Monday, December 07, 2015

The challenge of notifying defendants in large-scale forensic-error cases

The Annie Dookhan case in Massachusetts is an even bigger mess than was the Jonathan Salvador debacle in Texas. If you don't remember Ms. Dookhan, she was the ultimate cop-in-a-lab-coat, to use Sandra Guerra Thompson's phrase. Dookhan worked on many more cases than Salvador and her malfeasance allegedly involved explicitly manufacturing evidence and falsifying documents for the purposes of framing people.

By contrast, Jonathan Salvador apparently copied results from old MDMA evidence because he wasn't technically competent to process the pills and feared his supervisors might fire him for not understanding the basic chemistry underlying his job five years in. So the instances of faked results were less widespread, less malicious in intent, and less likely to occur in cases where the true results were exculpatory.

Nonetheless, when one reads the Boston Globe saying, "It's time to clean up Annie Dookhan's drug lab mess," some of those same criticisms apply to Texas' handling of L'Affaire de Salvador. That article opened:
Imagine, for a moment, you are one of the thousands of defendants whose cases were sullied by Annie Dookhan’s drug-lab skulduggery.

Shouldn’t someone let you know?

But who? Should it be the prosecutors who made cases using evidence her actions tainted? Or, less plausibly, the overburdened defense attorneys whose clients were harmed by her?

Incredibly, more than four years after Dookhan’s crimes were first uncovered, this simple question of justice remains unresolved. Thousands of those whose lives were affected haven’t been notified of their rights, including the possibility of a new trial. Many still have no idea they are Dookhan defendants.
That's true in Texas, too. Most prosecutors did eventually send notices to either last known addresses of defendants or to defense attorneys. But defense attorneys who were appointed to take a case won't see some potential post-conviction claim as falling within their obligations. And, except for defendants still in prison, there's little certainty and much doubt regarding whether most defendants were actually notified. In fact, most folks are pretty sure that many were not.

That's important because the Texas Court of Criminal Appeals has said defendants in the Salvador case are entitled to relief if evidence in their cases had been destroyed and could not be retested. Best estimates given to the Forensic Science Commission were that that was the situation in between a quarter and half of the nearly 5,000 cases Salvador worked on in a DPS crime lab in Houston. But we've not seen remotely that many writs coming through the CCA. Grits thinks that's largely because of breakdowns in the notification process, with a secondary cause of defendants who were notified having no resources for an attorney. (In most cases, there's no right to counsel for habeas corpus writs.)

So, while prosecutors have done more in Texas than in Massachusetts, by no means does Texas have this figured out. Unlike in Massachusetts, Texas courts and prosecutors have granted that notification in these cases is necessary. But nobody has yet figured out how to perform that function effectively.

Similar issues inevitably will arise in the hair microscopy and DNA mixture reviews: How do you effectively notify defendants beyond a pro forma, sure-to-be-returned letter to the last known address? Perhaps there are big data solutions to finding folks, or other methods which haven't been tried yet. But notification never received is hardly superior to no notification at all.

See prior Grits coverage of the Jonathan Salvador case:


Tom said...

Some years ago, I was appointed to a no-drug drug conviction. The HPD lab took about six years to determine that there weren't any controlled substances in the sample. By that time, the client had 1) done his time; 2) gotten out of prison; 3) picked up another felony; 4) got out of prison; and 5) dropped out of sight. I never did find him.
So, the poor guy doesn't know that he has been cleared of his first felony. And, he probably would have had a shot at deferred on his second felony but for the first.
These things are a mess.

Thomas R. Griffith said...

Tom, send me his info and I'll assist you in locating him. I'll let you be the one that breaks the Good & Bad news.

Rodsmith said...

I think if the have no clean untainted evidence. The case should legally and automatically dropped and treated as a wrongful conviction with the associated payout from the state for any time served. Only hitting the state and the voters in the wallet will get this fixed. Anyone not notified should be considered an illegal imprisonment with any resulting harm or death occurring to the imprisonment their own fault