Over the last few years, I’ve been pretty open about my disdain for television’s endless "CSI" series, which continue to propagate and regenerate like insect larvae. Fully funded and level-staffed city crime labs? Spotless state-of-the-art and futuristic equipment? Gleaming crime labs and dazzling cover-girl quality technicians? And of course, chemists, techs and scientists who inexplicably "morph" into street detectives and suddenly start running around with guns and badges; effectuating arrests and engaging in shoot-outs? I mean c’mon… give me a break! About the only excitement to come out of the crime lab scene in the past 5 years has been SCOTUS‘ Melendez-Diaz decision in which a defendant’s right to cross-examine chemists who performed critical testing procedures on disputed evidence was upheld. That is until now; until Annie Dookhan and the Massachusetts State Crime Lab scandal.
Mishandling evidence; changing results; increasing weights; intermingling samples… The allegations against Dookhan are broad-ranging and astonishing. Maybe the "CSI" folks really do have it right. If the allegations against Dookhan are true — and to date no one is stepping forward to dispute them — chemists and technicians really may be influencing outcomes and play-acting at enforcement. So far, 1,100 individual inmates in Massachusetts prisons have been identified by investigators looking into the Dookhan allegations as having been convicted as a result of potentially "tainted" or manipulated evidence. With those numbers not yet including pre-trial detainees held on bail and/or federal defendants, it’s clear that the 1,140 suspected cases represents merely the tip of the iceberg, especially with revelations that Dookhan may have handled as many as 60,000 drug samples and been involved with some 34,000 criminal cases during her nine year tenure.
Clearly, the fall-out is going to be monumental with dismissals, bail reductions and possible civil suits for, and by, affected defendants being just "some" of the likely ramifications. However, the impact of such profoundly perfidious and unethical conduct, if proven, will not be limited to case by case examinations. It will also result in criminal defense attorneys, like me, who routinely deal with forensic criminal evidence and test results not just in the drug cases we handle, but in a wide-variety of criminal cases from murders, to rapes, to firearms cases, aggressively challenging not just scientific test results presented by the Commonwealth, but test procedures and protocols, collections and storage; log entries; access; supervision; and now motive, bias, and incentives to lie, fabricate, obfuscate and manipulate test results.
This is not to say experienced criminal defense lawyers like me don’t already check for spoliation or contamination of evidence; or examine lab reports for errors, anomalies, exaggerations, and in some instances, actual fabrications. We do. But the truth is such infirmities are rarely revealed on paper and for the most part (with the exception of DNA evidence) "challenges" to drug and ballistic test results are pretty much limited to "making" the chemist appear to testify post Melendez-Diaz. Not so anymore.
In the wake of Dookhan and the State Police Crime Lab, those of us now culling over our drug case client files for "Dookhan Analyses" and retroactive relief for our affected clients will be proactive in our efforts to challenge and discredit lab reports, from extended discovery requests (with particular emphasis on exculpatory evidence) to aggressive cross-examination of chemists and technicians who, until now, played backseat roles of not much more than faceless names on a certified pieces of paper.
They want to play CSI? Well, they got it. Front and center. In court. In the hot-seat. Ready to be held accountable. The net result? More challenges. More scrutiny. More backlogs. More litigation. And better justice; which in the final "analysis" isn’t a bad thing.