Rigged

Chapter One: The Melendez-Diaz Case
November 10th, 2008 was a big day in the life of Massachusetts Attorney General Martha Coakley. As she walked up the steps to the United States Supreme Court she must have marveled at how far she had come to reach this point in her career. After starting her career as an Assistant District Attorney in Lowell in 1986 she was asked a short year later to join the Justice Department's Boston Organized Crime Strike Force as a Special Attorney. I have no idea what distinguishes a "Special" Attorney from say an "Assistant District Attorney" but clearly it was a step up because in 1989 Coakley returned to the DA's office as Chief of the Child Abuse Prosecution Unit.
Coakley won notoriety by prosecuting the high-profile case of English au pair Louise Woodward, whom she convicted of shaking to death the baby under her care to death in 1997. Martha tried to capitalize on her fame from the Woodward case and ran for State Representative against future Boston Mayor Marty Walsh and lost. This political loss was the first but not the last for Coakley.
She resigned her position in the DA's office after the defeat to run for Middlesex County District Attorney, this time winning. In October of 1999, Coakley was involved in settling the state's most notorious non- Ccatholic priest related sex scandal, the Fells Acres Day Care preschool triaail. After years of fighting to uphold convictions based solely on the testimony of five and six-year-old children1, Coakley struck a deal allowing Cheryl Amirault LeFave out of jail.
This was a humiliation for the Massachusetts District Attorney's office, as they were found to have used extreme tactics to coerce children to admit to abuse that likely did not occur. Nearly ten years later, Coakley had a chance to make up for that humiliation by arguing her first case in front of the Supreme Court of the United States. The case was Melendez-Diaz v. Massachusetts.

Melendez-Diaz
In 2001, the Boston Police Department received information from an informant regarding suspicious activity at a K-Mart. The informant said that an employee repeatedly received phone calls at work, would periodically leave the store, get into a blue sedan, then return a few minutes later. Something was up.

The police came and searched the employee, then found four clear plastic bags containing a white powder substance, which was alleged to be cocaine. Police searched the passengers of the blue sedan, including one Luis Melendez-Diaz, and took them all to police headquarters. During the trip, police observed the arrestees fidgeting in the back seat. When they got to the police station, police officers searched the interior of the car. They found nineteen plastic bags containing a white powder. Police then submitted all the bags for chemical testing. Melendez-Diaz was charged with distribution and drug trafficking of cocaine in an amount between 14 and 28 grams under the Massachusetts Controlled Substances Act, a felony punishable by a mandatory minimum sentence of three years imprisonment.

At the trial, state prosecutors presented the drugs that the police found in the back of their the defendant's car, along with three "certificates of analysis" (C of A's), which are affidavits that showed what the state claimed to be the official testing results. The C of A's documented the weight of the seized bags and claimed after the testing was performed that the substance found was cocaine. These documents were sworn before a notary public.

Melendez-Diaz's defense attorney objected to admission of the C of A as evidence, stating that the Supreme Court decision in Crawford v. Washington required the forensic analyst to testify in person. The objection was overruled by the trial judge and the C of A's were admitted into evidence. This crucial evidence was asserted as fact, without the defense being able to question how the chemist who tested the powdered substance arrived at his or her conclusions.


Predictably, a jury found Melendez-Diaz guilty. He appealed, arguing that the admission of the drug analysis violated his Sixth Amendment right to be confronted by witnesses who testified against him. The Massachusetts Appeals Court rejected the claim, because judges in prior state cases held that admission of these affidavits did not violate the Sixth Amendment of the U.S. and the state constitution's' "Confrontation Clause."

That clause reads: "Iin all criminal prosecutions, the accused shall enjoy the right . . . ...to be confronted with the witnesses against him." The Supreme Judicial Court of Massachusetts denied review of the case so the Supreme Court of the United States stepped in. The confrontation clause is where the Massachusetts DA's office ran into problems with the Fells Acres Day Care case because the DAs told the children accusing the Fells Acres owners to turn their backs on them in court. After having to dismiss the charges in those cases, Coakley was determined not to allow the Confrontation clause to sink her biggest opportunity yet.

As previously stated, the case was argued on November 10, 2008 before the Supreme Court. Coakley tried to argue that expert drug analysts are not subject to confrontation because they are not "accusatory" witnesses. According to Coakley and the prosecution team, the test results spoke for themselves. Additionally, Coakley said that requiring lab analysts to testify on their reports would place a huge burden on the courts, the labs, and the technicians themselves. Drug prosecutions "would essentially grind to a halt," she told the court. The court, much to the dismay of Martha, was not having it.
Chief Justice John Roberts took Coakley to task over her assertion that the data generated in the drug testing process did not require interpretation:
"I'm looking at footnote 10 in your brief on page 30. And you concede that some interpretation of the machine-generated data ordinarily is required. Now why isn't that a suggestion that there is some leeway and subjective interpretation, and you might have different analysts coming out differently and so you need to get the fellow there and ask him well, how often do one of your fellow analysts disagree with your conclusion?" 2
Before Coakley could fully respond, Justice Kennedy chimed in to try to help her make her case:
"And to say that wasn't raised in the case, this is precisely the question we are going to have to decide if you're going to prevail. I don't think it helps to say it wasn't raised in the case. We are raising it."
Coakley then responded with the following statement:
"In fact this is one of the straightforward objective tests that says you put this material into the machine, and the Solicitor General also deals with this. The 100 percent accuracy by and large from that result says this is cocaine; this is heroin, this is...3"
She was interrupted by Chief Justice Roberts there but given what was later discovered about how Massachusetts labs were actually performing the tests being described above by AG Coakley, it's a good thing she was forced to stop telling the court such blataent inaccuracies about the "100 percent accuracy by and large" of the drug tests. Justice Kennedy prophetically said as much in court without ever even seeing how the Massachusetts Labs operated:
"You start talking about reliability and their (the defense team's) amicus brief is filled with horror stories of how police labs or other labs have really been way off base and moreover really wrong. And you say, oh, distinguish between a police lab and University of Massachusetts? Try going down that road of which one is reliable, which one isn't reliable. How do we know?"4
This led to the following exchange:

5 https://www.supremecourt.gov/oral_arguments/argument_transcripts/2008/07-591.pdf... Pg 40 - 42
To summarize that sassy confrontation, Martha Coakley was asserting that the testing by the chemists at the Massachusetts drug labs did not need to go to court to defend their testing because it is a given that their testing was done properly and was accurate. The only people who were accountable from the state were the police who witnessed the alleged criminal behavior.
The assertion that chemist testing was beyond reproach-- let alone consistently accurate-- was, as will be shown in the ensuing chapters, patently absurd. It showed that Coakley was either completely out of touch with how the labs testing the state's drug evidence operated or was willing to lie to prevent chemists from testifying. Either way, as the state's own inspector general would clearly demonstrate in their report on the drug labs from 2014, no one was getting a fair traial based on the testing that was being performed in the William H. Hinton and Amherst drug labs in Massachusetts.
A big part of Martha's argument as to why chemists in Massachusetts shouldn't have to go to court was that doing so would bring the chemists' work, and the criminal justice system itself, "to a grinding halt". To her point, in 2009 there was a major backlog of drug samples at the Hinton lab and management was scrambling to find a way to get all the samples tested, let alone having the chemists drive all around the state to appear in court to testify in criminal traials. Justice Kennedy, however, was not having any of that argument:
Justice Kennedy: I do wish you would comment on the argument that the State of California - a huge state with many, many drug prosecutions - seems to get along all right under the rule that the Petitioner proposes.
Ms. Coakley: I did join the amicus brief, Your Honor. I believe and -though I think it's too early to tell because I, certainly from my own experience, know that the number of cases that go to traial is not an indication of what the work is that is involved, and I know that in Massachusetts it would -
Justice Kennedy: If the state of California and other populous States have for, I take it, some number of years been able to function quite effectively under the rule that the Petitioner proposes, it seems to me that's something that you have to address.
Ms. Coakley: And I address that, Your Honor, by saying that for Massachusetts it would be an undue burden with very little benefit to the defendant.
Justice Kennedy: Why would it be undue for California and not for - are you accepting the fact that in California it's a workable rule and it's caused no problems?
Ms. Coakley: I - I can't disagree with that, Your Honor. I don't have enough information about the way California works or doesn't work. I know that as a practical matter -
Justice Stevens: Well, it seems to me tit's a very important point.
Ms. Coakley: Well, as a practical matter in Massachusetts, it would mean that district court misdemeanor drug prosecutions would essentially grind to a halt, and the value to the defendant - and this Court has looked at in Indi and in other situations where there does not seem to be the real issue involved with Confrontation Clause.
Justice Ginsburg: Then you're predicting that grind to a halt, but there are going to be a large number that wash out because they are plea bargained. So they won't get into the picture at all. There will probably be a goodly number in which defense counsel will stipulate that the drug quantity - the drug type was such and such and quantity such and such. So you don't know in how many cases the defendant would take advantage of this confrontation right?
Ms. Coakley: No, and they often will not stipulate, Your Honor, until the day of trial when they realize that the chemist is there. That's from my own experience and that's a commonsensical rule. The question is - 6
Justice Scalia: Don't these people have to appear before the same judge again and again? The point made these are repeat attorneys, and I don't think you make friends and influence people among judges by insisting upon testimony in criminal cases where it is obviously not needed.
Ms. Coakeley: Well, two points, Your Honor: In Massachusetts, we do have a circuit court and a superior court so judges move around. And the second things is that - - --my experience is that defendants, whether appointed or otherwise, are extremely vigorous in protecting their rights, and if I were defense counsel and I had a strategic advantage, I would insist on it.
Justice Souter: Do you see any reason - -
Chief Justice Roberts: I think California did not join the amicus brief.
Ms. Coakley: Then I misspoke.
The day just kept getting worse for Martha and her case. She was called out by the Chief Justice of the United States in open court for "misspeaking" or "lying" about California being part of her Amicus Brief, essentially torpedoing her argument that the Massachusetts court system would descend into chaos if chemists were forced to testify in court because ; in fact California has had no problem doing just that. Predictably, the Supreme Court held that the underlying constitutional argument "finds no support in the Sixth Amendment's test or in this Court's case law," and Melendez-Diaz's conviction was reversed, dealing another blow to the Massachusetts District Attorney's office.
Coakley said on the national stage that science is inherently objective. So how could a scientist's report possibly be biased? Drug lab reports are mechanical, after all. To Coakley, the Confrontation Clause only bans the government using out-of-court, unsubstantiated, and subjective statements about a defendant's past criminal conduct, known as "hearsay." She insinuated that drug lab chemist testimony would be a waste of the government's time.
But sometimes scientists lie. This is not new, nor is it new to American courts. For instance, most of the high-profile exoneration stories that make major news involve the fist-clenching, tear-filled homicide case, where someone is convicted and sent to death row, despite compelling evidence of that person's innocence.7

When it came to the drug war in Massachusetts, chemists often made up the results of tests entirely. Email records I obtained through countless public records requests to various officials in the state over the last five years show how scientists, like anyone else, can be affected in the quality of their work by the quality of their office culture--of lack thereof.

HERE'S A WHOLE NEW SECTION BEGINNING INTRODUCING DOOKHAN. DO WE WANT TO GO THERE ALREADY?

the office culture is problem: local prosecutors calling drug defendants "scumbags," "pieces of garbage" who need to be taken off the street. If the results of drug tests came back negative, that means an almost-certain end of the case, but the emails make it clear that's not Annie Dookhan wanted. She thought of herself as their secret weapon instead.

As Plymouth County ADA Frank Ribeiro would later confidently exclaim to Dookhan, after she personally wrote that she wanted both defendants in her trial to plea or stipulate to their charges: "If defense counsel know the chemists are available, 9 out of 10 times it will be a plea." Coakley asserting that these chemists "make no accusation at all" is not only legally troubling but a bad joke.

Coakley's brazenness in taking this case to the Supreme Court of the United States speaks to how extreme the Massachusetts criminal justice system was and still is to this day. Perhaps it felt personal to her, as a prosecutor-at-heart. Before becoming the Attorney General of Massachusetts, which handles both criminal and non-criminal legal matters, she was the chief prosecutor of the most populous county in the state as the Middlesex County District Attorney. Perhaps she was afraid that people would start digging into her old drug cases back home. Predictably, no blame fell on prosecutors in her version of events, though she managed to screw defense lawyers across the state by blaming them for not arguing in court about the validity of the tests. Coakley had to have known that if drug certification tests were ruled to be unquestionable fact, that was an ongoing win fora huge advantage for the prosecution. All they then had to prove was who had the drugs, not if whether the drugs were drugs and not, say, a cashew.

The reality is much more compelling than Coakley's whitewashing of it. Two years after making the arguments above to the United States Supreme Court, Norfolk County Assistant District Attorney Debra Payton sent the following email to chemists Annie Dookhan, Daniel Renczkowski and Della Saunders:

This jack @ss [ed. note: the defendant] has until March 28th 2011 to change his plea. Otherwise, he can go meet Isa Fernandez in prison following our last guilty verdict. Detective Billy Ward was out of work injured because of this incident for over a month...so I have a personal vendetta against him!

So not only were line prosecutors ensuring that chemists were biased against the defendant whose evidence was being tested, they were here being told that the accused hurt a cop and this ADA had a "personal vendetta" against him. ADA Payton also credited these same two chemists with the conviction of Isa Fernandez. This is in complete contrast what Martha Coakley was asserting to the Supreme Court: a fantasy of independent, machine-like chemists robotically testing evidence. Not a good look.

Around this same time, on October 13, 2009, Dookhan herself sent the following email to fellow chemists Lisa Glazer, Dan Renczkowski and Peter Piro:

Above for 10-13-09, the def. has pled. Hooray!!!!

A few months later, Dookhan emailed her favorite line prosecutor, Norfolk County Assistant District Attorney George Papachristos. Here is a teaser of their neutral and scientific relationship:

Hey George,
[Quincy Police Department Officer] Brian Coen's nemesis. Once we receive the summons, I will give Della the entire case folder.
I have attached a couple of cases that have upheld the use of representative sampling. They have worked on a couple of my federal case(s) and another case in Bristol County, def (defendant) got 12 years.
All is well. Thanks for asking. I hope you are well and looking forward to the Holidays. Happy Holidays and Prosperous New Year.
-Annie

This is another example of a neutral chemist, giving an ADA some very helpful tips on what kind of testimony "worked" to get a defendant 12 year in prison. The personal nature of the email alone is unsettling in contrast to what AG Coakley fed the Supreme Court. Coakley also claimed, "There was no dialogue at all - formal, informal, or voluntary - between the police and the analysts." While she was speaking about the Melendez-Diaz case specifically, the clear assertion she was making before the Supreme Court was that chemists and police just don't talk to each other.

Just read the following exchange between Dookhan and Norfolk County ADA George Papachristos from November 05, 2009:

Hey,
Nice!!! Contrats!! Hopefully, he will stipulate to everything. At least the drugs, the weight and structural ID should not be and [sp] issue, thanks to Dr. Benjamin. I was actually supposed to be at Norfolk Sup today for a case with Carolyn Hely, but it pled (YEAH!!!). Good Luck. If you need anything, let me know.
Thanks,
Annie

ADA Papachristos' response:

Hey!!
Thanks for getting back to me! That's great about Carolyn's case; she's a really good ADA. Wow, Benjamn is showing up all over the place, huh? I don't like that guy. I have a feeling Annie, that on this case, they are not going to stipulate to anything! ?
The guy doesn't want to do any time and has already defaulted twice on this case..... We'll see, I will let you know!
Thanks for your help Annie!
GP

Does that sound like a couple of people who don't talk to each other? People who do not discuss cases, let alone guilt or innocence?

Sure, people who work on related projects will encounter each other at work. But these are law enforcement matters, and not of the Law & Order TV variety.

If one is starting to think these are outliers from the state prosecution system, this is Dookhan and Assistant U.S. Attorney John Wortmann chatting it up on June 10, 2009, right before the Melendez-Diaz decision.

Wortmann:
Annie-thanks. Sorry to be so bothersome lately. But the summer approaches and we need to take some of these guys [editor's note: defendants] off.

Dookhan's reply:
No problem. I have the same attitude...get them off the streets.
-Annie

Right there, it is just like the Massachusetts Attorney General said--except its actually the opposite.

Fifteen days after that last email was sent, the Supreme Court decided 5-4 in favor of Luis Melendez-Diaz. The Court held that a state forensic analyst's lab report, which is later used in a criminal prosecution, is subject to the demands of the Sixth Amendment's Confrontation Clause.

Justice Antonin Scalia, the favorite dead person of the conservative right, wrote the opinion for the majority of the Court. His opinion notes that lab reports constitute affidavits that fall within the "core class of testimonial statements" covered by the Confrontation Clause. Therefore, when Mr. Melendez-Diaz was not allowed to confront the people who created the lab reports during his trial, his Sixth Amendment right was violated. Even the silent justice, Justice Clarence Thomas, had a concurring opinion in the case!

By the time of this ruling, self-proclaimed hero Annie Dookhan was performing around six thousand tests per year. The ruling should have meant six-thousand court appearances a year for Li'l Annie, a virtual impossibility. Dookhan took a lot of pride in being the "superwoman" of the Hinton Lab, so this decision was definitely going to screw with her testing numbers. There was no way Dookhan and the chemists at the Hinton Lab could keep those numbers going while having to go to court. Or could they?

After the decision came down, no one at the Hinton Lab or in any of the state's DA offices seemed to know what to do. One thing was for sure, though: the Massachusetts DAs were going to at least proclaim to respect the law of the land.

Just take a look at this email from Norfolk County ADA George Papachristos from the day after the Melendez-Diaz came down, to "neutral chemist" Annie Dookhan:

George:
Now we have to figure out why the USSC (United States Supreme Court) wants drug dealers walking free in this country.

Everyone is going to have a frustrating day on the job sometimes, but thinking that Justices Scalia and Thomas are the patron saints of drug dealers is a bit too far. And this was just one guy, one who was clearly a bit extreme. (After the Dookhan scandal broke, George was the only assistant prosecutor fired as a result.)

Luckily, we get to check in with George's co-worker, Norfolk County ADA Jonathan Rutley, and see what he to say to "independent" chemist Annie Dookhan on August 10th 2009.

Good Morning,
We are in a new world now with the requirements that the Supreme Court has handed down.
If you could email me a copy of your curriculum vita[e] in order to work through my questions...do you have any standard predicate questions that you prefer to be asked? Any tips for me?
Shockingly, this is an assistant prosecutor asking lab chemist Annie Dookhan how to question her on the stand to best help his cases. It also seems to be contrary to what AG Coakley told the highest court of the land.

The drug lab quickly began implementing new strategies to undermine Melendez-Diaz. Samples were assigned to chemists based on geographic location to shorten travel time for chemists going to testify in court. The lab stopped performing analyses on undercover and "probable cause" buys. Hinton Lab Evidence Officer Elisabeth O'Brien opened constant lines of communication with the District Attorney's offices, in order to identify cases that had been resolved before trial, so the samples did not need to be tested. Some samples got transferred to the Amherst and Massachusetts State Police labs for analysis.

In the wake of all this, the Massachusetts Department of Public Health's PH Lab Director, Julie Nassif, repeatedly advocated for additional money to procure additional resources for the lab in discussions with both the DPH's Director of the Bureau of Lab Ssciences, Linda Han, and DPH Commissioner John Auerbach, as well as and at meetings of the Forensic Science Advisory Board.

Auerbach was aware of the need for additional resources in the lab from his meetings with Han, during which they frequently discussed the backlog and turn-around time for drug analysis. These conversations were paving the way for DPH management's need to overlook everything Annie did to "perform" an obscene amount of tests.

During the 2008 U.S. economic recession, budget cuts got approved outside of the normal budget process by then-Governor Deval Patrick. Auerbach's response to the growing backlog and turn-around time at the lab was to advocate for the lab's transfer to the Executive Office of Public Safety and Security (EOPSS), as it never has its budget is cut under any circumstances. This is the police's crime lab budget. Executive Office of Health and Human Services Secretary JudyAnn Bigby joined Auerbach in supporting the lab's transfer. Both Bigby and Auerbach said it was the right move, given DPH's inability to provide resources comparable to those at EOPSS. They also agreed that drug testing for forensic purposes was not a public health function.

The only problem with that is they were allowing the wolf into the hen house. There would no longer be any nominal independence in drug testing. The cops would make the arrests for drugs, test the drugs themselves, then ask prosecutors to hand down charges themselves. This massive conflict of interest was never considered a problem by anyone in the state.

While situated under DPH, the lab remained underfunded, understaffed and unable to adequately test drug samples. Why the state didn't just adequately fund the lab, or transfer funds from the EOPSS to the Hinton lab, remains unclear.


                   1https://web.archive.org/web/20030816170315/http://www.opinionjournal.com/extra/?...
                   2https://www.supremecourt.gov/oral_arguments/argument_transcripts/2008/07-591.pdf...          page 37
                   3https://www.supremecourt.gov/oral_arguments/argument_transcripts/2008/07-591.pdf...          page 38
                   4https://www.supremecourt.gov/oral_arguments/argument_transcripts/2008/07-591.pdf...          page 39 and 40
                   5          
                   6https://www.supremecourt.gov/oral_arguments/argument_transcripts/2008/07-591.pdf...                    
         7Page. 15 (Justice Breyer on the bias of the UMass drug          labs).
         https://www.supremecourt.gov/oral_arguments/argument_transcripts/2008/07-591.pdf