Seth-Thomas Aitken, The Daily Record Newswire
Disgraced chemist Annie Dookhan spent nine years working in the state drug lab. During that time she handled evidence in more than 30,000 criminal cases.
Now, based largely on Dookhan’s own admissions to state police, every one of those cases and every piece of evidence she touched likely will be reevaluated with the highest degree of skepticism.
On the other hand, as much as justice demands a thorough review of Dookhan’s entire body of work, she claims to have only manipulated testing results for the past two to three years.
If Dookhan’s claim is to be believed, it begs the question: Why? Why would Dookhan do things one way, maybe even the right way, for the first six years of her career and then one day start lying — about everything?
Perhaps it doesn’t matter.
Perhaps it makes no difference whether Dookhan falsified test results only for the past three years or for her entire career. After all, what she did will probably vacate hundreds of criminal convictions across the state, negate many thousands of hours of police work, and further erode public trust in an already overwhelmed, overworked criminal justice system.
Understanding “why” probably won’t change anything.
On the other hand, three years — almost to the day — before Dookhan was discovered and suspended something incredibly important did happen. The U.S. Supreme Court issued its decision in the criminal case of Melendez-Diaz v. Massachusetts.
Melendez-Diaz profoundly changed the way drug crimes are prosecuted and tried in courtrooms around the country, particularly in Massachusetts. It forced chemists out of the laboratory and onto the witness stand by requiring live testimony to prove the authenticity of drug evidence.
In my opinion, Melendez-Diaz provided Dookhan with a mission and path, one paved with good intentions and ivory-tower legal theory, wholly divorced both from history and real-world practice.
I met Dookhan for the first time at 3rd District Court in New Bedford. It was early November 2011, and I was prosecuting the case of a young man whose Thompson Street apartment had been raided by police. She was there to testify to forensic test results showing that the knotted baggies found hidden in his closet contained crack cocaine and heroin.
I had been an assistant district attorney for nearly two years, and although I didn’t know it then, Dookhan had been suspended from her testing duties five months earlier. Notwithstanding her suspension, however, Dookhan had been sent to testify.
In any criminal drug trial, the authenticity of the suspected drugs is one of the things the prosecution must prove beyond a reasonable doubt. While there are a number of ways to do that, the generally accepted method is to offer evidence that the suspected drug evidence was tested in a laboratory, analyzed and scientifically identified as an illegal drug.
Prior to June 25, 2009, such evidence came in the form of a one-page affidavit generated by the testing laboratory, commonly known as a “drug certificate” or “drug cert.” A drug cert would indicate a defendant’s name, the weight of suspected drug evidence tested, and whether the evidence was found to contain the chemical characteristics of illegal drugs.
Most importantly, the drug cert bore the sworn signature of the testing chemist. A Massachusetts statute allowed for the document to be offered as substantive proof at trial without the chemist ever having to testify or even enter the courtroom.
Melendez-Diaz invalidated the Massachusetts statute and determined that using a drug cert without a live witness violated the Confrontation Clause of the U.S. Constitution. The decision created a new mandate that the live, in-person testimony of the chemist who performed a drug analysis was necessary in order for the drug cert to be used at trial.
Opponents argued that the decision was a distortion of the Confrontation Clause and that the right to confrontation was not designed to expose errors in scientific tests.
Critics also argued that requiring the presence of a live drug analyst at every drug-related criminal trial would prove overwhelming and unsustainable for state laboratories.
The court, however, disregarded those predictions as “sky is falling” arguments. The potential practical concerns took a back seat to the court’s primary and admittedly more laudable goal of making drug analysis evidence more trustworthy.
By subjecting chemists to cross-examination at trial it would guard against the likelihood for chemists to be “under pressure — or have an incentive — to alter the evidence in a manner favorable to the prosecution.”
Ironically, the decision had an opposite effect: By bringing chemists into the courtroom for the first time, Melendez-Diaz created a familiarity between chemists and prosecutors where there had been none before.
Following the Melendez-Diaz decision, Dookhan and her fellow chemists were suddenly in demand and under immense new pressure.
With only a handful of chemists analyzing drug evidence, drug-related trials scheduled every day in multiple courts across the commonwealth, and no decrease in the amount of new suspected drug evidence being submitted for analysis, chemists verged on becoming a rare, precious resource, highly sought after.
Police wanted their samples tested; individual chemists were scheduled daily to appear in three or four trials in as many different courts; prosecutors hounded chemists to see if upcoming trials would be able to go forward; judges held entire pools of potential jurors for hours on the promise that a chemist was on her way.
None of this justifies Dookhan’s choices, but it certainly gives them context.
Melendez-Diaz created a crisis, and as we learn more about her, we are learning that Dookhan was especially susceptible to the allure of a crisis.
Melendez-Diaz took Dookhan out of the lab and put her in front of a new audience of prosecutors, judges and juries, giving her an exhilarating reason to produce and impress.
Even if Dookhan’s choices were extreme, the pressures she was working under and responding to were highly predictable, and perhaps even avoidable. Whether she rigged the game for just three years or for longer may not seem like it changes anything, and the question of whether Melendez-Diaz was Dookhan’s catalyst might seem academic.
But in the final analysis, well-intentioned bad law is still bad law. That’s the lesson of Melendez-Diaz and the lesson of Annie Dookhan.
Melendez-Diaz took scientists — objective and solitary — and made them part of the prosecution team. It cultivated the kind of camaraderie between prosecutor and chemist that the court meant to eliminate. It pulled analysts out of the lab and stretched their time and attention to the breaking point.
In many ways, Melendez-Diaz spawned Dookhan, and as a result the sky fell in Massachusetts.
—————
Seth-Thomas Aitken, a recent Bristol County assistant district attorney, teaches and works in academic support at the University of Massachusetts School of Law in Dartmouth. He can be contacted at saitken@umassd.edu.
