SalemNews.com, Salem, MA

November 13, 2012

Fallout continues locally in state drug lab scandal

Special court sessions slowly going through cases

BY JULIE MANGANIS STAFF WRITER
The Salem News

---- — SALEM — On an overcast Wednesday morning, the tension is palpable inside Courtroom J, on the fifth floor of the J. Michael Ruane Judicial Center in Salem.

A clerk and two other employees are struggling to set up a video conference with MCI-Concord, only to repeatedly see error messages on the television screen. They huddle and call in another employee.

Lawyers and prosecutors mill about the room, comparing cases and arguments as they check their watches.

Family and friends of defendants sit in the gallery, waiting. One woman, the girlfriend of a defendant, worries she took a day off work for nothing.

And in his chambers, Judge David Lowy is reviewing a stack of motions.

It’s the third time that Lowy has presided over a special court session set up to accommodate what are likely to be dozens of motions for new trials in the wake of the state Department of Public Health drug lab scandal.

Another session took place on Friday, and there will likely be many more to come.

At some moments, the proceedings seem to resemble a hospital emergency room’s triage.

Annie Dookhan, a chemist at the lab, is at the center of that scandal, after she admitted to investigators that she frequently made up test results or tampered with drug samples to make them come out positive for the substances police believed they had seized.

The Essex County district attorney’s office has received a list of 8,451 samples that passed through the Jamaica Plain lab and has been compiling a list of cases with which those samples were associated.

But in the meantime, defense lawyers are also going through their old case files, pulling up cases that may have involved Dookhan and filing motions they hope will get their clients out of jail.

Just after 10 a.m., the videoconferencing system finally appears to be working, and an image of a table and chair in front of a cinder-block wall appears on the television screen. The videoconferencing is one effort to save money on a process that is likely to cost at least $30 million, officials have estimated.

It’s also costing time. The session Wednesday took up much of the day.

Lowy starts by explaining that the session that day is to review cases in which Dookhan was the primary or confirmatory signature on the drug certifications, or “certs,” as they’re usually shorthanded by lawyers.

And these first sessions, Lowy told the lawyers, are intended for defendants who are still behind bars. Others, who have completed their sentences or who are on probation, will have their day in court later.

Two types of motions were being offered by lawyers that day: motions to stay the sentences being served and motions for new trials. But the judge was only considering motions for stays of sentences that morning.

The first case involved a man serving seven years for a 2005 oxycodone trafficking case.

His lawyer acknowledges that the drugs were tested in 2006, long before the time Dookhan says she began taking shortcuts.

Veteran prosecutor Gerald Shea stands up to point out that the drugs in question in this case were commercially manufactured tablets imprinted with a code indicating that they were oxycodone. Beyond that, Shea argues, the defendant, Robert Smith, had originally been charged with a long list of offenses, including gun charges and kidnapping, when he reached a plea agreement.

Lowy finds that the defense lawyer, John Martin, has not shown that Smith wouldn’t have taken the plea bargain even if he’d known about Dookhan, and denies the requested stay.

The next case is a short one. Kirk Bransfield, the lawyer for a Haverhill man, had filed a motion in anticipation of learning that Dookhan was the chemist but, after reviewing the cert, has learned she was not involved. He withdraws the request for the moment but suggests that he may be back, since Dookhan’s misconduct may have tainted all of the lab’s work.

The third case of the morning is a cocaine-trafficking conviction that may have been compromised by Dookhan. Dookhan’s signature appears on the lab paperwork as the confirmatory chemist.

Lawyer Mark Schmidt argues that his client, Jeffrey Suazo of Lynn, should be released on a stay while he seeks a new trial, even as Suazo nears the end of his five-year sentence, which he’s due to complete in April.

Lowy has already announced that anyone released on a stay would be required to wear a GPS monitor and, potentially, post cash bail.

The prosecutor argues that Suazo’s original bail in the 2007 case was $5,000, but that while in custody, he’s had lots of disciplinary issues.

Lowy shares that concern. He resolves it by offering to grant the stay if Suazo or his family can post $7,000 bail.

Suazo’s sister looks down, and Schmidt isn’t sure the family can come up with the money. There’s also the issue of whether the stay would affect any “good time” credit Suazo is due should his conviction be upheld. But after some discussion, he says Suazo will accept the judge’s offer.

It’s the kind of calculation that frustrates lawyer David Hallinan, who runs the Essex Bar Advocates program, which provides private attorneys to indigent defendants. He and Rebecca Whitehill, who heads the Salem office of the state-run Committee for Public Counsel Services, sat in on the session, taking notes.

Hallinan believes the process ought to be streamlined. “It should almost be automatic: They get a new trial,” he said. Instead, he believes the burden of proof has been shifted, unfairly, to the defense.

The next case involves a Gloucester man, Matthew Reis, who pleaded guilty to dealing heroin in Gloucester and Beverly in 2009.

Dookhan was the confirmatory chemist in the case, and public defender Alice Jayne asks for a stay, even though Reis is nearly up for parole on his three-to-five-year sentence.

Prosecutor Jessica Strasnick points out that Reis confessed to having heroin and got what she called a “huge break” when he was offered a plea agreement. But Jayne suggests Reis might not have pleaded guilty and instead would have sought a trial. He also would have sought to have his confession suppressed.

Lowy denies the stay.

The proceedings continue throughout the morning.

After a few more Concord inmates appear on the television screen, the clerk switches to MCI-Cedar Junction, where other inmates seeking new trials are serving time.

Many of the inmates will have another hearing on Dec. 6.

Courts reporter Julie Manganis can be reached at 978-338-2521, via email at jmanganis@salemnews.com or on Twitter @SNJulieManganis.