Articles Posted in Drug Crimes

In Commonwealth v. Eldred, the Supreme Judicial Court affirmed the revocation of the defendant’s probation and concluded (1) that “a judge may order a defendant who is addicted to drugs to remain drug free as a condition of probation”; and (2) that where a defendant has violated that condition, the judge has the authority, pending the final probation violation hearing, to detain the defendant while she awaits admission into inpatient treatment “for the safety of the defendant and the community.”

The background was as follows. Charged with the theft of jewelry, “[t]he defendant admitted to the police that she had stolen the jewelry and had sold it to obtain money to support her heroin addiction.” Subsequently, she admitted to sufficient facts to warrant a finding of guilt. The District Court judge “continued the defendant’s case without a finding, and imposed a one-year term of probation with special conditions related to her substance abuse that included requiring her to remain drug free, submit to random drug screens, and attend outpatient substance abuse treatment three times each week.” “[O]nly eleven days after … the probation had been imposed, the defendant tested positive for fentanyl, following a random drug test administered by her probation officer…. The … officer then filed a ‘Notice of Probation Detention Hearing’ with the District Court,” seeking to hold the defendant in custody pending a probation revocation hearing to determine whether her probation should be revoked.

At “the detention hearing, the judge … determined that there was probable cause to believe the defendant had violated the ‘drug free’ condition of her probation by using fentanyl. Because defense counsel was not able to secure a placement for the defendant at an inpatient treatment facility [that day], the judge ordered that the defendant be held in custody until a placement became available. The defendant was released into an inpatient treatment facility after ten days in custody.” Two months later, “a different District Court judge presided over the defendant’s probation violation hearing. Despite conceding that she had used fentanyl, the defendant contested that she had violated the terms of her probation.” She contended that because “she had been diagnosed with SUD [substance use disorder, i.e., addiction],” she was “incapable of remaining drug free,” such that “her use of drugs could not constitute a wilful violation of her probationary condition to remain drug free…. The judge determined that the defendant had violated the drug free condition of her probation by testing positive for fentanyl. The defendant filed a motion to vacate the condition of probation requiring her to stay drug free, arguing that the condition violated various State and Federal constitutional rights. That motion was denied. The judge then modified the conditions of the defendant’s probation by adding the condition that she continue inpatient treatment.” The defendant appealed. Continue reading →

In Commonwealth v. Richardson, the Supreme Judicial Court reversed the defendant’s conviction of unlawful cultivation of medical marijuana because “the jury were not properly instructed as to the standard for evaluating whether a defendant exceeded the home cultivation limit,” and because “the evidence was insufficient to support such a finding.”

The background was as follows. In 2013, the defendant, an unemployed tattoo artist, “obtained a written certification from a qualifying physician that approved his use of medical marijuana to treat a number of medical conditions…. The certification constituted a valid hardship cultivation registration permitting the defendant to grow up to ten ounces of marijuana every sixty days for his personal, medical use…. [T]wo months later, … the defendant telephoned 911 to report a home invasion at his residence.” Police officers converged on the scene and, in the course of their investigation, discovered twenty-two marijuana plants growing in the basement of the defendant’s home. In another room, the officers observed a digital pocket scale and numerous plastic baggies. The defendant was arrested. When the officers searched him, they found $2,135 in his pocket. He was charged with unlawful cultivation of medical marijuana and possession of marijuana with intent to distribute. At trial, the defendant’s former girl friend testified “that [the defendant] was not working at the time” of his arrest and that he was not a regular user of marijuana. In the judge’s instructions on unlawful cultivation of medical marijuana, he told the jurors “that the defendant had a valid hardship cultivation registration and that it was the Commonwealth’s burden to prove the defendant ‘had so many marijuana plants that the plant yield was certain to exceed [ten] ounces of usable marijuana every [sixty] days or that he intended to sell or distribute any of his usable marijuana.’” The defendant was convicted of both charged offenses. Continue reading →

In Commonwealth v. Rodriguez, the Appeals Court reversed the defendant’s conviction of trafficking in heroin because the field test of the purportedly illegal substance seized by the police was not evaluated for scientific reliability under the Daubert/Lanigan standard (Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 [1993]; Commonwealth v. Lanigan, 419 Mass. 15, 26 [1994]).

The background was as follows. In April, 2009, Boston police officers executed warrants to search the defendant’s apartment, his vehicle, and his person. In a bedroom closet, “the police found … a small pouch that contained nine individually wrapped packages, or ‘fingers,’ of a substance that resembled sidewalk chalk. A search of the defendant’s person yielded two similar packages. Officer … England took the eleven packages to the police station and conducted a field test using a NarcoPouch 924 test kit.” The field test indicated that the substance was heroin. “The eleven packages were sent to the William A. Hinton State Laboratory Institute … for testing. As the primary chemist assigned to the case, Annie Dookhan ‘received [the packages] from the evidence office[,] … checked [them,] and [did] all the preliminary testing, which included doing the net weight, doing color tests, [and] perhaps … other kinds of testing.’ Della Saunders, the confirmatory chemist, received eleven vials prepared by Dookhan and tested them, concluding that ‘they were positive for the presence of heroin.’ Both Dookhan and Saunders certified that the packages seized from the defendant’s closet and person contained heroin.  Continue reading →

In a recent decision – Commonwealth v. Smith – the Appeals Court affirmed the defendant’s conviction of possession with intent to distribute cocaine, the Appeals Court rejected the defendant’s contention that the testimony of a police expert on drug use and distribution “was admitted improperly because it was based on hearsay and profiling characteristics of drug sellers and users.”

The background was as follows. Police officers in a narcotics unit were conducting surveillance when they observed a “Volvo driving slowly” “back and forth through [an] intersection, [before coming] to a stop in the parking lot of a nearby liquor store that was closed…. A few minutes later, the officers saw the defendant” approach the Volvo and get into the front passenger seat. “About one minute later, the Volvo drove out of the parking lot” and travelled “a short distance from the original pick up location; the defendant got out of the car there. [Detective] Mercurio drove his unmarked police car past the Volvo,” stopped near the defendant, “and identified himself as a police officer; the defendant then stepped back and started running down the driveway of a house.” “Mercurio chased the defendant down the driveway, and observed the defendant’s hands go to the front of his pants as he was running…. As soon as the defendant turned the corner of the house, Mercurio lost sight of him.” After another officer detained the defendant, “Mercurio … went back to the area behind [the house] where he had lost sight of the defendant …; he found a clear plastic bag containing two rocklike substances that were individually wrapped ‘inside the corner of a bag and it was tied in a knot at the top.’ Approximately three feet away, another officer found ‘a second plastic bag and inside that plastic bag [were] thirteen more individually wrapped off-white colored rocklike substances.’…. The bags were tested and the substance was determined to be cocaine. At trial, an officer who had not participated in the investigation, Detective Keating, testified as an expert, based on his training and experience, regarding illegal drug distribution and drug use. Keating provided for the jury an overview of the consistency and street cost of crack cocaine generally in the [local] market…. He explained that the most common packaging of crack cocaine for street sales is for the ‘rock [to] be placed in the corner of a baggy, twisted, tied off and that’s how it’s individually wrapped’; the individual packets are then generally ‘held in one big sandwich bag.’” Keating opined that “the amount of drugs possessed by the defendant [and its packaging in fifteen individual bags] was not consistent with personal use but was consistent with an intent to distribute.” Continue reading →

The 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 →

The 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 →

A 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 →

The 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 →