PASSAGE OF THE DAY: "In drug cases, the chemist is the sole source of information about whether the substance seized was an illegal drug. Jurors and even judges are entirely dependent on forensic scientists to be truthful, because most laypeople lack scientific expertise. As a result, the testimony of forensic scientists, which is often the heart of the prosecution’s drug case, may be taken at face value. In the Dookhan cases, for instance, innocent people were convicted based on false testimony invented from whole cloth, while people who actually committed crimes were convicted with entirely unreliable and inaccurate evidence. This is no small matter. The war on drugs disparately captured staggering numbers of poor people and people of color within its ambit. Most of those convictions rested primarily on a crime scientist’s certification that a substance was in fact illegal. If the certifications were false, the convictions were undermined. The implications are staggering."
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COMMENTARY: "Binge Watching? What "How to Fix a Drug Scandal" Teaches Us About Criminal Justice Reform," by Prof. Jessica S. Henry, published by Age of Awareness on April 20, 2020. (Author/Prof/Former public defender. www.jessicahenryjustice.com. New book “Smoke but No Fire: Convicting the Innocent of Crimes that Never Happened” (UCP 8/20).
GIST: "The criminal justice system abounds with inequities. Today’s news headlines are full of stories about our nation’s jail and prisons, where poor people and people of color, who make up a far larger percentage of the incarcerated in this country than they should, face unchecked exposure to the coronavirus. But the disparities for the poor from our criminal justice system extend well-beyond the pandemic.
For those of you who care about criminal justice, Director Erin Lee Carr’s latest Netflix docuseries “How to Fix a Drug Scandal” is a must-see. This riveting series tells the stories of Sonja Farak and Annie Dookhan, bench chemists at two different Massachusetts crime labs, whose chronic misconduct impacted the outcomes of thousands of cases.
Farak worked at a crime lab in Western Massachusetts where she developed a serious drug addiction on the job, first by dabbling in liquid methamphetamine, then cocaine, and eventually crack cocaine, all of which came from her very own drug lab. Across the state, in an entirely unrelated forensic scandal, Dookhan was found to have routinely “dry labbed” samples at the Hinton Crime Lab in Boston, reporting on drug test results from drugs she never tested at all.
I won’t tell you what happened to them or the cases they worked on. It is worth watching the series to find out.
But the problem is larger than an American crime lab scandal. Instead, “How to Fix a Drug Scandal” conveys a powerful message about our criminal justice system. It tells the story of how misconduct by an array of criminal justice actors is routinely overlooked, how that misconduct may only ever be exposed by the dogged efforts of determined defense attorneys, and how poor people and people of color almost always bear the consequences.
The Poor and People of Color are Most Impacted by Forensic Misconduct in Drug Cases:
One of the many reasons that poor people end up in prisons and jails at far higher rates than those with more wealth is simple: they cannot afford to bail out of jail. Some of the poor get out of jail quickly by taking a quick plea. In drug cases, the plea may happen even before drugs have been tested or formal charges have been brought.
But for those who wait for lab results before resolving their cases, the path forward may be littered with injustice. As the Farak and Dookhan scandals illustrate, lab results are only as good as the people doing the testing.
In drug cases, the chemist is the sole source of information about whether the substance seized was an illegal drug. Jurors and even judges are entirely dependent on forensic scientists to be truthful, because most laypeople lack scientific expertise. As a result, the testimony of forensic scientists, which is often the heart of the prosecution’s drug case, may be taken at face value.
In the Dookhan cases, for instance, innocent people were convicted based on false testimony invented from whole cloth, while people who actually committed crimes were convicted with entirely unreliable and inaccurate evidence.
This is no small matter. The war on drugs disparately captured staggering numbers of poor people and people of color within its ambit. Most of those convictions rested primarily on a crime scientist’s certification that a substance was in fact illegal. If the certifications were false, the convictions were undermined. The implications are staggering.
A Stunning Lack of Accountability and Oversight in our Criminal Justice System:
To be clear, Farak and Dookhan are not just bad apples or rogue scientists. They are symptoms of a much larger and systemic problem.
Forensic scandals have occurred all over the country. In New Jersey, Sergeant Marc Dennis claimed to calibrate alcohol testing machines but never did, raising questions about the reliability of more than 20,000 breath samples. Ana Romero and John Salvador, Texas forensic chemists from different crime labs, were embroiled in unrelated forensic scandals that collectively impacted thousands of cases.
Corruption in crime labs happens because there is a stunning lack of oversight. There are few national standards for crime labs and is no national certification process for forensic scientists. In addition, crime labs may function under the purview of law enforcement agencies, eroding the very independence and objectivity that scientists are supposed to bring to their work.
Dookhan’s close relationship with prosecutors should have called into question the integrity of her findings.
It didn’t.
And speaking of prosecutors: they should serve as important backstops against miscarriages of justice, but so often they do not. Prosecutors first, foremost, and always are supposed to be committed to doing justice above all else. But the system allows, and even fosters, an environment in which prosecutors prize convictions and “winning” over all else. And prosecutors can act with impunity because they are rarely held accountable for their misconduct.
In the Farak case, prosecutors with the state attorney general’s office hid evidence from defense attorneys and misled the court about it. Hampden Superior Court Judge Richard J. Carey blasted the prosecutors for their misconduct: “their intentional and deceptive actions ensured that justice would be delayed if not outright denied.”
But despite their flagrant actions, there were no consequences.
This is not unusual. Prosecutors enjoy absolute immunity in civil cases for their misdeeds and are rarely sanctioned by judges, bar associations or the criminal justice apparatus.
Defense Lawyers Can Call Out Government Abuse of Power, but Only with the Proper Resources:
Far too many talented public defenders and court-appointed lawyers for the poor would never be able to take on these types of systemic problems. Most are buried under overwhelming caseloads and lack the basic resources — funding and time — to investigate systemic injustice and mount huge challenges to the system.
Occasionally, however, a defense lawyer is able to rise to the occasion. When that happens, it is a beautiful sight to behold.
Enter Luke Ryan, featured prominently in “How to Fix a Crime Scandal,” who shines as a defense lawyer battling for justice against all odds. Ryan, employed at a private law firm, spent countless hours fighting on behalf of his appointed clients. He doggedly worked to uncover the truth about Farak’s misconduct, running time and again into roadblocks erected by the state attorney general’s office.
Ryan’s single-minded advocacy highlights just how important a good defense is against government abuse of power. Without Ryan (and the other featured defenders), the scale of Farak’s wrongdoing would have never been uncovered.
States should take heed. Quality indigent defense lawyers serve as a check — often the only check — against the kind of systemic corruption and upside-down incentives that are routine in our criminal justice system. With better funding and support, criminal defense lawyers can more often ensure that the poor are convicted only after the prosecution meets its burden of proof, beyond a reasonable doubt, with reliable and accurate evidence.
People are Burdened Forever by Criminal Convictions:
A final takeaway from the docuseries is that criminal convictions, even for relatively minor drug offenses, haunt people forever. Permanently branded as felons and criminals, people with criminal records often have difficulty obtaining employment, finding housing, or fully reintegrating into society. The series poignantly captures the struggles of people who try to reclaim their lives after their release from prison, forever burdened by their convictions.
As our country experiences a worldwide pandemic, those in our prisons and jails, who are often poor and forgotten, are not just paying for their crimes with the concrete loss of their liberty, or the more elusive loss of so many opportunities while incarcerated and upon their release. Now, with COVID-19 spreading through jails and prisons like wildfire, many will also surely be paying with their very lives. We need to ask ourselves whether the costs of our broken system of “justice” are worth it."
The entire commentary can be read at:
https://medium.com/age-of-awareness/binge-watching-what-how-to-fix-a-drug-scandal-teaches-us-about-criminal-justice-reform-83c469a4e64
PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. 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.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy: Publisher: The Charles Smith Blog;
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FINAL WORD: (Applicable to all of our wrongful conviction cases): "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices."
Lawyer Radha Natarajan:
Executive Director: New England Innocence Project;
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