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March 10, 2014

SJC Announces New Standard for Withdrawal of Guilty Pleas in Cases Involving Annie Dookhan Misconduct

On March 5, 2013, the Massachusetts Supreme Judicial Court (SJC) issued its decision in Commonwealth v. Scott, relative to the standard for permitting a criminal defendant to withdraw his guilty plea in cases in which Annie Dookhan, the state forensic drug chemist, was directly involved in the analysis of drug evidence that preceded the defendant's guilty plea. In doing so, the SJC has announced a new standard applicable to guilty pleas to address the hundreds of criminal drug cases that potentially involved Dookhan's misconduct and may have interfered with the proper administration of criminal justice.

The SJC's opinion recounts in detail Dookhan's extensive misconduct and the investigations that exposed it. Dookhan's alleged misconduct, which began as early as 2004 and occurred into 2011, included removing drug samples against lab protocol; forging the initials of evidence officers on lab records; improperly grouping samples from a number of cases together, and reporting results for all sample tests that applied only to a few tests; and intentionally contaminating samples, including turning negative samples into positive samples. Because Dookhan's misconduct seems to have been motivated only by a desire to increase her apparent productivity, Dookhan has been unable to identify those specific cases in which she improperly tested samples or inaccurately reported on tested samples.

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January 6, 2014

Drug Trafficking Conviction Reversed Based Upon Invalid Warrantless Search of Vehicle

In many cases, the evidence obtained against a criminal defendant can and should be suppressed in court, based upon the police's violation of the defendant's constitutional rights in obtaining that evidence. Generally, if the police did not follow constitutional procedure, then a jury may not know about the evidence obtained as a result of the constitutional violation. A recent Massachusetts Appeals Court case illustrates this concept.

In Commonwealth v. Diaz, the defendant was convicted of trafficking cocaine in an amount of 28 grams or more, based upon two packages of cocaine that the police seized from the defendant's vehicle during a warrantless search of the vehicle. Several months prior to his arrest, the police had obtained information from a confidential informant that the defendant sold drugs, including at a building where a business named Family Oil was located, and that he packaged drugs there.

The police observed the defendant's vehicle parked behind the Family Oil building, located on private property, and entered the property. They saw the defendant exit the building and quickly place his jacket into his car and try to go back into the building. The police immediately seized and restrained the defendant. They then entered the building, searched the occupants, and found cocaine on two of them. Returning outside, the police searched the defendant's vehicle, without a warrant to do so, and found two bags of cocaine.

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April 27, 2012

Drug Evidence Discovered Missing from Secure Storage

According to the Boston Globe, a recent routine audit of physical evidence held at the Boston Police Department's drug depository, has shown a discrepancy. The random sampling of 500 pieces of evidence, executed by the Boston Police Audit and Review Unit, was all accounted for with the exception of one package of evidence.

Boston Police spokesperson, Elaine Driscoll, has stated that the department is now trying to discover what has caused the particular piece of evidence to have gone missing. "The Boston Police Department is taking every appropriate investigative measure to reconcile that discrepancy. Those findings will determine if other investigative steps will be necessary."

After a January 2008 audit found that drugs were missing or stolen from 265 cases, the department reorganized its drug evidence storage procedures. Drugs missing included heroin, cocaine, and marijuana, but most were prescription oxycodone. The Globe reported last year that no one had faced internal discipline or criminal charges.

To read the full article click here.

Analysis by Parker | Scheer LLP Attorney Vincent A. Tofani:

This will be an interesting investigation to keep an eye on because anytime evidence goes missing, it is a huge deal! In an attempt to minimize the risk of issues regarding missing evidence, both the Massachusetts Rules of Criminal Procedure and the Boston Police Department policies provide for strict guidelines instructing the appropriate manner in which to handle and store evidence. It is essential that such guidelines are followed in order to preserve evidence and prevent the possibility of contamination or any tampering therewith.

Occasionally, during the course of a criminal case, issues may arise with regard to the storage and transfer of important pieces of evidence that the Commonwealth intends to offer against the defendant. For example, an experienced criminal defense attorney may file a motion to suppress evidence on the grounds that the Commonwealth can not sufficiently establish the "chain of custody" of the piece of evidence that is meant to be offered. Essentially, to establish the "chain of custody," the Commonwealth often introduces sworn testimony of the custodian of the evidence in question in an effort to prove: 1) the receipt of the item; 2) the ultimate disposition of the item, (i.e. - whether the item was stored, transferred, tested, etc.); and, 3) the steps taken to safeguard the item during the time that it was in custody, specifically designed to prevent the contamination of, or tampering with the piece of evidence. Notwithstanding, the court will not automatically exclude evidence when there is a question as to the sufficiency of its storage or the record indicates the possibility of a "missing link" in the "chain of custody."

Instead, the court exercises its discretion in order to fashion the most equitable remedy given the specific circumstances of the particular case and piece of evidence that is involved. The court will generally look to the materiality of the evidence (i.e. - its evidentiary value with respect to the criminal case in which it is being offered), and whether the record indicates a likelihood of contamination of the evidence. Additionally, the court will often consider whether the exclusion of the particular piece of evidence will result in significant prejudice to either the Commonwealth or the defendant. Like so many components of criminal proceedings, the underlying objective is to afford every individual charged with a criminal offense in the Commonwealth of Massachusetts due process to the full extent of the law, in accordance with the fundamental rights guaranteed by both the United States Constitution and the Declaration of Rights of the Commonwealth of Massachusetts.

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March 12, 2012

Suspicious Package Sent to Brockton Home

A suspicious package filled with white powder was sent to a Brockton teenager's home. The teenager reported that her mother found the package, which led to a massive response by Brockton police, fire and state marshals, hazardous materials team, and the FBI.

The package contained the white powder, and a picture of her 19 year old girlfriend from Brockton, with her mother and her uncle. On the picture, the faces were crossed off with a circle and an X, and on the back there was handwriting that said "watch out for me."

The teen told reporters that she believes that the package was dropped off and not mailed because there was no stamp on it. The state fire marshal reported that preliminary testing showed no harmful material in the package but that it had been sent to the state lab for further testing. An FBI spokesman said the final test results will arrive shortly.

The full article can be seen here.

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March 4, 2011

Boston Doctor and Nurse Charged: Controlled Substance Conspiracy

A local doctor and his nurse practitioner are being charged in an eight count indictment in the Federal Court of Boston with conspiracy to distribute controlled substances, distribution of controlled substances, and distribution of controlled substances causing deaths. The actions of the doctor charged, Joseph Zolot, were uncovered inside his Needham office back in 2007 by Fox 25, and now prosecutors are indicting the doctor and his nurse on the charges.

Fox investigative reporter Mike Beaudet asked one of Dr. Zolot's patients what his experience with the doctor was like. The patient replied, "he's a croaker. A croaker's a doctor that writes prescriptions that are not needed, for people that don't need them." The criminal indictment alleged that Dr. Zolot prescribed methadone that resulted in the overdose deaths of six patients, and that he and the nurse practitioner Lisa Pliner gave prescriptions for controlled substances such as Oxycodone without conducting satisfactory examinations even in the face evidence that the patients were abusing and distributing the drugs.

The prosecutors allege that Zolot and Pliner conducted these activities for their own financial gain, often seeing between 40 and 50 patients a day in their Needham office. Zolot's criminal defense attorney states that his client will maintain his innocence and that he "knows that there are many in the Boston community who are extraordinarily supportive of him both within and without the medical profession." Zolot and Pliner, who face life in prison, remain in custody and will be back in Boston Federal court today where their attorneys will attempt to get them released.

Read the full article at My Fox Boston:Local Doctor and Nurse Accused of Causing Deaths