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Into the Rabbit-Hole: Annie Dookhan Confronts Melendez-Diaz


Anthony Del Signore*
ABSTRACT In mid-2012, it came to light that Annie Dookhan, a chemist from the Hinton State Laboratory in Jamaica Plain, Massachusetts, who had prepared thousands of certifications and testified at thousands of trials over the course of almost a decade at the lab, had lied on certifications, altered drug evidence, and even lied on her resume. Since these allegations came to light, as many as 60,000 drug samples and 34,000 drug cases either have been or could be affected, hundreds of defendants have been released from jail, the Hinton State Laboratory has closed, and Dookhan has been arraigned on twenty-seven charges, ranging from evidence tampering to obstruction of justice. Annie Dookhan has changed the game for defendants and for the Commonwealth. She has also pointed a spotlight on the U.S. Supreme Courts 2009 holding in Melendez-Diaz v. Massachusetts, which held that drug certificates offered at trial as evidence to prove that drugs possessed by defendants were indeed drugs, would violate the Confrontation Clause of the Sixth Amendment without the presence of the testing chemist. This Note argues that the Dookhan fiasco illustrates the importance of the Melendez-Diaz holding, and that it is a potential warning for other jurisdictions, which should take proactive steps to address the issues presented. The Note also attempts to provide practical suggestions for both defense attorneys and for the government as they attempt to deal with the fallout from the Dookhan scandal. ____________________________________
I, Annie Dookhan, had taken out samples of [sic] safe and tested them without being signed out as proper procedure. I also went in the Evidence Log book and postdated and filled the log book in [sic]. I signed my initials and an Evidence Officers initials in the book. That was my mistake and I cant deny that. I also batched, put similar samples together, and tested some and not others; I dry labbed. I have been doing it for 2-3 years. At times, a few, I had to add a sample that came back from Mass Spec to make it what I said it was. I would get the

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sample from a known sample. I would try to clean it, the original, up first but if it didnt I would need to take something, drugs, from another case. I intentionally turned a negative sample into a positive a few times.1

I. INTRODUCTION What happens when [S]uperwoman2 crashes? For one thing, when Superwoman crashes, the crash site and anything within a few hundred miles trembles; then come the aftershocks. Annie Dookhan cast herself as Superwoman, on a mission to convict drug-defendants from numerous counties in Massachusetts.3 Soon after she was hired in 2003, it was clear that Annie Dookhan, a chemist at the Hinton State Laboratory in Jamaica Plain, Massachusetts, did more than the average chemist.4 What did Dookhan do? She forged other chemists initials, improperly accessed evidence, lied on her resume and her Curriculum Vitae (CV), had questionable lab habits, dry labbed, and tampered with drug evidence.5 Although individuals at the Hinton State Lab took notice of her various breaches of pro-

* Candidate for Juris Doctor, New England Law | Boston (2014); M.A.T., Smith College (2009); B.A., Brandeis University (2004). How lucky am I? Someone gave me a wife who makes this (and all things) possible, parents who did a damned good job at some pretty tough work, a brother who lets me be his twin, a sister who showed me who to shout for, and a daughter who taught me in one second everything I couldnt have learned in a million years without her. Thanks so much to the staff of the New England Journal on Criminal and Civil Confinement for their hard work, help, and patience. 1. See Office of the Attorney General Investigative Reports, MASSBAR.ORG, http://www.massbar.org/media/1295687/ago%20investigation%20documents.pdf [hereinafter Attorney General Reports] (Signed Statement of Annie Dookhan). 2. See, e.g., id. at 39 (interview of Nicole Medina, who jokingly called Dookhan the superwoman of the lab); Sally Jacobs, Chasing Renown on a Path Paved with Lies, BOS. GLOBE, Feb. 3, 2013, at A1, 1. 3. Georgia K. Critsley, Memo to the MBA from the Commonwealths Executive Office of Public Safety and Security, MASS. BAR ASSN (Sept. 3, 2012), http://www.massbar.org/media/1286458/practicealert.pdf (noting that Hinton served Barnstable, Bristol, Essex, Dukes, Nantucket, Norfolk, Plymouth, Suffolk, and, until 2009, Middlesex Counties). 4. See Hinton Laboratory Drug Lab Internal Report at 6, available at https://www.aclum.org/sites/all/files/drug_lab/charles_pleadings/2013_3_5_defendant_exhi bits_to_211_3_opposition_3_05_13.pdf (last visited Feb. 1, 2014) [hereinafter Hinton Laboratory] (A review of the volume of sample assignment by chemists shows that between 2004 and 2011, Dookhan was consistently assigned (and presumably tested) more samples at the drug lab than any other chemist, exceeding her peers by as much as 50% more than as [sic] the second highest chemist.). Of course, knowing what we know now, that presumption was mistaken. See infra Part II. 5. See infra Part II.D.

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tocol on numerous occasions, and even took steps to intervene;6 the lack of oversight and intervention was staggering. Also staggering, has been the fallout. Dookhan handled as many as 60,000 samples involving up to 34,000 drug cases.7 Any or all of these will be impacted by Dookhans actions. This includes defendants at all stages of criminal proceedings: those that completed sentences following a conviction, those that pled guilty, those on probation, and those subjected to sentence-enhancements because of multiple convictions with one or more conviction predicated on evidence prepared by Dookhan.8 At the same time, defendants who were either convicted or pled guilty, and who faced collateral consequences, such as deportation, may now have the opportunity to revisit their cases.9 Likewise, the effect on the criminal justice system is immeasurable. Now, an already overtaxed court system is left to deal with potentially 34,000 cases in addition to its typical caseload.10 In addition to the increased court time this scandal will require, Assistant District Attorneys (ADAs) and defense counsels will have volumes and volumes of new discovery to sift through for both open and closed cases. This is to say nothing at all of the impact that Dookhan and Hinton will have generally on the publics (and juries) confidence in the criminal justice systems ability or interest in accurately finding the truth.11 Nor is it to

See infra Part II.D. Scott Helman, The Drug Lab Scandal: Whos Cleaning It Up?, BOS. GLOBE MAGAZINE, Dec. 9, 2012, at R16; John R. Ellement & Kay Lazar, Convict Freed in Mass. Crime Lab Scandal, BOSTON.COM (Sept. 19, 2012), http://www.bostonglobe.com/metro/2012/09/19/public-health-chief-says-furious-aboutstate-drug-lab-scandal/TwjfIjF6Ml22aTurMk3POP/story.html; see also Denise Lavoie, Annie Dookhan, Chemist Accused of Faking Test Results, Pleads Not Guilty to Obstruction POST (Jan. 30, 2013), Charges, HUFFINGTON http://www.huffingtonpost.com/2013/01/30/annie-dookhan-chemist-pleads-notguilty_n_2581891.html [hereinafter Lavoie, Annie Dookhan]. 8. See Peter Elikann, Practical Steps for Defending a Crime Lab Defendant, 41 MASS. LAW. WKLY. 447 (Oct. 29, 2012). 9. Mark Arsenault, Police Chiefs, Justice System Brace for Fallout from Drug Lab Scandal, BOSTON.COM (Sept. 16, 2012), http://www.boston.com/news/local/massachusetts/2012/09/16/police-chiefs-justice-systembrace-for-fallout-from-drug-lab-scandal/bSUs8EKZ5V6VPrBK6v8hWM/story.html. 10. See Deborah Becker, District Attorneys Struggle to Deal With Cases In Drug Lab Scandal, WBUR (Jan. 25, 2013), http://www.wbur.org/2013/01/25/drug-lab-resources (quoting Suffolk County District Attorney Dan Conley) (To put that into perspective, any given year we handle about 40,000 cases . . . . [w]e get thrown another 18,000, you can see the magnitude of this.). 11. It is worth noting that, to prove a charge beyond a reasonable doubt, the prosecution must meet its burden with competent evidence. Commonwealth v. Webster, 59 Mass.

6. 7.

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mention the administrative burden of having to reopen closed cases or to hear motions to stay sentences.12 These events provide a powerful lens through which to view the U.S. Supreme Courts current jurisprudence regarding a defendants Sixth Amendment right to confront witnesses called against him or her.13 Most notably, Melendez-Diaz held that drug certificates admitted into evidence were testimonial for the purposes of the Sixth Amendment, such that they must be accompanied by the certifying chemist.14 This Note will argue that the current fiasco at the Hinton State Crime Lab vindicates the Supreme Courts current approach to the Confrontation Clause because it illustrates how truly crucial the defendants opportunity is to fully and fairly cross examine the people responsible for certifying that alleged drugs are what the government claims them to be. Were this right not fully vindicated, then fallible or misguided agents of the state may have had their mistakes or misdeeds go undetected by defendants whose liberty is on the line. The Note will further argue that all states, even those other than Massachusetts, must take affirmative steps to ensure that events such as these do not happen again. Part II of this Note will provide an overview of the Annie Dookhan scandal. First, it will review what should have been done, both by Dookhan and the Hinton State Lab. Then, it will review what actually happened: what Dookhan did and did not do, and what the Hinton State Lab did not do that it should have done. Part III of the Note will set the Dookhan fiasco in the context of the Confrontation Clause by briefly examining the Supreme Courts pre-Crawford Confrontation Clause jurisprudence, as seen in Ohio v. Roberts,15 then discussing the Crawford line of cases, and finally concluding with a consideration of a potential return to a Robertsera reliance on reliability. Part IV will briefly examine the exegesis of the Dookhan scandal. It will try to arrive at some conclusions as to why these events happened: whether they were the acts of a rogue chemist,16 the result of isolated failures at one lab,17 brought on by the pressures of criminal
295, 296 (1850). 12. See infra Part II.E. 13. See, e.g., Crawford v. Washington, 541 U.S. 36, 61 (2004); Melendez-Diaz v. Massachusetts, 557 U.S. 305, 309 (2009); see also Joelle Anne Moreno, Finding Nino: Justice Scalias Confrontation Clause Legacy From Its (Glorious) Beginning to (Bitter) End, 44 AKRON L. REV. 1211, 1248 (2011) (providing a useful overview and critical perspective in support of the Crawford line of cases). 14. Melendez-Diaz, 557 U.S. at 310-11. 15. Ohio v. Roberts, 448 U.S. 56, 65-66 (1980). 16. See, e.g., Michael Kelley, Rogue Chemist Arrested After Admitting She Faked Drug Tests, BUS. INSIDER (Sept. 28, 2012, 4:44 PM), http://www.businessinsider.com/therogue-chemist-who-faked-thousands-of-drug-tests-has-been-arrested-2012-9. 17. See infra Part IV.B.

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prosecutions generally or the burdens of Melendez-Diaz. Part V examines the implications of the Dookhan scandal for the Government and for defendants. In particular, it will argue that the courts must not retreat from a full vindication of a defendants confrontation right, even in light of the scandal. Part V will also consider practical implications of the scandal for the Government, and for defense attorneys. Finally, Part VI will conclude that, although the Annie Dookhan scandal is a black mark for Massachusetts, it nevertheless presents opportunities: an opportunity for potentially wronged defendants to have their cases re-examined, an opportunity for Massachusetts to redouble its efforts to make sure that it maintains sufficient procedural safeguards to protect the rights of the accused, an opportunity for other jurisdictions to take proactive steps to address similar issues that may exist elsewhere, and an opportunity to reflect on the wisdom of the current approach toward Confrontation Clause jurisprudence. II. THE SCANDAL I screwed up big time. I messed up. I messed up bad, its my fault. I dont want the lab to get in trouble.18 The events that unraveled between May 2011 and August 2012 bear more than a little resemblance to a Shakespearean Tragedy: we see an apparently noble character driven by some internal force to make terrible choices which not only cause her own downfall, but the downfall of an entire system. As such, it might be helpful briefly to set the stage.19 A. Dramatis Personae Annie Dookhan was an energetic, nice, super-woman20 who worked at the Hinton State Laboratory from 2003 until 2011 when she re-

18. Attorney General Reports, supra note 1, at 71-74 (interview with Annie Dookhan). The interviewer noted that, immediately before making this admission, Dookhan became sad, and a slight tear came to her eye. Id. 19. It should be noted at the outset that the outline which follows is premature in some respects; it is culled primarily from investigative documents from the Attorney Generals Office (available at the Massachusetts Bar Associations website) and from current news accounts. As such, it is before any criminal adjudications and is necessarily incomplete. It should in no way be perceived as an investigatory examination, or even an attempt at the truth. Rather, it is an effort to set forth current understanding of a recent episode as a prelude to analyzing important legal and policy issues. Nor should it be construed as demonizing any of the individuals who have a part in this drama. Much good could (and has) been said of them. Chuck Salemi, for example, was described as honest as the day is long and conscientious; another former chemist at the lab noted that the people he worked with were very honorable and that he would trust his life to them. See id. at 43-44, 53 (interviews with Kevin McCarthy and John Donovan, respectively). 20. See Attorney General Reports, supra note 1.

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signed in the midst of an ongoing investigation into her alleged tampering with drug evidence and other transgressions.21 Julie Nassif, Linda Han, and Chuck Salemi were supervisors at the Hinton State Crime Lab in Jamaica Plain. Each was aware, at various times, of a number of transgressions committed by Annie Dookhan. Han resigned amid the scandal and Nassif was fired.22 Dan Renczowski, Nicole Medina, and Kate Corbett were fellow chemists at Hinton, whose initials were forged on various forms required in the course of testing drug samples.23 B. The Setting The William A. Hinton State Laboratory Institute (Hinton Lab) in Jamaica Plain, Massachusetts, houses eight different laboratories under the Executive Office of Health and Human Services (EOHHS).24 From 2003 until the state police assumed supervisory control over the lab,25 the Department of Public Health (DPH) operated one of three forensic drug labs in the state (the Crime Lab). During that time period, the Lab tested 355,276 samples of seized drugs.26 Dookhan worked in the Crime Lab from 2003 until she resigned in 2011; it was closed in August of 2012 in light of the scandal.27

21. See Denise Lavoie, Chemists Education Questioned in Mass Drug Lab Scandal Inflated Resume Gives Lawyers New Doubts, WASH. TIMES (Sept. 25, 2012), http://www.washingtontimes.com/news/2012/sep/25/chemists-education-questioned-massdrug-lab-scanda/ [hereinafter Lavoie, Chemists Education]; DPH/Drug Lab Discovery from 11/13/12, available at http://www.massbar.org/media/1323561/discovery%20redactedcori.pdf (Chronology and Narrative of Key Events). 22. Matt Murphy, State House NewsTwo Out, Third Official may be Fired in Unfolding Crime Lab Crisis, WEYMOUTH NEWS (Sept. 14, 2012, 8:17 AM), http://www.wickedlocal.com/weymouth/newsnow/x346970650/State-House-News-Twoout-third-official-may-be-fired-in-unfolding-crime-lab-crisis#axzz2LqguBD2O. 23. Attorney General Reports, supra note 1, at 5, 21-22, 39-40, 45-46 (interviews of Peter Piro, Dan Renczowski, Nicole Medina, and Kate Corbett). 24. See generally State Laboratory, MASS.GOV, http://www.mass.gov/eohhs/gov/departments/dph/programs/state-lab/ (last visited Feb. 20, 2013). 25. See Will Roseliep, State Faces Massive Legal Fallout from Crime Lab, WGBH (Sept. 12, 2012, 10:12 AM), http://wgbhnews.org/post/state-faces-massive-legal-falloutcrime-lab. 26. Hinton Laboratory, supra note 4, at 2. 27. Scott Allen & Andrea Estes, More Signs of Disarray in Closed Lab, BOS. GLOBE, Apr. 2, 2013, at A1, 3.

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C. What Should Have Happened? The standard protocol for testing drug samples at the Crime Lab was consistent with national standards.28 When a sample arrived at the Crime Lab, the sample was transferred in sealed and initialed evidence bags delivered through a chain of custody transfer from law enforcement to an evidence officer at the Crime Lab.29 The sample then was assigned an evidence control number, which was recorded on an evidence receipt, and was placed in the evidence room.30 An employee could only gain access to the evidence room with a palm reader or key;31 prior to April 2012, chemists were allowed in the evidence office although only when evidence officers were present.32 Codes to the evidence room were not provided to chemists.33 Chemists were assigned samples through a computerized database; once samples were assigned, each chemist was notified to retrieve the sample from the evidence room.34 When a chemist wanted to pick up a sample, the evidence officer immediately recorded his or her initials and the date on a log; before taking possession of the sample, the chemist also recorded his or her initials.35 The testing procedure for each sample necessarily involved two chemists: a primary chemist, and a confirmatory chemist.36 The primary chemist performed Category B and C tests, which are typically visual tests, and are only of moderate discriminatory power.37 Once the primary

28. See Hinton Laboratory, supra note 4, at 2 (Even if the Forensic Drug Lab fully complied with the [Scientific Working Group for the Analysis of Seized Drugs] guidelines, these guidelines were vague and inadequate for guaranteeing the type of integrity needed to deliver high quality forensic drug analyses.). 29. Id. at 4. 30. Id. The samples were placed in a locked safe inside of the evidence room. See generally Attorney General Reports, supra note 1, at 45-46 (discussing access to the evidence office and the safe). 31. Hinton Laboratory, supra note 4, at 4. 32. However, after April 2012, chemists were no longer allowed to enter the evidence room. Attorney General Reports, supra note 1, at 45-46 (interview of Kate Corbett). 33. Hinton Laboratory, supra note 4, at 4. 34. Id. 35. See id.; Attorney General Reports, supra note 1, 36-38 (describing the proper protocol for transferring a sample to a chemist)([S]he would never have given samples to a chemist without scanning them out and filling out the evidence log.) 36. See Attorney General Reports, supra note 1, at 11-12 (describing the process for testing samples); see also Discovery, Suffolk Cnty. Dist. Attys Office, Dept of Pub. Health and Drug Lab, 130-31 (Nov. 13, 2012), http://www.massbar.org/media/1323561/discovery%20redactedcori.pdf. 37. See Discovery, supra note 36, at 130 (describing the tests as color tests, microcrystalline analyses, and ultraviolet visualization).

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chemist completed initial tests, the confirmatory chemist performed tests on instruments such as a mass spectrometer38 in order to either confirm or disprove the primary chemists conclusions.39 The confirmatory (or secondary) chemist filled out a control sheet, returning it to the primary chemist for mutual confirmation.40 The primary chemist then completed the paperwork and returned the sample to the evidence officer.41 D. What Did Dookhan Do? Many of the newspaper accounts indicate that Dookhan tampered with evidence and lied about her education.42 These allegations, however, do not necessarily communicate the apparent pervasiveness of the misdeeds here. For the sake of ease and clarity, it may be best to proceed chronologically.43 Dookhan was hired to work at the Crime Lab as a chemist in November 2003. On her resume, she listed a Bachelors Degree in Biochemistry, and listed ongoing work toward a Masters Degree at the University of Massachusetts at Boston.44 Dookhan was promoted from chemist I to chemist
38. A mass spectrometer separates ionized molecules using electric and magnetic fields in order to measure the individual particles. See William Reusch, Mass Spectrometry, MSU, http://www2.chemistry.msu.edu/faculty/reusch/VirtTxtJml/Spectrpy/MassSpec/masspec1.ht m (last visited Mar. 31, 2013). 39. These Category A Tests have high discriminatory power and produce instrument-generated documentation of test results . . . . Discovery, supra note 36, at 130. 40. See id. at 131. 41. See id. at 131-32. 42. See, e.g., Lavoie, Annie Dookhan, supra note 7 (27 charges accusing her of fabricating test results and tampering with drug evidence . . . .); Lavoie, Chemists Education, supra note 21; Ellement & Lazar, supra note 7 (Dookhan . . . allegedly mishandled drug evidence in criminal cases by altering the weight of drugs, not calibrating machines correctly, and manipulating samples to test as drugs when they were not.). 43. See generally Hinton Laboratory, supra note 4, at 6-9 (Chronology and Narrative of Key Events); Timeline of Events in Disgraced Mass. Chemist Case, BOSTON.COM (Sept. 27, 2012), http://www.boston.com/news/local/massachusetts/2012/09/27/timeline-eventsdisgraced-mass-chemist-case/WiPoIsVA0FpDgsDv6NCbHK/story.html. 44. Hinton Laboratory, supra note 4, at 6 (Annie Dookhan Employment History); Annie Khan Resume, CBS BOS., available at http://cbsboston.files.wordpress.com/2012/09/adresume11103.pdf (last visited Feb. 18, 2014); Annie Khan (Dookhan) Curriculum Vitae, BOS. GLOBE, available at http://c.o0bg.com/rw/Boston/20112020/2012/09/25/BostonGlobe.com/Metro/Graphics/Dookhan-resume.pdf (last visited Feb. 18, 2014); Andrea Estes et al., Drug Lab Chemist Accused of Lying, BOS. GLOBE (Sept. 26, 2012), http://www.bostonglobe.com/metro/2012/09/25/chemist-center-state-drug-labscandal-did-not-have-master-degree-she-claimed-umass-officialssay/dGyMOLgULvS4ag94f8pjLN/story.html.

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II in 2005.45 Because of the promotion, Dookhan began to work on increasingly complex drug cases.46 At least one chemist, Peter Piro, began to notice that Dookhan was testing an unexplainably high number of samples beginning in 2007-2008, and began to doubt that Dookhan was doing all of the appropriate tests.47 Although Piro initially thought that Dookhan was just a hard worker, he soon became suspicious because of red flags; he reported his suspicions to multiple supervisors, and specifically stated that he was worried that Dookhan was not performing all necessary tests because he never saw her in front of a microscope.48 Other chemists were concerned about Dookhans output, from late 2010 to early 2011 both personally and for the integrity of the lab. Some of these chemists, including Michael Lawler, began to look into Dookhans work, and reported concerns to Chuck Salemi.49 Lawler specifically noted that an average chemist could test approximately fifty to 150 samples, but that Dookhan was doing 500; Lawler reported being staggered by these numbers.50 As a result of these concerns, in 2010, supervisors at the lab conducted an audit in which they reviewed Dookhans paperwork.51 Although they too were concerned, particularly in light of the fact that Dookhan was working many extra hours and never put in for overtime, they did not actually retest any of Dookhans samples during the course of this au-

45. Hinton Laboratory, supra note 4, at 6 (Throughout her employment, Dookhan was considered a high performer by her supervisors and a valuable asset to the team. As the Drug Lab continued to experience significant back-logs due to budget reductions, Dookhans supervisor often acknowledged . . . [her] strong work ethic and drive to test samples.). 46. Id. 47. Attorney General Reports, supra note 1, at 21 (interview with Peter Piro, a supervisor at the lab). 48. Id. 49. Id. at 19. 50. Id. at 18-19 (interview of Michael Lawler). When Lawler brought his concerns to Salemi, Salemi noted that they were aware of the issue, but that his concerns were minimized because Dookhan was simply taking work home, had high energy, and was not taking breaks. See also id. at 22 (interview with Peter Piro). Piro noted that Dookhan would bring in so many racks and racks of vials to the mass-spec every day that he did not believe she could possibly do so many. Id. See also id. (interview with Stacy Desjardins). Desjardins stated that she busted her ass to do as many samples as she could, and could not understand how Dookhan did so many; she also noted that a few chemists had similar questions. Id. It would not be accurate, however, to say that all chemists shared these suspicions. Id. at 41 (interview with Daniela Frasca). Frasca worked with Dookhan for eight years, occasionally saw her using her microscope, and stated that she thought Dookhan was a good worker and never noticed anything which she thought was out of the ordinary. Id. 51. Id. at 15 (interview with Chuck Salemi).

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dit.52 Chemists notice in May 2011 that Dookhan had forged other chemists initials on various forms which were a part of the two chemist system, including Quality Control Daily Injector Tests and Control Sheets.53 Also, supervisors at the lab notified Lab Director Julie Nassif that Dookhan had tested an extraordinary number of samples in March 2011.54 In response, Nassif gave Dookhan an alternative assignment in order to slow her down.55 In June 2011, Dookhan took ninety samples from the lab safe, which were not assigned to her nor signed out in the appropriate manner.56 Once Dookhan was linked to the breach, she was reassigned to desk duty, and her physical workspace was moved outside of the Drug Lab.57 Although Dookhans access to the Drug Lab was not immediately restricted, her access to the evidence room was later restricted.58 After meeting with Dookhan, supervisors thought that the breach didnt affect Dookhans casework and did not notify authorities.59 This was true even though Peter Piro, who had been one of the first employees at the lab to become aware of Dookhans suspicious behavior, noted that Dookhans behavior was so egregious it almost appeared that she wanted to get caught.60 One supervisor noted that, [i]n hindsight . . . [this] was the wrong decision.61 Even later, an investigation by counsel at DPH focused on the transferring of samples and on documentation inconsistencies, instead of potential issues with the veracity or accuracy of tests.62 The reason for this focus was that the chemist
52. Id. (noting that before events came to a head in 2011 employees had concerns about Dookhans work). 53. Id. at 5 (interview of Daniel Renczowski, whose initials were forged by Dookhan). See also id. at 22 (interview with Peter Piro). This was reported to supervisor Chuck Salemi, and brought to the attention of Lab Director Julie Nassif. Id. at 15 (interview of Chuck Salemi). 54. Id. (interview with Chuck Salemi, who had passed along the information to Julie Nassif). 55. Id. (interview with Chuck Salemi, stating that he believed no other action was taken with respect to the forgeries). 56. Id. at 71 (interview with Annie Dookhan, who admitted to taking the samples improperly). 57. Id. at 35 (interview with Lisa Glazer). 58. Id. at 15 (interview with Chuck Salemi); Hinton Laboratory, supra note 4, at 7. 59. Attorney General Reports, supra note 1, at 15 (interview with Chuck Salemi) (believing that Salemi also thought that Dookhan had a mental breakdown at this point); Hinton Laboratory, supra note 4, at 8 ([T]hey did not appreciate its potential legal significance and because of their opinion that the test results had not been affected.). 60. Attorney General Reports, supra note 1, at 22 (interview with Peter Piro). 61. Id. at 15 (interview with Chuck Salemi). 62. Hinton Laboratory, supra note 4, at 8.

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had been conducting forensic drug analysis for over eight years and during that time had been a stellar, reliable employee with a reputation for diligent work, long hours and most significantly, the accurate and efficient analysis of samples.63 By February of 2012, DPH lawyers began to communicate with prosecutors to notify them that Dookhan would not be permitted to testify at trial, and Dookhan was placed on administrative leave effective February 21, 2012.64 Given the ongoing investigation, and the Departments desire to avoid a prolonged termination process with uncertain outcome, the DPH accepted Dookhans resignation on March 8, 2012, which became effective March 9, 2012.65 E. The Fallout The reach of Little Annies66 misdeeds is massive. Governor Deval Patricks office has reportedly identified 1141 people convicted based in part on Dookhans evidence.67 Dookhan herself handled as many as 60,000 samples, which in turn potentially affected 34,000 cases.68 In addition, because of the in-depth investigation that has come in the wake of the scandal, the Attorney Generals Office has discovered such general disarray at Dookhans lab that it may be possible to argue that any sample tested at the lab, by Dookhan or any other chemist, may be so compromised that the drug certificate may be in doubt.69 If this were the case, as many as 190,000 cases could be impacted by this evidence.70 In addition, as many as 300 inmates currently serving time as a result of convictions based on Dookhan evidence have been released from jail.71 Moreover, the scandal has drawn considerably from the Commonwealths resources. In order to deal with the scandal, the State Senate recently approved a supplemental budget of $30 million,72 and the Chief
Id. Id. Id. One of Dookhans nicknames; Dookhan stands at four feet, eleven inches. Jacobs, supra note 2. 67. Kelley, supra note 16. 68. See sources cited supra note 7. 69. Allen & Estes, supra note 27, at A1, 3. 70. Id. 71. Id.; see also Travis Anderson, Man Arrested in Dorchester Rooftop Chase had Prior Drug Case Tied to Annie Dookhan Dismissed, BOSTON.COM (Mar. 4, 2013, 7:03 PM), http://www.boston.com/metrodesk/2013/03/04/man-arrested-dorchester-rooftop-chase-hadbeen-freed-drug-case-tied-annie-dookhan/x35f39vCqgsHPh1qNGIhaJ/stor. 72. Mass. Senate Approves Supplemental Budget Bill, WBUR (Feb. 13, 2013), http://www.wbur.org/2013/02/13/supplemental-budget-bill.
63. 64. 65. 66.

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Counsel for the Committee for Public Counsel Services, the States public defender agency, speculated that it may cost as much as $332 million if every affected defendant takes corrective action.73 To deal with the incredible log of cases, the courts have devised special sessions, which are devoted solely to hearing drug lab cases.74 III. THE CONFRONTATION CLAUSE The (in)famous case of Sir Walter Raleigh provides the epigrammatic example of a Confrontation Clause problem: an ex parte interrogation of a witness for the state, providing testimony in a case where he has a stake.75 Surely this example is a far cry from the concerns at issue in Dookhans case, which involves a scientist who has never laid eyes on a defendant, performing rote tests at a state run laboratory.76 Surely Dookhan has no stake sufficient to raise a doubt in the jurys mind as to her veracity. Or perhaps she does. In order to fully understand the importance of these events, their causes,77 and their potential reverberations, it is necessary to place them within the context of the Confrontation Clause of the Sixth Amendment to the United States Constitution.78 The Confrontation Clause guarantees that [i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.79 Thus, the Confrontation Clause does not guarantee reliable testimony on the part of the states witnesses, but rather guarantees that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.80 When analyzing a Confrontation Clause question, the primary issues become: first, whoor whatis a witness within the meaning of the Confrontation Clause, and second, what type of statement

See Helman, supra note 7. Special Court Session to Deal with Influx of Annie Dookhan Cases in Suffolk County, BOSTON.COM (Oct. 1, 2012, 4:14 PM), http://www.boston.com/metrodesk/2012/10/01/special-court-session-deal-with-influx-anniedookhan-cases-suffolk-county/mPaNAuLDhT7xkkqVXTirUM/story.html. 75. See Crawford v. Washington, 541 U.S. 36, 44 (2004) (relating Sir Walter Raleighs treason trial as a classic Confrontation Clause problem). There, inculpatory statements were admitted into evidence against Raleigh even though the statements were made by Lord Cobham, Raleighs alleged accomplice, and Cobham was not made available for cross examination. Id. 76. Kelley, supra note 16. 77. See, e.g., Seth-Thomas Aitken, Commentary: Annie Dookhan in a Time of Melendez-Diaz, 41 MASS. LAW. WKLY. 527 (Nov. 8, 2012). 78. U.S. CONST. amend. VI. 79. Id.; see also MASS. CONST. art. XII ([E]very subject shall have a right . . . to meet the witnesses against him face to face.). 80. Crawford, 541 U.S. at 61.

73. 74.

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will constitute testimony on the part of that witness?81 A. The Confrontation Clause Pre-Crawford Prior to the pathmarking decision in Crawford v. Washington, the U.S. Supreme Court held that testimony would not violate the Sixth Amendment as long as the statements bore sufficient indicia of reliability.82 Statements were thought to be sufficiently reliable if they either fell within a traditional hearsay exception, or bore particularized guarantees of trustworthiness.83 Although Crawford overruled Roberts, it is necessary that one keep Roberts reliance on reliability in mind, because it is not entirely clear that all of the Court entirely abandoned the regime.84 B. Crawford v. Washington In Crawford, the U.S. Supreme Court held that all testimonial statements against defendants must be barred unless the defendant is provided the right to confront the witness at trial, or if the witness is unavailable, and the defendant had an adequate opportunity to cross-examine the witness.85 Although the Court declined to provide a precise definition for what is testimonial, Justice Scalia did provide several clues: Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. These are the modern practices with closest kinship to the abuses at which the Confrontation Clause was directed.86 Put otherwise, testimony is typically [a] solemn declaration or affirmation made for the purpose of establishing or proving some fact, or, ex parte in-court testimony or its functional

81. Depending on which Justice you ask, you may find that other factors are more or less important. See Bullcoming v. New Mexico, 131 S. Ct. 2705, 2725 (2011) (noting that other factors, such has reliability and solemnity have weaved in and out of the Crawford jurisprudence). 82. Crawford, 541 U.S. at 40 (citing Ohio v. Roberts, 448 U.S. 56, 65-66 (1980)). 83. Id. (citing Roberts, 448 U.S. at 65-66). One author compared the Roberts line of cases to little more than a constitutionalization of the modern law of hearsay, incorporating its multiple particular oddities and also a general principle that the law poses no obstacle to admission of an out-of-court statement that is deemed by the courts to be reliable. Richard D. Friedman, The Sky Is Still Not Falling, 20 J.L. & POLY 427, 427 (2012). 84. See infra Part III.D.1. 85. Crawford, 541 U.S. at 68. The Court also specifically declined to rule on whether the Confrontation Clause would only apply to testimonial statements. Id. at 61. But see, e.g., Davis v. Washington, 547 U.S. 813, 822 (2006); Michigan v. Bryant, 131 S. Ct. 1143, 1154 (2011) (applying a primary purpose test to determine whether statements were testimonial); see Friedman, supra note 83, at 428 (characterizing the Bryant holding as an unfortunately constricted view of the word testimonial . . . .). 86. Crawford, 541 U.S. at 51.

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equivalent-that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially . . . .87 Scalia concluded that the primary evil the Clause attempted to remedy was the admission of ex parte examinations as evidence against the accused.88 Thus, although one goal of the right to confrontation is to facilitate the admission of reliable evidence, cross-examinationrather than reliable evidenceis what the Sixth Amendment promises, such that the right to cross- examine a witness cannot be dispensed with.89 C. Melendez-Diaz v. Massachusetts At the heart of the Annie Dookhan scandal is Melendez-Diaz v. Massachusetts.90 In Melendez-Diaz, the defendant was arrested in possession of nineteen bags of cocaine, which he tried to hide in the police cruiser on the way to the station.91 At trial, the prosecutor submitted the cocaine itself as evidence, and also submitted three certificates of analysis, which purported to prove that the substances at issue were cocaine.92 The defendant objected, arguing that admitting them without providing him an opportunity to cross-examine the witness, in this case the chemist performing the analysis, violated his rights under the Sixth Amendment.93 The trial court and state court of appeals both held that the certificate should be admitted, reasoning that the analyst was not a witness subject to the Confrontation Clause.94 Thus, the central issues in the case were those issues still dangling from Crawford: whether the certificates were testimonial in nature, and whether an analyst was a witness against the defendant.95 1. The Majority Addressing first whether the certificates were testimonial, Justice

87. Id. What constitutes testimony or a testimonial witness becomes crucial, not only for Melendez-Diaz, but also for the future of the Courts Confrontation Clause Jurisprudence. See Moreno, supra note 13, at 1250. 88. Crawford, 541 U.S. at 50. 89. Id. at 61 (characterizing this as a procedural, rather than a substantive right); see supra note 59 and accompanying text. 90. Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009). 91. Id. at 308. 92. Id. 93. Id. at 309. 94. Id. 95. Id. at 315-17.

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Scalia, writing for the majority, returned to Crawford96 to determine that the certificates were indeed testimonial. He reasoned that, although Massachusetts deemed to call the evidence certificates, they were nonetheless affidavits, which fit squarely into the core class of testimonial statements.97 Additionally, the statements were made under circumstances which would lead an objective witness reasonably to believe that the statement[s] would be available for use at a later trial.98 The last factor seems also to weigh in favor of finding that the analyst is a witness subject to the Confrontation Clause, insofar as it leads to the assumption that the analyst was aware of the fact that the certificate would be used at trial.99 This assumption is strengthened by the fact that the certificates purpose was printed on the form.100 Presumably, as the author of a report intended to be used at trial, the analyst is a witness against the defendant. 2. The Dissent The dissent attacks Justice Scalias argument from every possible angle.101 It argues that, first, an analyst is not a witness subject to the Confrontation Clause;102 second, it notes a host of practical difficulties that will arise by subjecting analysts to the Confrontation Clause; and third, it argues that only statements by witnesses (rather than any testimonial statement) should be subject to the Confrontation Clause.103 First, Justice Kennedy notes that analysts are not the conventional witnesses the Framers had in mind when they drafted the Sixth Amendment.104 Kennedy argued that, since the Framers were almost certainly thinking of witnesses like the ones at issue in Crawford and Davis,105 the plurality should have been sensible and limited the holdings in those cases to their facts.106 Beyond this,
See Crawford v. Washington, 541 U.S. 36, 68-69 (2004). Melendez-Diaz, 557 U.S. at 310. Indeed, the fact that the certificates were solemnly recorded documents was the crucial deciding factor allowing Justice Thomas to sign on with the judgment. Id. at 329 (Thomas, J., concurring). 98. Id. at 311 (majority opinion). 99. Id. 100. Id. at 310. 101. Id. at 330 (Kennedy, J., dissenting). 102. Id. at 330-31. 103. Id. at 331. 104. Id. 105. Id. at 330 (Those cases stand for the proposition that formal statements made by a conventional witnessone who has personal knowledge of some aspect of the defendants guiltmay not be admitted at trial without the witness appearing at trial to meet the accused face to face.). 106. Id. at 331.
96. 97.

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the dissent worries that, because several people are involved in the testing process,107 it would be difficult to know who to cross-examine, and practically impossible to cross-examine everyone.108 Finally, the dissent calls the pluralitys holding formalistic and pointless,109 and asserts that a host of practical consequences might stem from the holding.110 For example, Justice Kennedy worries that, if the prosecution is made to call a witness to admit a drug certification, then they would have a similar burden to call a witness, or several witnesses, to establish chain of custody of physical evidence, or to authenticate a document.111 Additionally, Kennedy notes that requiring analysts to attend trial would place a huge burden on the court system,112 and that such a requirement might wind up a windfall for defendants who might go free on the most technical grounds.113 Kennedy also predicted that defendants, who routinely allowed a drug certification to be admitted without objection, would subsequently raise the Melendez-Diaz objection,114 and would be much less likely to enter into plea agreements, which account for the vast majority of drug convictions in the United States.115 D. The Future of the Confrontation Clause As Justice Kennedy points out in his dissent in Bullcoming, jurisprudential grappling is messy and is creating some uncertainty with regard to the direction the Court may go.116 Some Justices would like to adhere strictly
See supra Part II.C. Melendez-Diaz, 557 U.S. at 332-34 (Kennedy, J., dissenting) (noting that the prosecution could reasonably call the testing chemist, the chemist who interprets the test results (the printout), the person responsible for calibrating the testing equipment, or the supervisor). 109. Id. at 338 (since the defense had notice of the prosecutions intention to submit the certificates, and could have sought a new test, or discovery regarding testing methods). 110. Id. at 335-36. 111. Id. 112. Id. at 341-42 (noting as an example that in Philadelphia each of the citys analysts would likely have to testify in sixty-nine trials each year). 113. Id. at 343. Although Kennedys prediction seems prescient in light of the Dookhan scandal, he cites such reasons as an analysts inability to get to the courthouse because of inclement weather, for example, rather than tampering and fabricating evidence. Id. 114. Id. at 352. This prediction also seems prescient, except that defendants might instead call the successful exercise of this objection a Dookhan. See Man Says he got out on Annie Dookhan During Arrest in Chelsea, MYFOXBOSTON.COM (Jan. 9, 2013, 12:15 PM), http://www.myfoxboston.com/story/20543403/2013/01/09/man-says-he-got-out-onannie-dookhan-during-arrest-in-chelsea. 115. Melendez-Diaz, 557 U.S. at 353 (Kennedy, J., dissenting). 116. See Bullcoming v. New Mexico, 131 S. Ct. 2705, 2725 (2011) (Todays majority is not committed in equal shares to a common set of principles in applying the holding of
107. 108.

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to the CrawfordMelendez-Diaz line of cases, and some would like to cabin the holding, or even retreat from it.117 1. Testimonial or Reliable The entire point of the Crawford revolution was to overthrow the old Roberts regime of reliability, which was closely aligned with conventional rules of hearsay.118 Furthermore, in many ways, the outcomes in MelendezDiaz and Bullcoming depend on a court that is willing to downplay the apparent reliability of particular out-of-court statements.119 Thus, if one agrees with the holdings in Melendez-Diaz and Bullcoming, then the Courts recent reliance on reliability, even in majority opinions, may be disconcerting. For a true Crawford convert, determining whether a statement is testimonial appears to be relatively simple.120 A statement is testimonial if the declarant intends the statement to be a solemn declaration, understanding that it may be used to invoke the coercive machinery of the state.121 This analysis in no way considers whether the statements at issue are reliable.122 Thus, under a strict Crawford approach, any statement that is testimonial, whether or not it appears to be reliable, will be subject to the Confrontation Clause. However, there are several indications that the Court no longer is adhering to a strict interpretation of Crawford, and mentions of reliability have begun to creep into majority opinions.123 It stands to reason that mentions
Crawford.); see also Michigan v. Bryant, 131 S. Ct. 1143, 1168 (2011) (Scalia, J., dissenting). Justice Scalia calls the majority in Bryant the obfuscator of last resort because it distorts [the Courts] Confrontation Clause jurisprudence and leaves it in shambles. Id. 117. See Moreno, supra note 13, at 1250. 118. See Attorney General Reports, supra note 1, at 22. 119. See, e.g., Bullcoming, 131 S. Ct. at 2727 (Kennedy, J., dissenting) (worrying that the holdings in Melendez-Diaz and Bullcoming will merely serve to bar reliable testimony . . . thought proper for many decades in state and federal courts committed to devising fair trial processes . . . .). 120. See, e.g., Bryant, 131 S. Ct. at 1170 (Scalia, J., dissenting) (calling Bryant an absurdly easy case). 121. Id. at 1168-69; see also Melendez-Diaz v. Massachusetts, 557 U.S. 305, 310 (2009) (characterizing the drug certificates at issue as solemn declaration or affirmation made for the purpose of establishing or proving some fact (quoting Crawford v. Washington, 541 U.S. 36, 51 (2004))). 122. Even to the extent that such a statement may appear to be aligned with a hearsay exception, and thus a consideration of reliability, Justice Scalia has made clear that such an interpretation is misguided. See Melendez-Diaz, 557 U.S. at 324 (Business and public records are generally admissible absent confrontation not because they qualify under an exception to the hearsay rules, but because . . . they are not testimonial.). 123. Bryant, 131 S. Ct. at 1155.

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of reliability might feature prominently in dissenting opinions,124 but assuming there are no slips of the tongue in the Supreme Court, the fact that reliability has become a factor for the majority may be indicative of the future direction of the court. For the majority in Bryant, Justice Sotomayor stated plainly: In making the primary purpose determination, standard rules of hearsay, designed to identify some statements as reliable, will be relevant.125 Reliability also reared its head by implication: Implicit in Davis is the idea that because the prospect of fabrication in statements given for the primary purpose of resolving that emergency is presumably significantly diminished, the Confrontation Clause does not require such statements to be subject to the crucible of cross-examination.126 The clear suggestion here is that, because such statements are not likely to be fabricated, they are reliable. The implications of which factors the Court chooses to emphasize, whether a statement is testimonial127 or whether extrajudicial statements are reliable,128 is of considerable importance. If the Court continues to emphasize the reliability of extrajudicial statements, then it is not inconceivable that the drug certificates at issue in Melendez-Diaz, which at least appear to be reliable, may someday fall outside the scope of the Confrontation Clause. IV. EXEGESIS OF THE SCANDAL With the Supreme Courts Confrontation Clause jurisprudence as a backdrop, it is possible to consider the potential causes of the Annie Dookhan scandal. There are numerous possibilities: the culprit might be Melendez-Diaz and the administrative burdens Justice Kennedy predicted would fall on state crime labs in the wake of the decision;129 the culprit may be a lack of sufficiently rigorous national standards relating to the testing of

See Melendez-Diaz, 557 U.S. at 310. Bryant, 131 S. Ct. at 1155. Justice Scalia observes, with some apparent chagrin, that this language is remarkably similar to language in Roberts. Id. at 1174. 126. Id. at 1157. 127. Justices Scalia and Ginsburg seem aligned in this regard, see, e.g., id. at 1168, 1176 (Scalia, J., dissenting) (Ginsburg, J., dissenting). Justice Thomas also has consistently held that only formalized, solemn statements such as affidavits and depositions should be admitted because they are testimonial. See id. at 1167 (Thomas, J., concurring); Davis v. Washington, 547 U.S. 813, 836 (2006) (Thomas, J., concurring in the judgment in part and dissenting in part). 128. At the very least, it appears that Chief Justice Roberts and Justices Kennedy, Breyer, and Alito would entertain the possibility. See, e.g., Bullcoming v. New Mexico, 131 S. Ct. 2705, 2727 (2011) (Kennedy, J., dissenting). Justice Sotomayor would seem to agree. See Melendez-Diaz v. Massachusetts, 557 U.S. 305, 317-18 (2009). 129. See supra Part III.C.2.

124. 125.

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drugs; the culprit may be supervisors and administrators who failed to appropriately supervise testing at one flawed state laboratory; or the culprit may simply be one rogue chemist.130 A. Whether Melendez-Diaz is to Blame for the Scandal As noted above, Justice Kennedy predicted grave consequences as a result of the decision in Melendez-Diaz.131 He predicted guilty criminals getting off on technicalities, staggering workloads for already overworked analysts, and massive systemic problems.132 Of course, the thought that he is correct is not without some support.133 The arguments are certainly appealing. First, that Melendez-Diaz placed incredible administrative burdens on analysts, which made it exponentially more difficult to do their jobs.134 Second, that the decision created a perverse incentive for analysts, who knew that they would be testifying in court, to produce positive tests more consistently and more frequently.135 Additionally, if Melendez-Diaz put objective and solitary chemists into the courtroom, it would create the appearance that the decision effectively made those chemists part of the prosecution team.136 The idea is bolstered by the fact that an Assistant District Attorney from Norfolk County, Massachusetts resigned because he had inappropriate contact with Dookhan.137 Tempting though these assertions may be, they are not necessarily accurate. Of course, one of the very reasons for the Melendez-Diaz holding is the fact that chemists employed by the state are already part of the prosecution team. It seems that the state effectively conceded as much when testing facilities were taken over by the State Police and EOHHS.138 Moreover, to blame Melendez-Diaz for Annie Dookhans actions would be to ignore the timeline of events. For example, several employees in Dookhans lab noOhio v. Roberts, 448 U.S. 56, 65-66 (1980). See supra Part III.C.2. See supra Part III.C.2. See Aitken, supra note 77 (Melendez-Diaz provided Dookhan with a mission and path, one paved with good intentions and ivory-tower legal theory, wholly divorced both from history and real-world practice.). 134. See Melendez-Diaz v. Massachusetts, 557 U.S. 305, 341 (2009) (Kennedy, J., dissenting). 135. See Aitken, supra note 77 (noting that Melendez-Diaz facilitated closer relationships between prosecutors and chemists; it also made chemists in demand and put them under pressure). 136. Id. 137. Annie Dookhans E-mail Correspondence, BOS. GLOBE (Dec. 21, 2012), http://www.bostonglobe.com/metro/2012/12/21/annie-dookhan-mailcorrespondence/uAosOdSiykp9soUmg9AOPJ/story.html. 138. See Roseliep, supra note 25.
130. 131. 132. 133.

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ticed potential issues with her work as early as 2008.139 Clearly if this were true, then Melendez-Diaz, which the Court announced in 2009, cannot be entirely to blame. Moreover, the contention that Melendez-Diaz put [Dookhan] in front of a new audience of prosecutors, judges and juries140 simply ignores the fact that chemists testified at trial before Melendez-Diaz as well as after it.141 It also ignores other potential incentives that might exist outside of the courtroom for Dookhan or any other chemist to take shortcuts or to lie: the desire for a promotion, the esteem of colleagues, or the desire to put purported drug dealers behind bars.142 B. Problems in the Lab As part of its own investigation, the Hinton Drug Labs Internal Inquiry noted several causes for the breaches. Importantly, it did not cite the increases brought on by Melendez-Diaz as a reason for the failure.143 Among the problems it noted were the inherent dangers of the laboratory setting:144 insufficient safeguards on access to the evidence room and safe;145 lack of camera surveillance; lack of discrepancy or adverse events log;146 lack of appropriate managerial oversight; lack of quality control (which itself was brought on by a lack of funding that began in 2007);147 and poor response to the 2011 breach of protocol with regard to the evidence safe.148 Indeed, a review of the facts of this case suggests that the Labs review is not far off from the truth. The former head of the Massachusetts DPH, who resigned amid the scandal, noted that, although he did not take responsibility for one rogue chemist, her actions suggested more far-reaching prob-

See BOSTON.COM, supra note 43 and accompanying text. See Aitken, supra note 77. Justice Kennedy himself notes as much. See Melendez-Diaz v. Massachusetts, 557 U.S. 305, 341 (2009) (Kennedy, J., dissenting). 142. See Hinton Laboratory, supra note 4. 143. It should be noted, however, that the report does mention that the decision hindered the overall volume of testing at the lab. Id. at 12 (emphasis added). This observation was relevant to the failure of the lab to take notice of the fact that Dookhans productivity did not decline as much as other chemists production. Id. 144. Id. at 10 (noting that testing staff, as in many laboratories, work independently and without supervision directly in the vicinity of the bench). 145. Id. This was apparent in Dookhans continual ability to access the evidence room. See supra Part II.B. 146. Hinton Laboratory, supra note 4, at 11 (this log would track how many tests were returned to a particular chemist so the lab may be able to track potential lapses in quality). 147. Id. at 3, 12. 148. Id.

139. 140. 141.

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lems at the Lab.149 The Labs own account for the origins of the scandal comport much more cleanly with the facts than an account that would blame Melendez-Diaz. For example, the Report notes that Quality Control funding was cut in 2007; this timeframe more closely aligns with the time in which Dookhans coworkers began to notice oddities with her output.150 Even if some would point to 2009, the year of Melendez-Diaz, as the critical turning point in the scandal, the facts suggest that other causes may be to blame. A supervisor at the Lab noted that, prior to 2009, there were supervisors in every room at the Lab; this was no longer the case as Dookhan ramped up her mission.151 Even subsequent events suggest the potential problems that arise within a lab. For example, in January, another chemist at a State Lab in Northampton was arrested for taking drug samples.152 Moreover, blaming MelendezDiaz ignores the fact that Annie Dookhan was not the first chemist to dry lab.153 Chemists have been accused of dry labbing; tampering with evidence; conducting improper or inaccurate tests; or completing incomplete, inaccurate, or forged paperwork countless times in the past, far before Annie Dookhan.154 C. One Rogue Chemist Indeed, this might be the most tempting story of all. How easy it would be to blame one rogue chemist: shes been fired, charged with numerous crimes, and could spend up to five years in jail.155 Nor is this idea without support. Annie Dookhan cuts quite a figure: she is accused of lying to bolster her credentials as far back as college.156 Additionally, Massachusetts Attorney General Martha Coakley noted that no investigation thus far has indicated that anyone else at the Lab was involved with any criminal activity.157 Although internal reports noted that there were failures of manageEllement & Lazar, supra note 7. See Attorney General Reports, supra note 1. Id. at 15 (interview with Chuck Salemi). See Laura Ly, Second Massachusetts State Chemist Accused of Tampering, CNN (Jan. 20, 2013), http://www.cnn.com/2013/01/20/justice/massachusetts-chemist-charged. 153. See generally Melnikoff v. Washington State Patrol, 142 Wash. App. 1018 (Wash. Ct. App. Jan. 2, 2008). 154. See generally United States v. Keplinger, 776 F.2d 678 (7th Cir. 1985). 155. Travis Anderson, Annie Dookhan May Get Five Years in Prison with Guilty Plea, BOSTON.COM (Oct. 24, 2013), http://www.bostonglobe.com/metro/2013/10/23/anniedookhan-could-serve-five-years-she-pleads-guilty-drug-labscandal/0UVysgOLspFnTR5BDy99QO/story.html. 156. Jacobs, supra note 2 (noting that Dookhan also lied about her masters degree, work on a Ph.D., graduating magna cum laude from high school, and her prior salaries). 157. Michael Kelly, Rogue Chemist Arrested After Admitting She Faked Drug Tests,
149. 150. 151. 152.

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ment, protocol, and oversight, those internal reports in no way indicate that any of the management team, even those who resigned, ever knowingly supported or participated in Dookhans malfeasance.158 The internal documents also indicate rather strongly that other chemists at the lab were not engaged in similar activity, since many of them took notice of Dookhans extraordinary output and were troubled by it.159 Nevertheless, the one rogue chemist explanation has two problems. First, one rogue chemist does not work in a vacuum. Without the systemic failures noted above,160 Annie Dookhan simply would not have been able to continue for as long as she did. Even if she had infected some cases, she could not have touched 34,000. Second, the one rogue chemist explanation is completely unhelpful in determining how to move forward to prevent similar events in the future. To the extent that the criminal justice system blames Annie Dookhan as one rogue chemist, it closes its eyes to other serious problems that need attention. V. WHAT NEXT? No matter the cause of the Dookhan scandalwhether it stemmed primarily from problems at the Hinton Lab, Annie Dookhan herself, or even the Melendez-Diaz decisionit is clear that several next steps are necessary on the part of defense counsel, policy-makers, and the courts. A. The Government When considering how the government should proceed, at least two perspectives must be considered: first, the courts who must deal with the influx of cases; second, the legislature and other policymakers. These policymakers must take steps not only to prevent similar incidents from happening in the future, but also must take steps to deal with the scandals aftermath. Indeed, the courts may be the most crucial because the scandal will have an impact on all levels of the judiciary. Trial courts and intermediate courts of appeal must find, or continue to find, ways to deal with the increased administrative burden of dealing with as many as 34,000 cases.161 As important, however, are state supreme courts and the U.S. Supreme Court, who must determine the extent to which the U.S. Supreme Courts current Confrontation Clause jurisprudence will have continued viBUS. INSIDER (Sept. 28, 2012, 4:44 PM), http://www.businessinsider.com/the-roguechemist-who-faked-thousands-of-drug-tests-has-been-arrested-2012-9 (Her actions totally turned the system on its head False.). 158. See supra Part II.D. 159. See supra Part II.D. 160. See supra Part II.D. 161. See Ellement & Lazar, supra note 7.

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To consider the courts is to consider two distinct systems. On the one hand, Annie Dookhan has presented immediate legal and logistical problems for trial courts. On the other hand, the legal questions at issue are of broad enough applicability that one must, of course, consider the courts of appeal. Thus, Annie Dookhan presents both short term and long term issues for the court. a. Short Term Because of the huge number of cases potentially tainted by Annie Dookhan, trial courts have been faced with a flood of litigation above its usual caseload.162 To deal with this issue, the Superior Court empowered Special Magistrates to deal with Dookhan cases.163 However, this effort did not go unchallenged; for example, The Commonwealth challenged whether Special Magistrates have the authority to stay the execution of a sentence while a Motion for a New Trial or a Motion to Withdraw a Guilty Plea is pending.164 The Commonwealth has questioned the authority of such courts, stating that a stay of the execution of a defendants sentence is permissible only at the judges discretion where an appeal is pending.165 The Supreme Judicial Court of Massachusetts (SJC) answers to these questions recognized the immense burden Dookhan has placed on the judicial system,166 yet nevertheless circumscribed the authority of Special Magistrates by holding that only Superior Court judges are empowered to stay execution of a sentence.167 Wisely, however, the SJC did at least ratify
162. See, e.g., Staff Writer, Special Court Session to Deal With Influx of Annie Dookhan Cases in Suffolk County, BOSTON.COM (Oct. 1, 2012, 4:14 PM), http://www.boston.com/metrodesk/2012/10/01/special-court-session-deal-with-influx-anniedookhan-cases-suffolk-county/mPaNAuLDhT7xkkqVXTirUM/story.html. 163. See id.; see also Commonwealth v. Charles, 992 N.E.2d 999, 1003-05 (Mass. 2013) (explaining how the Superior Court Order empowered Special Magistrates) ([T]o set bail, to assign counsel, to supervise pretrial conferences, and to mark up motions for hearing [and also to] conduct hearings on post conviction motions, to issue orders regarding discovery, and other matters, and to make proposed findings and rulings to the Regional Administrative Justice). 164. Charles, 992 N.E.2d at 1003. 165. Id. at 1003 (quoting MASS. R. CRIM. P. 31(a)). 166. Id. at 1011 (The Special magistrates . . . serve a critically important role in addressing the extraordinary demands placed on the Superior Court by the Hinton drug lab cases.). 167. Id. at 1010. The court reasoned that Special Magistrates position and limited powers did not confer the inherent authority necessary to stay execution of a sentence be-

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the Special Magistrates ability to issue proposed findings and orders, and empowered the Special Magistrates insofar as the Court imposed a low level of review on such findings.168 Nevertheless, given concerns of fundamental fairness and judicial economy, such a ruling may have been too conservative. Given the serious doubts regarding Dookhan evidence, the SJC should have imposed few roadblocks on the path to freeing potentially wronged defendants.169 This is especially true given the crucial importance of the evidence at issue to proving guilt or innocence in a drug case. Furthermore, a host of constitutional issues is potentially at play. For example, a conviction based on potentially tainted evidence clearly implicates the Due Process Clause;170 and to leave defendants in jail in light of such a massive systemic breakdown could potentially engender serious doubts about the fairness and efficiency of the criminal justice system.171 Nor is it likely that liberal treatment of Dookhan defendants would create huge issues for the criminal justice system. First, public safety may be promoted with the imposition of conditions on release;172 additionally, many cases involving Dookhan defendants, particularly those with more serious charges, will involve offenses ancillary to the drug charge.173 This
cause under the circumstances of these cases [where no appeal is pending], such a stay would require exceptional circumstances. Id. (citing Commonwealth v. McLaughlin, 729 N.E.2d 252 (Mass. 2000)). 168. Id. at 1011 (noting that the Superior Court should apply a clearly erroneous standard of review to the Special Magistrates proposed findings and rulings). 169. See id. at 1020 (The allegations of misconduct at the Hinton drug lab, and the implications of such misconduct on defendants who have been convicted of drug offenses, present exceptional circumstances . . . .); see also, United States v. Merlino, 592 F.3d 22, 32 (1st Cir. 2010) ([I]f the interests of justice so require, but only where there would be a miscarriage of justice.). Even though the remedy is sparingly used, it is difficult to argue that, where such crucial evidence has been so severely tainted, there would not be a substantial risk of a miscarriage of justice. 170. Cf. Commonwealth v. Tucceri, 589 N.E.2d 1216, 1223-24 (Mass. 1992) (noting that it is a violation of a defendants due process right to fail to turn over exculpatory evidence and order a new trial). 171. See, e.g., California v. Trombetta, 467 U.S. 479, 485 (1984) (Under the Due Process Clause of the Fourteenth Amendment, criminal prosecutions must comport with prevailing notions of fundamental fairness.). 172. For example, in the Charles case, the defendant was released on $5000 bail; required to reside at his brothers residence; abide by curfew from 10:00 AM to 6:00 PM; submit to GPS monitor; report weekly to probation; submit to drug and alcohol screening; be confined to his home except for emergency medical care; and consent to searches of his home, bedroom, and car. See Commonwealth v. Charles, 992 N.E.2d 999, 1008 n.11 (Mass. 2013). 173. The Charles case provides just one example: the drug charge implicating a Dookhan sample is in fact one of the less serious charges the defendant faced. Id. at 1006.

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will either make it less likely that a defendant will be released, even in light of Dookhan evidence, or will make it more likely that conditions of release, combined with policing, will make it substantially more likely that such defendants will be re-apprehended shortly after release.174 Given the importance of these issues, it may be folly to pursue these cases at all. Several arguments in favor of amnesty have already been made: not only will the scandal likely cost tens of millions of dollars and take years to sort through,175 but nearly every case touched by Annie Dookhan is unlikely to be successfully prosecuted because of the incredible doubts surrounding any case involving Dookhan evidence.176 Additionally, it would be foolish to devote substantial resources to revisit simple possession charges, which would be unlikely to result in a substantial sentence, even if they could be prosecuted.177 Perhaps most importantly, devoting massive resources to this effort will siphon millions of dollars and hours of labor away from a more important goal: promoting effective and fair law enforcement practices.178 Finally, amnesty will send the clearest possible message to law enforcement, to drug labs, and, most importantly, to the public, that such egregious action on the part of the states prosecutorial machinery simply will not be tolerated. This will not only serve as a powerful deterrent to would-be Annie Dookhans, but will also go far in repairing public confidence in a damaged system. b. Long Term In the long term, Annie Dookhan has taught us at least one thing: the Crawford rewriting of the Supreme Courts Confrontation Clause jurisprudence, and particularly its application in Melendez-Diaz, was wise. After all, under the old Roberts regime, drug certificates signed by Annie Dookhan would have been admitted into evidence without a constitutionally guaranteed right to cross examine her. Such evidence would have been reliable, and Dookhan would have been nothing more than an impartial chemist.179 At the very least, Melendez-Diaz forced the criminal justice
See MYFOXBOSTON, supra note 114. See James W. Dolan, Commentary: Amnesty the Less Painful Choice, 41 MASS. LAW. WKLY. 39 (Oct. 22, 2012). 176. See id. 177. See id. 178. See id. 179. See Bullcoming v. New Mexico, 131 S. Ct. 2705, 2726 (2011) (Kennedy, J., dissenting) ([These are] impartial lab reports . . . prepared by experienced technicians in laboratories that follow professional norms and scientific protocols.). Justice Kennedys faith in the professional norms and scientific protocols, however, relies implicitly on the technicians desire to follow those norms and protocols, and the labs ability to enforce them. See supra Parts III.C.2, IV.A (discussing how profoundly Justice Kennedys faith may be mis174. 175.

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system to admit the fact that Annie Dookhan, and the chemists like her, are not disinterested chemists, but are a cog in the prosecutorial machinery just as much as a detective or an ADA.180 Annie Dookhan teaches that defense counsel must have an adequate opportunity to subject these witnesses to cross examination in front of the jury.181 Thus, it also teaches that the Court should think twice before retreating too far from Crawford and Melendez-Diaz. The Court should not be paralyzed by fears of the administrative burdens imposed, at least apparently, by Melendez-Diaz. First, notwithstanding the Dookhan scandal, it is not entirely clear that Melendez-Diaz has necessarily imposed an overwhelming burden on states.182 In any event, as Justice Scalia points out, [t]he Confrontation Clause may make the prosecution of criminals more burdensome, but that is equally true of the right to trial by jury and the privilege against self-incrimination. The Confrontation Clauselike those other constitutional provisionsis binding, and we may not disregard it at our convenience.183 Indeed, at least one author has even argued that the Courts conception of which extrajudicial statements should be subject to the Confrontation Clause should even be expanded beyond the reach of what is merely testimonial.184 Thus, if the Courts intimations regarding reliability are a harbinger of future developments,185 then the Court will not only have retreated from a

placed). 180. The argument that a chemist is a dispassionate scientist who has no stake in guilt or innocence should, after all, apply equally to the ADA or to the Detective who, like the chemist, should be interested not in proving guilt, but rather in finding truth through the adversarial process. 181. And witnesses they are, Justice Kennedys argument to the contrary notwithstanding. See Melendez-Diaz v. Massachusetts, 557 U.S. 305, 330-31 (2009) (Kennedy, J., dissenting). 182. See Friedman, supra note 83, at 438 (noting that, in a study of Michigan cases, over the course of a year since the Melendez-Diaz decision, 46% live lab witnesses testified per trial, and 55% live lab witnesses testified per test presented; the rates were slightly higher for driving under the influence cases); see also Melendez-Diaz 557 U.S. at 325 (noting that the sky [had] not fall[en] in the many states which adopted the Melendez-Diaz rule as a matter of state law even prior to the decision). But see Martin F. Murphy and Marian T. Ryan, Melendez-Diaz, One Year Later, 54 BOS. BAR J. 24, 25-26 (2010) (noting a significant increase in the number of requests for analysts to testify in drug cases following Melendez-Diaz). 183. Melendez-Diaz, 557 U.S. at 325. 184. See Jeffrey Bellin, The Incredible Shrinking Confrontation Clause, 92 B.U. L. REV. 1865, 1916 (2012) (looking forward to the future of the Confrontation Clause, even arguing that the Courts current conception of the confrontation right should include some nontestimonial hearsay). 185. See supra Part IV.

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sensible interpretation of the Confrontation Clause, it also will strip away an important layer of protection against evidence that may only appear to be reliable. Of course, many witnesses appear to be reliable before they appear in the courtroom for cross-examination. 2. Policy Makers Clearly, some action should be taken by policymakers on a variety of levels to promote systemic efficiency, fairness, and confidence in the criminal justice system. Although it is not feasible to discuss possible steps in any substantial depth, it may at least be worth noting crucial areas for improvement and possible avenues to accomplish these goals. a. Systemic Efficiency Two principal ways to promote systemic efficiency readily present themselves and are being tried in some way in various jurisdictions. As Justice Scalia points out in Melendez-Diaz, states may pass notice and demand legislation, wherein the prosecution would be compelled to provide the defendant timely notice of its intention to admit certificates into evidence.186 Once the prosecution provides such notice, the defendant would be compelled to demand that the prosecution call the analyst at trial.187 Otherwise, the defendant will be deemed to have waived his or her confrontation right.188 Some might argue that such statutes impermissibly shift the burden from the prosecution to the defense.189 In response to this argument, Justice Scalia responds that notice and demand statutes merely prescribe a limit on the time a defendant has to assert his or her confrontation right.190 Massachusetts, in the wake of the Dookhan scandal, demonstrates another way to promote systemic efficiency in light of the administrative demands of Melendez-Diaz.191 Dookhan has single-handedly wrought an administrative burden far surpassing whatever might be caused by MelendezDiaz. In response, the state formed special sessions of the Superior Court in

Melendez-Diaz, 557 U.S. at 326-27. Id. Id.; see also Anne Hampton Andrews, The Melendez-Diaz Dilemma: Virginias Response, a Model to Follow, 19 WM. & MARY BILL RTS. J. 419, 420 (2010-2011). 189. See, e.g., Melendez-Diaz, 557 U.S. at 356 (2009) (Kennedy, J., dissenting) (noting that such burden-shifting statutes reduce the confrontation right). 190. Id. at 327. Although this argument is persuasive, one might question: since the right to cross examine witnesses is so crucial, should the right be waivable at all? 191. See generally Aitken, supra note 77 (describing the impact of Melendez-Diaz on chemists administrative duties and arguing that the Melendez-Diaz decision puts Dookhans actions in context).

186. 187. 188.

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order to deal with the cases.192 Such a practice could be expanded in Massachusetts and in other states in order to compress the time in which analyst-witnesses would have to testify. This would prevent witnesses from having to travel on multiple days of the week, and would presumably reduce the amount of time spent waiting around the courthouse to testify. b. Fairness and Confidence in the Criminal Justice System Indeed, it is impossible to separate fairness and confidence in the criminal justice system because the former begets the latter. The Dookhan scandal has created crises of fairness in every direction. Innocent people have potentially been convicted, incarcerated, and even deported on the basis of tainted evidence. On the other hand, defendants justifiably guilty of serious crimes will also likely have cases dismissed. Neither result reflects the judicial systems ability to reach a fair and just result for defendants and society alike. Thus, the primary way to promote fairness in the system is to prevent such calamities from happening in the future. Many beneficial steps have already been taken: the Commonwealth is taking a hard look not only at Dookhan cases, but also at the drug lab that spawned the scandal.193 However, in light of the failings evident at the Hinton Lab such as lack of oversight, insufficient standards, and inadequate funding,194 it is imperative that the state allocate sufficient funds in order to appropriately staff state labs with sufficient supervisors and quality control personnel in order to ensure that incompetence and malfeasance do not slip through the cracks. Additionally, stricter uniform standards must be promulgated and regularly updated in order to ensure that Justice Kennedys faith in scientific protocol195 is justified. B. Defense Counsel The defense bar has responded quickly and admirably to the Dookhan scandal in an effort not only to identify potential defendants who may be affected by the scandal, but also to mount an effective defense in cases affected.196 Rather than attempt to provide guidance to defense counsel,

192. 193. 194. 195.

Commonwealth v. Charles, 998 N.E.2d 999, 1003-06 (Mass. 2013). See supra note 7 and accompanying text. See supra Part IV.B. Bullcoming v. New Mexico, 131 S. Ct. 2705, 2726 (2011) (Kennedy J., dissent-

ing).
196. See generally MBA Drug Lab Crisis Resource Center, MASSBAR.ORG, available at http://www.massbar.org/legislative-activities/drug-lab-crisis-resource-center (last visited Mar. 14, 2013) (providing a massive array of materials ranging from discovery materials relating to the drug lab crisis, trial court communications, a training PowerPoint geared to-

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which has been capably done elsewhere,197 this section will merely highlight the broad range of potential problem areas for defendants and defense counsel. Beyond convictionpast convictions by jury trial or plea bargain, as well as potential future convictionsthe scandal affects probation violations where either the underlying conviction is predicated on, or is potentially impacted by Dookhan evidence. Additionally, and particularly in light of the Supreme Courts holding in Padilla v. Kentucky,198 it is crucial that defense counsel pay particular attention to the potential immigration consequences of either a conviction or a guilty plea.199 These consequences are complicated because, even in cases where a defendant has either been convicted or pled guilty in light of Dookhan evidence, it may nevertheless be unwise to seek a stay of sentence or to be released on bail due to the possibility that the defendant might subsequently be taken into custody by immigration officials. This would make it much more difficult to resolve the criminal matter at issue.200 Of course, the other major impact attorneys may want to consider is the broader impact of the scandal on the reliability or veracity of drug testing generally in the eyes of juries, which clearly would have much broader application than simply those cases touched by Annie Dookhan directly.201 Additionally, however, it is worth noting that Annie Dookhans malfeasance was not discovered as a result of a particularly probing crossexamination or defense counsels keen investigation, but rather as a result of internal investigation.202 Although some may view this as an argument against constitutionalizing cross-examination of such witnesses,203 instead
ward the Dookhan scandal, and updated news links). 197. See, e.g., id. 198. See Padilla v. Kentucky, 559 U.S. 356, 373-75 (2010) (holding it would be constitutionally ineffective assistance of counsel to neglect to advise a defendant regarding potential immigration consequences of a guilty plea). 199. See Anthony J. Benedetti and Wendy S. Wayne, Dookhan/DPH Hinton Lab Drug Cases and Immigration Consequences, MASSBAR.ORG (Oct. 12, 2012), available at http://www.massbar.org/media/1298535/mba%20dookan%20training%20materials.pdf ([P]otentially tainted drug convictions likely have resulted in numerous deportations of noncitizens. Moreover, an unknown number of noncitizens are currently facing immigration detainers, in removal proceedings, or in immigration detention with final orders of removal based on Dookhan/Hinton lab drug convictions.). The document also noted that [d]rug convictions are the most common crimes that cause noncitizens to be deported. Id. 200. See id.; Elikann, supra note 8. 201. See id. 202. See supra Part IV.B. 203. The argument might proceed: since cross-examination isnt actually effective in uncovering chemist malfeasance or incompetence; then Melendez-Diaz places a burden on states without a countervailing benefit to the defendant. Uncovering malfeasance or incompetence, of course, isnt really the point of cross-examination. Rather, the cross-examination

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it may be a reminder that defense counsel must press every potential area of concern; not only with regard to individual tests and lab processes, but also to the personnel files of certifying chemists, and potential retests of samples, if the circumstances warrant.204 In the end, justice demands that any defendant potentially touched by Annie Dookhan or the Hinton State Lab get a second look.205 VI. CONCLUSION Annie Dookhan has raised many questions. She has put at stake countless criminal prosecutions; she has created doubt in the minds of defendants, attorneys, judges, and juries about the reliability and veracity of drug testing, not only in the Commonwealth, but potentially nationwide. She has given many pause when considering what it means to confront those who bear testimony against them in a court of law. At least one thing should not be questioned: that Melendez-Diaz is not the enemy. The Annie Dookhan scandal is not a problematic outcome of Melendez-Diaz, it is the reason why Melendez-Diaz was decided as it was, and the reason why the Founding Fathers provided a constitutionally guaranteed right to confront witnesses. Melendez-Diaz and the Crawford line of cases is a sensible rewriting of the Supreme Courts Confrontation Clause jurisprudence. Annie Dookhan provides the proof. Under Roberts, Dookhans drug certificates would have come in, most likely without objection and without crossexamination, because they appeared to be statements from an objective witness, and because they appeared to be reliable. Annie Dookhan has shown us that a chemist is not necessarily an objective scientist recording and reporting results from an ivory tower; she has shown us that a chemist is a states witness just as much as Lord Cobham in Sir Walter Raleighs trial; and she has shown us that what appears to be reliable is always worth a second look on the witness stand.

should (at least) cast doubt on the validity or reliability of the chemists assertions. 204. See Mass. Bar Assn, Training Related to Dookhan and Other DPH Cases 11-17, MASSBAR.ORG, available at http://www.massbar.org/media/1298535/mba%20dookan%20training%20materials.pdf (last visited Mar. 29, 2013) (providing a sample discovery motion which requests more than fifty items, relevant not only to each individual case, but also to lab practices and personnel generally). 205. See Allen & Estes, supra note 27 (We already think that any defense attorney who handled any case in that lab involving evidence from any chemist since 2003 has grounds to file for post conviction release.).