Chemist at closed state lab allegedly tampered with evidence bags, defense attorneys group says
Annie Dookhan allegedly ignored safeguards designed to ensure fair trials in drug cases and tampered with evidence in ways that may force the dismissal of thousands of cases in Eastern Massachusetts, according to defense attorneys who were briefed by the Patrick administration this week.
In a letter sent to members of the Massachusetts Association of Criminal Defense Attorneys, association president Max D. Stern said his group, along with federal and state public defenders, were given more details on the extent of the scandal involving the former state chemist.
“The lab analyst in question had unsupervised access to the drug safe and evidence room, and tampered with evidence bags, altered the actual weight of the drugs, did not calibrate machines correctly, and altered samples so that they would test as drugs when they were not,’’ Stern wrote in the letter.
Terrel Harris, spokesman for the Executive Office of Public Safety and Security, confirmed that Dookhan had “unsupervised access to the evidence lockup.” But he said he could not confirm the other details mentioned in Stern’s letter because they are the focus of an ongoing investigation.
Prosecutors in drug cases must be able to prove that the substances seized by police were scientifically determined to be illicit drugs and have not been tampered with during the months, and often years, that pass between arrest and a trial. Seized drugs were taken by police to the lab, where they were supposed to be kept in a safe and signed out by chemists for testing. After testing, the drugs were shipped back to local police departments.
The impact of the lab scandal was highlighted today in Norfolk Superior Court, where Judge Mitchell Kaplan declined to rule on a request for freedom by David A. Danielli, who pleaded guilty this year to possessing 500 Oxycodone pills.
The evidence in the case was tested in June 2011 by Dookhan. Danielli’s case is among 90 Norfolk cases now considered the first wave of tainted prosecutions because of what officials have called Dookhan’s “malfeasance.’’
The judge noted his refusal was procedural and not on the merits. He said Danielli, whose request for freedom has the support of the Norfolk County district attorney’s office, must go before the judge who accepted the guilty plea, not him.
Kaplan’s ruling disappointed Danielli, who was sent back to the Norfolk House of Correction to serve more of his three-year sentence.
“It was heartbreaking to see him sitting there,’’ said his daughter, Kristen Danielli, adding that she thought her father was hoping to be released today. “I believe my dad was put in a position where he felt he needed to make that decision [to plead guilty] for the benefit of his family. He was making a decision based on what he thought was the best choice.’’
Defense attorney John T. Martin said he would file papers in Suffolk Superior Court where Judge Paul Troy is now sitting and ask the judge to quickly grant Danielli a hearing. He said a person who pleads guilty should be freed when someone has tampered with the evidence.
“When someone waives a constitutional right to a jury trial, that’s significant, that’s substantial,’’ Martin said. “And when it is done based on evidence that is tainted or even perhaps fraudulently produced – it can’t stand.’’
Martin applauded District Attorney Michael Morrissey’s office for supporting the request.
Dookhan worked in the lab from 2003 until her resignation earlier this year. State Police later were alerted by Dookhan’s co-workers that they would not testify under oath about the results of drug testing performed by Dookhan in the now-closed Department of Public Health laboratory.
On Thursday, top Patrick administration officials said that lab director Dr. Linda L. Han had resigned and director of analytical chemistry Julie Nassif had been fired. Disciplinary proceedings are now also underway against Dookhan’s direct supervisor, the officials said.
Administration officials said Dookhan’s supervisors missed obvious signs of problems. In 2004, for example, Dookhan processed 9,239 samples while her peers tested an average of 2,938 samples.
DPH officials discovered a problem with Dookhan in June 2011, but told law enforcement that her violations of testing protocols were minor. State officials have now set up a “boiler room” of prosecutors, defense attorneys, court officials, and others to review the thousands of cases that might be affected.
Norfolk prosecutors have been joined by Plymouth and Suffolk prosecutors in asking that bail be reduced — or eliminated entirely — in cases where they have been able to confirm that Dookhan had some role in the drug testing.
Suffolk District Attorney Daniel F. Conley’s office asked that Edward Dancy’s bail be cut from $30,000 cash to personal recognizance on charges he sold drugs to an undercover Boston police officer in 2010.
At the same time, Conley’s office balked at cutting bail for Marcus Pixley, who was arrested for allegedly selling drugs in the South End last year – but was also charged with resisting arrest. Pixley has previously been convicted of rape and other charges, prosecutors said.
“What happened at the Department of Public Health lab was a catastrophic failure and there’s no simple, easy, or one-size-fits-all solution,’’ Conley said in a statement.
“If someone is held or convicted on tainted evidence, we won’t hesitate to take every appropriate step to bring the case to light and correct the record. But if there are credible facts and evidence to support the legitimacy of an implicated case, we’ll work just as hard to ensure that the defendant is held accountable.”
Bernard Grossberg, a Boston criminal defense lawyer, this week filed a motion in Suffolk Superior Court to stay the sentence of David Huffman, a client who pleaded guilty last month to various drug trafficking and weapons charges and received a jail term of 7 to 10 years. Dookhan handled the drug analysis and certification in the case.
“The guilty plea on the guns was part and parcel of the guilty plea on the drug charges,” Grossberg said. “And what fueled everything was the charges and Dookhan’s reports, and so I would think that the Commonwealth would understand that and would, at this point, just agree to release him from prison, and then we’ll see what happens down the road with Dookhan.”Martin Finucane of the Globe Staff contributed to this report. John R. Ellement can be reached at firstname.lastname@example.org.