Law & the Courts

A Case of 21,587 Crimes

(Photo: Pablo631/Dreamstime)
How trust in our criminal-justice system is undermined

Annie Dookhan is not the first. She will not be the last.

Dookhan, who in 2013 pleaded guilty to 27 criminal counts involving obstruction of justice and tampering with evidence, was a chemist employed by Massachusetts to test evidence in drug cases. She was involved in thousands of them, and she routinely falsified evidence. For example, she declared samples positive for drugs without testing them and forged colleagues’ signatures on reports. On Wednesday, Massachusetts announced that it was obliged to throw out 21,587 drug convictions secured with questionable evidence.

In September 2001, Oklahoma City fired forensic chemist Joyce Gilchrist. Gilchrist had been accused of falsifying evidence, though she never was charged with a crime. She had offered testimony in capital murder cases in which she claimed that DNA samples matched those of the accused — claims that later turned out to be false. Jeffrey Todd Pierce, who served 15 years in prison on a rape charge bolstered by DNA evidence that turned out to be false, sued Gilchrist and the district attorney for $75 million, claiming that they had conspired to falsify evidence. Oklahoma City settled. Curtis McCarthy spent 20 years on death row thanks in part to Gilchrist; his conviction was thrown out after the court found that Gilchrist had mishandled evidence and may have intentionally altered it. The Tenth Circuit Court of Appeals found that she had fabricated evidence in another capital case.

In the 1990s, Dr. Ralph Erdmann, a highly paid pathologist working for Lubbock County, Texas, ran into a spot of trouble: At one point he had misplaced a human head, and in one autopsy report he duly recorded the condition of the spleen of a man who did not have one. He kept blood samples in his home refrigerator, next to the mustard. He was eventually convicted of a raft of felonies involving evidence tampering and perjury. Local lawyers insisted that he was cooperating with the district attorney and providing whatever evidence was needed to produce a conviction. His tainted evidence helped produce convictions in at least 20 capital murder cases.

Dookhan received a sentence of three to five years and was shortly thereafter paroled. Gilchrist was never charged with a crime. Erdmann was sentenced to community service; he later was imprisoned on weapons charges and served two years. We go pretty easy on these kinds of crimes. We shouldn’t.

It is strange — and wrong — that we permit this sort of thing to happen, and that our attitudes about police and prosecutorial misconduct remain so blasé. It is natural that we want to give the benefit of the doubt to the people involved in the difficult work of keeping society safe from criminals, but it is a fact of human existence that police and prosecutorial work is a magnet for corruption. Prosecutors have ambitions, and police officers have bills to pay. Prosecutorial abuse is a problem from Texas to Massachusetts to California, and practically every big-city police department in this country has at one time or another been penetrated by organized-crime syndicates or suffered other forms of systemic corruption.

This is a moral problem, but too often our moral insistence that this sort of thing simply should not happen blinds us to the fact that it does happen, consistently, and that we need to take prophylactic measures against it.

Consider, for a moment, the very popular idea of drug-testing welfare recipients. There is very little evidence that this produces lower rates of drug use on the part of welfare recipients, and no evidence at all that it lowers welfare caseloads — much less that it does so in a way that offsets or more than offsets the cost of the drug testing. It might conceivably have some effect on casual recreational drug users, but as anybody who ever has worked with full-blown addicts knows, they will give up a great deal (jobs, custody of their children, marriages, self-respect) in the service of their addictions. We would be far more likely to reduce welfare dependency by treating addiction than to reduce addiction by restricting welfare dependency. But the desire to punish is a permanent part of the human outlook, and it has its own demands.

Why not test police and prosecutors instead?

Trust in institutions is the lubricant that permits the machinery of an open society to run.

Not for drug use. We would be far better off applying a similar idea in the matter of criminal cases by having independent third parties randomly retest DNA samples, drugs, and other physical evidence in felony cases. Erdmann’s autopsy reports were not only falsified — in many cases, he apparently did not perform the autopsy at all. Dookhan’s work similarly would have been exposed by ordinary oversight measures that are routine in other settings. We do not need Sherlock Holmes to root out this sort of wrongdoing. We only need basic responsible action.

Expensive? Surely. But not nearly so expensive as retrying 21,587 felony cases linked to a single chemist or making restitution for wrongful convictions. Difficult and problematic? No doubt, but not nearly so troubling as the possibility of wrongly convicting innocent people — or, as the wiser among us will appreciate, of convicting guilty people on bad evidence. It may very well have been the case that every man and woman Erdmann sent to death row was 100 percent guilty as charged; properly understood, that question is irrelevant to the issue of falsifying evidence and other forms of misconduct on the part of prosecutors and their colleagues. A bogus trial that produces the right result is still a bogus trial.

And it is expensive to have bogus trials.

Not only because of the obvious costs involved in reopening cases or making multimillion-dollar payments to those wrongly convicted, but because a liberal society runs on trust. Trust in institutions is the lubricant that permits the machinery of an open society to run. We ought to be routinely reexamining the work of prosecutors and police officers in a systematic and regular way not because we expect to find widespread abuse and misconduct but because we do not expect to find them.

Trust has to be earned.

In the 1950s, outlaw motorcycle gangs briefly became a subject of national fascination, owing in part to Marlon Brando’s performance in The Wild One. (Hunter S. Thompson’s later exploration of the subject in Hells Angels was his best work.) A representative of the American Motorcycle Association is supposed to have remarked that 99 percent of all motorcyclists were decent, law-abiding citizens. Since that time, outlaw motorcyclists have proudly worn a patch reading: “1%.”

Outlaw prosecutors, outlaw coroners, and outlaw chemists do not wear any such patch. And they probably don’t even amount to 1 percent of the people with whom we entrust the enforcement of our laws and the administration of justice. But they are there.

What are we going to do about that?

— Kevin D. Williamson is the roving correspondent for National Review.

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