Articles Posted in Drug Crimes

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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 →

In 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 →

In 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 →

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 →

The 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 →