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COMMONWEALTH OF MASSACHUSETTS SUPREME JUDICIAL COURT SUFFOLK, ss. NO. SJ-2014-0005 KEVIN BRIDGEMAN, and others v. DISTRICT ATTORNEY FOR THE SUFFOLK DISTRICT, and others Affidavit of Matthew R. Segal I, Matthew R. Segal, state as follows: 1. I am legal director of the American Civil Liberties Union Foundation of Massachusetts (ACLUM). 2. I submit this affidavit to provide the Court with documents concerning investigations of drug lab scandals involving Annie Dookhan and Sonja Farak. These documents, in turn, contain information about the underlying misconduct. 3. ACLUM has participated in several cases concerning the Dookhan scandal. See Commonwealth v. Charles, 466 Mass. 63 (2013) (direct representation); Commonwealth v. Scott, 467 Mass. 336 (2014) (amicus participation); Bridgeman v. Dist. Atty. for the Suffolk Dist., 471 Mass. 465 (2015) (direct representation). 4. Since the Dookhan scandal was publicly disclosed in August 2012, ACLUM has fielded many calls and letters from people seeking information about -2- their rights as possible Dookhan or Farak defendants. The people making these queries often did not know what their rights were, or even whether Dookhan or Farak had in fact worked on their cases. 5. For nearly four years, ACLUM has also engaged in substantial non-litigation advocacy geared toward seeking a just and efficient approach to the Dookhan and Farak scandals. 6. For example, in October 2012 ACLUM joined with Families Against Mandatory Minimums to ask the Office of the Attorney General (OAG) and county District Attorneys to embrace alternatives to case-by- case litigation of Dookhan cases. See Exhibit 1. 7. Also in October 2012, ACLUM joined with the Massachusetts Bar Association, the Committee for Public Counsel Services, and the Massachusetts Association of Criminal Defense Lawyers to request an independent investigation of the Hinton Lab. See Exhibit 2. 8. The Office of the Inspector General (OIG) was then asked to conduct such an investigation. 9. The OIG produced a report on March 4, 2014, which described some of Dookhan’s misconduct,1 as well 1 The OIG primarily focused on cases in which Dookhan allegedly added drugs to samples, which the OIG called “tampering.” The OIG did not focus on the falsification of test results, known as “dry labbing.” The term “dry labbing” appears only once in the OIG’s March 2014 report. See Ex. 3 at 5. -3- as extensive failures in the Hinton Lab’s management and oversight. See Exhibit 3. 10. Although the OIG report characterized Dookhan as the Hinton Lab’s “sole bad actor,” it also described other bad acts, including the silencing or ignoring of would-be whistleblowers. See, e.g., Exhibit 3 at 68, 70. 11. The OIG produced a supplemental report on the Hinton Lab on February 2, 2016. See Exhibit 4. 12. ACLUM and other organizations subsequently had extensive discussions with the OAG following this Court’s decisions in Commonwealth v. Ware, 471 Mass. 85 (2015), and Commonwealth v. Cotto, 471 Mass. 97 (2015). 13. These discussions covered, among other topics, the investigation of the Amherst Lab, the need to identify and notify defendants, and alternatives to case-by-case litigation. See, e.g., Exhibit 5.2 14. It seems that this advocacy for alternatives to case-by-case litigation did not bear fruit. 14. The OAG did, however, undertake an investigation of the Amherst Lab. As part of that effort, it elicited testimony from Sonja Farak before 2 Although this September 2015 letter is critical of the District Attorneys’ approach to identification of and notice to Dookhan defendants, it has also come to my attention that one or more District Attorneys did, to their credit, send some case-specific notices to affected Dookhan defendants or their lawyers. -4- the grand jury. See Exhibits 6-1, 6-2, and 6-3. 11. On April 1, 2016, the OAG completed a report on the Amherst Lab, finding extensive misconduct and serious problems with oversight. See Exhibit 7. SIGNED UNDER THE PAINS AND PENALTIES OF PERJURY THIS 29th DAY OF JUNE, 2016. lit&~Matthew R. S gal BBO #654489 Legal Director AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF MASSACHUSETTS 211 Congress Street Boston, MA 02110 (617) 482-3170 Bridgeman v. District Attorney for the Suffolk District No. SJ-2014-0005 Exhibits to Affidavit of Matthew R. Segal June 29, 2016 Table of Contents Exhibit No. Letter from the ACLU of Massachusetts and FAMM to 1 Attorney General Martha Coakley and County District Attorneys, Oct. 11, 2012 Letter from the MBA, CPCS, MACDL, and the ACLU of 2 Massachusetts to Attorney General Martha Coakley, Oct. 24, 2012 Office of the Inspector General, Investigation of 3 the Drug Laboratory at the William A. Hinton State Laboratory Institute 2002 – 2012, Mar. 4, 2014 Office of the Inspector General, Supplemental Report 4 Regarding The Hinton Drug Laboratory, Feb. 2, 2016 Letter from the ACLU of Massachusetts, CPCS, MACDL, 5 and the MBA to Deputy Attorney General Colin Owyang, Sept. 25, 2015 Transcript of Grand Jury Proceedings, In re: 6-1 Investigation, Sept. 16, 2015 Transcript of Grand Jury Proceedings, In re: 6-2 Investigation, Sept. 29, 2015 Transcript of Grand Jury Proceedings, In re: 6-3 Investigation, Sept. 30, 2015 Office of the Attorney General, Investigative Report 7 Pursuant to Commonwealth v. Cotto, 471 Mass. 97 (2015), Apr. 1, 2016 EXHIBIT 1 October 11, 2012 Via Email and First-Class Mail The Honorable Martha Coakley Attorney General of Massachusetts One Ashburton Place, 20th floor Boston, MA 02108 County District Attorneys (See below for full list) Re: The Hinton State Lab Scandal Dear Attorney General Coakley and County District Attorneys: The American Civil Liberties Union of Massachusetts (ACLUM) and Families Against Mandatory Minimums (FAMM) write concerning the crisis arising from misconduct at the Hinton State Laboratory. The Commonwealth's current plan for addressing the crisis-adjudicating countless cases one by one-threatens instead to worsen it. We urge you to chart a better course, one that will restore the Commonwealth's damaged reputation. The scandal will trigger an explosion of litigation. Chemist Annie Dookhan, who is accused of falsifYing tests of drug samples, is now associated with 34,000 cases. But Dookhan also allegedly forged signatures and had not-by-the-rulebook communications with prosecutors and police officers. So it is unclear how far this scandal will reach. It is clear, however, that tens of thousands of defendants could seek to vacate their convictions. Special courts have been constituted, and prosecutors estimate that a case-by-case approach will cost them $50 million. Defense and court costs figure to equal at least that much. That expenditure of time and money would be a waste of both. Abundant evidence shows that drug prosecutions fail to reduce overall drug use even in cases that do not involve tainted evidence. Accordingly, it makes no sense tore-prosecute tens of thousands of cases that do involve tainted evidence. 617.482.3170 .0009 is thus a reason to cases, rather than to spend $100 million them. To that end, we that District Attorneys, as the Commonwealth's law enforcement AT'"'"'r'" any one of the following • cases that do not charge violent crime or weapons offenses; • cases involving a police officer or p1·osecutor who, at any time, communicated directly with Annie Dookhan; or • cases in which the defendant has served at least half of his or her sentence. Endorsing this broad-based approach would enable prosecutors to repair the integrity of the Commonwealth's justice system, save taxpayer dollars, and assure a consistent statewide approach to these cases. It would also provide at least some justice to this scandal's victims. Dookhan's word has convicted literally thousands of people, who in turn have suffered unjust imprisonment and severe collateral consequences. They have lost jobs. They have been deported. They have lost custody of children. In light of this scandal, it is time for the Commonwealth's leaders to demonstrate their commitment to justice and sound policy. It is not time for an expensive, misguided, and ill-fated do-over. Discussion The discussion below describes (I) the costs of the current plan, (2) the relatively low value of re-prosecuting drug cases, and (3) an alternative approach. I. The Current Plan understand that the current plan is to tainted drug cases one at a as the Commonwealth had · indicted 34,000 drug cases. The costs and problems of an undertaking will be The Honorable Coakley 11, on to address the 1,140 people who are still time in connection conviction stemming a questionable drug analysis. But that is just the tip of the · Cases will next head toward full re-adjudication. Given that each of those cases lacks a trustworthy drug certification, full adjudication will be exceedingly complex, and perhaps impossible. Defendants will first need full discovery on misconduct at the Hinton lab, including all of Dookhan's communications with prosecutors and police officers. Defendants will then file motions to set aside convictions and suppress evidence. Each one could require briefing, hearings, witness testimony, and court rulings. Although the 1,140 cases involving incarcerated people will understandably go first, they represent only a fraction of the total caseload. Tens of thousands of other defendants may also file motions seeking to vacate their tainted convictions. As evidenced by the recent $50 million estimate of prosecution costs, 2 the litigation will last years and explode budgets. Defense costs might be even higher than prosecution costs because, unlike prosecutors, defense attorneys represent different individual clients and cannot ask the police to do their investigations. Court costs, too, will be high. Because the work is already underway, taxpayers will get the bill only after a lot of their money has been spent.

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