The Dookhan Fallout: Tainted Drug Lab Samples & Guilty Pleas

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By Vikas S. Dhar and Wassem M. Amin

 

In February 2012, it was discovered that Annie Dookhan, a chemist in the Department of Public Health’s Hinton State Drug Laboratory in Jamaica Plain, had deliberately mishandled drug samples in several cases.  After investigation, the cases affected by the tainted samples mushroomed to a figure in excess of 34,000.  As reported by the Boston Globe[1], the chemist intentionally falsified drug testing evidence and misrepresented her professional credentials.  Dookhan was the custodial and primary chemist who performed the testing and net weight computation of the controlled substances.  She was later identified through investigation by state law enforcement officials as the individual responsible for intentionally contaminated drug evidence to ensure positive tests, inflated drug sample weights, falsified drug analysis findings, and fraudulently altered chain of custody documents.  In a 2010 narcotics-related criminal trial, Dookhan testified under oath that she graduated from the University of Massachusetts with a bachelor’s degree in biochemistry and a Master’s degree in chemistry.  A representative from UMass has since stated that while the chemist did receive an undergraduate degree in biochemistry, the school has no record of her receiving any graduate degree.

As a consequence of that investigation, Governor Deval Patrick accepted in September 2012 the resignation of John Auerbach, State Public Health Commissioner, suspended two onsite laboratory supervisors, and ultimately, shuttered the Hinton Drug Lab.  It is still too early to determine the gravity of fallout, specifically, how many defendants have been convicted, whether by tendering plea or by jury trial, based on tainted evidence.  However, as the effects of the scandal continue to ripple, one issue remains clear – convictions in these cases based upon guilty pleas, predicated upon tainted drug evidence, are constitutionally deficient and any defendant affected must be afforded the opportunity to withdraw his plea.

▪ Implications of a Guilty Plea for Defendants

Nearly 95% of convictions are obtained through a guilty plea.[2] The Supreme Court has acknowledged the prevalence of guilty pleas and that “[s]tates to some degree encourage pleas of guilty at every important step in the criminal process.”[3]  The Constitution requires the government to ensure that proceedings which may deprive an accused of his freedom are conducted fairly.[4]  The constitutional rights that a defendant forgoes when accepting a plea, as well as the multitude of external factors that might influence his decision to do so, necessitate that the defendant be given an opportunity to withdraw his plea – even if there was a slight defect in the evidence used to indict him.

In state narcotics cases, the actual weight of the narcotics is often the primary factor in determining the charges to be brought at the outset of the case, as well as a major contributing factor for sentencing purposes.  The weight and substance of the narcotics are critical factors in determining if the defendant is going to be indicted and charged in Superior Court, or whether the case remains in district court, where the maximum sentence can often be significantly shorter.  Further, the collateral consequences of a guilty plea for a defendant are numerous: non-U.S. citizens who were convicted of a crime involving narcotics may have been deported; some defendants may have had their parental rights terminated, while others still may have been denied public housing or other government-related benefits.

A plea of guilty to a complaint or an indictment is an admission of the material facts therein.  When a defendant pleads guilty, all facts charged are thereby admitted, trial by jury is waived, and nothing is left but to pass sentence.[5]  Except for mainly jurisdictional defects, when a defendant admits in open court that he is, in fact, guilty of the offense conduct, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.  Guilty pleas intelligently and voluntarily made bar assertions of constitutional challenges to pretrial proceedings.[6]  Courts have generally held that a guilty plea also waives the right to challenge non-jurisdictional defects brought about by government conduct prior to entry of the plea, including, amongst other, challenges based on Fourth Amendment violations, Miranda violations, denial of the due process right to a speedy trial and unlawful arrests.

▪ Constitutional Rights Implicated by a Guilty Plea

When a defendant pleads guilty, he is essentially waiving three critical Constitutional rights – the right to trial by jury, the right to confrontation and the privilege against self-incrimination.  The gravity of these constitutional rights in our criminal justice system necessitate that a plea be made voluntarily and intelligently.  The Supreme Judicial Court has stated that “[w]hat is at stake for an accused facing death or imprisonment demands the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequences.”[7]  A trial court must therefore ensure that a guilty plea has been tendered with an understanding of the nature of the charge and the consequences of the plea.

Because the defendant has a Fifth Amendment right not to “be compelled in any criminal case to be a witness against himself,” the plea must be entered into voluntarily and without threat of “physical harm” or “mental coercion” in order to be valid.  “The question of whether a defendant was subject to undue pressure to plead guilty must be considered in some manner on the record.”[8]  Improper coercion can render a guilty plea unconstitutional.  A form of coercion may be the pressure to plead guilty due to a risk of an enhanced sentence in the event of going to trial.  Of course, all pleas necessarily carry an implied form of coercion.  However, in the event of an indictment based on tainted or falsified drug evidence, this coercion rises to the level of a constitutional violation.  Coercion that results in an involuntary plea will render the plea void as in violation of due process under the Fifth and Fourteenth Amendments.[9]

As to the second prong, the plea will not be considered intelligent unless “[t]he defendant possesses an understanding of the law in relation to the facts.”[10]

The inquiry into whether a defendant’s plea was made intelligently requires three distinct procedures.  First, the judge must explain to the defendant the elements of the crime and perform the colloquy. During a plea colloquy, the presiding judge must examine the defendant and “conduct a real probe of the defendant’s mind” to determine that the plea is intelligent.  Second, counsel must represent to the court that he has explained to the defendant the elements he admits by tendering his plea.  Third, and most critical, the defendant must openly admit in court to the facts recited during the colloquy which constitute the unexplained elements.  A court may not enter a judgment upon a plea of guilty unless it is satisfied that there is a factual basis for the plea.  The danger here is that, most commonly, a pre-trial guilty plea is usually based solely on the indictment or complaint.  The evidence required to secure an indictment is far less than that of a conviction.  An indictment valid on its face should is usually not dismissed absent a showing that “the grand jury proceeding prejudiced [the defendant’s] ability to obtain a fair trial.”[11]  A grand jury must hear only sufficient evidence to establish the identity of the accused and probable cause to arrest him.  Although an argument may be made that the defendant’s ability to obtain a fair trial was prejudiced, the fact that the basis of information for indictment was obtained in an unconstitutional manner is typically not sufficient to invalidate it.

▪ Difficulty in Challenging a Guilty Plea

Given the sparseness of the record when a plea is taken, proving prejudice by defendants to courts that desire finality will be very difficult.  In 2002, the Supreme Court concluded that the Constitution does not require a prosecutor to turn over impeachment material before a guilty plea.[12]  In Ruiz, the Court ruled that the fair trial guarantees of the Fifth and Sixth Amendment were not violated when the prosecutors conditioned a fast-track plea offer on the defendant’s waiver of her right to impeachment information.[13]  Since the Court has never created a constitutional right to discovery in criminal cases, during plea negotiations the prosecutor has no constitutional duty to disclose incriminating evidence to the accused – although he may have every strategic incentive to do so in order to encourage a plea. Since disclosure of inculpatory evidence is not constitutionally mandated, a defendant’s ability to find out that the evidence was tampered with is further diminished.

▪ A Guilty Plea Based on Tainted Drug Lab Evidence is Constitutionally Deficient

A guilty plea based on untrue facts is not one that is intelligently made by the defendant, and thus, should be considered constitutionally impermissible.  A guilty plea carries the same effects upon a defendant as being convicted by a jury at trial.[14]  However, at trial, the government must prove beyond a reasonable doubt that the defendant committed the crimes with which he is being charged.  The arresting officers, support personnel and percipient witnesses may be called to the stand to testify under oath.  On the other hand, during a plea hearing, when a defendant offers an allocution in open court, the government simply has to offer the police report and the judge has to rule that there is a factual basis for the charge being brought.

The Supreme Court has realized the significance of a guilty plea and the constitutional rights given up in this process by requiring that a two-fold process be adhered to by the court when a guilty plea is accepted.  The first is that the plea must have been entered into voluntarily.  The voluntarily prong of the analysis hinges upon whether the defendant was either physically or mentally coerced into agreeing to the plea bargain.  While tainted drug evidence is unlikely to be linked to physical coercion, the possibility of a form of mental coercion playing a role is much greater, for example, when the evidence has been tainted due to the fact that the weight of the substance is directly linked to the sentence upon conviction.  The threat of a much greater length of incarceration is more likely to induce a defendant to accept a guilty plea.

The second prong of the analysis, whether the defendant’s plea was made intelligently, is determined by the presiding judge in whether the judge believes that the defendant is aware of the consequences of the plea and he has admitted to the crime.  This prong also places, rightfully so, a significant amount of responsibility on defense counsel, who is charged with explaining each and every element of the counts and penalties to the defendant prior to acceptance of a plea.  In the current situation of a drug lab that has produced tainted evidence, counsel is in the same position as the defendant in terms of knowledge about the situation.  As a result, a plea cannot be tendered intelligently when there is tainted evidence involved, of which no party to the case is aware.

A defendant who previously pled guilty in a narcotics case based on evidence that was tainted cannot be said to have made a knowingly and voluntarily admission to the crime that was read by the judge on the day the plea was accepted.  If the evidence presented against him is a different substance, different weight, or an all-out fabrication, he must be able to withdraw his plea.

 

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This article was prepared by Vikas S. Dhar, a partner in the Litigation Practice Group at Dhar Law, LLP, who focuses in white-collar and non-white-collar criminal defense and government investigations, and Wassem M. Amin, a senior law clerk in the Litigation Practice Group.  Further information is available at www.dharlawllp.com.  These materials have been prepared for informational purposes only and are not legal advice.  Under the rules of the Supreme Judicial Court of Massachusetts, these materials may be considered as advertising.

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[2] Bureau of Justice Statistics, available at: http://bjs.ojp.usdoj.gov

[3] McCarthy v. U.S., 394 U.S. 459 (1969).

[4] See James J. Tomkovicz, The Right to the Assistance of Counsel: A Reference Guide to the United States Constitution, 155-56 (2002).

[5] Ljutica v. Holder, 588 F.3d 119, 124 (2d Cir. 2009) (pleading guilty constitutes admission of all elements of formal charge); see, e.g., U.S. v. Gonzalez-Alvarez, 277 F.3d 73, 79-80 (1st Cir. 2002) (pleading guilty constitutes admission of all factual elements, even those not precisely known to defendant); see U.S. v. Broce, 488 U.S. 563, 570 (1989).

[6] Commonwealth v. Berrios, 447 Mass. 701, 715 (2006)

[7] Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

[8] Commonwealth v. Quinones, 414 Mass. 423 (1993).

[9] See, e.g., Chambers v. Florida, 309 US 227, 235-38 (1940); Walker v. Johnston, 312 US 275, 286 (1941); Waley v. Johnston, 316 US 101, 104 (1942); Machibroda v. U.S., 368 US 487, 493 (1962); Brady v. United States, 397 US 742, 748 (1970).

[10] Boykin v. Alabama, 395 US 238 (1969); McCarthy v. U.S., 394 US 459, 464-67 (1969).

[11] Commonwealth v. Freiberg, 405 Mass 282, 301, cert. denied, 493 US 940, (1989).

[12] U.S. v. Ruiz, 536 U.S. 622 (2002).

[13] Id.

[14] See U.S. v. Broce, 488 U.S. 563, 570 (1989); Ljutica v. Holder, 588 F.3d 119, 124 (2d Cir. 2009) (pleading guilty constitutes admission of all elements of formal charge); see, e.g., U.S. v. Gonzalez-Alvarez, 277 F.3d 73, 79-80 (1st Cir. 2002) (pleading guilty constitutes admission of all factual elements, even those not precisely known to defendant).