Now we learn that Inspector General Glen Cuhna, who once seemed ready to pin a massive state drug lab scandal on a lone chemist, Annie Dookhan, actually referred four other lab workers for prosecution. Interesting.
Still, counting the number of “bad apples” shouldn’t distract us from the reality that the Massachusetts lab scandals were not the work of isolated violators; they were full system crashes. A look at them will reveal system weaknesses that exorcising individuals will not cure. Ignore that fact, and we are doomed to see this fiasco repeated.
Standing to the left of Annie Dookhan (and Sonja Farak, too) were the people who hired them, trained them, supervised them, and devised the laboratory evidence-handling protocols they blithely skated around.
Standing to their right was a legion of lab directors and legal system practitioners– prosecutors, defenders, and judges—who failed (throughout the disposition of 30,000 cases) to notice that anything was amiss.
It is easy to see that Dookhan and Farak crippled the work of Massachusetts prosecutors and defenders downstream, but it is important to remember that their awareness of the ramshackle state of the downstream inspection apparatus influenced the upstream choices of the two “bad apples.”
Besides, simultaneously battering all of these players was an encompassing environment of acute caseload pressures and dire resource shortages that generated the culture of “work-arounds,” triage, and “covert work rules” that made it both attractive and possible for Dookhan and Farak to zig when they should have zagged.
It’s a feature of our criminal justice system that while it defines its goal as public safety, it makes no use of the lessons learned by experts who have studied safety in high impact fields such as aviation, medicine, and nuclear power.
Yes, those experts would tell us to discipline rule violators. No system can survive without doing that. But they would also warn us that punishing the bad apples is a terrible place to stop—that it is an illusion to think that the job is to protect a safe system from the occasional bad person.
Look at any criminal justice catastrophe—a lab scandal, a wrongful conviction, a death in custody, a mistaken release—and you will find what medical experts found whenever they looked at “wrong patient” surgeries, or wrong dosage deaths: dozens of small errors, no one of them independently sufficient to cause the tragedy, combine with each other and with latent system weaknesses. Then—but only then—the nightmare becomes a reality — an “organizational accident.”
Cops under pressure to hit a Compstat number stop a guy on Dudley Street. He has a bag in his pocket. He thinks it contains cocaine. In fact, it contains baking soda. The cops arrest him, and seize the bag. A “field test” of the contents is ambiguous, but he has an outstanding warrant for ignoring child support orders, so the cops arrest him, and charge him with possessing drugs with intent to distribute.
An assistant district attorney charges a felony trafficking offense. The bag goes to the lab. The lab is overwhelmed; the volume of cases forces triage, shortcuts, “covert work rules.” Today’s “covert work rule” sets the stage for practical drift to another even more lax practice tomorrow. Annie Dookhan fakes a test result and certifies it. It “makes sense” to her—it’s despicable, but rational. No one questions the result—maybe no one is able to question the result.
The case comes back to court. The prosecutor has a file, nothing else. The defender has 50 files, and no easy access to a chemist of his or her own. The judge has 40 cases on his docket and needs to get to zero by 4 p.m. A deal is offered: Drop the mandatory minimum, offer six months in the House of Correction.
We have a dozen individual mistakes here, and we have a gradual demoralization that made the mistakes and violations “normal.”
When the innocent man pleads guilty rather than risk taking a 20-year sentence, a dozen “someones” have their fingerprints on the case. Other “someones” far from the scene, who set the budgets, devised the incentives, built the pressures, but left no fingerprints, played their roles, too. None of them intended the catastrophic results they helped bring about.
When we discover one of these travesties of justice, we have to seize the opportunity that it offers to discover the myriad system weaknesses that still lie in wait for the next case that will come along—and it will come along.
Don’t look for three or four bad apples. Convene an all-stakeholders “sentinel event review” as a hospital would after a wrong patient surgery, or the NTSB would do after a plane crash.
Hold ourselves accountable for learning the lessons. Change what we can change. Build the capacity to keep doing it.
James Doyle is a Boston defense lawyer and author and formerly the head of the public defender division of the Committee for Public Counsel Services and director of the Center for Modern Forensic Practice at the John Jay College of Criminal Justice.