbery, assault and battery, and conspiracy to violate the drug laws.

The evidence against the defendants appears to be strong at first glance. However, the case ultimately hinges on the alleged victim’s testimony – he is the only witness who will be able to testify to what happened in the parking lot – and there appear to be two potential problems with calling him as a witness. Continue reading →