Off Topic: Throwing the Baby Out With The Bath Wash — Are We Surrendering Too Quickly To The Criminals Because Of Annie?

Over the last days the pace of addressing the problems caused by the drug laboratory has picked up steam.  It seemed to have done so after I noted no one seemed to be paying attention.  The authorities knew about if for many months but just let it fester.  Finally we see action, but are we now running ahead without proper consideration of the circumstances like lemmings.

The best move to date was Governor’s Patrick’s appointment of David Meier to take over the gathering of the facts about the individuals affected.  He quite rapidly identified over eleven hundred people whose incarceration was somehow connected to Annie Dookhan’s actions in the laboratory.  He handed this list out to the DAs.  He’s got a long road ahead of him identifying the other cases but he is highly capable and will do this.  His job is that of identification and notification.

The job of the DAs and the courts is to decide what to do with these cases.

I’ve spoken of the potential financial liability Massachusetts faces which could be very high or much less depending on how the situation is managed. I’ve expressed my surprise that the Supreme Judicial Court which oversees our judicial system has remained quiet during this time. I would think that it would be organizing a response to the expected headaches that will beset the justice system.

Some of the affected persons have already been released from jail. Some of those have bad criminal records. One in Suffolk Country was released by a judge who seemed to ignore he was also convicted of a gun charge. I did not understand that one. She could have thrown out the drug charge and still imprisoned him for the gun charge. This worries me. Is there too much of a rush to a find a solution?

One person who should know better, as well as defense counsel and other pundits, has advocated for a “one shoe fit for all” approach to these cases.  I hope the DAs don’t fall for that. There is a need to be expedient but there is also a need to be thorough and to review each case to determine whether related charges can survive or some other charges can be brought. Now when everyone is hurrying to address the problem it is time to call for a team back.

Here’s what I’m talking about.  Massachusetts General Laws Chapter 94C provides the punishment for a person being involved in drug dealings. The particular problem facing the DAs is their inability to prove that the item which was seized was a controlled substance because it has been tainted by Annie. But there are other provisions of that chapter that must be considered. If the substance is seized during a sale to an undercover cop is alleged to be cocaine and it turns out the state cannot prove it is cocaine, can the state then say that it was a counterfeit substance which is a violation of Section 32G.  Charge both and let a jury decide.  It would seem given the circumstances surrounding the sale it is either one or the other, and both are punishable by incarceration, although a counterfeit substance offense is a misdemeanor punishable by only a year in jail.

DAs ingenuity can come up with other type of creative approaches to insure that many of these individuals do not walk.

They should ask whether Section 32I which relates to drug paraphernalia applies. That says “no person shall sell, possess .  . . with intent to sell drug paraphernalia, knowing . . . that it will be used to . . .  pack, repack, store, contain . . . or otherwise introduce into the human body a controlled substance.”   These people cannot sell their illegal wares without violating this section in some manner.  This is again a misdemeanor but it can keep the person locked up for two years.

Finally there is Section 40 which reads,  “Whoever conspires with another person to violate any provision of this chapter shall be punished by imprisonment or fine, or both, which punishment shall not exceed the maximum punishment prescribed for the offense, the commission of which was the object of the conspiracy.”   It seems to me that you don’t need the analysis from the drug laboratory if you can show from the words of the person that he or she conspired with another (aside from a cop or his agent) to do what is prohibited like sell pills, cocaine or heroin.  This evidence can be gained from other people (using aggressive grand jury tactics) who participated in the venture, from cops working undercover, or from admissions made after the people were apprehended.

I expect the DAs know all this. I’m hoping that given the overwhelming job ahead of them they don’t throw in the towel and treat every case alike. This means they need to be provided additional funds and staffing to go through each case thoroughly to prevent Massachusetts from being inundated with people who may rightly belong in jail or prison. The factual situation of each case has to be closely scrutinized to determine whether other charges can be brought.  Cops have to be interviewed again to gain a complete understanding of the situation. Usually this has not been done because it was not necessary when you assumed the lab reports were legitimate. All that was needed then was to show the substance and the immediate circumstances around the state gaining possession of it to secure a conviction.

Every effort must be made prior to releasing a person to determine whether additional charges can be brought.  If so, immediately after his case is dismissed on the charges stemming from the tainted evidence, bring forth the new charges and impose high bail on the person. Governor Patrick made a good first step in appointing David Meier.  Now he must start giving the DAs the money and manpower they need. It is better to spend the money on insuring justice is done rather than making it available to the criminals.