OS+ Spotlight Interview: Boston Defense Attorney Discusses Crime Lab Scandal

Aviva Jeruchim Boston Defense Attorney

Aviva Jeruchim is a Criminal Defense Attorney and partner in the Boston law firm of Jeruchim & Davenport, LLP.  As a member of the Massachusetts Criminal Defense Bar, Ms. Jeruchim agreed to speak with OS+ regarding the unfolding scandal at the state’s Hinton Crime Laboratory where a chemist has confessed to falsification of drug testing results on a massive scale.

OS+:  To start, can you say a few words about yourself & your firm?

Jeruchim:   “I am a litigator at Jeruchim & Davenport, LLP, a general-practice firm specializing in civil litigation and criminal defense.  For the past twenty years, I have defended hundreds of criminal matters including, but not limited to, murder, drug trafficking, armed robbery, OUI, and sex offenses.”

OS+:  With 60,000 drug samples involving 34,000 cases brought into question, the Hinton Crime Lab scandal is a pretty big disaster.  What are your thoughts on the ability of the legal system to absorb a blow like this, and which parts of the system will come under the most stress?

Jeruchim:  “At this point every aspect of the criminal justice system is being affected.  Defendants indicted or charged with controlled-substance violations from 2003 to 2012 are all under evaluation & scrutiny to determine if their drugs were tested by the Hinton Lab.  The next question therefore becomes how, if at all, are these defendants affected and this falls into three categories.

“First are defendants who have pending charges or indictments, and it appears that in every county special courts are being set up to determine if defendants may be eligible for some type of reasonable bail or release.

“Second, there have been many defendants convicted by test results from the Hinton Lab, so defense attorneys for many of these defendants are bringing motions for new trials based upon newly discovered evidence in the form of potentially tainted lab results.

“Third, defendants who pled guilty to an indictment based on Hinton testing results are now filing motions to vacate their guilty plea based again on newly discovered evidence.

“So the system at this point is being overwhelmed with filings from criminal defense attorneys seeking relief for their clients.”

OS+:  On its first pass through the data, the state identified 1,150 convictions that appear to be brought into question but that total is expected to go higher, correct?

Jeruchim:  “As we’ve discovered, the cases initially identified were based on defendant identifiers on the Crime Lab’s Certificate of Analysis.  Only one “lead” defendant is listed on the Certificate of Analysis, and sometimes only the individual’s “street name,” but there could be anywhere from two to three to ten other individuals who might have been attributed to the selling or distribution of the narcotics.  As such, the number of convictions thus far identified is likely to be an understated number.Annie Dookhan Boston Crime Lab Scandal

“The number reported by the state also under-reports the actual number of cases involved in other ways.  The state’s preliminary search was for cases in which Annie Dookhan was the primary chemist who analyzed the substances in those particular cases.  This ignores the cases in which she was the confirmatory chemist, or the notary, or where her name does not appear on the case at all but in which she may have access to narcotics from other cases.

“Her key gave her unlimited access to the safe in which the substances alleged to be narcotics were stored.  She has also admitted to taking narcotics from other cases in order to create false positives and in order to bring the weights on borderline cases up to trafficking levels.  These substances had to come from somewhere, and did not necessarily have to come from her own cases.  Because she held a supervisory position and, at times, was in charge of quality control at the lab, her unfettered access to all of the substances stored at the lab casts doubt upon the reliability of not only her testing, but the testing of others during her tenure there.”

OS+:  Do you have any feel for how long the fallout from this will take to roll out?

Jeruchim:  “In its most direct form, which is dealing only with Annie Dookhan cases, it’s probably going to take two to three years, at least, to evaluate each case to determine if further prosecution is viable.  Also, however, it has confirmed criminal defense bar suspicions about the lack of protocol that may have been followed in other cases, so it has created a viable entre to make more specific discovery requests on those cases.”

OS+:  Is this a “single-bad-apple” problem or is there more to be concerned about here?

Jeruchim:  “There’s much more to be concerned about here.  Collectively the Criminal Defense Bar does not view this as a “single-bad-apple” problem – it would be impossible for this to boil down to a single bad apple.  There were other chemists working closely with Annie Dookhan who certainly were aware of what was going on and looked the other way.  The Hinton lab was a relatively small lab with, at most, 6-7 chemists working there at any one time.  Her conduct, based, if nothing else, by her unparalleled “productivity” should have raised immediate concerns.

“There also was a laxity in following procedures and protocols that permeated the entire lab.  One example is access to the Lab Safe which procedurally required a palm-reader or key but during busy times was simply propped open, thus enabling multiple chemists to freely access whatever was stored.  The storage issue raises questions such as potential co-mingling of samples between Dookhan and other chemists leading to false or inaccurate samples.”

OS+:  Is the state probing into broader areas such as these?

Jeruchim:  “I don’t know if they’ve precluded that possibility, but at this point it is being presented to the Criminal Defense Bar at large as an isolated ‘bad-apple” problem.”

OS+:  Many news reports about this scandal have focused on the “setting a bunch of bad guys free” aspects.  Is there a way to frame it so that the public at large is more comfortable with the underlying legal process and outcomes?

Jeruchim:  “I think everyone is entitled to procedural safeguards because if we allow the system to be sullied by the presentment of tainted evidence we open the door for false convictions across the board.

“The criminal justice system relies upon the professionalism and integrity of the experts upon whom we rely to accurately and fairly test the evidence given to them.  When a sworn officer or agent of the government abuses his or her role and uses their power corruptly for personal gain, it offends the system as a whole and reduces its integrity and respect in the eyes of the public.  A system that does not demand uncorrupted evidence to achieve a fair end cannot itself be tolerated.

Unfortunately, in order to have the system we aspire to we have to be prepared to occasionally take some hits, and this is one of those times.”

OS+:  Obviously this crisis has diverted attention and resources from other initiatives & programs.  Can you comment on that?

Jeruchim:  “I think that it’s unfortunate that the resources required for appropriate oversight were diverted in the first place.  We can never predict how someone like Annie Dookhan could abuse the process for so many years, but we are required to return to a culture that demands extensive oversight.  We need to restore our faith in the institutions that are used for prosecution.”

OS+:  Thank you so much for your comments & insights.

About the Author:  Elizabeth Tice heads up OfficeSolutionsPlusLLC.com, a company that provides state-certified documents of record including court reporting, depositions, public hearings, Open Meetings and transcription of all types.  We understand the importance and value of accurate records.   617-471-3510 Try us out.

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One Response to “OS+ Spotlight Interview: Boston Defense Attorney Discusses Crime Lab Scandal”

  1. stu 10/17/2012 9:32 am #

    We have subpoenaed and eventually received the training and lab protocol manuals from the local Ill. State Police lab that does most of the work for our area. It took a contempt petition and the threat of jail for the lab chief to get them. They can’t tell us if someone isn’t following procedures however. Vigorous cross examination of the analyst helps but in the end our clients are stuck with a system biased in favor of the prosecution. I surely don’t have an answer.

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