STORY: "Crime Lab Scandals Just Keep Getting Worse; How many people are in jail based on faked data?, by Dahlia Lithwick, published by Slate.
GIST: "Earlier this year, I wrote about a
sprawling prosecutorial scandal in Orange County, California,
involving a long-standing program of secret jailhouse snitches that had
tainted prosecutions in cases almost too numerous to count. This story
has
only continued to worsen. One of the prosecutors at the heart of the case simply packed up and
left California last month,
and just this week the news emerged that Orange County District
Attorney Tony Rackauckas had been told that his office might have a
jailhouse informant problem all the way back to 1999, a full 16 years before the current allegations about the misuse of jailhouse snitches had surfaced. The problem with a scandal on this order of magnitude isn’t
just that it reflects a fundamental flaw in the justice system. The
problem is that, as a purely practical matter, there is simply no easy
way to correct it. In Orange County, some convictions have been tossed,
others have been stalled, and a call for a Justice Department
investigation has gone unheeded. Even years after cases like this come
to light, undoing or redoing wrongful convictions proves almost
impossible to achieve, especially when the state believes someone else
should be cleaning up the mess. Perhaps the most dramatic example of a massive scandal that cannot seem to be reversed involves
Annie Dookhan, a chemist who worked at a Massachusetts state lab drug analysis unit. Dookhan was sentenced in 2013 to at least three years in prison, after pleading guilty in 2012 to having
falsified thousands of drug tests.
Among her extracurricular crime lab activities, Dookhan failed to
properly test drug samples before declaring them positive, mixed up
samples to create positive tests, forged signatures, and lied about her
own credentials. Over her
nine-year career,
Dookhan tested about 60,000 samples involved in roughly 34,000 criminal
cases. Three years later, the state of Massachusetts still can’t figure
out how to repair the damage she wrought almost single-handedly. By the close of 2014, despite the fact that there were between
20,000-40,000 so-called “Dookhan defendants” (depending on whether you
accept the state’s numbers or the American Civil Liberties Union’s),
fewer than 1,200 had filed for postconviction relief.* Many of them were
sentenced under plea agreements rather than at trial, and they feared
that a re-examination of their cases could potentially lead to even
longer sentences. So the ACLU of Massachusetts stepped in last spring,
filing
Bridgeman v. DA of Suffolk County to ensure that no defendants would face harsher penalties if they challenged their Dookhan evidence. In May,
the Supreme Judicial Court of Massachusetts unanimously ordered
that each of the defendants whose guilty pleas were based on Dookhan’s
evidence could seek new trials without facing added charges or stiffer
sentences. The state court stopped short of ordering each of the
convictions vacated—the remedy sought by the ACLU. But the court
effectively capped any defendant’s sentence to what it would have been
under the original plea agreement. The state argues that most of those Dookhan defendants were surely
guilty of something, and the cost of vacating all of their convictions
would be chaos.
There has already been one reported homicide attributed to a freed Dookhan defendant.
In 2012, Donta Hood had his conviction thrown out because Dookhan had
tested his drug evidence and testified against him at trial. He was
released from prison two years early and charged with murder a year
later. Of course, there are also an awful lot of folks whose convictions
were predicated on a massive fraud. Many of them don’t even know this,
and most cannot afford to hire attorneys to reopen their cases. Even if
they have already served their sentences, the collateral impact of
having drug convictions infects every part of their lives. Who is
responsible for fixing that? When a crime lab screws up, whose responsibility is it to clean up the mess? In Massachusetts it doesn’t even end there. Only a few months after Dookhan’s conviction, it was discovered that
another Massachusetts crime lab worker, Sonja Farak,
who was addicted to drugs, not only stole her supply from the evidence
room but also tampered with samples and performed tests under the
influence, thus tainting as many as 10,000 or more prosecutions.
Records
show Farak used cocaine, crack, or methamphetamines daily or almost
daily while she was at work, as well as ketamine, MDMA, ecstasy,
phentermine, amphetamines, LSD, and marijuana. Farak pleaded guilty and served 18 months behind bars. But in April, Massachusetts’ highest court found that state law
enforcement officials had never fully investigated the scope of Farak’s
wrongdoing, retesting only 10 samples of her work. And based on new
discoveries by defense lawyers, the extent of Farak’s drug abuse now
appears far greater than was initially alleged. Officials at the time of
Farak’s arrest claimed she had tampered with the drugs she tested
beginning only in July 2012, and only after she had tested each sample.
That is now in serious doubt. Retired Superior
Court Judge Peter A. Velis was appointed by Attorney General Maura Healey to examine the Farak case after the April ruling,
and he is tasked with determining the real scope of wrongdoing from the
Farak case. Among other things, Velis’ investigation is now looking
into
allegations by several defense lawyers that the attorney general’s office under then–Attorney General Martha Coakley
deliberately withheld evidence that the Farak scandal was much worse than it let on. Two defense attorneys, Luke Ryan and Rebecca Jacobstein, subpoenaed
Farak’s medical records to see if their clients had been affected and
found that her drug use and theft had extended all the way back to 2004,
eight full years before the state claimed it began. They
contend that this new evidence warrants a review of all 29,000 samples
Farak claimed to have tested during her career. They also claim the
government concealed this “smoking gun” evidence from defense attorneys.........Documents revealing Farak’s addiction were kept from defense lawyers
for more than a year and a half, despite multiple requests. Once they
were finally able to inspect these documents, defense attorneys obtained
court orders requiring Farak’s clinicians to produce copies of their
treatment records.* Judge C. Jeffrey Kinder ruled last June that Farak’s
treatment records should be unsealed because they contain information
that could be important to others whose cases involved evidence tainted
by Farak. Among the newly revealed records are these notes from a local
Amherst, Massachusetts, therapist who treated Farak in 2009 and 2010:
“She obtains the drugs from her job at the state drug lab, by taking
portions of samples that have come in to be tested.” Despite the defense counsel’s requests for “any third party who may
have been aware of Farak’s evidence tampering” in late 2013, the
prosecutor’s office had claimed “there is no reason to believe that a
third party had knowledge of Farak’s alleged malfeasance prior to her
arrest. A prosecutor from the attorney general’s office called the evidence
defense attorneys were seeking “irrelevant to any case other than
Farak’s,” dismissing requests for evidence that Farak’s drug use had
been long-standing as “merely a fishing expedition.” Ryan learned that one of his clients had been convicted with evidence
Farak had produced on a day she was using drugs. But as Ryan has
pointed out,
relief comes case by case, and many who have been convicted using tainted evidence never even know they are eligible for relief. As
Ryan told the Daily Hampshire Gazette,
the Farak defendants may prove even harder to track down and help than
those who were tainted by Dookhan, which would be a nightmare: Almost
three years after Dookhan’s arrest, only 8,700 of those defendants have
been assigned lawyers, Ryan said. “And in this case, we don’t even have a
list.” Despite the ongoing scandal, the district attorneys take the position
that it is not their responsibility to help identify Dookhan or Farak
defendants. They lack the budgets or resources to do so, and—as they
have argued
in oral argument in the Bridgeman case—prosecutors
have no special duty to notify defendants that their convictions might
have been obtained with evidence that was falsified by government
employees. So the question remains: When a crime lab screws up, whose responsibility is it to clean up the mess?.......Over the past decade, crime lab scandals have plagued at least 20
states, as well as the FBI. We know that one of the unintended
consequences of the war on drugs has been a rush to prosecute and
convict and that crime labs have not operated with sufficient
independence from prosecutors’ offices in many instances. Their mistakes
ruin lives. Years of deliberate falsification have ruined thousands of
lives. We also know that there remains almost no reason for a
prosecutor’s office to admit error and that the cost of fixing those
errors can become prohibitive. So what do we do when a scandal infects
hundreds or thousands of prosecutions? If Massachusetts is any
indication, even three years later, we still don’t do all that much." (Correction: In an Oct. 28
Crime, Dahlia Lithwick misstated that Massachusetts lab worker Sonja Farak’s medical records were
hidden from defense counsel. Other documents were kept from counsel
leading to discovery of the medical records. Also, due to a production
error, this article misidentified the American Civil Liberties Union as
the American Civil Liberty Union.)
The entire article can be found at:
http://www.slate.com/articles/news_and_politics/crime/2015/10/massachusetts_crime_lab_scandal_worsens_dookhan_and_farak.html
PUBLISHER'S NOTE:
Dear Reader. Keep your eye on the Charles Smith Blog. We are following this case.
I
have added a search box for content in this blog which now encompasses
several thousand posts. The search box is located near the bottom of
the screen just above the list of links. I am confident that this
powerful search tool provided by "Blogger" will help our readers and
myself get more out of the site.
The
Toronto Star, my previous employer for more than twenty incredible
years, has put considerable effort into exposing the harm caused by Dr.
Charles Smith and his protectors - and into pushing for reform of
Ontario's forensic pediatric pathology system. The Star has a "topic"
section which focuses on recent stories related to Dr. Charles Smith. It
can be found at:
http://www.thestar.com/topic/charlessmith
Information on "The Charles Smith Blog Award"- and its nomination process - can be found at:
http://smithforensic.blogspot.ca/2013/12/the-charles-smith-award-presented-to_28.html
I look forward to hearing from readers at:
hlevy15@gmail.com;
Harold Levy: Publisher; The Charles Smith Blog;
