Bridgeman v. District Attorney for the Suffolk District , 476 Mass. 298 ( 2017 )

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SJC-12157
KEVIN BRIDGEMAN & others1 vs. DISTRICT ATTORNEY FOR THE
SUFFOLK DISTRICT & others.2
Suffolk. November 16, 2016. - January 18, 2017.
Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, &
Budd, JJ.
Controlled Substances. Constitutional Law, Conduct of
government agents. Due Process of Law, Disclosure of
evidence, Presumption. Supreme Judicial Court,
Superintendence of inferior courts. Practice, Criminal,
Postconviction relief, Conduct of government agents,
Disclosure of evidence, Plea, New trial. Evidence,
Certificate of drug analysis, Disclosure of evidence.
Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on January 9, 2014.
The case was reported by Botsford, J.
1
Yasir Creach and Miguel Cuevas; Committee for Public
Counsel Services (CPCS), intervener.
2
District Attorney for the Essex District, District
Attorney for the Bristol District, District Attorney for the
Cape and Islands District, District Attorney for the Middlesex
District, District Attorney for the Norfolk District, and
District Attorney for the Plymouth District.
2
Matthew R. Segal (Daniel N. Marx, Adriana LaFaille, &
Carlton E. Williams also present) for the petitioners.
Benjamin H. Keehn, Committee for Public Counsel Services
(Nancy J. Caplan & Eric Brandt, Committee for Public Counsel
Services, also present) for Committee for Public Counsel
Services.
Quentin R. Weld, Assistant District Attorney, for District
Attorney for the Essex District.
Susanne M. O'Neil, Assistant District Attorney, for
District Attorney for the Norfolk District.
Vincent J. DeMore, Assistant District Attorney, for
District Attorney for the Suffolk District.
The following were present but did not argue:
Robert J. Bender & Hallie White Speight, Assistant District
Attorneys, for District Attorney for the Middlesex District.
Gail M. McKenna, Assistant District Attorney, for District
Attorney for the Plymouth District.
Brian S. Glenny, Assistant District Attorney, for District
Attorney for the Cape & Islands District.
Aaron M. Katz, for Massachusetts Association of Criminal
Defense Lawyers, amicus curiae.
The following submitted briefs for amici curiae:
Joseph S. Dowdy & Christine C. Mumma, of North Carolina,
John Roddy, & Denise McWilliams for New England Innocence
Project & another.
Janet Moore, of Ohio, & Patricia A. DeJuneas for National
Association for Public Defense.
Anthony A. Scibelli & Elizabeth A. Ritvo for Boston Bar
Association.
Daniel K. Gelb, Chauncy B. Wood, Naveen Ganesh, & Peter
Walkingshaw for National Association of Criminal Defense Lawyers
& another.
GANTS, C.J. We once again confront the tragic legacy of
the misconduct of Annie Dookhan when she was employed as a
chemist at the William A. Hinton State Laboratory Institute
(Hinton lab). 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
3
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. 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."3 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
3
See note 8 and accompanying text, infra, for the
definition of the term "relevant Dookhan defendants."
4
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. In the first phase, the district
attorneys shall exercise their prosecutorial discretion and
reduce the number of relevant Dookhan defendants by moving to
vacate and dismiss with prejudice all drug cases the district
attorneys would not or could not reprosecute if a new trial were
ordered. In the second phase, new, adequate notice shall be
approved by the single justice and provided to all relevant
Dookhan defendants whose cases have not been dismissed in phase
one. In the third phase, CPCS shall assign counsel to all
indigent relevant Dookhan defendants who wish to explore the
possibility of moving to vacate their plea or for a new trial.
If the number seeking counsel is so large that counsel cannot be
assigned despite CPCS's best efforts, the single justice will
fashion an appropriate remedy under our general superintendence
authority for the constitutional violation, which may include
dismissing without prejudice the relevant drug convictions in
cases where an indigent defendant is deprived of the right to
counsel.
5
We recognize that the implementation of this protocol will
substantially burden the district attorneys, CPCS, and the
courts. But we also recognize that Dookhan's misconduct at the
Hinton lab has substantially burdened the due process rights of
many thousands of defendants whose convictions rested on her
tainted drug analysis and who, even if they have served their
sentences, continue to suffer the collateral consequences
arising from those convictions. And we recognize as well that,
more than four years after Dookhan's misconduct was revealed,
more than 20,000 defendants who are entitled to a conclusive
presumption that egregious government misconduct occurred in
their case have yet to receive adequate notice that they may
have been victimized by Dookhan's misconduct, that they may file
a motion to vacate their drug conviction, and that they have a
right to counsel to assist them in the preparation of such a
motion. The remedy we order, challenging as it is to implement,
preserves the ability of these defendants to vindicate their
rights through case-by-case adjudication, respects the exercise
of prosecutorial discretion, and maintains the fairness and
integrity of our criminal justice system in the wake of a
laboratory scandal of unprecedented magnitude.4
4
We acknowledge the amicus briefs submitted by the National
Association of Criminal Defense Lawyers and the Massachusetts
Association of Criminal Defense Lawyers; the Boston Bar
Association; the National Association for Public Defense; and
6
Background. Dookhan began her employment in November,
2003, as a chemist at the Hinton lab, a forensic drug laboratory
that was overseen by the Department of Public Health
(department). See Commonwealth v. Scott, 467 Mass. 336, 338
(2014); Commonwealth v. Charles, 466 Mass. 63, 64 (2013).
Allegations of misconduct regarding her work surfaced in June,
2011, which triggered an internal review and then a formal
internal investigation by the department in December, 2011.
Charles, supra. The department concluded that "Dookhan failed
to follow [Hinton lab] protocols for the transfer and
documentation of samples for testing, and subsequently created a
false record of said transfers." Id. Dookhan was placed on
paid administrative leave and then resigned from her position,
effective March 9, 2012. Id.
In July, 2012, the Legislature transferred oversight of the
Hinton lab to the State police. See St. 2012, c. 139, § 56
(replacing G. L. c. 22C, § 39); St. 2012, c. 139, § 107
(repealing G. L. c. 111, §§ 12-13). See also Scott, 467 Mass.
338. In August, 2012, the State police initiated a more
extensive investigation of the Hinton lab, which "revealed
numerous improprieties surrounding Dookhan's conduct in the
lab." Id. at 339. See Charles, 466 Mass. at 64. Based in part
the New England Innocence Project and the North Carolina Center
on Actual Innocence.
7
on Dookhan's confession of misconduct on August 28, 2012, the
State police investigation revealed, among other misconduct, the
following:
 Dookhan "admitted to 'dry labbing' for two to three years
prior to her transfer out of the [Hinton] lab in 2011,
meaning that she would group multiple samples together from
various cases that looked alike, then test only a few
samples, but report the results as if she had tested each
sample individually." Scott, supra.
 She admitted to "contaminating samples intentionally,
including turning negative samples into positive samples on
at least a few occasions." Id.
 She admitted that she removed samples from the evidence
locker in breach of Hinton lab protocols, postdated entries
in the evidence log book, and forged an evidence officer's
initials. Id.
 She falsified reports intended to verify that the gas
chromatography-mass spectrometer machine used in
"confirmatory"5 drug testing was functioning properly before
she ran samples through the machine. Id. at 339-340.
 The potential scope of Dookhan's misconduct encompassed
testing samples in over 40,000 cases. Id. at 340. This
number is so large because Dookhan "reported test results
5
"Confirmatory" testing is often referred to in our
opinions as "secondary" testing. We use the terms
interchangeably.
8
on samples at rates consistently much higher than any other
chemist in the [Hinton] lab." Id.6
A grand jury indicted Dookhan on seventeen counts of
tampering with evidence, eight counts of obstruction of justice,
one count of perjury, and one count of falsely claiming to hold
a graduate degree. Dookhan pleaded guilty to all of the
indictments on November 22, 2013, and she was sentenced to from
three years to five years in State prison, followed by a
probationary term of two years. Scott, 467 Mass. at 337 & n.3.
The revelations regarding Dookhan's misconduct triggered the
filing of hundreds of motions for a new trial and for a stay of
execution of sentence in cases where the defendant was convicted
6
In addition to the State police investigation, the
Governor requested a top-to-bottom review of the William A.
Hinton State Laboratory Institute (Hinton lab) to determine
whether any other employees at the Hinton lab committed
malfeasance. The office of the Inspector General (OIG)
conducted a fifteen-month investigation of the Hinton lab that
included interviews with more than forty individuals and an
examination of more than 200,000 documents. The OIG concluded
that "Dookhan was the sole bad actor at the [Hinton lab]" and
that no other chemist at the laboratory knowingly aided her
misconduct. But the OIG report described massive deficiencies
by the Department of Public Health (department) in its oversight
and management of the Hinton lab. These deficiencies included a
lack of accreditation and inadequate chemist training; distant
or uninterested supervisors; inconsistent testing practices;
deviation from chain-of-custody guidelines; and faulty security.
This environment "gave Dookhan the freedom to start making and
following her own rules." Even when coworkers began raising red
flags about Dookhan, directors at the Hinton lab were
"habitually unresponsive" and "severely downplayed Dookhan's
major breach in chain-of-custody protocol." The OIG report
concluded that "all samples in which Dookhan was the primary
chemist should be treated as suspect and be subject to careful
review."
9
of a drug crime based on a drug analysis conducted by the Hinton
lab. Charles, 466 Mass. at 65-66.7 To address this onslaught of
motions, the Chief Justice of the Superior Court in October,
2012, assigned specific judges in seven counties to preside over
special "drug lab" sessions. Id. at 65. To assist these judges
in the adjudication of these cases, the Chief Justice of the
Superior Court in November, 2012, exercised her authority under
Mass. R. Crim. P. 47, 378 Mass. 923 (1979), to appoint five
retired Superior Court judges as "Special Judicial Magistrates
of the Superior Court" to preside over postconviction motions
related to the Hinton lab. Id. at 66.
In Scott, 467 Mass. at 337-338, we considered the
appropriate legal standard where a defendant, in response to
government misconduct in his or her case, moves to withdraw a
7
These motions were facilitated by a special task force
established by the Governor in September, 2012. The task force,
led by attorney David Meier, used data from the department to
identify individuals who could have been affected by Dookhan's
misconduct. The task force then shared the lists with
prosecutors, defense attorneys, and judges, "so as to enable
each of the agencies and offices to respond appropriately." The
task force concentrated on identifying individuals most
adversely affected, such as those in custody, awaiting trial, or
on probation or parole. By December, 2012, the task force
identified approximately 10,000 individuals who fell in these
priority categories and who had to be notified immediately that
their cases potentially were affected by Dookhan's misconduct.
The task force also produced a more comprehensive list of
approximately 40,000 cases in which Dookhan served as a primary
or confirmatory chemist. At the time the task force completed
its final report, the criminal investigation of Dookhan and the
OIG's review of the Hinton lab were still ongoing.
10
guilty plea or an admission to sufficient facts to warrant a
finding of guilty. We adopted the two-pronged test in Ferrara
v. United States, 456 F.3d 278, 290 (1st Cir. 2006), which
requires a defendant who seeks to vacate a guilty plea because
of government misconduct to show "both that 'egregiously
impermissible conduct . . . by government agents . . . antedated
the entry of his plea' and that 'the misconduct influenced his
decision to plead guilty or, put another way, that it was
material to that choice.'" Scott, supra at 346.
In considering whether the defendant had satisfied the
first prong of this test, we concluded that, because Dookhan
"made a number of affirmative misrepresentations by signing
[certificates of drug analysis (drug certificates)] and
testifying to the identity of substances in cases in which she
had not in fact properly tested the substances in question,"
Dookhan's misconduct was "egregious." Id. at 348. We also
concluded that, even though there was no indication that any
prosecutor knew of her egregious misconduct, id. at 350 n.7, her
misconduct is "attributable to the government" for purposes of a
motion for a new trial, id. at 350 & n.7, because as a primary
and secondary chemist she "participated in the investigation or
evaluation of the case" and "reported to the prosecutor's office
concerning the case." Id. at 349, quoting Commonwealth v.
Martin, 427 Mass. 816, 824 (1998).
11
We also recognized the dilemma that a defendant would face
in attempting to prove that the laboratory analysis in his or
her case was tainted by Dookhan's misconduct. See Scott, 467
Mass. at 339, 351-352. We noted that Dookhan acknowledged "that
she may not be able to identify those cases in which she tested
the samples properly and those in which she did not." Id. at
339. "Thus, even if Dookhan herself were to testify in each of
the thousands of cases in which she served as primary or
secondary chemist, it is unlikely that her testimony, even if
truthful, could resolve the question whether she engaged in
misconduct in a particular case." Id. at 352. Because it was
"reasonably certain . . . that her misconduct touched a great
number of cases," id., but "may be impossible" for any defendant
to prove that the drug analysis in his or her case was tainted
by her misconduct, id. at 351, we recognized that her
"particularly insidious form of misconduct, which belies
reconstruction," resulted in "a lapse of systemic magnitude in
the criminal justice system." Id. at 352.
To resolve this dilemma, we exercised our power of "general
superintendence of all courts . . . to correct and prevent
errors and abuses" under G. L. c. 211, § 3, and held that, where
Dookhan signed the drug certificate in a defendant's case as an
assistant analyst, that is, as the primary or confirmatory
chemist, see Scott, 467 Mass. at 353 n.9, a defendant who seeks
12
to vacate his or her plea after learning of Dookhan's misconduct
"is entitled to a conclusive presumption that egregious
government misconduct occurred in [his or her] case." Id. at
352. The consequence of the conclusive presumption of egregious
government misconduct is that a defendant can satisfy the first
prong of the Ferrara test simply by showing that Dookhan signed
the drug certificate in his or her case as an assistant analyst.
Id. at 353.
We emphasized in Scott that the "special evidentiary rule"
of a conclusive presumption is "sui generis" -- "a remedy
dictated by the particular circumstances surrounding Dookhan's
misconduct" that was "intended to apply only to this narrow
class of cases in which a defendant seeks to withdraw his or her
guilty plea after having learned of Dookhan's misconduct." Id.
at 353-354. We declared that "it is most appropriate that the
benefit of our remedy inure to defendants" where, as here, there
is "government misconduct that has cast a shadow over the entire
criminal justice system." Id. at 352. The remedy of a
conclusive presumption, we concluded, takes into account "the
due process rights of defendants, the integrity of the criminal
justice system, the efficient administration of justice in
responding to such potentially broad-ranging misconduct, and the
myriad public interests at stake." Id.
13
We did not relieve a defendant of the burden to satisfy the
second prong of the Ferrara test by demonstrating that he or she
suffered prejudice by pleading guilty or admitting to sufficient
facts without having learned of Dookhan's misconduct, i.e., we
did not conclusively presume such prejudice. Id. at 354-355,
356. The defendant, therefore, bears the burden of proving "a
reasonable probability that he [or she] would not have pleaded
guilty had he [or she] known of Dookhan's misconduct," and
instead would have chosen to go to trial. Id. at 355. We noted
that, "[u]nlike evidence of the particular scope of Dookhan's
misconduct, evidence of the circumstances surrounding the
defendant's decision to tender a guilty plea should be well
within the defendant's reach." Id. at 354 n.11.
In Commonwealth v. Francis, 474 Mass. 816 (2016), we
reviewed the denial of a defendant's motion for a new trial
where the defendant had been convicted at trial of drug charges
after drug certificates were admitted in evidence that were
signed by Dookhan as an assistant analyst. We concluded that
the conclusive presumption of "egregious government misconduct"
is not limited to motions to withdraw guilty pleas, but that,
where the defendant has been convicted at trial, "[t]he
consequence of the conclusive presumption is that we deem it
error to have admitted the drug certificates or comparable
evidence regarding Dookhan's drug analysis where the defendant
14
had no knowledge of Dookhan's misconduct and therefore no
opportunity to challenge the admissibility or credibility of
that evidence." Id. at 817.
In Commonwealth v. Ruffin, 475 Mass. 1003, 1003-1004
(2016), we declined to apply the conclusive presumption of
"egregious government misconduct" where the defendant had
pleaded guilty before Dookhan had signed the drug certificate as
an assistant analyst, because her misconduct cannot be said to
have affected the defendant's plea where the plea occurred
before the misconduct.
Consequently, after our opinions in Scott, Francis, and
Ruffin, the defendants who are entitled to the conclusive
presumption of "egregious government misconduct" are those who
pleaded guilty to a drug charge (or admitted to sufficient facts
to warrant a finding of guilty) or who were found guilty of a
drug charge at trial after Dookhan signed a drug certificate in
15
their case as a primary or confirmatory chemist. We refer to
these as the "relevant Dookhan defendants."8
In Bridgeman I, 471 Mass. at 473-494, we considered two
sets of issues raised by relevant Dookhan defendants who
potentially were eligible for relief from their convictions
because of Dookhan's misconduct, but who had not yet moved for
postconviction relief. The first set of issues identified
concerns that were discouraging these defendants from seeking
that relief. The most significant was the risk that, if their
motion for a new trial were granted, the Commonwealth could
reprosecute them not only on the charge to which the defendants
had pleaded guilty but also on any charge that was dismissed at
the time of the plea, and seek a more severe sentence,
especially where the dismissed charge carried a mandatory
minimum sentence upon conviction. Id. at 472-473. Drawing
8
The term "Dookhan defendants" was defined in Bridgeman v.
District Attorney for the Suffolk Dist., 471 Mass. 465, 467 n.4
(2015) (Bridgeman I), "to refer generally to those individuals
who were convicted of drug offenses and in whose cases Dookhan
signed the certificate of drug analysis (drug certificate) on
the line labeled 'Assistant Analyst.'" Because Bridgeman I was
decided before Commonwealth v. Ruffin, 475 Mass. 1003 (2016),
the term "Dookhan defendants" is broader than the term "relevant
Dookhan defendants," because it includes those with cases in
which Dookhan signed the drug certificate after their guilty
plea or admission to sufficient facts to warrant a guilty
finding. In light of our decision in Ruffin, the set of
defendants entitled to the conclusive presumption of egregious
government misconduct is limited to the "relevant Dookhan
defendants," and the relief we order infra is limited to this
set of defendants.
16
broadly on the need to "ameliorate [the] damaging effects" of
Dookhan's misconduct, id. at 474, we held that "a defendant who
has been granted a new trial based on Dookhan's misconduct at
the Hinton . . . lab cannot be charged with a more serious
offense than that of which he or she initially was convicted
under the terms of a plea agreement and, if convicted again,
cannot be given a more severe sentence than that which
originally was imposed." Id. at 468.
The second set of issues in Bridgeman I concerned the
fairness and practicability of attempting individually to
resolve the multitude of motions for a new trial that
potentially could be brought by the Dookhan defendants. We
allowed the motion to intervene filed by CPCS under Mass. R.
Civ. P. 24 (a), 365 Mass. 769 (1974), recognizing that "[i]t has
a substantial and immediate interest in these proceedings given
its current and future responsibility for providing
representation to thousands of indigent Dookhan defendants who
want to pursue postconviction relief from their drug
convictions." Bridgeman I, 471 Mass. at 485-486. We then
addressed CPCS's contention that, because so many cases were
affected by Dookhan's misconduct, the "time and expense of
proceeding on a case-by-case basis has become untenable," and we
therefore should implement a "global remedy" to resolve these
cases pursuant to our broad powers of superintendence under
17
G. L. c. 211, § 3. Bridgeman I, supra at 487. Under the global
remedy that CPCS proposed, we would vacate the convictions of
all Dookhan defendants. Id. CPCS offered two alternatives: we
could vacate the convictions with prejudice, and thereby bar any
reprosecution; or we could vacate the convictions without
prejudice, and allow the Commonwealth one year to reprosecute,
dismissing with prejudice all cases not reprosecuted within that
time period. Id.
We declined in Bridgeman I to implement a global remedy "at
this time." Id. We noted that "while '[i]t certainly is true
that we cannot expect defendants to bear the burden of a
systemic lapse, . . . we also cannot allow the misconduct of one
person to dictate an abrupt retreat from the fundamentals of our
criminal justice system.'" Id., quoting Scott, 467 Mass. at 354
n.11. We also noted that we had already provided "meaningful
solutions" to resolve these cases in Scott and Charles, and
that, in Bridgeman I, we were removing the barriers that made
defendants reluctant to file motions to withdraw their guilty
pleas. Id. at 480, 487. And we noted that some district
attorneys had made progress in providing CPCS with the docket
numbers of the cases in which Dookhan was the primary or
confirmatory chemist, and encouraged the remaining district
attorneys with such cases to assist the single justice in
18
obtaining docket numbers for their districts.9 Id. at 481. We
recognized that "efforts to provide postconviction relief to
Dookhan defendants [had] been hampered by the inability of CPCS
to ascertain which cases may have been tainted by Dookhan's
misconduct," and that "[t]he ability of CPCS to identify clients
and to assign them attorneys who will represent their interests
in postconviction proceedings is crucial to the administration
of justice in the Hinton . . . lab cases." Id. at 480. We
remanded the case to the single justice for further proceedings
consistent with the opinion. Id. at 494.
The single justice joined as respondents the district
attorneys for the Cape and Islands, Middlesex, Norfolk, and
Plymouth districts, and allowed the motion of the district
attorney for the Bristol district to intervene. The single
justice ordered the district attorneys to produce lists with the
names, docket numbers, and personal identifying information for
every "adverse disposition concerning every G. L. c. 94C charge"
9
Only the district attorneys for the Suffolk and Essex
districts were parties to Bridgeman I, 471 Mass. at 481. They
provided CPCS with the relevant docket numbers in their
districts in September, 2014. Id. at 478 n.20. The district
attorneys for the Bristol and Norfolk districts later provided
CPCS with the relevant docket numbers before the issuance of the
opinion in Bridgeman I. Id. The district attorneys for the
Cape and Islands, Middlesex, and Plymouth districts had yet to
do so at the time that opinion issued. Id.
19
of the "Dookhan defendants."10 In May, 2016, the district
attorneys produced lists that contained the names of more than
20,000 defendants with more than 24,000 cases where they had
pleaded guilty to a drug charge, had admitted to sufficient
facts to warrant a finding of guilty of a drug charge, or had
been found guilty at trial of a drug charge where Dookhan had
tested the alleged drugs as the primary or confirmatory
chemist.11
10
Because the list encompasses the "Dookhan defendants," it
includes some defendants who are not "relevant Dookhan
defendants." See note 8 and accompanying text, supra.
11
The lists were the product of the commendable and
laborious efforts of the Trial Court's information technology
department, which identified the set of all cases with a G. L.
c. 94C charge from 2003 to June, 2011, and of the district
attorneys' offices, which then identified the subset of these
cases where Dookhan was the primary or confirmatory chemist.
The district attorneys state that they have identified
approximately 20,544 defendants in 24,577 cases that featured at
least some evidence tested by Dookhan and that resulted in an
adverse consequence. The CPCS data analyst identified 24,391
cases in which defendants still face adverse dispositions on
drug charges where Dookhan was the primary or confirmatory
chemist. Both parties contend that the respective tallies are
not a perfect measure of the remaining pool of cases tainted by
Dookhan's misconduct. As earlier stated, these lists include
defendants who are not relevant Dookhan defendants because they
pleaded guilty or admitted to sufficient facts before Dookhan
signed the drug certificate as an assistant analyst. The
district attorneys claim that, apart from including the so-
called Ruffin defendants, the lists overcount the number of
relevant Dookhan defendants because they include some defendants
who already moved to vacate their pleas, and because they
include defendants who were codefendants in a case where Dookhan
was an assistant analyst. The Bridgeman petitioners and CPCS
claim that the lists actually undercount the number of remaining
defendants because of errors in the district attorneys' data.
20
The single justice also asked the parties to attempt to
agree on the content of a letter of notice to the Dookhan
defendants informing them that their drug cases had been
potentially tainted by Dookhan's misconduct. After the
submission of the lists, however, the Bridgeman petitioners and
CPCS12 would not agree to any notice that presumed case-by-case
litigation, because they contended that, given the large number
of Dookhan defendants and the limited resources of CPCS, the
notice could not truthfully inform the Dookhan defendants that
attorneys were available to represent them in these cases. They
asked the single justice to reserve and report to the full court
the question "whether all cases involving misconduct by Annie
Dookhan should be dismissed or subjected to a court-ordered
deadline." The district attorneys opposed the reservation and
report, arguing that the notices would provide all Dookhan
defendants the opportunity to seek relief. They also contended
We need not resolve these differences and ascertain the precise
number of relevant Dookhan defendants because, even if we were
to adopt the district attorneys' estimates, there would still be
close to 20,000 relevant Dookhan defendants who might be
entitled to postconviction relief.
12
For the sake of simplicity, we will refer to both the
Bridgeman I petitioners and CPCS as the "Bridgeman petitioners"
for the remainder of this opinion, even though we recognize that
CPCS is an intervener rather than a petitioner in this case. We
refer to the "Bridgeman petitioners" because this is a civil
case seeking declaratory relief, even though we recognize that
the Bridgeman petitioners are each Dookhan defendants in
criminal cases.
21
that the Bridgeman petitioners "significantly overstate[] the
apparent degree of interest on the part of the Dookhan
defendants in revisiting settled cases." The single justice
issued a reservation and report on August 16, 2016.
The district attorneys advised the single justice before
the issuance of the reservation and report that they intended to
send notices regardless of whether the case was reported to the
full court. On August 29, 2016, the district attorneys filed in
the county court a letter attaching the notice they intended to
send on or before September 1. The Bridgeman petitioners
informed the district attorneys that the notice was misleading
and poorly translated. At a hearing on September 6, the single
justice invited the district attorneys to delay sending the
notice, but the district attorneys announced that the mailing
had already begun. On September 7, CPCS filed an emergency
motion asking the full court to halt further dissemination of
the notice; the court denied the motion but ordered the district
attorneys to keep records of all documents and communications
arising from the notice.
The notice was mailed in an envelope with the return
address of "RG/2 Claims Administration LLC," and a post office
box in Philadelphia, Pennsylvania, along with the words
"IMPORTANT LEGAL NOTICE FROM THE COMMONWEALTH OF MASSACHUSETTS"
22
near the return address.13 The notice informed each defendant
that, according to court records, he or she was convicted of one
or more drug offenses in a specified county between 2003 and
2011; that it has been determined that Dookhan tested the drugs
in the case; and that Dookhan "admitted to misconduct in her
work at the [Hinton] lab." It advised the defendant that,
because Dookhan tested the evidence, he or she has certain
rights, specifically, "the right to challenge the drug
conviction(s) listed in this notice" and that "if [the defendant
is] tried and convicted again, [he or she] will not face any
punishment greater than what [he or she] already received." The
notice asked the defendant to contact his or her original lawyer
on the case if he or she has any questions, and also invited the
defendant to speak with a new lawyer. The notice further
invited the defendant, should he or she not know how to contact
the original lawyer, to get that information at the criminal
clerk's office where the case was adjudicated, and provided the
Web site address where the physical address of the relevant
court can be found.14
13
RG/2 Claims Administration, LLC, is the vendor who
contracted with the district attorneys to distribute the notice.
14
The full English text of the notice is reprinted below:
"Dear [recipient]:
23
A Spanish translation of the notice was included on the
bottom of the page. According to the Bridgeman petitioners,
this translation "contained numerous errors and was not readily
understandable to a person who speaks Spanish but not English."15
"According to court records, you were convicted of one or
more drug offenses in the [county] between 2003 and 2011.
It has been determined that chemist Annie Dookhan tested
the drugs in your case(s), [court name], [docket number]
"Ms. Dookhan admitted to misconduct in her work at the
[Hinton] lab. Because Ms. Dookhan tested evidence in your
case, you have certain rights:
"• You have the right to challenge the drug conviction(s)
listed in this notice. If your challenge succeeds,
your conviction(s) will be undone or 'vacated,' and
your case will be returned to active status.
"• The District Attorney's office may decide to try you
again on the vacated drug charge(s), but if you are
tried and convicted again, you will not face any
punishment greater than what you already received. In
other words, you cannot be additionally punished for
choosing to challenge your conviction(s).
"If you have any questions, please contact your original
lawyer on your case(s). You may also choose to speak to a
new lawyer. If you do not know how to contact your
original lawyer, you may get that information at the
criminal clerk's office at the court where your case was
handled. Addresses for all of the District and Superior
courts can be found at [State government Web site].
"For more information, you may contact the [district
attorney's office]."
15
The Bridgeman petitioners included in the record an
affidavit from Michael W. O'Laughlin, a qualified Spanish
interpreter, who attested that "the Spanish translation
contained within [the notice letter] is not accurate or clear."
He identified various flagrant errors in the translation of the
notice, including the following:
24
The district attorneys have not offered any evidence to rebut
these claims or to defend the quality of the translation.
The district attorneys' vendor mailed 20,916 letters to
Dookhan defendants.16 The vendor was unable to locate the
addresses for 1,006 defendants, and 5,767 of the letters that
were sent were returned undelivered. For those letters returned
undelivered, the vendor searched for a secondary address and
sent out an additional 964 notices. As of October 24, 2016, the
over-all response rate to these mailings was extremely low:
 In the Bristol district, where approximately 2,200 cases
were identified, the district attorney received thirty-nine
telephone calls and three motions were filed.
 In the Cape and Islands district, where approximately 1,300
cases were identified, the district attorney received
thirty-nine calls and one walk-in inquiry. No motions were
filed.
 In the Essex district, where approximately 4,200 cases were
identified, the district attorney received forty-six
telephone calls and twelve walk-in inquiries. Seven
motions were filed.
 The word "vacated" was translated in the notice as
"desocupar," meaning to physically vacate premises, not to
vacate a judicial decision.
 The verb tense in the same sentence was changed so that it
appeared that a successful motion may yield only the
possibility that the conviction would be vacated.
 The translation of "criminal clerk's office" described a
clerk who is himself also a violent felon.
O'Laughlin also described the translation of a crucial sentence
in the notice explaining the district attorney's ability to
retry the recipient's case as "unintelligible."
16
Because some defendants had cases in multiple counties,
the number of letters that were mailed exceeded the number of
defendants identified in the lists.
25
 In the Middlesex district, where approximately 3,500 cases
were identified, the district attorney received seventy-
seven telephone calls and seven walk-in inquiries. Two
motions were filed.
 In the Norfolk district, where approximately 2,300 cases
were identified, the district attorney received
approximately one hundred inquiries. Seven motions were
filed.
 In the Plymouth district, where approximately 2,000 cases
were identified, the district attorney received sixty-five
inquiries, including three walk-ins. One motion was filed.
 In the Suffolk district, where approximately 8,600 cases
were identified, the district attorney received 322
telephone calls and walk-in inquiries. In response, the
office has moved to vacate and enter a nolle prosequi in
175 of these cases. No motions to withdraw a guilty plea
or admission to sufficient facts were filed by defendants.
In sum, in response to approximately 21,000 letters sent by the
vendor to Dookhan defendants early in September, 2016, as of
October 24, 2016, only twenty motions for postconviction relief
were filed by defendants and 175 motions were filed by
prosecutors. In other words, the notice triggered applications
for postconviction relief in less than one per cent of these
cases.17
17
The Bridgeman petitioners have filed a motion to expand
the record to add an affidavit from Nancy J. Caplan, the CPCS
attorney in charge of its Hinton lab crisis litigation unit
(unit), which was created in April, 2013, to address indigent
defense matters relevant to the representation of Dookhan
defendants. Caplan attests that, after the district attorneys
sent the notice, CPCS asked the courts in the eight affected
counties and all bar advocates to direct all inquiries arising
from the notice to the unit so that CPCS could "provide counsel
to indigent Dookhan defendants so long as it had the resources
necessary to do so." She declares that, as of October 31, 2016,
the unit had received inquiries arising from the notice from 139
Dookhan defendants, who were defendants in 162 cases in which
Dookhan was the primary or confirmatory chemist.
26
Discussion. The Bridgeman petitioners argue once again for
the global remedy that we declined in Bridgeman I, 471 Mass.
487, to implement "at this time." They ask that we vacate the
drug convictions of all Dookhan defendants and dismiss them with
prejudice or, in the alternative, vacate them without prejudice
and allow prosecutors one year to reprosecute the cases,
dismissing with prejudice all that are not reprosecuted within
one year for violation of the speedy trial rule, Mass. R. Crim.
P. 36 (b) (1) (D), as amended, 422 Mass. 1503 (1996). They
contend that due process requires such a global remedy because,
even though four years have now passed since the scope of
Dookhan's misconduct was revealed, the defendants' entitlement
to a new trial on their drug convictions has yet to be
adjudicated in more than 24,000 cases. They also contend that
the notice sent by prosecutors to these defendants was "not a
serious effort to ensure that wrongful convictions will be
The motion also seeks to expand the record to include a
"statement" made by "the District Attorneys for all of the
Commonwealth's Districts" in ten separate criminal cases in
Hampden County involving misconduct by another chemist, Sonja
Farak, at the Department of Public Health's State Laboratory
Institute in Amherst. In that "statement," the district
attorneys inform the court that the Commonwealth will not
contest a finding of "egregious governmental misconduct" by
Farak in performing her duties at that laboratory under the two-
prong analysis set forth in Commonwealth v. Scott, 467 Mass. 336(2014). We allow the motion to expand the record, but recognize
that the full scope of Farak's misconduct has yet to be
determined.
27
addressed through case-by-case litigation," and was "so
misleading and incomplete" that its harm can be undone only by
relieving the defendants of the burdens of case-by-case
litigation. They claim that a global remedy is a necessary
exercise of our superintendence authority because a case-by-case
adjudication of so many cases is "doomed to fail" given the
limited resources of the Commonwealth's indigent criminal
defense system.
The district attorneys respond that "[t]here is no
convincing reason to retreat from the thoughtful remedies-based,
workable solution designed by the [c]ourt." They contend that
the notice mailed to the Dookhan defendants was fair, and that
the low response to the notice reflects that many defendants
"may conclude that they face no adverse impact at all from a
closed chapter in their lives," and "feel no urgency" to reopen
their case "before an adverse impact actually occurs." They
contend that, in light of the Dookhan defendants' response to
that notice, it is apparent that the Bridgeman petitioners have
greatly overstated the burden that will arise from case-by-case
adjudication of motions for a new trial. They also argue that
we should not vacate the convictions of Dookhan defendants who
have not moved to do so, because "mass vacatur would constitute
a complete abandonment of the careful weighing of the interests
of defendants, the public, and the criminal justice system that
28
this [c]ourt set out in Scott, and affirmed in [Bridgeman I] and
the cases that followed." They contend that the remedy of
dismissal with prejudice is not justified as a matter of law,
and that the remedy of dismissal without prejudice, allowing the
reprosecution of these cases, would be unfair to impose on
defendants who did not move for such relief, because it would
subject them without their approval to a new trial and the risk
of arrest if they failed to appear. In short, the district
attorneys argue that we should stay the course, because
individual case-by-case adjudication of motions for a new trial
brought by Dookhan defendants is both practical and fair.
1. Four relevant principles of our criminal justice
system. In Bridgeman I, 471 Mass. at 487, we recognized that
"we cannot expect defendants to bear the burden of a systemic
lapse," but we declined to implement a global remedy "at this
time" because we would not "allow the misconduct of one person
to dictate an abrupt retreat from the fundamentals of our
criminal justice system" (citation omitted). In revisiting here
whether the time is now ripe to implement a global remedy, it is
important to explain four relevant principles of our criminal
justice system that have guided our prior decisions relating to
this matter. First, where there is egregious misconduct
attributable to the government in the investigation or
prosecution of a criminal case, the government bears the burden
29
of taking reasonable steps to remedy that misconduct. See
Strickler v. Greene, 527 U.S. 263, 281 (1999) (discussing
"special role played by the American prosecutor in the search
for truth in criminal trials" and broad duty to disclose
exculpatory information); Bridgeman I, supra at 480-481. Those
reasonable steps include the obligation to timely and
effectively notify the defendant of egregious misconduct
affecting the defendant's criminal case. See Ferrara, 456 F.3d
at 293 (government's failure to disclose exculpatory evidence to
defendant "was so outrageous that it constituted impermissible
prosecutorial misconduct sufficient to ground the petitioner's
claim that his guilty plea was involuntary"); Mass. R. Prof. C.
3.8 (d), as appearing in 473 Mass. 1301 (2016) ("The prosecutor
in a criminal case shall . . . make timely disclosure to the
defense of all evidence or information known to the prosecutor
that tends to negate the guilt of the accused or mitigates the
offense . . .").
As applied here, prosecutors had a responsibility timely
and effectively to disclose Dookhan's misconduct to all affected
defendants because Dookhan might erroneously have found
substances that were not controlled substances to be a
controlled substance, or to be a certain weight, creating the
risk that a defendant may have been found guilty of a drug crime
he or she did not commit. In addition, her egregious misconduct
30
put in question the accuracy of the drug analysis and the
ability of the government to prove the nature and weight of the
alleged drugs beyond a reasonable doubt, which a defendant is
entitled to consider in making an informed and voluntary
decision whether to waive the right to trial and plead guilty
(or admit to sufficient facts to warrant a finding of guilt), or
to proceed to trial. The cost of notifying defendants of
egregious government misconduct must be borne by the prosecuting
district attorney's office, even if, as here, the fault belongs
to the Hinton lab and Dookhan, not the prosecutors.
Second, under our criminal rules, relief from a conviction
generally requires the defendant to file a motion for a new
trial. See Mass. R. Crim. P. 30 (b), as appearing in 435 Mass.
1501 (2001) (judge "upon motion in writing may grant a new trial
at any time if it appears that justice may not have been done"
[emphasis added]). See also Scott, 467 Mass. at 354. "A new
trial motion under Rule 30(b) is the appropriate vehicle to
attack the validity of a guilty plea or an admission to
sufficient facts." Reporters' Notes to Rule 30 (b), Mass. Ann.
Laws Court Rules, Rules of Criminal Procedure, at 1774
(LexisNexis 2016).
Third, dismissal with prejudice "is a remedy of last
resort." Commonwealth v. Cronk, 396 Mass. 194, 198 (1985).
Where a motion for a new trial is allowed, the conviction is
31
vacated, and the prosecutor may retry the defendant on the same
charge, unless the judge, apart from the vacatur, also dismisses
the complaint or indictment with prejudice. We have identified
"[t]wo parallel legal principles" governing when this last
resort might be necessary, balancing the rights of defendants
"against the necessity for preserving society's interest in the
administration of justice." Id. at 198-199. Under one legal
principle, where a prosecutor fails to disclose evidence the
defendant is entitled to receive and the defendant is prejudiced
by the failure to disclose, a motion to dismiss with prejudice
should be allowed only where there is "a showing of irremediable
harm to the defendant's opportunity to obtain a fair trial."
Id. at 198. Dismissal with prejudice is "too drastic a remedy"
if the error can be remedied and the defendant can still obtain
a fair trial. Id. at 200, and cases cited.
"Under the alternative principle, prosecutorial misconduct
that is egregious, deliberate, and intentional, or that results
in a violation of constitutional rights may give rise to
presumptive prejudice. In such instances prophylactic
considerations may assume paramount importance and the 'drastic
remedy' of dismissal of charges may become an appropriate
remedy." Id. at 198-199. This alternative principle is
narrowly applied; "the only reason to dismiss criminal charges
because of nonprejudicial but egregious police misconduct would
32
be to create a climate adverse to repetition of that misconduct
that would not otherwise exist." Commonwealth v. Lewin, 405
Mass. 566, 587 (1989).
We dismissed drug charges with prejudice based on both
alternative grounds where two special agents of the United
States Drug Enforcement Administration spoke after arraignment
with the defendant without the approval of defense counsel,
disparaged defense counsel and the manner in which he was
conducting the defense, and encouraged the defendant to
cooperate with Federal authorities. Commonwealth v. Manning,
373 Mass. 438, 440 (1977). We concluded that this was "a
deliberate and intentional attack by government agents on the
relationship between Manning and his counsel in a calculated
attempt to coerce the defendant into abandoning his defense,"
id. at 443, and that "the officers' misconduct was so pervasive
as to preclude any confident assumption that proceedings at a
new trial would be free of the taint," id. at 444. We also
concluded that a "stronger deterrent" than a new trial was
warranted for this type of misconduct. Id.In Scott and Francis, the remedy that we found appropriate
in cases where a defendant shows prejudice arising from
Dookhan's misconduct was the allowance of a motion for a new
trial and the vacatur of the conviction. We did not order the
dismissal of the defendant's drug charges with prejudice, or
33
suggest that was an appropriate remedy for Dookhan's misconduct
under either of the alternative legal principles. Although the
record does not provide us with data as to the number of
relevant Dookhan defendants who were reprosecuted after their
motions for a new trial were allowed, we are aware that some
defendants were retried and that other defendants later pleaded
guilty or admitted to sufficient facts to support a guilty
finding.
Fourth, where large numbers of persons have been wronged,
the wrong must be remedied in a manner that is not only fair as
a matter of justice, but also timely and practical. Cf. Green
v. County School Bd. of New Kent County, 391 U.S. 430, 439
(1968) (in redressing school desegregation, school board must
"come forward with a plan that promises realistically to work,
and promises to realistically work now"). A remedy that is
perfect in theory is not perfect in fact if it would take too
long to be accomplished, or if the resources required to
implement it would overwhelm the limited resources available to
the courts. See Hilao v. Estate of Marcos, 103 F.3d 767, 786
(9th Cir. 1996) (affirming special master's award of
compensatory damages based on statistical methods to determine
amount owed to class of nearly 10,000 victims and survivors of
decedents who were tortured, executed, or "disappeared" by
Philippine military or paramilitary groups during fourteen-year
34
rule of Ferdinand E. Marcos where "the time and judicial
resources required to try the nearly 10,000 claims in this case
would alone make resolution of Hilao's claims impossible").
Even when the number of persons injured is large and the problem
is complex, courts endeavor to craft a workable remedy; we do
not throw up our hands and deny relief because it would be too
difficult to accomplish. Cf. Brown v. Plata, 563 U.S. 493, 511
(2011) (in addressing prison overcrowding, "[c]ourts may not
allow constitutional violations to continue simply because a
remedy would involve intrusion into the realm of [executive]
administration"); Swann v. Charlotte-Mecklenburg Bd. of Educ.,
402 U.S. 1, 28 (1971) (when altering school attendance zones to
prevent racial segregation, "all awkwardness and inconvenience
cannot be avoided in the interim period when remedial
adjustments are being made"). Over the course of its history,
our judiciary has devised ways to provide redress to widespread
wrongs through such vehicles as class actions, derivative
actions, the consolidation of multiple related cases, and the
appointment of special masters and receivers. See, e.g., Mass.
R. Civ. P. 23, as amended, 471 Mass. 1491 (2015) (class
actions); Mass. R. Civ. P. 23.1, 365 Mass. 768 (1974)
(derivative actions by shareholders); Mass. R. Civ. P. 42, as
amended, 423 Mass. 1406 (1996) (case consolidation); Mass. R.
Civ. P. 53, as amended, 423 Mass. 1408 (1996) (appointment of
35
special master). In short, we as a judiciary must and do find
ways to make justice not only fair but workable. See Demoulas
v. Demoulas, 428 Mass. 555, 580 (1998), citing 1 D. Dobbs,
Remedies § 2.1(3), at 63 (2d ed. 1993) ("Equitable remedies are
flexible tools to be applied with the focus on fairness and
justice").
2. Revisiting the need for a global remedy. We now
consider, in light of all that has happened and all that we have
learned since Bridgeman I, whether we should revisit our
decision to decline to adopt a global remedy "at this time" to
resolve the cases of the relevant Dookhan defendants.
Bridgeman I, 471 Mass. at 487.
a. The district attorneys' proposal to stay the course.
The district attorneys contend that our previous decisions have
provided an adequate remedy to the relevant Dookhan defendants.
This argument relies on the key premise that the notice mailed
to the Dookhan defendants adequately informed them that
Dookhan's misconduct affected their criminal case and that, as a
result, they may seek to vacate their drug conviction.
We reject this premise; we agree with the Bridgeman
petitioners that the notice sent by the district attorneys was
wholly inadequate to provide the relevant Dookhan defendants
with the information necessary to knowingly and voluntarily
decide whether they should explore with counsel the possibility
36
of withdrawing their plea or moving for a new trial. The
shortcomings begin with the envelope itself, which identified
the source of the letter as "RG/2 Claims Administration LLC," a
source that would appear inconsistent with the words on the
envelope, "IMPORTANT LEGAL NOTICE FROM THE COMMONWEALTH OF
MASSACHUSETTS." Such an envelope invites the risk that the
notice might be unopened and discarded as "junk mail."
Among the shortcomings of the letter itself are that it
failed adequately to inform the Dookhan defendants that the
Supreme Judicial Court has determined that they are entitled to
a conclusive presumption that the drug analysis in their case
was tainted by egregious government misconduct. Nor did it
adequately inform them that, as a result, this court has
determined that they are entitled to withdraw their guilty plea18
on drug charges if they can show a reasonable probability that
they would not have pleaded guilty, and instead would have
decided to go to trial, had they known of Dookhan's misconduct.
18
We recognize that recipients of the letter include both
individuals who pleaded guilty to Dookhan-related charges and
those who admitted to sufficient facts to warrant a guilty
finding. Because such an admission is the "functional
equivalent of a guilty plea" under G. L. c. 278, § 29D, and
because it exposes a defendant to some of the same collateral
consequences as a guilty plea, see Commonwealth v. Villalobos,
437 Mass. 797, 800 (2002), we treat the admission the same as a
guilty plea for the purposes of a motion for new trial. Luk v.
Commonwealth, 421 Mass. 415, 418 n.6 (1995). In the remaining
discussion we refer to a guilty plea and an admission to
sufficient facts to warrant a finding of guilty, collectively,
as a "guilty plea." See Scott, 467 Mass. at 337 n.1.
37
Nor did it adequately inform them that, if they had been
convicted of a drug charge at trial, they are entitled to a new
trial if the admission in evidence of their drug analysis might
have significantly influenced the jury in reaching their
verdict. The letter explained that, if their challenge to their
drug conviction were to succeed, their conviction would be
vacated and their "case will be returned to active status," but
did not explain what it meant for their case to be on "active
status."19 The Spanish translation of the letter is so poor that
the letter might not be understood by persons who speak only
Spanish.
The letter also failed to inform the Dookhan defendants
that they had a right to counsel if they sought to withdraw
their plea or move for a new trial and that, if they could not
afford counsel, one would be appointed for them. Instead, it
invited them to speak to their original lawyer on the case and,
if they did not know how to contact that lawyer, invited them to
obtain that information from the relevant criminal clerk's
office.20 The letter also invited them to contact the office of
the district attorney who prosecuted them "[f]or more
19
The letter did explain that, if the district attorney
decided to try them again on the vacated drug charge, they would
not face punishment greater than what they had earlier received
if they were convicted.
20
The letter also told recipients that they "may also
choose to speak to a new lawyer."
38
information." It did not provide a telephone number for CPCS or
for any other entity that conducts criminal defense.
Apart from the deficiencies in the notice, we know that a
substantial number of the Dookhan defendants did not receive the
letter, because 5,767 were returned as undeliverable. An
additional 964 notices were sent to secondary addresses for
these individuals in an attempt to locate them, but we do not
know how many of these letters were returned as undeliverable.
No public notice, either through the newspaper, television, or
social media, was attempted to provide notice to those whose
current address could not be located.
We are skeptical of the district attorneys' explanation
that so few of the Dookhan defendants chose to respond to the
letter because most were not interested in "reopening a closed
chapter in their lives before an adverse impact actually occurs"
and others believed that "they face no adverse impact at all"
from this conviction. We recognize that few, if any, of the
relevant Dookhan defendants continue to be incarcerated on a
drug conviction tainted by Dookhan's misconduct, but that does
not mean that they lack a strong reason to seek to have this
conviction vacated, given the serious and pervasive collateral
consequences that arise from a drug conviction. A noncitizen,
even one lawfully residing in this country, who is convicted of
any crime "relating to a controlled substance," which includes
39
the crime of possession of heroin, cocaine, or more than thirty
grams of marijuana, is "deportable." 8 U.S.C. § 1227(2)(B)(i)
(2012). See Padilla v. Kentucky, 559 U.S. 356, 368 (2010);
Commonwealth v. DeJesus, 468 Mass. 174, 175 (2014). All
persons, including United States citizens, who are convicted of
drug crimes may be barred from public housing and from Federal-
and State-subsidized private housing. See 42 U.S.C. § 13661(2012); 24 C.F.R. §§ 960.204(a)(1), 982.553(a)(1), (2)(ii);
G. L. c. 121B, § 32 (State-funded public housing); 760 Code
Mass. Regs. § 5.08(1)(d) (1996); 760 Code Mass. Regs.
§ 49.03(2)(f) (2012) (Massachusetts Rental Voucher Program); 803
Code Mass. Regs. § 5.04 (2012). A drug conviction may bar a
defendant from many categories of jobs and professional
licenses. See, e.g., G. L. c. 6, §§ 172 (c), 172A-172M. See
also Commonwealth v. Pon, 469 Mass. 296, 317 (2014) (collateral
consequences include homelessness and unemployment). It may
also prevent a defendant from receiving government benefits such
as cash assistance and unemployment benefits. See G. L.
c. 151A, § 25 (e) (unemployment benefits); 106 Code Mass. Regs.
§ 701.110(D) (2016) (cash assistance under transitional aid to
families with dependent children program). And it may render a
student temporarily ineligible for Federal financial aid,
thereby diminishing a defendant's ability to attend college. 20
U.S.C. § 1091(r)(1) (2012). A conviction of drug trafficking
40
results in the automatic suspension of the defendant's driver's
license, which makes it more difficult to find and keep
employment. G. L. c. 90, § 22½, inserted by St. 2016, c. 64,
§ 1. A prior drug conviction may also result in a lengthy
minimum mandatory sentence for those subsequently convicted of
additional drug offenses, G. L. c. 94C, §§ 32 (b), 32A (b),
32B (b), 32C (b), 32D (b), 34, or of the illegal possession of a
firearm. G. L. c. 269, § 10G. In short, the adverse
consequences of an unjust conviction do not end when one
completes a jail or prison term, or a probationary period.
Given the inadequacy of the notice provided by the district
attorneys, the remarkably low response to that notice, and the
severe collateral consequences of drug convictions, justice and
fairness do not permit us simply to stay the course set in
Bridgeman I.
b. The Bridgeman petitioners' proposal for a global
remedy. The Bridgeman petitioners contend that, even with
adequate notice, no remedy premised on case-by-case adjudication
can work. They argue that, because of the severely limited
resources of CPCS -- the amount of State funding, the number of
qualified bar advocates, and the legislative limits on the
number of hours that bar advocates annually may bill to CPCS --
CPCS cannot possibly assign qualified counsel to represent all
the defendants who would file the postconviction motions that
41
would result from truly adequate notice. They therefore contend
that it is both illusory and misleading to inform defendants
that, if they are indigent, counsel will be assigned to
represent them, where that will simply not be possible. They
contend that the only just and practical alternative under these
circumstances is the global remedy they propose, in which we
would vacate the drug convictions of all relevant Dookhan
defendants and dismiss them with prejudice, or dismiss them
without prejudice and allow prosecutors one year to reprosecute
these cases before they, too, would be dismissed with prejudice.
The proposed global remedy, however, is neither as just nor
as practical as the Bridgeman petitioners claim, and it would be
inconsistent with some of the principles that we earlier
articulated. In Scott and Francis, we granted relevant Dookhan
defendants a conclusive presumption of egregious government
misconduct, but we did not grant them a conclusive presumption
of prejudice; defendants still bore the burden of proving
prejudice. Where a relevant Dookhan defendant filed a motion to
withdraw a plea or for a new trial, and failed to prove
prejudice, the motion was denied. The global remedy proposed by
the Bridgeman petitioners would effectively declare a conclusive
presumption of prejudice.
Even where a relevant Dookhan defendant proved prejudice,
the defendant only obtained a new trial under Scott and Francis,
42
not a dismissal with prejudice. Dookhan's conduct, serious as
it was, did not result in "irremediable harm to the defendant's
opportunity to obtain a fair trial." Cronk, 396 Mass. at 198.
Rather, it meant that the Commonwealth had to retest the
substance claimed to be a controlled substance and offer
evidence of that new drug analysis at a retrial, or otherwise
prove that the substance possessed or distributed by the
defendant was a controlled substance. Nor, given the absence of
any evidence of misconduct by a prosecutor or investigator, did
we place Dookhan's misconduct in the category that requires a
stronger deterrent than a new trial to avoid the risk of
repetition. See Lewin, 405 Mass. at 587; Manning, 373 Mass. at
444. A dismissal with prejudice for government misconduct is
very strong medicine, and it should be prescribed only when the
government misconduct is so intentional and so egregious that a
new trial is not an adequate remedy. We did not prescribe this
medicine in Scott and Francis, and we are not convinced that it
is appropriate to do so now. And if we were to prescribe it
now, we would equitably have to address the claims of those who
earlier prevailed in proving prejudice and therefore won a new
trial, but not a dismissal with prejudice, and subsequently
either again pleaded guilty to the same or lesser charges or
were convicted at a new trial of the drug charges. They could
43
justly contend that they are as entitled to a dismissal with
prejudice as are those who did not move for a new trial.
To vacate the convictions of all relevant Dookhan
defendants without prejudice would present other problems of
justice and practicality. We require a defendant to move for a
new trial for a reason -- without a motion, we cannot be sure
that a defendant wishes to accept the risk that the Commonwealth
will retry the defendant rather than issue a nolle prosequi.
Even though, as a result of our decision in Bridgeman I, 471
Mass. at 477, a defendant at a new trial would not be risking
conviction of a more serious crime or a longer sentence, a
defendant who is retried would still have to appear in court
when directed by the judge and endure the uncertainty and
disruption inherent in being a defendant in a criminal trial.
We might be skeptical of the district attorneys' contention that
most of the relevant Dookhan defendants do not wish to reopen "a
closed chapter in their lives," but it would not be surprising
if some defendants have no wish to relitigate their earlier
criminal cases and instead simply want to move on with their
lives.
Although we reject the global remedy proposed by the
Bridgeman petitioners, we accept two premises of their argument.
First, in light of the unusual circumstances of the relevant
Dookhan defendants, all who are indigent and wish to explore
44
whether to move for a new trial under Mass. R. Crim. P. 30 (b)
are entitled to appointed counsel. We recognize that we have
declared that "an indigent defendant does not have an absolute
right under any provision of the United States Constitution or
the Massachusetts Declaration of Rights to appointed counsel in
preparing or presenting his motion for a new trial."
Commonwealth v. Conceicao, 388 Mass. 255, 261 (1983). But we
have also declared that the State must "ensure that indigent
defendants have meaningful access to this postconviction
proceeding," id., and that, "when a defendant presents a motion
for a new trial which raises a colorable or meritorious issue,
'it is much the better practice to assign counsel.'" Id. at
262, quoting Dillon v. United States, 307 F.2d 445, 448 (9th
Cir. 1962).
Generally, the decision whether to appoint counsel to
represent a defendant in preparing and presenting a motion for a
new trial rests with the sound discretion of the motion judge.
Mass. R. Crim. P. 30 (c) (5), as appearing in 435 Mass. 1501(2001). But in the exercise of that discretion a judge should
appoint counsel where the failure to do so would deprive an
indigent defendant "of meaningful access" or result in
"fundamental unfairness." Conceicao, supra at 262, citing Ross
v. Moffitt, 417 U.S. 600, 616 (1974), and Lassiter v. Department
of Social Servs., 452 U.S. 18, 24-25 (1981).
45
Here, all of the relevant Dookhan defendants who move for a
new trial are entitled under our decision in Scott to a
conclusive presumption of egregious government misconduct. The
district attorneys concede that, given the number of relevant
Dookhan defendants, we have the authority under our
superintendence power to order that each relevant Dookhan
defendant who is indigent is entitled to the assignment of
counsel. We so order; we need not wait for each motion judge to
rule individually on the question of the assignment of counsel
where it is plain that the absence of counsel under these
unusual circumstances would deny an indigent defendant
"meaningful access" or result in "fundamental unfairness," and
therefore deprive the defendant of his or her constitutional
rights to due process and to counsel. The right to appointed
counsel applies here regardless of whether the relevant Dookhan
defendant has completed his or her sentence, because the severe
collateral consequences arising from a drug conviction do not
end at the conclusion of a defendant's sentence.
Moreover, where an indigent criminal defendant has a right
to counsel, "[t]he duty to provide such counsel falls squarely
on government, and the burden of a systemic lapse is not to be
borne by defendants." Lavallee v. Justices in the Hampden
Superior Court, 442 Mass. 228, 246 (2004). Where a judge finds
that a criminal defendant has a right to counsel and is indigent
46
(or indigent but able to contribute), the judge assigns CPCS to
provide representation for the party. S.J.C. Rule 3:10, § 6, as
appearing in 475 Mass. 1301 (2016). G. L. c. 211D, § 5 (CPCS
"shall establish, supervise and maintain a system for the
appointment or assignment of counsel" at any stage of criminal
proceeding where there is right to counsel and defendant is
indigent). If CPCS, despite its best efforts, were unable to
assign counsel to a defendant in a reasonably timely manner --
whether the reason be the absence of necessary funding by the
Legislature, the inability of CPCS to qualify adequate numbers
of private attorneys to serve as bar advocates because of the
low hourly fee mandated by the Legislature,21 the unavailability
of qualified bar advocates because of the limitation on the
21
The present statutory hourly rate for bar advocates is
fifty-three dollars for cases in the District Court and the
Boston Municipal Court, and sixty dollars for nonhomicide cases
in the Superior Court. G. L. c. 211D, § 11 (a). The only
change to these hourly rates since 2005 has been that the rate
applicable for cases in the District Court and Boston Municipal
Court was increased from fifty dollars to fifty-three dollars in
2015. See St. 2015, c. 46, § 119.
47
number of hours they may bill annually,22 or a systemic overload
created by an overwhelming number of relevant Dookhan defendants
filing motions for a new trial (or the combination of all four
reasons) -- we would have to fashion an appropriate remedy under
our general superintendence authority for the constitutional
violation suffered by indigent criminal defendants. See
Lavallee, supra at 244. In Lavallee, where the list of CPCS-
qualified attorneys available to accept assignments in Hampden
County was inadequate to ensure the provision of counsel to
those with a right to counsel, the remedy we ordered was that a
criminal case against an indigent defendant must be dismissed
without prejudice if an attorney had not filed an appearance
within forty-five days of arraignment. Id. at 246.
We recognize that, if a substantial percentage of relevant
Dookhan defendants were to seek postconviction relief after
22
The annual cap on billable hours for bar advocates is
1,650 hours, and a bar advocate may not accept any new
appointment in a nonhomicide case after having billed 1,350
hours in that fiscal year. G. L. c. 211D, § 11 (b), (c). In
2016, in response to a shortage of bar advocates in care and
protection cases and children and family law cases, the
Legislature enacted legislation allowing the chief counsel of
CPCS, under certain circumstances, to waive the annual cap on
billable hours for bar advocates assigned to these cases,
provided that such a bar advocate not bill in excess of 1,800
billable hours for the year. G. L. c. 211D, § 11(d), amended
through St. 2016, c. 133, § 119. A comparable increase in the
annual cap on billable hours potentially could be enacted for
bar advocates assigned to criminal cases or, alternatively, the
time devoted to the representation of relevant Dookhan
defendants could be exempted from the annual cap.
48
receiving truly adequate notice, the capacity of CPCS to assign
qualified attorneys to represent these defendants in case-by-
case adjudication would soon be overwhelmed. Therefore, unless
the district attorneys were to move to vacate and dismiss with
prejudice the drug convictions of large numbers of relevant
Dookhan defendants, case-by-case adjudication poses the
considerable risk that the demand of indigent Dookhan defendants
for counsel might outstrip the supply of CPCS-qualified
attorneys to represent them, and require this court to implement
an appropriate remedy under our general superintendence
authority for the constitutional violation suffered by indigent
criminal defendants who are denied their right to counsel. If
past is prologue, that remedy will likely be the dismissal
without prejudice of their challenged drug convictions. See
Lavallee, 442 Mass. at 246.
c. New protocol for case-by-case adjudication. The
extraordinary magnitude of Dookhan's misconduct has left us with
only poor alternatives. We continue to believe that, despite
its considerable risks and burdens, case-by-case adjudication is
the fairest and best alternative to resolve the drug cases
potentially tainted by Dookhan's misconduct and the alternative
most consistent and in harmony with the relevant principles of
criminal justice that have and continue to guide us in this
extraordinary situation. But we recognize that, in light of the
49
potential need to adjudicate more than 20,000 motions for a new
trial brought by the relevant Dookhan defendants, case-by-case
adjudication must be adapted to make it both fair and workable.
The success of case-by-case adjudication will depend on the
cooperation of the district attorneys, who will have to examine
each drug conviction of each relevant Dookhan defendant in their
district and determine which cases they reasonably could and
would reprosecute if a motion for a new trial were granted, and
move to vacate and dismiss with prejudice the rest.23 We rely on
the exercise of the district attorneys' sound discretion to
reduce substantially the number of relevant Dookhan defendants.
We note that it appears that the majority of the drug
convictions of relevant Dookhan defendants were of possession
23
In a letter to the Governor on September 6, 2012, after
learning of the investigation of the Hinton lab, the district
attorneys declared, "If there has been any miscarriage of
justice due to the actions of Annie Dookhan or anyone else at
the [Hinton lab], correcting those miscarriages must be the
first priority." Press Release, MDAA Letter to Gov. Patrick Re:
DPH Drug Lab, State House News Serv. (Sept. 11, 2012). At oral
argument, the district attorneys similarly assured the court
that they will exercise their sound discretion in handling
motions for a new trial brought by the relevant Dookhan
defendants.
50
alone,24 that approximately ninety per cent of these convictions
were obtained in the District Court or in the Boston Municipal
Court (which means that the drug charges were either
misdemeanors or felonies for which the district attorney did not
choose to seek indictments), and that virtually all of these
defendants have already served the entirety of their sentences
for these drug convictions.
Its success also depends on the cooperation of CPCS, which
will have to make best efforts in using the funding appropriated
by the Legislature to assign counsel to the relevant Dookhan
defendants who, after new notice, choose to explore the filing
of a motion for a new trial. We look to CPCS also for its
creativity and ingenuity in finding ways to assign attorneys to
represent as many relevant Dookhan defendants as is reasonably
possible.
To accomplish case-by-case adjudication of the drug cases
of potentially more than 20,000 relevant Dookhan defendants, we
establish the following protocol, to be completed in three
24
An analysis conducted by Paola Villarreal, a data science
fellow at the American Civil Liberties Union Foundation of
Massachusetts, revealed that approximately sixty-two per cent of
the adverse drug dispositions for Dookhan defendants were for
possession alone. At oral argument, in answer to a question
posed by a Justice, a prosecutor stated that he "[did] not know"
whether a majority of these cases were for "straight
possession."
51
phases, and order its implementation by the single justice in
the form of a declaratory judgment.
i. Phase one. Upon the issuance of this opinion, each
district attorney shall commence an individualized review of
every Dookhan case in his or her district that was included on
the list that the district attorney earlier submitted to the
single justice. No later than ninety days after the issuance of
this opinion, each district attorney shall file three letters
with the county clerk.25
The first letter shall identify all defendants on the list
who are not relevant Dookhan defendants because they pleaded
guilty to a drug charge before Dookhan signed the drug
certification and therefore are not entitled to the conclusive
presumption of egregious government misconduct. In short, this
letter shall identify all of the so-called Ruffin defendants.
See Ruffin, 475 Mass. at 1003.
The second letter shall identify all of the drug
convictions on the list that the district attorney moves to
vacate and dismiss with prejudice as a result of his or her
individualized review. These shall include both the convictions
that the district attorney wishes to vacate and dismiss with
prejudice, regardless of whether the case could be successfully
25
We recognize the difference between the date of the
issuance of our opinion and the date of the rescript, and have
specifically selected the former as the starting date.
52
reprosecuted if a new trial were ordered, and the convictions
that the district attorney could not successfully reprosecute if
a new trial were ordered. Once these drug convictions are
vacated and dismissed with prejudice, the defendants shall be
notified of the action taken.26
The third letter shall identify all drug convictions on the
list that the district attorney does not move to vacate and
dismiss with prejudice. For each such conviction, the district
attorney shall certify that, if a motion for a new trial were
allowed, the district attorney could produce evidence at a
retrial, independent of Dookhan's signed drug certificate or
testimony, sufficient to permit a rational jury to find beyond a
reasonable doubt that the substance at issue was the controlled
substance alleged in the complaint or indictment. Such
independent evidence may include, for example, retesting of the
original drug evidence, a positive field test, or a specific
admission by the defendant regarding his or her knowledge of the
nature of the substance that was made before Dookhan signed the
drug certificate in the case. Only the relevant Dookhan
defendants identified in the third letter shall be provided with
new notice in phase two, discussed infra.
26
Where a defendant pleaded guilty to multiple charges at a
plea hearing or was convicted at trial of multiple counts, the
vacatur of these drug convictions with prejudice will not affect
any nondrug convictions or any drug convictions where Dookhan
was not the primary or confirmatory analyst.
53
In light of the massive number of relevant Dookhan
defendants and the scope of misconduct attributable to the
government (albeit not to the prosecutors), it is only fair that
district attorneys make an individualized determination whether
a conviction warrants burdening the court system with the
adjudication of a motion for a new trial, CPCS with the
assignment of counsel for those who are indigent, and the
taxpayers with payment for the notice and for assigned counsel,
especially where a defendant has already served the entirety of
the sentence. A substantial vetting of the relevant cases by
the district attorneys will allow our criminal justice system to
focus its limited resources where they are most needed, and
diminish the risk that the number of these cases will so
overwhelm CPCS that the single justice will have to act to
protect the relevant Dookhan defendants' right to counsel.27
27
Our focus in the phase one protocol on whether the
Commonwealth could obtain a drug conviction against the relevant
Dookhan defendants with evidence untainted by Dookhan's
misconduct is comparable to the approach taken by New Jersey
courts following revelations of misconduct by a police officer
who made numerous drunk driving arrests. In State v. Gookins,
135 N.J. 42, 44-45 (1994), three defendants moved to vacate
their guilty pleas for driving while under the influence of
alcohol after the police officer involved in their arrests and
the administration of their breathalyzer tests was convicted of
falsifying the result of the breathalyzer test he had performed
on an undercover agent, and of stealing money from drivers whom
he had stopped. The defendants had pleaded guilty in reliance
on the results of their breathalyzer tests. Id. at 45. The New
Jersey Supreme Court vacated their convictions and issued an
order requiring the prosecution to certify to the trial court
54
ii. Phase two. In the second phase of the protocol, no
later than thirty days after the expiration of the ninety-day
period in phase one, new notice shall be provided to all
relevant Dookhan defendants identified in the district
attorneys' third letters. The notice shall consist of a mailing
that is approved by the single justice as to its content, its
envelope, and its mode of delivery.28 The single justice shall
also have the authority to order additional forms of public
notice, such as through newspapers or social media, to enhance
the effectiveness of the mailing and to attempt to reach those
who might not receive it.
"all the evidence that it considers to be untainted that would
sustain the prosecution of these cases, . . . excluding the
testimony of [the convicted officer]." Id. at 51. The trial
court was instructed to hold a hearing "to determine whether
such evidence is sufficient to permit the State to proceed with
the case." Id. at 52. In a separate class action in the United
States District Court, the State consented to the appointment of
a special master to review all drunk driving cases of class
members involving the convicted officer and determine whether
those convictions should be reversed. Id. at 51. The special
master conducted an individualized review of these cases and
determined that "the only evidence inculpating the [defendants]
came from a police officer known to be corrupt." See Dickerson
vs. Kane, U.S. Dist. Ct., No. 92-2528 (D.N.J. July 17, 1995).
The District Court judge adopted the findings of the special
master and ordered the reversal of 151 drunk driving
convictions. Id.28
We leave to the single justice the question whether
certified mail or some other comparable means of delivery is
appropriate to determine whether the defendant actually receives
the notice.
55
The new notice shall not only address the deficiencies
described in the content of the first written notice sent by the
district attorneys, but also simplify the process for defendants
to move for a new trial. The notice should identify the
telephone number of a "hotline" staffed by CPCS, so that persons
who receive the notice can seek immediate guidance. The mailing
should permit a relevant Dookhan defendant to declare, simply by
checking a box, that the defendant wishes to discuss with
counsel whether the defendant should attempt to vacate his or
her drug conviction by filing a motion for a new trial, and
should also include a form indigency affidavit for the defendant
to fill out if he or she claims to be indigent and therefore
qualifies for the assignment of counsel. CPCS is encouraged to
draft and include within the mailing a separate letter providing
the legal guidance and information that CPCS would generally
provide to a relevant Dookhan defendant who would telephone its
hotline. Because this guidance letter, unlike the notice,
constitutes legal advocacy and not simply legal information, and
might encourage relevant Dookhan defendants to move for a new
trial to eliminate the collateral consequences arising from
their drug conviction, the content of this letter shall not
require the approval of the single justice. Along with the
notice, the guidance letter, the check-off sheet, and the form
indigency affidavit, the mailing shall include a stamped, self-
56
addressed envelope so that, once completed, the documents may be
returned to an address designated by the single justice. Where
a relevant Dookhan defendant returns the documents indicating
that he or she is indigent and wishes to explore with counsel
the filing of a motion for a new trial, the single justice shall
make an indigency determination and, where indigency is found,
shall order CPCS to assign counsel to the defendant. No action
shall be taken regarding any relevant Dookhan defendant's
conviction where he or she does not return the documents or
otherwise move for a new trial.
The single justice shall also address the challenge created
by the substantial number of relevant Dookhan defendants who
have yet to be successfully located. As it stands now, these
defendants have yet to be informed that the substance at issue
in their case was tested by Dookhan in the Hinton lab, that
Dookhan's misconduct over many years has been found to be
egregious government misconduct, and that they are entitled to
the conclusive presumption of egregious government misconduct if
they were to move for a new trial. Because they have not yet
been so informed, they effectively have been denied the
opportunity to seek redress for this misconduct.
The district attorneys have an obligation to take all
reasonable steps necessary to provide these individuals with
notice of Dookhan's misconduct, and that includes reasonable
57
efforts to locate them, wherever they might be residing. Where,
despite reasonable efforts, the district attorneys are unable to
obtain an address for a relevant Dookhan defendant, or where the
notice is returned as undeliverable, the single justice shall
direct the relevant district attorney to locate the current
address of the defendant's last attorney of record in the case.
The notice and accompanying documents shall be sent to that
attorney, with a cover letter asking the attorney to make best
efforts to locate his or her former client so that effective
notice can be accomplished. In addition, the single justice
shall have the authority to direct the probation department to
include a notation in the missing defendant's board of probation
record indicating that the defendant is a relevant Dookhan
defendant, so that the defendant can receive the required notice
and related documents if he or she returns to court. For the
relevant Dookhan defendants who cannot otherwise be located, the
single justice shall also have the authority to order the use of
social or other media to provide the notice and related
documents, or information regarding them.
The financial burden of notifying defendants of egregious
government misconduct that affected their criminal cases must be
borne by the prosecuting district attorney's office, even if, as
here, the fault belongs to the Hinton lab and Dookhan, not the
prosecutors. Therefore, the cost of providing new and adequate
58
notice, including but not limited to the cost of mailing, of
locating missing defendants, and of publicity through social and
other media, shall be borne by the district attorneys, with the
allocation of those costs to be determined by the single
justice. We recognize that this cost could be considerable, but
that is a consequence of egregious government misconduct that
affected more than 20,000 defendants. We also note that a
district attorney may reduce the amount of this cost by reducing
the number of defendants identified in the third letter. The
failure of a district attorney to bear the district's
proportionate share of these costs shall be deemed equivalent to
a failure to provide defendants with exculpatory information,
with the sanctions appropriate to such a failure.
iii. Phase three. In the third phase, CPCS shall identify
in writing to the single justice all cases, if any, where CPCS
received an order for the assignment of counsel, but was unable
within sixty days of the order to assign counsel despite CPCS's
best efforts. The single justice shall then make a factual
finding, after hearing, whether CPCS has made best efforts to
assign counsel in these cases. In those cases where the single
justice makes such a finding, the single justice shall issue an
order to show cause why the drug conviction of this
unrepresented defendant should not be vacated, and set a date
for a show cause hearing where the Commonwealth will have an
59
opportunity to be heard. At or after that hearing, if the
single justice determines that relevant Dookhan defendants have
been denied their right to counsel because of the inability of
CPCS, despite its best efforts, to assign counsel to represent
the defendants, the single justice may order that the drug
convictions at issue be vacated and dismissed without prejudice,
unless the interests of justice otherwise dictate.29 See
Lavallee, 442 Mass. at 246.
Conclusion. The case is remanded to the single justice for
the entry of a declaratory judgment as provided in this opinion
and for further action consistent with this opinion.30
So ordered.
29
We recognize our authority to appoint a special master to
assist the single justice in his or her exercise of our
superintendence authority in these cases. See S.J.C. Rule 2:13,
as appearing in 382 Mass. 749 (1981).
30
Because we recognize the challenges involved in
implementing the three-phase protocol, the single justice is
authorized to make necessary revisions if any part of it is
determined to be impracticable. In addition, if this protocol
for any reason were to prove inadequate in practice to remedy
the wrong despite the best efforts of the parties, the single
justice may issue a new reservation and report to the full
court.
LENK, J. (concurring, with whom Budd, J., joins). It has
been over five years since the stunning misconduct of a rogue
chemist at the State's William A. Hinton State Laboratory
Institute (Hinton lab) first came to light. The nature, scope,
and adverse consequences of that misconduct on the individuals
directly affected, on our system of justice, and on the
taxpayers who must foot the bill for this lamentable turn of
events are all ably recounted in the court's opinion, as well as
in the dissenting opinion. I write separately to underscore
that, in those five years, and despite the time and efforts of so
many, we have managed to address fewer than 2,000 of the
estimated 20,000 or more cases involving Annie Dookhan-tainted
evidence. We cannot go on this way.
Even as we speak, the myriad ripple effects of one woman's
misdeeds continue to afflict the relevant Dookhan defendants,
thousands and thousands of whom already have served their time
for convictions that we now know to be suspect. As a result of
having a prior drug conviction, many of those same people, some
of whom may not even know to this day of Dookhan's fateful role
in their lives, may now find themselves unable to get work or
housing, obtain or keep needed professional and drivers'
licenses, attend college, receive government benefits, or even
stay in this country. Mindful of this, I share the dissenting
Justice's frustration with the unacceptably glacial systemic
2
response to date and join in her view that extraordinary measures
are now in order. For reasons explained in the court's opinion,
however, I regard the protocol announced today (Bridgeman II
protocol) as promising to be such a measure, but only if
implemented in a manner that countenances no further delays. For
the protocol to achieve its goals and end this "blight on the
integrity of our criminal justice system," post at , there must
be strict compliance with its stringent timelines and
requirements. Only this will forestall the need for a
"Bridgeman III" and different measures.
While blame for the difficult situation in which we find
ourselves lies solely with Dookhan and the Hinton lab that
allowed it to happen -- and it cannot be said too many times that
fault most certainly does not lie with the prosecutors who,
without knowing its tainted provenance, in good faith used the
evidence Dookhan created -- we consistently have recognized that
her misdeeds must be attributed to the government, and that the
government must bear the responsibility to put things right.
Just as the success of the Bridgeman II protocol will depend on
its timely and rigorous implementation, so too will its viability
turn, at least initially, on the willingness of the district
attorneys promptly to dismiss with prejudice a truly significant
number of the roughly 20,000 relevant Dookhan defendants'
cases -- at a minimum, those for simple possession in which
3
sentences already have been served. See ante at note 24. Not
doing so in the first phase of the protocol will of necessity add
to the already staggering human and financial costs of the
scandal and risk overloading the already strained public defense
system. In this regard, we cannot turn a blind eye to the
potential costs of the looming crisis of thus far undetermined
magnitude caused in western Massachusetts by Sonja Farak, yet
another rogue chemist employed by a State laboratory. And, as to
the presumably limited number of remaining cases that the
district attorneys decline to dismiss, truly informative notice
to the defendants involved, using whatever modes of communication
will be effective, is vital to achieving the fair and workable
outcome contemplated by the protocol.
Recognizing what Dr. Martin Luther King, Jr., once called
"the fierce urgency of now," we must act swiftly and surely to
staunch the damage and to make things as right as we can. The
Bridgeman II protocol draws upon the deep roots of our
jurisprudence to craft a response that, consistent with
fundamental principles, will bring this deplorable episode
forthwith to a just resolution once and for all. May it be so.
HINES, J. (dissenting). The petitioners and intervener
(collectively, petitioners) are before this court once again
seeking a global remedy for the more than 20,000 defendants
whose convictions were tainted by Annie Dookhan’s unprecedented1
and far-reaching misconduct at the William A. Hinton State
Laboratory Institute. The court rejects a global remedy,
adopting the view that "despite its considerable risks and
burdens, case-by-case adjudication is the fairest and best
alternative to resolve the cases potentially tainted by
Dookhan's misconduct." Ante at . I disagree. Now, more
than five years after Dookhan's misconduct first came to light,
the need to adopt a swift and sure remedy for the harm caused by
her deceit presents itself with palpable urgency. The time has
come to close the book on this scandal, once and for all, by
adopting a global remedy. While I agree, as the court notes,
that a global remedy is "strong medicine," ante at , the
continuing violation of the rights of the defendants affected by
Dookhan's misconduct and the damage to the integrity of our
criminal justice system demand no less.
Contrary to the court's assessment of the case-by-case
procedure offered as the solution to the problem the court is
obliged to solve, it is neither the fairest nor the best
1
An exhaustive search of reported cases yielded not a
single case involving misconduct comparable to that committed by
Dookhan.
2
alternative for remedying the manifest injustice to the
defendants caught up in the Dookhan scandal and for restoring
the integrity to our criminal justice system. It fails as the
"fairest" alternative because it flouts the guiding principle
that "in the wake of government misconduct that has cast a
shadow over the entire criminal justice system, it is most
appropriate that the benefit of the remedy inure to the
defendants." Commonwealth v. Scott, 467 Mass. 336, 352 (2014),
citing Lavallee v. Justices in the Hampden Superior Court, 442
Mass. 228, 246 (2004). It also fails as the "best" alternative
because it is simply unworkable as a timely and effective
mechanism for addressing the due process claims of the thousands
of defendants now deemed to have been convicted on Dookhan's
tainted evidence. In short, the court's solution is too little
and too late. The only fitting end to this blight on the
integrity of our criminal justice system is vacatur and
dismissal with prejudice of the convictions of all relevant
Dookhan defendants. Therefore, I dissent.
The case for a global remedy. We have been here before.
We acknowledged in Scott, 467 Mass. at 352, that Dookhan's
misconduct caused "a lapse of systemic magnitude in the criminal
justice system." Recognizing the "particularly insidious"
nature of Dookhan's misconduct and that it "belies
reconstruction," we adopted a conclusive presumption of
3
egregious government misconduct as an accommodation to those
defendants able to establish Dookhan's role in producing the
evidence upon which their conviction was based. Id. Later in
Bridgeman v. District Attorney for the Suffolk Dist., 471 Mass.
465 (2015) (Bridgeman I), we declined the invitation to
implement a global remedy for the thousands of cases affected by
Dookhan's misconduct "at this time." Id. at 487. Signaling a
preference for a measured approach rather than the more drastic
global remedy advocated by the petitioners, we noted that "our
decisions in Scott and [Commonwealth v. Charles, 466 Mass. 63(2013)], have provided Dookhan defendants . . . with meaningful
solutions for addressing concerns that have arisen as these
defendants attempt to challenge their drug convictions." Id.Since Bridgeman I, however, Scott's promise as a hedge
against the wholesale violation of the due process rights of
this class of defendants has been undermined by the sheer
magnitude of the problem. Scott was decided without the benefit
of the investigative reports establishing the scope of Dookhan's
misconduct.2 The court reasonably assumed, therefore, that the
jurisprudential shortcut to proving Dookhan's misconduct would
make a case-by-case approach workable. Because we now know the
extent of Dookhan's misconduct and that it has not yet been
mitigated in any significant respect by the measures in Scott
2
See ante at note 6.
4
and Charles, that assumption is no longer valid. With a clearer
eye on the scope of the problem, Scott's characterization of
Dookhan's misconduct as a "lapse of systemic magnitude" still
stands as an apt factual and legal context for the petitioners'
claims. Scott, 467 Mass. at 352.
In this case, as in Scott, we are called upon to "exercise
our superintendence power [under G. L. c. 211, § 3,] to fashion
a workable approach to motions to withdraw a guilty plea brought
by defendants affected by [Dookhan's] misconduct." Id. In this
undertaking, the appropriate analytical framework is that
articulated in Scott.3 We noted that in fashioning a remedy for
the "systemic lapse" caused by Dookhan's misconduct, "[w]e must
account for the due process rights of defendants, the integrity
of the criminal justice system, the efficient administration of
justice in responding to such potentially broad-ranging
misconduct, and the myriad public interests at stake." Id. In
3
Without clearly explaining why, the court strays from the
analytical framework we adopted in Scott, relying instead on a
self-selected set of "principles" explained in elaborate detail.
Ante at . I agree that these principles are firmly rooted in
our jurisprudence, but they are not necessarily dispositive of
the issue presented here. Absent a reason to play by a
different set of rules from that articulated in Scott, 467 Mass.
at 352, and reiterated in Bridgeman I, 471 Mass. at 487, as an
appropriate standard to apply in "fashion[ing] a workable
approach" to handling the cases in which Dookhan was the primary
or confirmatory chemist, I would not spurn the analytical
approach adopted in Scott. The problem here is the same as it
was in Scott: the need to craft a fair and timely approach to
the resolution of these cases.
5
balancing these factors as discussed below, I am persuaded that
the case for a global remedy as advocated by the petitioners is
compelling.
1. Due process rights. The due process rights at stake
here, "the opportunity to be heard 'at a meaningful time and in
a meaningful manner'" (citation omitted), Bridgeman I, 471 Mass.
at 479, weigh heavily in Scott's remedial calculus for two
reasons: the serious and ongoing collateral consequences to the
class of defendants convicted on the strength of Dookhan's
tainted evidence; and the necessity to avoid unnecessary delay
beyond the four years that already have elapsed in providing
these defendants a "meaningful" opportunity to establish
prejudice from Dookhan's misconduct. The court, ante at, paints
a grim picture of how lives are upended by the serious
collateral consequences of drug-related convictions. The
picture is even more grim when one considers that many, if not
most, of these defendants have already served their sentences.4
They have paid their debt to society whether they owed one or
not. The years spent incarcerated cannot be restored to these
4
An analysis conducted by a data science fellow at the
American Civil Liberties Union Foundation of Massachusetts found
that approximately sixty-two per cent of the convictions in the
cases tainted by Dookhan's misconduct were for possession only
and that about ninety-one per cent of these cases were resolved
in the District Court. These statistics support the assumption
that most defendants have completed their sentences.
6
defendants, but a fair and just resolution can make amends.
What due process requires then is a remedy that is simple, sure,
and final. That means a remedy that is uncomplicated by the
myriad moving parts built into the court's case-by-case model,
free of the risk that further delay will prolong the only relief
that realistically can be offered to defendants who have already
served their sentences. This interpretation of what due process
requires at this point in the effort to solve the Dookhan
problem is supported by Scott and Bridgeman I.
In Bridgeman I, 471 Mass. at 479, the court declined to
adopt a global remedy in part based on the "substantial efforts
that are being made to deal with the impact of Dookhan's
misconduct." With at least the prospect of a speedy resolution
of the cases in which Dookhan was the primary or confirmatory
chemist, the court was content to delay a more robust remedy to
allow those efforts to accomplish their purpose.5 Id. at 487.
Here, however, we have come to an end point in assessing the
impact of Scott and Charles in resolving the outstanding cases
of this type. The district attorneys have identified 24,000
cases, more or less, that must be adjudicated on the prejudice
prong of Scott. Thus, the scope of the current challenge is
5
The court observed that "[o]ur decision . . . will go a
long way in resolving additional concerns that have surfaced and
in moving these cases forward towards resolution." Bridgeman I,
471 Mass. at 487.
7
clear. The remedy, in accounting for defendants' due process
right to a prompt hearing, must have some reasonable prospect
for immediate resolution of the 24,000 cases to avoid
exacerbating the serious consequences of delay. I am not
persuaded that the court's case-by-case model meets this test in
circumstances where the defendants' due process rights are
paramount.
2. Integrity of the criminal justice system. It is beyond
dispute that Dookhan's misconduct, the details of which have
spread beyond the legal community,6 has undermined public trust
in the integrity of the criminal justice system. In a case such
as this, coming before the court as a consequence of Dookhan's
serious corruption of our criminal justice system, the court's
task is not merely to decide the rights of the parties. The
court must also act, within the boundaries of the law, to
restore the public's faith in the integrity of the courts.
Unlike the right to counsel crisis in Lavallee, Dookhan's
misconduct is not a problem of the Legislature's making. See
Lavallee, 442 Mass. at 246. The duty to protect, and restore
when necessary, the integrity of the criminal justice system
falls squarely upon the court.
With no clear sign from the court that it grasps the scope
6
See, e.g., Jackman, When a State's Drug Chemist Lies for
Years, Should All Her Cases Be Thrown Out?, Wash. Post, Sept.
29, 2016.
8
of the damage and the need for an approach that will eliminate
"root and branch"7 all of the attendant consequences, the public
is left to wonder if the process by which a court imposes the
sanction of a loss of liberty is fair and just.8 Restoring the
integrity of the criminal justice system requires that the court
acknowledge and make amends for the shortcomings in a system
that permitted Dookhan to "go rogue" for so long without
detection.9 Those shortcomings call into question the integrity
of the entire criminal justice apparatus for gathering and
reporting the evidence that juries rely on in deciding a
defendant's guilt or innocence. The perceived legitimacy of
court-imposed restraints on a defendant's liberty rises or falls
on the integrity of the evidence. If the mistrust engendered by
the individual and institutional failures that produced this
scandal is allowed to remain, it will have far-reaching adverse
7
See Green v. County Sch. Bd., 391 U.S. 430, 437-438
(1968)(using phrase to describe obligation to dismantle school
segregation fourteen years after command to do so in Brown v.
Board of Educ., 347 U.S. 483 [1954]).
8
Over the years, the racial impact of our sentencing
practices have come under scrutiny. See e.g., The Sentencing
Project, The Color of Justice: Racial and Ethnic Disparity in
State Prisons, at 3, 5, 7-8 & n.13, 16-18 (2016). Although
racial bias has not been documented, members of the public,
especially those in the communities of color, rarely parse such
reports in search of the real reason for disparate impact.
9
"Dookhan's consistently high testing volumes should have
been a clear indication that a more thorough analysis and review
of her work was needed." See Scott, 467 Mass. at 340.
9
consequences for the ability of our courts to maintain the
public's faith in the promise of equal justice for all. Because
I am not persuaded that the case-by-case model adopted by the
court can accomplish this essential purpose, this factor weighs
in favor of the global remedy advocated by the petitioners.
3. Efficient administration of justice. There is no
question that, despite the best efforts of the parties,
thousands of defendants affected by Dookhan's misconduct still
languish without notice of their rights or even a realistic
opportunity for redress. The four-year delay in the resolution
of the cases tainted by Dookhan's misconduct, as discussed
above, adequately makes the point that the administration of
justice has been anything but efficient. Yet, the court gives
insufficient weight to this factor in adopting a case-by-case
adjudication model.
The efficacy of the court's case-by-case model is at best
questionable, both because it is unworkable and because it is
likely to perpetuate further delay in providing a remedy to the
thousands of defendants affected by Dookhan's misconduct. Not
only is it lacking in the ability to insure a speedy resolution
of the 24,000 cases thus tainted, it is vulnerable to failure
for several practical reasons: the reliance on voluntary
cooperation of the district attorneys, and unrealistic
timetables.
10
First, the success of phase one, which anticipates a
substantial culling of the 24,000 cases, depends entirely on the
voluntary cooperation of the district attorneys. Ante at .
Understandably, the court has not asserted any authority to
compel the dismissal of cases. See Commonwealth v. Pellegrini,
414 Mass. 402, 405 (1993) ("Prosecutors have broad discretion in
determining whether to prosecute a case"). In this respect, the
court's model does not change the status quo: the district
attorneys already have, and have had for the duration of the
Dookhan crisis, the sole authority voluntarily to dismiss these
cases. It is undisputed that the district attorneys have
cooperated in identifying the defendants presumed to have been
affected by Dookhan's misconduct. However, without some basis
for a reasonable belief that the district attorneys will follow
through on the suggestion to dismiss thousands of cases with
prejudice, the court does not inspire confidence in the success
of the model.
Second, the timetable for the accomplishment of the various
phases of the case-by-case model is unrealistic and
unachievable. The court acknowledges that "substantial vetting"
is required under phase one. Ante at . Yet, the district
attorneys are given only ninety days to sift through the 24,000
cases that have been connected to Dookhan's misconduct. If past
is prologue, and taking into account the delays in getting to
11
where we are now, accomplishing this task within the ninety-day
window adopted for the court's model is highly unlikely.
Likewise, the thirty-day deadline in phase two for notice to the
defendants whose cases will not be dismissed without prejudice
is problematic for the same reason. To the extent that the time
frames reflect a calculation that absolute compliance by the
district attorneys and the Committee for Public Counsel Services
will adequately accommodate the defendants' due process rights,
I have no confidence that the court's faith in the practicality
of the process will be rewarded. Unless the court is prepared
to declare that reasonable requests for delay, even those based
on the impracticality of the timetable, will be denied, the more
likely scenario is that further indeterminable delay will occur.
With the defendants' due process right to a prompt hearing
hanging in the balance, I cannot accept an untimely, and
ultimately unworkable, case-by-case model as an appropriate
resolution of the issue before us.
4. Other public interests. None of the other public
interests at stake here warrants a disposition that prolongs a
global remedy for the defendants who are presumed to have been
victims of Dookhan's misconduct. First, the likelihood that the
vast majority of the defendants in the cases in which Dookhan
was the primary or confirmatory chemist have completed their
sentences mitigates the most compelling public interest at stake
12
here: public safety. On the other side of the ledger, the
serious and enduring collateral consequences of these
convictions remain extant, resulting in manifest injustice to
those defendants. The court weighs the rights of the defendants
"against the necessity for preserving society's interest in the
administration of justice" and concludes that this factor favors
the Commonwealth. Ante at , quoting Commonwealth v. Cronk,
396 Mass. 194, 198-199 (1985). In my view, this calculation is
demonstrably erroneous. Society's interest in the
administration of justice is hardly served by a remedy that
defers to the Commonwealth in deciding which, if any, cases are
to be dismissed with prejudice and, in all other respects,
depends on the defendants to opt into the scheme to benefit from
the possibility that the case will be dismissed with prejudice.
Ante at.
In sum, the Scott factors weigh heavily in favor of the
defendants in the cases tainted by Dookhan's misconduct. The
scope and egregiousness of that misconduct, combined with the
four-year delay in providing relief to the defendants affected
by it, compels a global remedy. It is difficult to imagine a
scenario where, faced with the detritus from a scandal of
similar magnitude, a court would hesitate to order a global
13
remedy. The question comes to mind, "If not now, when?"10
10
C. Taylor, Sayings of the Jewish Fathers 7 (2d ed. 1897)
(quoting Hillel the Elder).