GANTS, C.J. We once again confront the tragic legacy of the misconduct of Annie Dookhan when she was employed as a
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chemist at the William A. Hinton State Laboratory Institute (Hinton lab). In Bridgeman v. District Attorney for the Suffolk Dist., 471 Mass. 465, 487 (2015) (Bridgeman I), the petitioners and the intervener, the Committee for Public Counsel Services (CPCS), asked that we exercise our broad powers of superintendence to vacate the thousands of drug convictions affected by Dookhan's misconduct because the time and expense of case-by-case adjudication had become "untenable." We declined at that time to adopt their proposed "global remedy." However, the district attorneys have now provided the single justice with lists identifying more than 20,000 defendants who could be eligible for relief based on Dookhan's misconduct but who have not yet sought relief from their drug convictions. As a result of the number of potentially aggrieved defendants, the single justice issued a reservation and report to the full court that essentially invites us to reconsider whether the time has come for a global remedy or whether further steps must be taken to realistically implement the remedy of case-by-case adjudication of potentially thousands of motions for a new trial.
After such reconsideration, we decline to adopt the district attorneys' argument that we should stay the course we had previously set and take no further action to protect the rights of the "relevant Dookhan defendants." [Note 3] We also decline to adopt the petitioners' request for a global remedy in which we would either vacate the convictions of all relevant Dookhan defendants with prejudice, and thereby bar any reprosecution, or vacate the convictions without prejudice, and allow the Commonwealth one year to reprosecute, dismissing with prejudice all cases not reprosecuted within that time period.
We instead adopt a new protocol for case-by-case adjudication, which will occur in three phases, and order its implementation by the single justice in the form of a declaratory judgment. In the first phase, the district attorneys shall exercise their prosecutorial discretion and reduce the number of relevant Dookhan defendants by moving to vacate and dismiss with prejudice all drug cases the district attorneys would not or could not reprosecute if a new trial were ordered. In the second phase, new, adequate notice shall be approved by the single justice and provided to all relevant Dookhan defendants whose cases have not been dismissed in
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phase one. In the third phase, CPCS shall assign counsel to all indigent relevant Dookhan defendants who wish to explore the possibility of moving to vacate their plea or for a new trial. If the number seeking counsel is so large that counsel cannot be assigned despite CPCS's best efforts, the single justice will fashion an appropriate remedy under our general superintendence authority for the constitutional violation, which may include dismissing without prejudice the relevant drug convictions in cases where an indigent defendant is deprived of the right to counsel.
We recognize that the implementation of this protocol will substantially burden the district attorneys, CPCS, and the courts. But we also recognize that Dookhan's misconduct at the Hinton lab has substantially burdened the due process rights of many thousands of defendants whose convictions rested on her tainted drug analysis and who, even if they have served their sentences, continue to suffer the collateral consequences arising from those convictions. And we recognize as well that, more than four years after Dookhan's misconduct was revealed, more than 20,000 defendants who are entitled to a conclusive presumption that egregious government misconduct occurred in their case have yet to receive adequate notice that they may have been victimized by Dookhan's misconduct, that they may file a motion to vacate their drug conviction, and that they have a right to counsel to assist them in the preparation of such a motion. The remedy we order, challenging as it is to implement, preserves the ability of these defendants to vindicate their rights through case-by-case adjudication, respects the exercise of prosecutorial discretion, and maintains the fairness and integrity of our criminal justice system in the wake of a laboratory scandal of unprecedented magnitude. [Note 4]
Background. Dookhan began her employment in November, 2003, as a chemist at the Hinton lab, a forensic drug laboratory that was overseen by the Department of Public Health (department). See Commonwealth v. Scott, 467 Mass. 336, 338 (2014); Commonwealth v. Charles, 466 Mass. 63, 64 (2013). Allegations of misconduct regarding her work surfaced in June, 2011, which triggered an internal review and then a formal internal investigation by the department in December, 2011. Charles, supra. The
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department concluded that "Dookhan failed to follow [Hinton lab] protocols for the transfer and documentation of samples for testing, and subsequently created a false record of said transfers." Id. Dookhan was placed on paid administrative leave and then resigned from her position, effective March 9, 2012. Id.
In July, 2012, the Legislature transferred oversight of the Hinton lab to the State police. See St. 2012, c. 139, § 56 (replacing G. L. c. 22C, § 39); St. 2012, c. 139, § 107 (repealing G. L. c. 111, §§ 12-13). See also Scott, 467 Mass. 338. In August, 2012, the State police initiated a more extensive investigation of the Hinton lab, which "revealed numerous improprieties surrounding Dookhan's conduct in the lab." Id. at 339. See Charles, 466 Mass. at 64. Based in part on Dookhan's confession of misconduct on August 28, 2012, the State police investigation revealed, among other misconduct, the following:
Dookhan "admitted to 'dry labbing' for two to three years prior to her transfer out of the [Hinton] lab in 2011, meaning that she would group multiple samples together from various cases that looked alike, then test only a few samples, but report the results as if she had tested each sample individually." Scott, supra.
She admitted to "contaminating samples intentionally, including turning negative samples into positive samples on at least a few occasions." Id.
She admitted that she removed samples from the evidence locker in breach of Hinton lab protocols, postdated entries in the evidence log book, and forged an evidence officer's initials. Id.
She falsified reports intended to verify that the gas chromatography-mass spectrometer machine used in "confirmatory" [Note 5] drug testing was functioning properly before she ran samples through the machine. Id. at 339-340.
The potential scope of Dookhan's misconduct encompassed testing samples in over 40,000 cases. Id. at 340. This number is so large because Dookhan "reported test results on samples at rates consistently much higher than
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any other chemist in the [Hinton] lab." Id. [Note 6]
A grand jury indicted Dookhan on seventeen counts of tampering with evidence, eight counts of obstruction of justice, one count of perjury, and one count of falsely claiming to hold a graduate degree. Dookhan pleaded guilty to all of the indictments on November 22, 2013, and she was sentenced to from three years to five years in State prison, followed by a probationary term of two years. Scott, 467 Mass. at 337 & n.3. The revelations regarding Dookhan's misconduct triggered the filing of hundreds of motions for a new trial and for a stay of execution of sentence in cases where the defendant was convicted of a drug crime based on a drug analysis conducted by the Hinton lab. Charles, 466 Mass. at 65-66. [Note 7] To address this onslaught of motions, the Chief Justice of the Superior Court in October, 2012, assigned specific
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judges in seven counties to preside over special "drug lab" sessions. Id. at 65. To assist these judges in the adjudication of these cases, the Chief Justice of the Superior Court in November, 2012, exercised her authority under Mass. R. Crim. P. 47, 378 Mass. 923 (1979), to appoint five retired Superior Court judges as "Special Judicial Magistrates of the Superior Court" to preside over postconviction motions related to the Hinton lab. Id. at 66.
In Scott, 467 Mass. at 337-338, we considered the appropriate legal standard where a defendant, in response to government misconduct in his or her case, moves to withdraw a guilty plea or an admission to sufficient facts to warrant a finding of guilty. We adopted the two-pronged test in Ferrara v. United States, 456 F.3d 278, 290 (1st Cir. 2006), which requires a defendant who seeks to vacate a guilty plea because of government misconduct to show "both that 'egregiously impermissible conduct . . . by government agents . . . antedated the entry of his plea' and that 'the misconduct influenced his decision to plead guilty or, put another way, that it was material to that choice.'" Scott, supra at 346.
In considering whether the defendant had satisfied the first prong of this test, we concluded that, because Dookhan "made a number of affirmative misrepresentations by signing [certificates of drug analysis (drug certificates)] and testifying to the identity of substances in cases in which she had not in fact properly tested the substances in question," Dookhan's misconduct was "egregious." Id. at 348. We also concluded that, even though there was no indication that any prosecutor knew of her egregious misconduct, id. at 350 n.7, her misconduct is "attributable to the government" for purposes of a motion for a new trial, id. at 350 & n.7, because as a primary and secondary chemist she "participated in the investigation or evaluation of the case" and "reported to the prosecutor's office concerning the case." Id. at 349, quoting Commonwealth v. Martin, 427 Mass. 816, 824 (1998).
We also recognized the dilemma that a defendant would face in attempting to prove that the laboratory analysis in his or her case was tainted by Dookhan's misconduct. See Scott, 467 Mass. at 339, 351-352. We noted that Dookhan acknowledged "that she may not be able to identify those cases in which she tested the samples properly and those in which she did not." Id. at 339.
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"Thus, even if Dookhan herself were to testify in each of the thousands of cases in which she served as primary or secondary chemist, it is unlikely that her testimony, even if truthful, could resolve the question whether she engaged in misconduct in a particular case." Id. at 352. Because it was "reasonably certain . . . that her misconduct touched a great number of cases," id., but "may be impossible" for any defendant to prove that the drug analysis in his or her case was tainted by her misconduct, id. at 351, we recognized that her "particularly insidious form of misconduct, which belies reconstruction," resulted in "a lapse of systemic magnitude in the criminal justice system." Id. at 352.
To resolve this dilemma, we exercised our power of "general superintendence of all courts . . . to correct and prevent errors and abuses" under G. L. c. 211, § 3, and held that, where Dookhan signed the drug certificate in a defendant's case as an assistant analyst, that is, as the primary or confirmatory chemist, see Scott, 467 Mass. at 353 n.9, a defendant who seeks to vacate his or her plea after learning of Dookhan's misconduct "is entitled to a conclusive presumption that egregious government misconduct occurred in [his or her] case." Id. at 352. The consequence of the conclusive presumption of egregious government misconduct is that a defendant can satisfy the first prong of the Ferrara test simply by showing that Dookhan signed the drug certificate in his or her case as an assistant analyst. Id. at 353.
We emphasized in Scott that the "special evidentiary rule" of a conclusive presumption is "sui generis" -- "a remedy dictated by the particular circumstances surrounding Dookhan's misconduct" that was "intended to apply only to this narrow class of cases in which a defendant seeks to withdraw his or her guilty plea after having learned of Dookhan's misconduct." Id. at 353-354. We declared that "it is most appropriate that the benefit of our remedy inure to defendants" where, as here, there is "government misconduct that has cast a shadow over the entire criminal justice system." Id. at 352. The remedy of a conclusive presumption, we concluded, takes into account "the due process rights of defendants, the integrity of the criminal justice system, the efficient administration of justice in responding to such potentially broad-ranging misconduct, and the myriad public interests at stake." Id.
We did not relieve a defendant of the burden to satisfy the second prong of the Ferrara test by demonstrating that he or she suffered prejudice by pleading guilty or admitting to sufficient facts without having learned of Dookhan's misconduct, i.e., we
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did not conclusively presume such prejudice. Id. at 354-355, 356. The defendant, therefore, bears the burden of proving "a reasonable probability that he [or she] would not have pleaded guilty had he [or she] known of Dookhan's misconduct," and instead would have chosen to go to trial. Id. at 355. We noted that, "[u]nlike evidence of the particular scope of Dookhan's misconduct, evidence of the circumstances surrounding the defendant's decision to tender a guilty plea should be well within the defendant's reach." Id. at 354 n.11.
In Commonwealth v. Francis, 474 Mass. 816 (2016), we reviewed the denial of a defendant's motion for a new trial where the defendant had been convicted at trial of drug charges after drug certificates were admitted in evidence that were signed by Dookhan as an assistant analyst. We concluded that the conclusive presumption of "egregious government misconduct" is not limited to motions to withdraw guilty pleas, but that, where the defendant has been convicted at trial, "[t]he consequence of the conclusive presumption is that we deem it error to have admitted the drug certificates or comparable evidence regarding Dookhan's drug analysis where the defendant had no knowledge of Dookhan's misconduct and therefore no opportunity to challenge the admissibility or credibility of that evidence." Id. at 817.
In Commonwealth v. Ruffin, 475 Mass. 1003, 1003-1004 (2016), we declined to apply the conclusive presumption of "egregious government misconduct" where the defendant had pleaded guilty before Dookhan had signed the drug certificate as an assistant analyst, because her misconduct cannot be said to have affected the defendant's plea where the plea occurred before the misconduct.
Consequently, after our opinions in Scott, Francis, and Ruffin, the defendants who are entitled to the conclusive presumption of "egregious government misconduct" are those who pleaded guilty to a drug charge (or admitted to sufficient facts to warrant a finding of guilty) or who were found guilty of a drug charge at trial after Dookhan signed a drug certificate in their case as a primary or confirmatory chemist. We refer to these as the "relevant Dookhan defendants." [Note 8]
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In Bridgeman I, 471 Mass. at 473-494, we considered two sets of issues raised by relevant Dookhan defendants who potentially were eligible for relief from their convictions because of Dookhan's misconduct, but who had not yet moved for postconviction relief. The first set of issues identified concerns that were discouraging these defendants from seeking that relief. The most significant was the risk that, if their motion for a new trial were granted, the Commonwealth could reprosecute them not only on the charge to which the defendants had pleaded guilty but also on any charge that was dismissed at the time of the plea, and seek a more severe sentence, especially where the dismissed charge carried a mandatory minimum sentence upon conviction. Id. at 472-473. Drawing broadly on the need to "ameliorate [the] damaging effects" of Dookhan's misconduct, id. at 474, we held that "a defendant who has been granted a new trial based on Dookhan's misconduct at the Hinton . . . lab cannot be charged with a more serious offense than that of which he or she initially was convicted under the terms of a plea agreement and, if convicted again, cannot be given a more severe sentence than that which originally was imposed." Id. at 468.
The second set of issues in Bridgeman I concerned the fairness and practicability of attempting individually to resolve the multitude of motions for a new trial that potentially could be brought by the Dookhan defendants. We allowed the motion to intervene filed by CPCS under Mass. R. Civ. P. 24 (a), 365 Mass. 769 (1974), recognizing that "[i]t has a substantial and immediate interest in these proceedings given its current and future responsibility for providing representation to thousands of indigent Dookhan defendants who want to pursue postconviction relief from their drug convictions." Bridgeman I, 471 Mass. at 485-486. We then addressed CPCS's contention that, because so many cases were affected by Dookhan's misconduct, the "time and expense of proceeding on a case-by-case basis has become untenable," and we therefore should implement a "global remedy" to resolve these cases pursuant to our broad powers of
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superintendence under G. L. c. 211, § 3. Bridgeman I, supra at 487. Under the global remedy that CPCS proposed, we would vacate the convictions of all Dookhan defendants. Id. CPCS offered two alternatives: we could vacate the convictions with prejudice, and thereby bar any reprosecution; or we could vacate the convictions without prejudice, and allow the Commonwealth one year to reprosecute, dismissing with prejudice all cases not reprosecuted within that time period. Id.
We declined in Bridgeman I to implement a global remedy "at this time." Id. We noted that "while '[i]t certainly is true that we cannot expect defendants to bear the burden of a systemic lapse, . . . we also cannot allow the misconduct of one person to dictate an abrupt retreat from the fundamentals of our criminal justice system.'" Id., quoting Scott, 467 Mass. at 354 n.11. We also noted that we had already provided "meaningful solutions" to resolve these cases in Scott and Charles, and that, in Bridgeman I, we were removing the barriers that made defendants reluctant to file motions to withdraw their guilty pleas. Id. at 480, 487. And we noted that some district attorneys had made progress in providing CPCS with the docket numbers of the cases in which Dookhan was the primary or confirmatory chemist, and encouraged the remaining district attorneys with such cases to assist the single justice in obtaining docket numbers for their districts. [Note 9] Id. at 481. We recognized that "efforts to provide postconviction relief to Dookhan defendants [had] been hampered by the inability of CPCS to ascertain which cases may have been tainted by Dookhan's misconduct," and that "[t]he ability of CPCS to identify clients and to assign them attorneys who will represent their interests in postconviction proceedings is crucial to the administration of justice in the Hinton . . . lab cases." Id. at 480. We remanded the case to the single justice for further proceedings consistent with the opinion. Id. at 494.
The single justice joined as respondents the district attorneys for the Cape and Islands, Middlesex, Norfolk, and Plymouth districts, and allowed the motion of the district attorney for the
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Bristol district to intervene. The single justice ordered the district attorneys to produce lists with the names, docket numbers, and personal identifying information for every "adverse disposition concerning every G. L. c. 94C charge" of the "Dookhan defendants." [Note 10] In May, 2016, the district attorneys produced lists that contained the names of more than 20,000 defendants with more than 24,000 cases where they had pleaded guilty to a drug charge, had admitted to sufficient facts to warrant a finding of guilty of a drug charge, or had been found guilty at trial of a drug charge where Dookhan had tested the alleged drugs as the primary or confirmatory chemist. [Note 11]
The single justice also asked the parties to attempt to agree on the content of a letter of notice to the Dookhan defendants informing them that their drug cases had been potentially tainted by Dookhan's misconduct. After the submission of the lists, however, the Bridgeman petitioners and CPCS [Note 12] would not agree
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to any notice that presumed case-by-case litigation, because they contended that, given the large number of Dookhan defendants and the limited resources of CPCS, the notice could not truthfully inform the Dookhan defendants that attorneys were available to represent them in these cases. They asked the single justice to reserve and report to the full court the question "whether all cases involving misconduct by Annie Dookhan should be dismissed or subjected to a court-ordered deadline." The district attorneys opposed the reservation and report, arguing that the notices would provide all Dookhan defendants the opportunity to seek relief. They also contended that the Bridgeman petitioners "significantly overstate[] the apparent degree of interest on the part of the Dookhan defendants in revisiting settled cases." The single justice issued a reservation and report on August 16, 2016.
The district attorneys advised the single justice before the issuance of the reservation and report that they intended to send notices regardless of whether the case was reported to the full court. On August 29, 2016, the district attorneys filed in the county court a letter attaching the notice they intended to send on or before September 1. The Bridgeman petitioners informed the district attorneys that the notice was misleading and poorly translated. At a hearing on September 6, the single justice invited the district attorneys to delay sending the notice, but the district attorneys announced that the mailing had already begun. On September 7, CPCS filed an emergency motion asking the full court to halt further dissemination of the notice; the court denied the motion but ordered the district attorneys to keep records of all documents and communications arising from the notice.
The notice was mailed in an envelope with the return address of "RG/2 Claims Administration LLC," and a post office box in Philadelphia, Pennsylvania, along with the words "IMPORTANT LEGAL NOTICE FROM THE COMMONWEALTH OF MASSACHUSETTS" near the return address. [Note 13] The notice informed each defendant that, according to court records, he or she was convicted of one or more drug offenses in a specified county
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between 2003 and 2011; that it has been determined that Dookhan tested the drugs in the case; and that Dookhan "admitted to misconduct in her work at the [Hinton] lab." It advised the defendant that, because Dookhan tested the evidence, he or she has certain rights, specifically, "the right to challenge the drug conviction(s) listed in this notice" and that "if [the defendant is] tried and convicted again, [he or she] will not face any punishment greater than what [he or she] already received." The notice asked the defendant to contact his or her original lawyer on the case if he or she has any questions, and also invited the defendant to speak with a new lawyer. The notice further invited the defendant, should he or she not know how to contact the original lawyer, to get that information at the criminal clerk's office where the case was adjudicated, and provided the Web site address where the physical address of the relevant court can be found. [Note 14]
A Spanish translation of the notice was included on the bottom of the page. According to the Bridgeman petitioners, this
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translation "contained numerous errors and was not readily understandable to a person who speaks Spanish but not English." [Note 15] The district attorneys have not offered any evidence to rebut these claims or to defend the quality of the translation.
The district attorneys' vendor mailed 20,916 letters to Dookhan defendants. [Note 16] The vendor was unable to locate the addresses for 1,006 defendants, and 5,767 of the letters that were sent were returned undelivered. For those letters returned undelivered, the vendor searched for a secondary address and sent out an additional 964 notices. As of October 24, 2016, the over-all response rate to these mailings was extremely low:
In the Bristol district, where approximately 2,200 cases were identified, the district attorney received thirty-nine telephone calls and three motions were filed.
In the Cape and Islands district, where approximately 1,300 cases were identified, the district attorney received thirty-nine calls and one walk-in inquiry. No motions were filed.
In the Essex district, where approximately 4,200 cases were identified, the district attorney received forty-six telephone calls and twelve walk-in inquiries. Seven motions were filed.
In the Middlesex district, where approximately 3,500 cases
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were identified, the district attorney received seventy-seven telephone calls and seven walk-in inquiries. Two motions were filed.
In the Norfolk district, where approximately 2,300 cases were identified, the district attorney received approximately one hundred inquiries. Seven motions were filed.
In the Plymouth district, where approximately 2,000 cases were identified, the district attorney received sixty-five inquiries, including three walk-ins. One motion was filed.
In the Suffolk district, where approximately 8,600 cases were identified, the district attorney received 322 telephone calls and walk-in inquiries. In response, the office has moved to vacate and enter a nolle prosequi in 175 of these cases. No motions to withdraw a guilty plea or admission to sufficient facts were filed by defendants.
In sum, in response to approximately 21,000 letters sent by the vendor to Dookhan defendants early in September, 2016, as of October 24, 2016, only twenty motions for postconviction relief were filed by defendants and 175 motions were filed by prosecutors. In other words, the notice triggered applications for postconviction relief in less than one per cent of these cases. [Note 17]
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Discussion. The Bridgeman petitioners argue once again for the global remedy that we declined in Bridgeman I, 471 Mass. 487, to implement "at this time." They ask that we vacate the drug convictions of all Dookhan defendants and dismiss them with prejudice or, in the alternative, vacate them without prejudice and allow prosecutors one year to reprosecute the cases, dismissing with prejudice all that are not reprosecuted within one year for violation of the speedy trial rule, Mass. R. Crim. P. 36 (b) (1) (D), as amended, 422 Mass. 1503 (1996). They contend that due process requires such a global remedy because, even though four years have now passed since the scope of Dookhan's misconduct was revealed, the defendants' entitlement to a new trial on their drug convictions has yet to be adjudicated in more than 24,000 cases. They also contend that the notice sent by prosecutors to these defendants was "not a serious effort to ensure that wrongful convictions will be addressed through case-by-case litigation," and was "so misleading and incomplete" that its harm can be undone only by relieving the defendants of the burdens of case-by-case litigation. They claim that a global remedy is a necessary exercise of our superintendence authority because a case-by-case adjudication of so many cases is "doomed to fail" given the limited resources of the Commonwealth's indigent criminal defense system.
The district attorneys respond that "[t]here is no convincing reason to retreat from the thoughtful remedies-based, workable solution designed by the [c]ourt." They contend that the notice mailed to the Dookhan defendants was fair, and that the low response to the notice reflects that many defendants "may conclude that they face no adverse impact at all from a closed chapter in their lives," and "feel no urgency" to reopen their case "before an adverse impact actually occurs." They contend that, in light of the Dookhan defendants' response to that notice, it is apparent that the Bridgeman petitioners have greatly overstated the burden that will arise from case-by-case adjudication of motions for a new trial. They also argue that we should not vacate the convictions of Dookhan defendants who have not moved to do so, because "mass vacatur would constitute a complete abandonment of the careful weighing of the interests of defendants, the public, and the criminal justice system that this [c]ourt set out in Scott, and affirmed in [Bridgeman I] and the cases that followed." They contend that the remedy of dismissal with prejudice is not justified as a matter of law, and that the remedy of dismissal without
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prejudice, allowing the reprosecution of these cases, would be unfair to impose on defendants who did not move for such relief, because it would subject them without their approval to a new trial and the risk of arrest if they failed to appear. In short, the district attorneys argue that we should stay the course, because individual case-by-case adjudication of motions for a new trial brought by Dookhan defendants is both practical and fair.
1. Four relevant principles of our criminal justice system. In Bridgeman I, 471 Mass. at 487, we recognized that "we cannot expect defendants to bear the burden of a systemic lapse," but we declined to implement a global remedy "at this time" because we would not "allow the misconduct of one person to dictate an abrupt retreat from the fundamentals of our criminal justice system" (citation omitted). In revisiting here whether the time is now ripe to implement a global remedy, it is important to explain four relevant principles of our criminal justice system that have guided our prior decisions relating to this matter. First, where there is egregious misconduct attributable to the government in the investigation or prosecution of a criminal case, the government bears the burden of taking reasonable steps to remedy that misconduct. See Strickler v. Greene, 527 U.S. 263, 281 (1999) (discussing "special role played by the American prosecutor in the search for truth in criminal trials" and broad duty to disclose exculpatory information); Bridgeman I, supra at 480-481. Those reasonable steps include the obligation to timely and effectively notify the defendant of egregious misconduct affecting the defendant's criminal case. See Ferrara, 456 F.3d at 293 (government's failure to disclose exculpatory evidence to defendant "was so outrageous that it constituted impermissible prosecutorial misconduct sufficient to ground the petitioner's claim that his guilty plea was involuntary"); Mass. R. Prof. C. 3.8 (d), as appearing in 473 Mass. 1301 (2016) ("The prosecutor in a criminal case shall . . . make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense . . .").
As applied here, prosecutors had a responsibility timely and effectively to disclose Dookhan's misconduct to all affected defendants because Dookhan might erroneously have found substances that were not controlled substances to be a controlled substance, or to be a certain weight, creating the risk that a defendant may have been found guilty of a drug crime he or she did not commit. In addition, her egregious misconduct put in
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question the accuracy of the drug analysis and the ability of the government to prove the nature and weight of the alleged drugs beyond a reasonable doubt, which a defendant is entitled to consider in making an informed and voluntary decision whether to waive the right to trial and plead guilty (or admit to sufficient facts to warrant a finding of guilt), or to proceed to trial. The cost of notifying defendants of egregious government misconduct must be borne by the prosecuting district attorney's office, even if, as here, the fault belongs to the Hinton lab and Dookhan, not the prosecutors.
Second, under our criminal rules, relief from a conviction generally requires the defendant to file a motion for a new trial. See Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001) (judge "upon motion in writing may grant a new trial at any time if it appears that justice may not have been done" [emphasis added]). See also Scott, 467 Mass. at 354. "A new trial motion under Rule 30(b) is the appropriate vehicle to attack the validity of a guilty plea or an admission to sufficient facts." Reporters' Notes to Rule 30 (b), Mass. Ann. Laws Court Rules, Rules of Criminal Procedure, at 1774 (LexisNexis 2016).
Third, dismissal with prejudice "is a remedy of last resort." Commonwealth v. Cronk, 396 Mass. 194, 198 (1985). Where a motion for a new trial is allowed, the conviction is vacated, and the prosecutor may retry the defendant on the same charge, unless the judge, apart from the vacatur, also dismisses the complaint or indictment with prejudice. We have identified "[t]wo parallel legal principles" governing when this last resort might be necessary, balancing the rights of defendants "against the necessity for preserving society's interest in the administration of justice." Id. at 198-199. Under one legal principle, where a prosecutor fails to disclose evidence the defendant is entitled to receive and the defendant is prejudiced by the failure to disclose, a motion to dismiss with prejudice should be allowed only where there is "a showing of irremediable harm to the defendant's opportunity to obtain a fair trial." Id. at 198. Dismissal with prejudice is "too drastic a remedy" if the error can be remedied and the defendant can still obtain a fair trial. Id. at 200, and cases cited.
"Under the alternative principle, prosecutorial misconduct that is egregious, deliberate, and intentional, or that results in a violation of constitutional rights may give rise to presumptive prejudice. In such instances prophylactic considerations may assume paramount importance and the 'drastic remedy' of
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dismissal of charges may become an appropriate remedy." Id. at 198-199. This alternative principle is narrowly applied; "the only reason to dismiss criminal charges because of nonprejudicial but egregious police misconduct would be to create a climate adverse to repetition of that misconduct that would not otherwise exist." Commonwealth v. Lewin, 405 Mass. 566, 587 (1989).
We dismissed drug charges with prejudice based on both alternative grounds where two special agents of the United States Drug Enforcement Administration spoke after arraignment with the defendant without the approval of defense counsel, disparaged defense counsel and the manner in which he was conducting the defense, and encouraged the defendant to cooperate with Federal authorities. Commonwealth v. Manning, 373 Mass. 438, 440 (1977). We concluded that this was "a deliberate and intentional attack by government agents on the relationship between Manning and his counsel in a calculated attempt to coerce the defendant into abandoning his defense," id. at 443, and that "the officers' misconduct was so pervasive as to preclude any confident assumption that proceedings at a new trial would be free of the taint," id. at 444. We also concluded that a "stronger deterrent" than a new trial was warranted for this type of misconduct. Id.
In Scott and Francis, the remedy that we found appropriate in cases where a defendant shows prejudice arising from Dookhan's misconduct was the allowance of a motion for a new trial and the vacatur of the conviction. We did not order the dismissal of the defendant's drug charges with prejudice, or suggest that was an appropriate remedy for Dookhan's misconduct under either of the alternative legal principles. Although the record does not provide us with data as to the number of relevant Dookhan defendants who were reprosecuted after their motions for a new trial were allowed, we are aware that some defendants were retried and that other defendants later pleaded guilty or admitted to sufficient facts to support a guilty finding.
Fourth, where large numbers of persons have been wronged, the wrong must be remedied in a manner that is not only fair as a matter of justice, but also timely and practical. Cf. Green v. County School Bd. of New Kent County, 391 U.S. 430, 439 (1968) (in redressing school desegregation, school board must "come forward with a plan that promises realistically to work, and promises to realistically work now"). A remedy that is perfect in theory is not perfect in fact if it would take too long to be
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accomplished, or if the resources required to implement it would overwhelm the limited resources available to the courts. See Hilao v. Estate of Marcos, 103 F.3d 767, 786 (9th Cir. 1996) (affirming special master's award of compensatory damages based on statistical methods to determine amount owed to class of nearly 10,000 victims and survivors of decedents who were tortured, executed, or "disappeared" by Philippine military or paramilitary groups during fourteen-year rule of Ferdinand E. Marcos where "the time and judicial resources required to try the nearly 10,000 claims in this case would alone make resolution of Hilao's claims impossible"). Even when the number of persons injured is large and the problem is complex, courts endeavor to craft a workable remedy; we do not throw up our hands and deny relief because it would be too difficult to accomplish. Cf. Brown v. Plata, 563 U.S. 493, 511 (2011) (in addressing prison overcrowding, "[c]ourts may not allow constitutional violations to continue simply because a remedy would involve intrusion into the realm of [executive] administration"); Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 28 (1971) (when altering school attendance zones to prevent racial segregation, "all awkwardness and inconvenience cannot be avoided in the interim period when remedial adjustments are being made"). Over the course of its history, our judiciary has devised ways to provide redress to widespread wrongs through such vehicles as class actions, derivative actions, the consolidation of multiple related cases, and the appointment of special masters and receivers. See, e.g., Mass. R. Civ. P. 23, as amended, 471 Mass. 1491 (2015) (class actions); Mass. R. Civ. P. 23.1, 365 Mass. 768 (1974) (derivative actions by shareholders); Mass. R. Civ. P. 42, as amended, 423 Mass. 1406 (1996) (case consolidation); Mass. R. Civ. P. 53, as amended, 423 Mass. 1408 (1996) (appointment of special master). In short, we as a judiciary must and do find ways to make justice not only fair but workable. See Demoulas v. Demoulas, 428 Mass. 555, 580 (1998), citing 1 D. Dobbs, Remedies § 2.1(3), at 63 (2d ed. 1993) ("Equitable remedies are flexible tools to be applied with the focus on fairness and justice").
2. Revisiting the need for a global remedy. We now consider, in light of all that has happened and all that we have learned since Bridgeman I, whether we should revisit our decision to decline to adopt a global remedy "at this time" to resolve the cases of the relevant Dookhan defendants. Bridgeman I, 471 Mass. at 487.
a. The district attorneys' proposal to stay the course. The district attorneys contend that our previous decisions have
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provided an adequate remedy to the relevant Dookhan defendants. This argument relies on the key premise that the notice mailed to the Dookhan defendants adequately informed them that Dookhan's misconduct affected their criminal case and that, as a result, they may seek to vacate their drug conviction.
We reject this premise; we agree with the Bridgeman petitioners that the notice sent by the district attorneys was wholly inadequate to provide the relevant Dookhan defendants with the information necessary to knowingly and voluntarily decide whether they should explore with counsel the possibility of withdrawing their plea or moving for a new trial. The shortcomings begin with the envelope itself, which identified the source of the letter as "RG/2 Claims Administration LLC," a source that would appear inconsistent with the words on the envelope, "IMPORTANT LEGAL NOTICE FROM THE COMMONWEALTH OF MASSACHUSETTS." Such an envelope invites the risk that the notice might be unopened and discarded as "junk mail."
Among the shortcomings of the letter itself are that it failed adequately to inform the Dookhan defendants that the Supreme Judicial Court has determined that they are entitled to a conclusive presumption that the drug analysis in their case was tainted by egregious government misconduct. Nor did it adequately inform them that, as a result, this court has determined that they are entitled to withdraw their guilty plea [Note 18] on drug charges if they can show a reasonable probability that they would not have pleaded guilty, and instead would have decided to go to trial, had they known of Dookhan's misconduct. Nor did it adequately inform them that, if they had been convicted of a drug charge at trial, they are entitled to a new trial if the admission in evidence of their drug analysis might have significantly influenced the jury in reaching their verdict. The letter explained that, if their challenge to their drug conviction were to succeed, their conviction would be vacated and their "case will be returned to active
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status," but did not explain what it meant for their case to be on "active status." [Note 19] The Spanish translation of the letter is so poor that the letter might not be understood by persons who speak only Spanish.
The letter also failed to inform the Dookhan defendants that they had a right to counsel if they sought to withdraw their plea or move for a new trial and that, if they could not afford counsel, one would be appointed for them. Instead, it invited them to speak to their original lawyer on the case and, if they did not know how to contact that lawyer, invited them to obtain that information from the relevant criminal clerk's office. [Note 20] The letter also invited them to contact the office of the district attorney who prosecuted them "[f]or more information." It did not provide a telephone number for CPCS or for any other entity that conducts criminal defense.
Apart from the deficiencies in the notice, we know that a substantial number of the Dookhan defendants did not receive the letter, because 5,767 were returned as undeliverable. An additional 964 notices were sent to secondary addresses for these individuals in an attempt to locate them, but we do not know how many of these letters were returned as undeliverable. No public notice, either through the newspaper, television, or social media, was attempted to provide notice to those whose current address could not be located.
We are skeptical of the district attorneys' explanation that so few of the Dookhan defendants chose to respond to the letter because most were not interested in "reopening a closed chapter in their lives before an adverse impact actually occurs" and others believed that "they face no adverse impact at all" from this conviction. We recognize that few, if any, of the relevant Dookhan defendants continue to be incarcerated on a drug conviction tainted by Dookhan's misconduct, but that does not mean that they lack a strong reason to seek to have this conviction vacated, given the serious and pervasive collateral consequences that arise from a drug conviction. A noncitizen, even one lawfully residing in this country, who is convicted of any crime "relating to a controlled substance," which includes the crime of possession
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of heroin, cocaine, or more than thirty grams of marijuana, is "deportable." 8 U.S.C. § 1227(2)(B)(i) (2012). See Padilla v. Kentucky, 559 U.S. 356, 368 (2010); Commonwealth v. DeJesus, 468 Mass. 174, 175 (2014). All persons, including United States citizens, who are convicted of drug crimes may be barred from public housing and from Federal- and State-subsidized private housing. See 42 U.S.C. § 13661 (2012); 24 C.F.R. §§ 960.204(a)(1), 982.553(a)(1), (2)(ii); G. L. c. 121B, § 32 (State-funded public housing); 760 Code Mass. Regs. § 5.08(1)(d) (1996); 760 Code Mass. Regs. § 49.03(2)(f) (2012) (Massachusetts Rental Voucher Program); 803 Code Mass. Regs. § 5.04 (2012). A drug conviction may bar a defendant from many categories of jobs and professional licenses. See, e.g., G. L. c. 6, §§ 172 (c), 172A-172M. See also Commonwealth v. Pon, 469 Mass. 296, 317 (2014) (collateral consequences include homelessness and unemployment). It may also prevent a defendant from receiving government benefits such as cash assistance and unemployment benefits. See G. L. c. 151A, § 25 (e) (unemployment benefits); 106 Code Mass. Regs. § 701.110(D) (2016) (cash assistance under transitional aid to families with dependent children program). And it may render a student temporarily ineligible for Federal financial aid, thereby diminishing a defendant's ability to attend college. 20 U.S.C. § 1091(r)(1) (2012). A conviction of drug trafficking results in the automatic suspension of the defendant's driver's license, which makes it more difficult to find and keep employment. G. L. c. 90, § 22½, inserted by St. 2016, c. 64, § 1. A prior drug conviction may also result in a lengthy minimum mandatory sentence for those subsequently convicted of additional drug offenses, G. L. c. 94C, §§ 32 (b), 32A (b), 32B (b), 32C (b), 32D (b), 34, or of the illegal possession of a firearm. G. L. c. 269, § 10G. In short, the adverse consequences of an unjust conviction do not end when one completes a jail or prison term, or a probationary period. Given the inadequacy of the notice provided by the district attorneys, the remarkably low response to that notice, and the severe collateral consequences of drug convictions, justice and fairness do not permit us simply to stay the course set in Bridgeman I.
b. The Bridgeman petitioners' proposal for a global remedy. The Bridgeman petitioners contend that, even with adequate notice, no remedy premised on case-by-case adjudication can work. They argue that, because of the severely limited resources of CPCS -- the amount of State funding, the number of qualified bar advocates, and the legislative limits on the number of hours
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that bar advocates annually may bill to CPCS -- CPCS cannot possibly assign qualified counsel to represent all the defendants who would file the postconviction motions that would result from truly adequate notice. They therefore contend that it is both illusory and misleading to inform defendants that, if they are indigent, counsel will be assigned to represent them, where that will simply not be possible. They contend that the only just and practical alternative under these circumstances is the global remedy they propose, in which we would vacate the drug convictions of all relevant Dookhan defendants and dismiss them with prejudice, or dismiss them without prejudice and allow prosecutors one year to reprosecute these cases before they, too, would be dismissed with prejudice.
The proposed global remedy, however, is neither as just nor as practical as the Bridgeman petitioners claim, and it would be inconsistent with some of the principles that we earlier articulated. In Scott and Francis, we granted relevant Dookhan defendants a conclusive presumption of egregious government misconduct, but we did not grant them a conclusive presumption of prejudice; defendants still bore the burden of proving prejudice. Where a relevant Dookhan defendant filed a motion to withdraw a plea or for a new trial, and failed to prove prejudice, the motion was denied. The global remedy proposed by the Bridgeman petitioners would effectively declare a conclusive presumption of prejudice.
Even where a relevant Dookhan defendant proved prejudice, the defendant only obtained a new trial under Scott and Francis, not a dismissal with prejudice. Dookhan's conduct, serious as it was, did not result in "irremediable harm to the defendant's opportunity to obtain a fair trial." Cronk, 396 Mass. at 198. Rather, it meant that the Commonwealth had to retest the substance claimed to be a controlled substance and offer evidence of that new drug analysis at a retrial, or otherwise prove that the substance possessed or distributed by the defendant was a controlled substance. Nor, given the absence of any evidence of misconduct by a prosecutor or investigator, did we place Dookhan's misconduct in the category that requires a stronger deterrent than a new trial to avoid the risk of repetition. See Lewin, 405 Mass. at 587; Manning, 373 Mass. at 444. A dismissal with prejudice for government misconduct is very strong medicine, and it should be prescribed only when the government misconduct is so intentional and so egregious that a new trial is
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not an adequate remedy. We did not prescribe this medicine in Scott and Francis, and we are not convinced that it is appropriate to do so now. And if we were to prescribe it now, we would equitably have to address the claims of those who earlier prevailed in proving prejudice and therefore won a new trial, but not a dismissal with prejudice, and subsequently either again pleaded guilty to the same or lesser charges or were convicted at a new trial of the drug charges. They could justly contend that they are as entitled to a dismissal with prejudice as are those who did not move for a new trial.
To vacate the convictions of all relevant Dookhan defendants without prejudice would present other problems of justice and practicality. We require a defendant to move for a new trial for a reason -- without a motion, we cannot be sure that a defendant wishes to accept the risk that the Commonwealth will retry the defendant rather than issue a nolle prosequi. Even though, as a result of our decision in Bridgeman I, 471 Mass. at 477, a defendant at a new trial would not be risking conviction of a more serious crime or a longer sentence, a defendant who is retried would still have to appear in court when directed by the judge and endure the uncertainty and disruption inherent in being a defendant in a criminal trial. We might be skeptical of the district attorneys' contention that most of the relevant Dookhan defendants do not wish to reopen "a closed chapter in their lives," but it would not be surprising if some defendants have no wish to relitigate their earlier criminal cases and instead simply want to move on with their lives.
Although we reject the global remedy proposed by the Bridgeman petitioners, we accept two premises of their argument. First, in light of the unusual circumstances of the relevant Dookhan defendants, all who are indigent and wish to explore whether to move for a new trial under Mass. R. Crim. P. 30 (b) are entitled to appointed counsel. We recognize that we have declared that "an indigent defendant does not have an absolute right under any provision of the United States Constitution or the Massachusetts Declaration of Rights to appointed counsel in preparing or presenting his motion for a new trial." Commonwealth v. Conceicao, 388 Mass. 255, 261 (1983). But we have also declared that the State must "ensure that indigent defendants have meaningful access to this postconviction proceeding," id., and that, "when a defendant presents a motion for a new trial which raises a colorable or meritorious issue, 'it is much the better
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practice to assign counsel.'" Id. at 262, quoting Dillon v. United States, 307 F.2d 445, 448 (9th Cir. 1962).
Generally, the decision whether to appoint counsel to represent a defendant in preparing and presenting a motion for a new trial rests with the sound discretion of the motion judge. Mass. R. Crim. P. 30 (c) (5), as appearing in 435 Mass. 1501 (2001). But in the exercise of that discretion a judge should appoint counsel where the failure to do so would deprive an indigent defendant "of meaningful access" or result in "fundamental unfairness." Conceicao, supra at 262, citing Ross v. Moffitt, 417 U.S. 600, 616 (1974), and Lassiter v. Department of Social Servs., 452 U.S. 18, 24-25 (1981).
Here, all of the relevant Dookhan defendants who move for a new trial are entitled under our decision in Scott to a conclusive presumption of egregious government misconduct. The district attorneys concede that, given the number of relevant Dookhan defendants, we have the authority under our superintendence power to order that each relevant Dookhan defendant who is indigent is entitled to the assignment of counsel. We so order; we need not wait for each motion judge to rule individually on the question of the assignment of counsel where it is plain that the absence of counsel under these unusual circumstances would deny an indigent defendant "meaningful access" or result in "fundamental unfairness," and therefore deprive the defendant of his or her constitutional rights to due process and to counsel. The right to appointed counsel applies here regardless of whether the relevant Dookhan defendant has completed his or her sentence, because the severe collateral consequences arising from a drug conviction do not end at the conclusion of a defendant's sentence.
Moreover, where an indigent criminal defendant has a right to counsel, "[t]he duty to provide such counsel falls squarely on government, and the burden of a systemic lapse is not to be borne by defendants." Lavallee v. Justices in the Hampden Superior Court, 442 Mass. 228, 246 (2004). Where a judge finds that a criminal defendant has a right to counsel and is indigent (or indigent but able to contribute), the judge assigns CPCS to provide representation for the party. S.J.C. Rule 3:10, § 6, as appearing in 475 Mass. 1301 (2016). G. L. c. 211D, § 5 (CPCS "shall establish, supervise and maintain a system for the appointment or assignment of counsel" at any stage of criminal proceeding where there is right to counsel and defendant is indigent). If CPCS, despite its best efforts, were unable to assign counsel to a
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defendant in a reasonably timely manner -- whether the reason be the absence of necessary funding by the Legislature, the inability of CPCS to qualify adequate numbers of private attorneys to serve as bar advocates because of the low hourly fee mandated by the Legislature, [Note 21] the unavailability of qualified bar advocates because of the limitation on the number of hours they may bill annually, [Note 22] or a systemic overload created by an overwhelming number of relevant Dookhan defendants filing motions for a new trial (or the combination of all four reasons) -- we would have to fashion an appropriate remedy under our general superintendence authority for the constitutional violation suffered by indigent criminal defendants. See Lavallee, supra at 244. In Lavallee, where the list of CPCS-qualified attorneys available to accept assignments in Hampden County was inadequate to ensure the provision of counsel to those with a right to counsel, the remedy we ordered was that a criminal case against an indigent defendant must be dismissed without prejudice if an attorney had not filed an appearance within forty-five days of arraignment. Id. at 246.
We recognize that, if a substantial percentage of relevant Dookhan defendants were to seek postconviction relief after receiving truly adequate notice, the capacity of CPCS to assign qualified attorneys to represent these defendants in case-by-case adjudication would soon be overwhelmed. Therefore, unless the district attorneys were to move to vacate and dismiss with prejudice the drug convictions of large numbers of relevant Dookhan defendants,
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case-by-case adjudication poses the considerable risk that the demand of indigent Dookhan defendants for counsel might outstrip the supply of CPCS-qualified attorneys to represent them, and require this court to implement an appropriate remedy under our general superintendence authority for the constitutional violation suffered by indigent criminal defendants who are denied their right to counsel. If past is prologue, that remedy will likely be the dismissal without prejudice of their challenged drug convictions. See Lavallee, 442 Mass. at 246.
c. New protocol for case-by-case adjudication. The extraordinary magnitude of Dookhan's misconduct has left us with only poor alternatives. We continue to believe that, despite its considerable risks and burdens, case-by-case adjudication is the fairest and best alternative to resolve the drug cases potentially tainted by Dookhan's misconduct and the alternative most consistent and in harmony with the relevant principles of criminal justice that have and continue to guide us in this extraordinary situation. But we recognize that, in light of the potential need to adjudicate more than 20,000 motions for a new trial brought by the relevant Dookhan defendants, case-by-case adjudication must be adapted to make it both fair and workable.
The success of case-by-case adjudication will depend on the cooperation of the district attorneys, who will have to examine each drug conviction of each relevant Dookhan defendant in their district and determine which cases they reasonably could and would reprosecute if a motion for a new trial were granted, and move to vacate and dismiss with prejudice the rest. [Note 23] We rely on the exercise of the district attorneys' sound discretion to reduce substantially the number of relevant Dookhan defendants. We note that it appears that the majority of the drug convictions of relevant Dookhan defendants were of possession alone, [Note 24] that
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approximately ninety per cent of these convictions were obtained in the District Court or in the Boston Municipal Court (which means that the drug charges were either misdemeanors or felonies for which the district attorney did not choose to seek indictments), and that virtually all of these defendants have already served the entirety of their sentences for these drug convictions.
Its success also depends on the cooperation of CPCS, which will have to make best efforts in using the funding appropriated by the Legislature to assign counsel to the relevant Dookhan defendants who, after new notice, choose to explore the filing of a motion for a new trial. We look to CPCS also for its creativity and ingenuity in finding ways to assign attorneys to represent as many relevant Dookhan defendants as is reasonably possible.
To accomplish case-by-case adjudication of the drug cases of potentially more than 20,000 relevant Dookhan defendants, we establish the following protocol, to be completed in three phases, and order its implementation by the single justice in the form of a declaratory judgment.
i. Phase one. Upon the issuance of this opinion, each district attorney shall commence an individualized review of every Dookhan case in his or her district that was included on the list that the district attorney earlier submitted to the single justice. No later than ninety days after the issuance of this opinion, each district attorney shall file three letters with the county clerk. [Note 25]
The first letter shall identify all defendants on the list who are not relevant Dookhan defendants because they pleaded guilty to a drug charge before Dookhan signed the drug certification and therefore are not entitled to the conclusive presumption of egregious government misconduct. In short, this letter shall identify all of the so-called Ruffin defendants. See Ruffin, 475 Mass. at 1003.
The second letter shall identify all of the drug convictions on the list that the district attorney moves to vacate and dismiss with prejudice as a result of his or her individualized review. These shall include both the convictions that the district attorney wishes to vacate and dismiss with prejudice, regardless of whether the case could be successfully reprosecuted if a new trial were
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ordered, and the convictions that the district attorney could not successfully reprosecute if a new trial were ordered. Once these drug convictions are vacated and dismissed with prejudice, the defendants shall be notified of the action taken. [Note 26]
The third letter shall identify all drug convictions on the list that the district attorney does not move to vacate and dismiss with prejudice. For each such conviction, the district attorney shall certify that, if a motion for a new trial were allowed, the district attorney could produce evidence at a retrial, independent of Dookhan's signed drug certificate or testimony, sufficient to permit a rational jury to find beyond a reasonable doubt that the substance at issue was the controlled substance alleged in the complaint or indictment. Such independent evidence may include, for example, retesting of the original drug evidence, a positive field test, or a specific admission by the defendant regarding his or her knowledge of the nature of the substance that was made before Dookhan signed the drug certificate in the case. Only the relevant Dookhan defendants identified in the third letter shall be provided with new notice in phase two, discussed infra.
In light of the massive number of relevant Dookhan defendants and the scope of misconduct attributable to the government (albeit not to the prosecutors), it is only fair that district attorneys make an individualized determination whether a conviction warrants burdening the court system with the adjudication of a motion for a new trial, CPCS with the assignment of counsel for those who are indigent, and the taxpayers with payment for the notice and for assigned counsel, especially where a defendant has already served the entirety of the sentence. A substantial vetting of the relevant cases by the district attorneys will allow our criminal justice system to focus its limited resources where they are most needed, and diminish the risk that the number of these cases will so overwhelm CPCS that the single justice will have to act to protect the relevant Dookhan defendants' right to counsel. [Note 27]
ii. Phase two. In the second phase of the protocol, no later than
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thirty days after the expiration of the ninety-day period in phase one, new notice shall be provided to all relevant Dookhan defendants identified in the district attorneys' third letters. The notice shall consist of a mailing that is approved by the single justice as to its content, its envelope, and its mode of delivery. [Note 28] The single justice shall also have the authority to order additional forms of public notice, such as through newspapers or social media, to enhance the effectiveness of the mailing and to attempt to reach those who might not receive it.
The new notice shall not only address the deficiencies described in the content of the first written notice sent by the district attorneys, but also simplify the process for defendants to move for a new trial. The notice should identify the telephone number of a "hotline" staffed by CPCS, so that persons who receive the notice can seek immediate guidance. The mailing should permit a relevant Dookhan defendant to declare, simply by checking a box, that the defendant wishes to discuss with counsel whether the defendant should attempt to vacate his or her drug conviction by filing a motion for a new trial, and should also include a form indigency affidavit for the defendant to fill out if he or she claims to be indigent and therefore qualifies for the assignment of counsel.
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CPCS is encouraged to draft and include within the mailing a separate letter providing the legal guidance and information that CPCS would generally provide to a relevant Dookhan defendant who would telephone its hotline. Because this guidance letter, unlike the notice, constitutes legal advocacy and not simply legal information, and might encourage relevant Dookhan defendants to move for a new trial to eliminate the collateral consequences arising from their drug conviction, the content of this letter shall not require the approval of the single justice. Along with the notice, the guidance letter, the check-off sheet, and the form indigency affidavit, the mailing shall include a stamped, self-addressed envelope so that, once completed, the documents may be returned to an address designated by the single justice. Where a relevant Dookhan defendant returns the documents indicating that he or she is indigent and wishes to explore with counsel the filing of a motion for a new trial, the single justice shall make an indigency determination and, where indigency is found, shall order CPCS to assign counsel to the defendant. No action shall be taken regarding any relevant Dookhan defendant's conviction where he or she does not return the documents or otherwise move for a new trial.
The single justice shall also address the challenge created by the substantial number of relevant Dookhan defendants who have yet to be successfully located. As it stands now, these defendants have yet to be informed that the substance at issue in their case was tested by Dookhan in the Hinton lab, that Dookhan's misconduct over many years has been found to be egregious government misconduct, and that they are entitled to the conclusive presumption of egregious government misconduct if they were to move for a new trial. Because they have not yet been so informed, they effectively have been denied the opportunity to seek redress for this misconduct.
The district attorneys have an obligation to take all reasonable steps necessary to provide these individuals with notice of Dookhan's misconduct, and that includes reasonable efforts to locate them, wherever they might be residing. Where, despite reasonable efforts, the district attorneys are unable to obtain an address for a relevant Dookhan defendant, or where the notice is returned as undeliverable, the single justice shall direct the relevant district attorney to locate the current address of the defendant's last attorney of record in the case. The notice and accompanying documents shall be sent to that attorney, with a cover
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letter asking the attorney to make best efforts to locate his or her former client so that effective notice can be accomplished. In addition, the single justice shall have the authority to direct the probation department to include a notation in the missing defendant's board of probation record indicating that the defendant is a relevant Dookhan defendant, so that the defendant can receive the required notice and related documents if he or she returns to court. For the relevant Dookhan defendants who cannot otherwise be located, the single justice shall also have the authority to order the use of social or other media to provide the notice and related documents, or information regarding them.
The financial burden of notifying defendants of egregious government misconduct that affected their criminal cases must be borne by the prosecuting district attorney's office, even if, as here, the fault belongs to the Hinton lab and Dookhan, not the prosecutors. Therefore, the cost of providing new and adequate notice, including but not limited to the cost of mailing, of locating missing defendants, and of publicity through social and other media, shall be borne by the district attorneys, with the allocation of those costs to be determined by the single justice. We recognize that this cost could be considerable, but that is a consequence of egregious government misconduct that affected more than 20,000 defendants. We also note that a district attorney may reduce the amount of this cost by reducing the number of defendants identified in the third letter. The failure of a district attorney to bear the district's proportionate share of these costs shall be deemed equivalent to a failure to provide defendants with exculpatory information, with the sanctions appropriate to such a failure.
iii. Phase three. In the third phase, CPCS shall identify in writing to the single justice all cases, if any, where CPCS received an order for the assignment of counsel, but was unable within sixty days of the order to assign counsel despite CPCS's best efforts. The single justice shall then make a factual finding, after hearing, whether CPCS has made best efforts to assign counsel in these cases. In those cases where the single justice makes such a finding, the single justice shall issue an order to show cause why the drug conviction of this unrepresented defendant should not be vacated, and set a date for a show cause hearing where the Commonwealth will have an opportunity to be heard. At or after that hearing, if the single justice determines that relevant Dookhan defendants have been denied their right to
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counsel because of the inability of CPCS, despite its best efforts, to assign counsel to represent the defendants, the single justice may order that the drug convictions at issue be vacated and dismissed without prejudice, unless the interests of justice otherwise dictate. [Note 29] See Lavallee, 442 Mass. at 246.
Conclusion. The case is remanded to the single justice for the entry of a declaratory judgment as provided in this opinion and for further action consistent with this opinion. [Note 30]
So ordered.
KEVIN BRIDGEMAN & others [Note 1] vs. DISTRICT ATTORNEY FOR THE SUFFOLK DISTRICT & others. [Note 2]