Casualties of war
Few questioned Annie Dookhan’s unbelievable output, perhaps because they were blinded by the war on drugs
|One of the defendants affected by Annie Dookhan’s mishandling of drug
lab tests seeks a later curfew before Special Magistrate Elizabeth Donovan.
IT WAS THE SUMMER OF 2010. Robert Annunziata was in a car in Fall River with two other men when police pulled the vehicle over in front of Annunziata’s apartment and began asking questions. The officers obtained a warrant and searched the car, finding more than 200 grams of what they thought was crack cocaine in the trunk. Annunziata, a 23-year-old father with another child on the way, was arrested and later indicted on a single drug-trafficking charge that carried a minimum mandatory sentence of 15 years in prison.
Annunziata said the car was not his and neither were the drugs. At a trial last January, he pleaded his innocence but his case ran headlong into a diminutive chemist named Annie Dookhan from the William Hinton State Laboratory Institute in Jamaica Plain, where the bulk of drugs seized in connection with arrests in eastern Massachusetts were analyzed and certified for trial. After laying out her seemingly impressive credentials, Dookhan definitively told the judge the substance police found in the trunk of the car was crack cocaine. She also certified the amount of drugs was well in excess of the state requirement for a trafficking charge.
Judge Richard T. Moses found Annunziata guilty and sentenced him to 15 years and a day in prison, the minimum required by the state’s drug laws. The case received little notice because it was so commonplace. It was just one of the estimated 25,000 drug-related criminal cases that pass through the state’s court system each year. More than one out of every five of the state’s 10,200 prisoners are in for a drug-related crime as their main offense.
Annunziata’s case is hardly unique. At least 34,000 drug tests performed by Dookhan are now suspect. She has been charged with obstruction of justice, tampering with evidence, perjury, and lying about her educational background. She has admitted to law enforcement officials that she “messed up bad,” raising concerns that every test she conducted between 2003 and 2011 could be tainted. Doubt is also being cast on thousands of other tests conducted by Dookhan’s colleagues and certified by her. And some defense lawyers say as many as 190,000 cases handled by the drug lab while Dookhan was there could be tossed out.
The Dookhan case has thrown the state’s criminal justice system into chaos. Inmates are being returned to the streets and the courts are clogged as reviews of Dookhan cases begin. There’s a sense that the ripple effect could be staggering. Drug offenses trigger a host of other actions, including child custody decisions, driver’s license revocations, deportation, and asset forfeiture. Sorting it all out could take years. Between police, prosecutors, courts, and any eventual judgments, the cost to the state of the Dookhan case will easily run into the tens of millions of dollars. Some defense lawyers speculate it may move into the half-billion-dollar range.
State officials are trying to figure out what happened. An attorney appointed by Gov. Deval Patrick is looking for every case that Dookhan touched. The attorney general is continuing her criminal investigation. The inspector general is investigating what went wrong in the lab and plans to review the results of more than 400,000 drug samples tested at the lab since 2003. The Legislature is holding hearings. It is a massive investigation of a fundamental breakdown in state government.But for all the probes and questions, most officials have already made up their minds that the breakdown starts and stops with Dookhan. John Auerbach, who resigned as commissioner of the Department of Public Health when the scandal first broke, labeled Dookhan a “rogue chemist.” Patrick took ultimate responsibility for the drug lab scandal, but suggested that the real blame belonged with Dookhan. “We had a criminal in the drug lab,” he said.
No one really knows why Dookhan did what she did, but evidence is emerging that people knew she was doing things that were unbelievable or just plain wrong and looked the other way. On one level, it appears to be an example of bureaucratic buck-passing and a glaring breakdown in professional accountability in a system where freedoms are on the line. But the lab scandal also offers a window on a much bigger problem haunting the criminal justice system: The unrelenting pursuit of cases in a war on drugs that increasingly appears to be both misguided and underfunded.
Tens of thousands of nonviolent drug offenders more in need of treatment than incarceration are being locked up in the United States at enormous expense to the public. Meanwhile, though politicians are loathe to reconsider the get-tough drug laws that compel the crackdown, there is little appetite for funding the back-end operations in the drug war, such as the lab services needed to keep up with the mounting caseload. The expectation nonetheless is to keep cases moving and to churn out convictions, raising the possibility that the scandal might be as much a product of the system we’ve created as an affront to it.
Law enforcement officials are beginning to ask whether the state and federal war on drugs blinded some of the soldiers. In war, people do things they wouldn’t do in peacetime. Is that what happened here?
If so, Annunziata is a casualty in the war on drugs. His case is cited in the Dookhan indictment, indicating investigators believe she obstructed justice. Details on what exactly she did weren’t available at press time. But state prosecutors say that, in at least six other cases, Dookhan is accused of certifying substances as cocaine that when retested were found not to be any illegal drug at all. Even more damning is the fact that at the time Dookhan testified in the Annunziata case last January, she was already under suspension for wrongdoing. Her supervisors nevertheless sent her to Fall River where she delivered the testimony needed to send Anunziata away for 15 years.
Defense attorneys aren’t the only ones raising bigger questions in the wake of the scandal. Andrea Cabral, the governor’s new public safety secretary and a former prosecutor and Suffolk County sheriff, says the Dookhan case exposes the fault lines in the war on drugs. “There’s an inordinate volume of cases because of the focus on criminalizing drugs. People are expected to do it well and are expected to do it instantly,” she says of the testing of evidence and pressure to move cases through the system.
|Annie Dookhan at her arraignment, where she pleaded not guilty.|
WHY DID SHE DO IT?
Annie Dookhan is a mystery woman. She has admitted mishandling lab tests, but the question that lingers is why? Did personal problems overwhelm her? Was she just trying to get ahead in the office? Or was she just a committed foot soldier in the war on drugs who thought cutting corners was the way to win? She has maintained silence since she left the lab and her attorney, Nicholas Gordon, declined comment or requests for interviews with her.
In her interview with state investigators, Dookhan said she was in the midst of a divorce from her husband, but did not blame that for her actions. Dookhan’s husband appeared in court with her at her arraignment in December and they held hands as they walked together. She gave investigators no indication what her motives were, except a teary apology.
“Dookhan began crying and sounded despondent,” Detective Lt. Robert Irwin wrote of a telephone conversation he had with Dookhan after he became concerned she might harm herself. “She said she never meant to hurt anybody. I told her I knew that and that she had made a mistake but that didn’t make her a bad person,” he wrote.
In December, the Boston Globe obtained numerous emails written by Dookhan that indicated she had formed questionable relationships with several prosecutors. The emails showed she was willing to work hand-in-hand with prosecutors while casting a wary eye toward defense lawyers.
Attorney General Martha Coakley says some co-workers thought Dookhan wanted to be regarded as a good worker while others said she was trying to become “the go-to person” in the lab. One former supervisor told investigators Dookhan had some unspecified personal issues, and might have been feeling pressure from the US Supreme Court’s Melendez-Diaz decision, which required analysts to personally appear in court to testify about their findings.
“Annie was going through personal problems, then court, and Melendez-Diaz was tough on her at first,” former co-worker Elizabeth O’Brien, who worked “side by side” with Dookhan from 2004 to 2008, told investigators. “In 2009, she had a miscarriage and other personal problems. Perhaps she was trying to be important.”
But O’Brien also thought Dookhan was just good at what she was doing. “Elizabeth [O’Brien] added that she believed Dookhan was a hard worker, focused, efficient, reliable, and technologically strong,” the State Police report says. “The kind of person, if you owned your own business, you would want to hire her. O’Brien believed that Dookhan was a top-notch chemist.”
The lab where Dookhan worked operated under standards set by an industry group, but was not accredited by the FBI, as the State Police Crime Lab and most other forensic labs around the country are. Few people in the state bureaucracy seemed to be aware of that, as internal government emails from late August reveal. One email, obtained by CommonWealth under a public records request, has Auerbach, the commissioner of public health, asking his staff how quality assurance was maintained at the lab.
“Did our protocols in the lab conform with established or industry standards for drug labs?” Auerbach wrote on August 29 to Dr. Linda Han, who resigned as director of all 18 labs at the Hinton facility in the aftermath of the scandal.
Auerbach’s boss, Dr. JudyAnn Bigby, the secretary of health and human services, also discovered after the fact that the lab didn’t meet accepted criminal justice standards. “My review found the lab maintained outdated operating procedures, lacked any type of independent accreditation, and lab supervisors failed to properly monitor their direct reports,” Bigby said in November in testimony before lawmakers investigating the scandal. Bigby was let go weeks later by Patrick in a cabinet shakeup.
Alec Loftus, a spokesman for Bigby at the time of her testimony, says Bigby was only alerted to problems at the lab by Auerbach after Dookhan had been removed from her post and the attorney general was beginning her probe.
During a legislative hearing in December looking into what went wrong at the Hinton lab, House members asked representatives from the Committee for Public Counsel Services, the state’s public defenders, why no one ever questioned the lab’s protocols.“Everybody assumed it was accredited,” Anne Goldbach, CPCS’s director of forensic services, told the lawmakers.
The drug lab is currently shut down and all of its samples transferred to the State Police crime lab. The 14 employees at the Hinton lab, including 11 chemists and three evidence technicians, were also moved onto the Public Safety payroll. They are on paid leave while the short-handed State Police crime lab struggles with the added workload.
“They will remain on administrative leave until findings come back and we find out how widespread this thing was or wasn’t,” says Michael Christopher, a spokesman for the Executive Office of Public Safety and Security.
A STAR IS BORN
From the outset, Annie Dookhan was a gift from on high for the state’s beleaguered drug lab. The lab was overwhelmed by the sheer volume of samples sent to the Department of Public Health facility, and the backlog kept growing. If it wasn’t for Dookhan, supervisors told investigators, the number of samples left languishing would have skyrocketed.
|Superior Court Judge Christine McEvoy makes sure Christopher Rakes
(seated, left) is fully aware of the consequences of his guily plea.
But there were so many red flags regarding Dookhan, her work, and the protocols at the Hinton lab that the message to higher-ups could have been sent using semaphore. At each and every stop, questions that were raised about Dookhan’s off-the-charts productivity, her fudging of reports, and the return of faulty test results that she had certified did little to derail her career or the lab’s standing as the state criminal justice system’s main repository for drug analyses.
Dookhan’s work product, right from the start, was off the charts. In 2004, her second year in the lab, Dookhan processed more than a fifth of the lab’s tests even though the facility had the equivalent of nearly 15 full-time chemists working there. The next most-productive chemist, according to records, handled two-thirds of Dookhan’s workload. Her output was three times that of the average chemist in the lab.
By 2010, the last full year before her actions became public knowledge, Dookhan was handling nearly a third of the lab’s tests, twice the level of the second most productive chemist and almost five times the average chemist’s production. Despite the heavy workload, she was putting in for minimal or no overtime. She often came in to work before others arrived and many times was seen working at the lab on Saturdays with a table full of samples.
In several damning excerpts from the initial State Police investigation report, chemists at the lab said they saw a number of problems with Dookhan that set off alarms. One chemist interviewed by the State Police told investigators he had concerns about Dookhan in 2010 when a number of her tests were not coming back correctly. Dan Renczowski told State Police that at least five times Dookhan wrongly declared a substance as either cocaine or heroin and it turned out to be the other drug. At least once or twice she got prescription medication analysis wrong as well. At least one time, Renczowski said, Dookhan declared a substance to be cocaine but a chemical analysis came back with the result that it was nothing illegal. (Dookhan’s indictment cites six instances where that happened.) While Renczowski said he thought the problems were “an honest mistake,” he said no other chemist in the lab made the same errors.
Renczowski also said Dookhan made other mistakes a trained analyst would not normally make, such as entering the wrong control number on a sample and then changing it from memory when confronted; leaving vials open next to each other, risking cross-contamination; and forging his initials as the confirming chemist on samples that wrongly identified a substance as something it wasn’t. Like others, Renczowski was wary of Dookhan’s high volume of tests, but it’s unclear if he ever did anything about it.
Charles Salemi, a former Dookhan supervisor who was forced to retire after the scandal broke, told detectives that concerns about Dookhan’s unusually high production prompted an audit of her work. The audit found no problems, although no one at the time retested her results.
The State Police report indicates many of Dookhan’s coworkers were more worried about their own careers than the integrity of the drug-testing system. “Salemi stated that Annie Dookhan was working a lot of extra hours and not putting in for overtime,” the report states. “It concerned the other chemists as they felt their numbers would not get them a promotion.”
The chemists brought their qualms to Julianne Nassif, the lab supervisor who has since been fired, but again her immediate concern was not the integrity of the lab. “As a result of the conversation,” the State Police investigator writes, “Julie Nassif decided she would give Dookhan a special project to try to slow her down.”
According to an analysis by CommonWealth, the backlog at the Hinton drug lab hit a high of nearly 14,300 samples in January 2009, right around the time Dookhan told investigators she began “drylabbing,” which is jargon for identifying a substance and its weight by sight rather than scientific testing The turnaround time for lab results hit a high of 184 days—more than six months—a critical lag that threatened to have judges toss cases out because the evidence wasn’t available for lawyers to defend their clients.
|Annie Dookhan at her arraignment with her husband, Surrendranath
But then the lab went through a transformation that would have grabbed anyone’s attention. Between January 2009 and May 2011, the backlog of samples dropped by 81 percent, from 14,300 to just 2,700. The turnaround time for test results plummeted from six months to just 49 days.
Monthly reports that were filed by Nassif—on letterhead with Bigby’s and Auerbach’s names—and posted on the health and human services website showcased this remarkable decline in the number of backlog cases and turnaround time. Yet no one rang any alarm bells. No one asked how it was possible.
Since the scandal went public, state officials have tried to suggest the backlog didn’t go down. When confronted with their own numbers showing the steep decline, they suggested the drop may have occurred because more money was funneled into the lab or because some of the department’s cases were sent elsewhere for testing. Yet a review of the data indicates the backlog declined because of Dookhan.
In 2009, Dookhan performed more than a fifth of all tests in the lab and nearly one-third of them in 2010. After the Supreme Court’s Melendez-Diaz decision forced chemists to testify in court, the output of Dookhan’s colleagues slowed but her output held steady. In 2011, Dookhan accounted for nearly a quarter of all the tests performed in the lab, even though she worked only half the year. When Dookhan was relieved of her duties in June 2011—a full nine months before being fired and more than 14 months before anything was made public about the problems at the lab—the backlog and turnaround were at their lowest point.
Only after Dookhan stopped testing did the lab’s backlog and turnaround time begin to creep back up. When the Hinton lab was shut down this summer and all remaining cases transferred to the State Police lab, the number of backlogged samples had risen to nearly 13,000 again and the turnaround time was more than four months.
“Clearly her numbers were very different from everybody else’s,” says state Rep. David Linsky of Natick, a former Middlesex prosecutor who is co-chairing the legislative committee investigating what went wrong at the drug lab. “What is apparent is it was going on for a very long period of time and either her supervisors didn’t know about it or some people failed to take action. It exposes a glaring lack of transparency and accountability.”
THE RIPPLE EFFECT
Annie Dookhan has admitted to investigators that she mishandled some drug tests. State investigators have charged her with tampering with evidence in a handful of cases. But the criminal justice system is acting as if everything she touched is contaminated. In methodical fashion, state officials are trying to identify the cases in which she was involved and beginning the process of determining whether people were wrongly convicted. Prison doors aren’t being flung open, but inmates, in person or by video-link, have been appearing in courtrooms around the state, making the case that because of Dookhan’s actions they should be set free.
Nearly 200 inmates have been let go, but most have had their cases put on hold temporarily. Many have been granted bail, assigned ankle GPS bracelets, and given 10 p.m. to 6 a.m. curfews. At cattle-call court sessions, they ask for later curfews, lower bail, or simply to be let go. Some have violated their curfews and have been sent back to jail. Others decide they’ve had enough of the court system and work out a deal with prosecutors to plead guilty to a lesser drug charge with a sentence of time served. Just like that, they’re out.
Christopher Rakes, 25, of East Boston, decided to plead guilty to a lesser oxycodone charge, but before he could be released Suffolk Superior Court Judge Christine McEvoy asked him question after question to make sure he understood what he was doing. Annunziata went the same route, pleading guilty to a reduced charge of possession of crack cocaine with a sentence of the 18 months he spent in jail prior to his trial and the 10 months he spent in prison after the guilty verdict was pronounced.
Powderley, Annunziata’s attorney, has already secured the release of five clients because of the Dookhan scandal and is working with 15 others to reverse or amend their convictions. From his vantage point, Powderley says the releases make sense not only because of what Dookhan did but because the war on drugs is so draconian.
“You have somebody who has 200 grams who is facing 15 years in jail,” he says. “With 15 years, he would be eligible for parole for second degree murder in Massachusetts. It’s so out of whack for a nonviolent offense.”
Yet law enforcement officials don’t see it that way. At a press conference as the scandal began unfolding, Suffolk County District Attorney Daniel Conley said the inmates that were going to be released are “high-level drug traffickers” and “a tough group of people.” Boston Police Commissioner Ed Davis warned of a surge in crime.
Anthony Benedetti, chief counsel for the state’s Committee for Public Counsel Services, says prosecutors and the courts have blinders on if they think the number of people affected by the lab scandal is limited to Dookhan’s 34,000 cases. He points to Dookhan’s admission that she co-mingled drugs and the testimony of other chemists that Dookhan regularly went into the evidence room to retrieve samples that were not in her workload and tampered with the laboratory’s microscopes and weight measures. That, says Benedetti, expands the universe of affected people exponentially. He estimates the number of cases could reach 190,000, costing in excess of $331 million to litigate.
“All of these defendants certainly have a right to go before a judge and question the results,” says Benedetti.
The human toll from Dookhan’s actions could go well beyond prison time on drug charges. In Massachusetts, when someone is convicted of a drug-related crime, even if they weren’t driving, they lose their license for periods between one year and five years, depending on the severity of the offense. Loss of a license often means the loss of a job. Between 5,000 and 6,000 people lose their license each year in Massachusetts because of a drug conviction.
A drug conviction also prevents someone from getting student aid or a student loan. A conviction also bans them from public housing, excludes them from some government assistance programs, and may cause them to be deported. In addition, district attorneys often move to seize assets from convicted drug offenders and then sell off the assets. Some convictions also trigger habitual criminal penalties.
“There’s no way that everybody that may have been harmed from this is going to be made whole. [In} a lot of these cases, people are gone or dead or whatever, so they’re not going to bring a case,” says Frederic Ellis, a noted Boston litigation attorney with no connection to the drug lab cases. A former prosecutor in the Middlesex County District Attorney’s office, Ellis notes Massachusetts law caps negligence awards paid by the state at $100,000.Former judge Isaac Borenstein says the Dookhan case undermines the integrity of the entire judicial system. While he doesn’t question the integrity of the State Police Crime Lab, where drug analysis will now be performed, he says it is still an arm of the government and therefore is not impartial.
“I think it’s a mistake to have the police do their own analysis and have it admitted as evidence in court,” says Borenstein, who was a trial court judge for 22 years at the district and superior court levels. The revelations about Dookhan’s friendly relationship with several prosectors, he says, are very troubling. “How much science is involved if you have a chemist who says, ‘Oh, I’ll do this for Charlie today. He’s a nice guy.’ This is not a club,” says Borenstein. “You’re taking people’s liberty away.” Borenstein doesn’t recall Dookhan ever appearing before him in court but says he doesn’t doubt he tried cases involving her analyses. When asked if he thinks he wrongly sentenced anyone to jail as a result of Dookhan’s work, he says he hopes not. “I would feel awful if that was the case,” he says. “One of the worst things anybody could ever be part of is somebody’s wrongful conviction.”