Special court sessions are being set up around Massachusetts to handle a flood of legal challenges expected by drug defendants in the wake of a scandal at a state drug testing lab. Chemist Annie Dookhan was charged with obstruction of justice last week after allegedly acknowledging to state police that she failed to follow testing protocols and altered results at the now-closed lab.
According to the Boston Globe and Associated Press, Dookhan tested more than 60,000 drug samples involving 34,000 defendants during her nine years at the lab. Authorities say more than 1,100 inmates are currently serving time in cases in which Dookhan was the primary or secondary chemist.
As an Assistant District Attorney in Bristol County, I saw several drug tests return from the lab with Annie Dookhan’s name certifying the results. Now, thousands of drug cases and the right of thousands of defendants are cast in doubt.
Prior to 2009, the chemist was not required to testify to submit the drug test results at trial. The drug certification was admitted into evidence with the drugs at trial by a police officer who could testify to the authenticity and the chain of custody. However, in 2009 the U.S. Supreme Court found this violated the defendant’s right to confrontation. In Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), the United States Supreme Court held that it was a violation of the Sixth Amendment right of confrontation for a prosecutor to submit a chemical drug test report without the testimony of the person who performed the test. While the court ruled that the then-common practice of submitting these reports without testimony was unconstitutional, it also held that so called “notice-and-demand” statutes are constitutional. A state would not violate the Constitution through a “notice-and-demand” statute by both putting the defendant on notice that the prosecution would submit a chemical drug test report without the testimony of the scientist and also giving the defendant sufficient time to raise an objection.
Going forward, the special court sessions are being set up for the purpose of assigning lawyers and ‘‘addressing the immediate liberty interests of the incarcerated defendants serving time in connection with a drug conviction stemming from a questionable drug analysis,’’ according to the public information office of the Supreme Judicial Court.
Posted by Mark D. Donovan, Esq.