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:

• Grievance: DA's failure to notify defendants in Salvador mess kept inmate wrongly incarcerated for two years
• Jonathan Salvador fallout: Two cases bookend range of options
• Should Texas create a statewide public defender for forensic writs?
• Salvaging Salvador: Part Two
• Salvaging Salvador: CCA reverses course in Salvador mess
• 'White paper' suggests systemic reforms to react to mass forensic errors
• CCA considers volte-face in DPS crime lab fiasco
• Judicial lawmaking: CCA to hold oral arguments in Salvador case without facts or questions of law
• TXCCA will overturn Salvador cases no matter what other evidence exists
• Nuther overturned case based on Jonathon Salvador crime lab fiasco
• Texas praised for response to DPS-Houston crime lab scandal, compared to Yankees
• On Defining Drylabbing: More from forensic commission meeting on DPS crime lab debacle
• 17 and counting: Texas Tribune on DPS crime lab scandal
• CCA habeas roundup: Four more free from DPS crime lab debacle, an actual innocence writ on pot possession, and death sentence overturned
• Fort Bend DA failed to notify defendants of misconduct by DPS lab worker
• The Weakest Link: TDCAA agrees nearly 5,000 cases 'may be jeopardized' by DPS lab worker misconduct
• Thousands of drug cases may be overturned because DPS lab worker allegedly faked results
• DPS crime lab SNAFU may overturn thousands of years worth of drug sentences
• Convictions overturned based on DPS lab worker misconduct, hundreds more likely to be challenged
• Bad apple at DPS crime lab could spoil barrel of convictions
• DPS analyst who faked results worked on 4,944 drug cases
• Drug analyst at DPS crime lab issued erroneous reports