KEVIN BRIDGEMAN & others vs. DISTRICT ATTORNEY FOR THE SUFFOLK DISTRICT & others
Supreme Judicial Court of Massachusetts
January 18, 2017
476 Mass. 298 (2017)
Suffоlk. November 16, 2016. Present: GANTS, C.J., BOTSFORD, LENK, HINES, GAZIANO, LOWY, & BUDD, JJ.
Discussion of four relevant principles of the justice system that have guided this court‘s prior decisions arising from the egregious misconduct of a chemist at a State drug laboratory. [315-318] HINES, J., dissenting.
In light of all that has happened and all that this court has learned since this court‘s decision in Bridgeman v. District Attorney for the Suffolk Dist., 471 Mass. 465 (2015), this court concluded that its previous decisions did not provide an adequate remedy to resolve the tens of thousands of cases affected by the egregious misconduct of a chemist at a State drug laboratory, where a notice mailed by district attorneys to those affected was wholly inadequate to provide those defendants with the information necessary to decide knowingly and voluntarily whether they should explore with counsel the possibility of withdrawing their guilty plea or moving for a new trial, where a substantial number of those defendants did not receive the notice and there was a low response rate to that notice, and where drug convictions have severe collateral consequences. [318-321]
Despite all that has happened and all that this court has learned since this court‘s decision in Bridgeman v. District Attorney for the Suffolk Dist., 471 Mass. 465 (2015), this court declined to implement a proposed “global remedy” to resolve the tens of thousands of cases affected by the egregious misconduct of a chemist at a State drug laboratory. [321-326] HINES, J., dissenting.
Although this court continued to believe that case-by-case adjudication of cases affected by the egregious misconduct of a chemist at a State drug laboratory was the fairest and best alternative to resolve those cases, and the one in harmony with the relevant principles of criminal justice that have guided this court in this extraordinary situation, in light of the potential need to adjudi
CIVIL ACTION commenced in the Supreme Judicial Court for the county of Suffolk on January 9, 2014.
The case was reported by Botsford, J.
Matthew R. Segal (Daniel N. Marx, Adriana LaFaille, & Carlton E. Williams also present) for the petitioners.
Benjamin H. Keehn, Committee for Public Counsel Services (Nancy J. Caplan, Emily A. Cardy, & Eric Brandt, Committee for Public Counsel Services, also present) for Committee for Public Counsel Services.
Quentin R. Weld, Assistant District Attorney, for District Attorney for the Essex District.
Susanne M. O‘Neil, Assistant District Attorney, for District Attorney for the Norfolk District.
Vincent J. DeMore, Assistant District Attorney, for District Attorney for the Suffolk District.
The following were present but did not argue:
Robert J. Bender & Hallie White Speight, Assistant District Attorneys, for District Attorney for the Middlesex District.
Gail M. McKenna, Assistant District Attorney, for District Attorney for the Plymouth District.
Brian S. Glenny, Assistant District Attorney, for District Attorney for the Cape & Islands District.
Aaron M. Katz, for Massachusetts Association of Criminal Defense Lawyers, amicus curiae.
The following submitted briefs for amici curiae:
Joseph S. Dowdy & Christine C. Mumma, of North Carolina, John Roddy, & Denise McWilliams for New England Innocence Project & another.
Janet Moore, of Ohio, & Patricia A. DeJuneas for National Association for Public Defense.
Anthony A. Scibelli & Elizabeth A. Ritvo for Boston Bar Association.
Daniel K. Gelb, Chauncy B. Wood, Naveen Ganesh, & Peter Walkingshaw for National Association of Criminal Defense Lawyers & another.
GANTS, C.J. We once again confront the tragic legacy of the misconduct of Annie Dookhan when she was employed as a
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.”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
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, morе 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.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
In July, 2012, the Legislature transferred oversight of the Hinton lab to the State police. See
- 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 sаmples 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”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
any other chemist in the [Hinton] lab.” Id.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 65-66.7 To address this onslaught of motions, the Chief Justice of the Superior Court in October, 2012, assigned specific
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.
To resolve this dilemma, we exercised our power of “general superintendence of all courts ... to correct and prevent errors and abuses” under
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
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.”8
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
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. Wе 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. 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
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 CPCS12 would not agree
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.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
A Spanish translation of the notice was included on the bottom of the page. According to the Bridgeman petitioners, this trans
The district attorneys’ vendor mailed 20,916 letters to Dookhan defendants.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
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.17
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
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 hеre 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“);
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
Second, under our criminal rules, relief from a conviction generally requires the defendant to file a motion for a new trial. See
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 dis
We dismissed drug charges with prejudice based on both alternative grоunds 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
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 pro
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 plea18 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
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.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 posses-
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
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 obtained only 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
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
Generally, the decision whеther 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.
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).
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,
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.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,24 that
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 еvery 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.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 or-
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.27
ii. Phase two. In the second phase of the protocol, no later than
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.
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 еfforts 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
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
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.30
So ordered.
LENK, J. (concurring, with whom Budd, J., joins). It has been over five years since the stunning misconduct of a rogue chemist at the State‘s William A. Hinton State Laboratory Institute (Hinton lab) first came to light. The nature, scope, and adverse consequences of that misconduct on the individuals directly affected, on our system of justice, and on the taxpayers who must foot the bill for this lamentable turn of events are all ably recounted in the court‘s opinion, as well as in the dissenting opinion. I write separately to underscore that, in those five years, and despite the time and efforts of so many, we have managed to address fewer than 2,000 of the estimated 20,000 or more cases involving Annie Dookhan-tainted evidence. We cannot go on this way.
Even as we speak, the myriad ripple effects of one woman‘s misdeeds continue to afflict the relevant Dookhan defendants, thousands аnd thousands of whom already have served their time for convictions that we now know to be suspect. As a result of having a prior drug conviction, many of those same people, some of whom may not even know to this day of Dookhan‘s fateful role in their lives, may now find themselves unable to get work or housing, obtain or keep needed professional and drivers’ licenses, attend college, receive government benefits, or even stay in this
While blame for the difficult situation in which we find ourselves lies solely with Dookhan and the Hinton lab that allowed it to happen — and it cannot be said too many times that fault most certainly does not lie with the prosecutors who, without knowing its tainted provenance, in good faith used the evidence Dookhan created — we consistently have recognized that her misdeeds must be attributed to the government, and that the government must bear the responsibility to put things right. Just as the success of the Bridgeman II protocol will depend on its timely and rigorous implementation, so too will its viability turn, at least initially, on the willingness of the district attorneys promptly to dismiss with prejudice a truly significant number of the roughly 20,000 relevant Dookhan defendants’ cases — at a minimum, those for simple possession in which sentences already have been served. See ante at note 24. Not doing so in the first phase of the protocol will of necessity add to the already staggering human and financial costs of the scandal and risk overloading the already strained public defense system. In this regard, we cannot turn a blind eye to the potential costs of the looming crisis of thus far undetermined magnitude caused in western Massachusetts by Sonja Farak, yet another rogue chemist employed by a State laboratory. And, as to the presumably limited number of remaining cases that the district attorneys decline to dismiss, truly informative notice to the defendants involved, using whatever modes of communication will be effective, is vital to achieving the fair and workable outcome contemplated by the protocol.
Recognizing what Dr. Martin Luther King, Jr., once called “the fierce urgency of now,” we must act swiftly and surely to staunch the damage and to make things as right as we can. The Bridgeman II protocol draws upon the deep roots of our jurisprudence to craft
HINES, J. (dissenting). The petitioners and intervener (collectively, petitioners) are before this court once again seeking a global remedy for the more than 20,000 defendants whose convictions were tainted by Annie Dookhan‘s unprecedented1 and far-reaching misconduct at the William A. Hinton State Laboratory Institute. The court rejects a global remedy, adopting the view that “despite its considerable risks and burdens, case-by-case adjudication is the fairest and best alternative to resolve the cases potentially tainted by Dookhan‘s misconduct.” Ante at 326. I disagree. Now, more than five years after Dookhan‘s misconduct first came to light, the need to adopt a swift and sure remedy for the harm caused by her deceit presents itself with palpable urgency. The time has come to close the book on this scandal, once and for all, by adopting a global remedy. While I agree, as the court notes, that a global remedy is “strong medicine,” ante at 322, the continuing violation of the rights of the defendants affected by Dookhan‘s misconduct and the damage to the integrity of our criminal justice system demand no less.
Contrary to the court‘s assessment of the case-by-case procedure offered as the solution to the problem the court is obliged to solve, it is neither the fairest nor the best alternative for remedying thе manifest injustice to the defendants caught up in the Dookhan scandal and for restoring the integrity to our criminal justice system. It fails as the “fairest” alternative because it flouts the guiding principle that “in the wake of government misconduct that has cast a shadow over the entire criminal justice system, it is most appropriate that the benefit of the remedy inure to the defendants.” Commonwealth v. Scott, 467 Mass. 336, 352 (2014), citing Lavallee v. Justices in the Hampden Superior Court, 442 Mass. 228, 246 (2004). It also fails as the “best” alternative because it is simply unworkable as a timely and effective mechanism for addressing the due process claims of the thousands of defendants now deemed to have been convicted on Dookhan‘s tainted evidence. In short, the court‘s solution is too little and too late. The only fitting end to this blight on the integrity of our
The case for a global remedy. We have been here before. We acknowledged in Scott, 467 Mass. at 352, that Dookhan‘s misconduct caused “a lapse of systemic magnitude in the criminal justice system.” Recognizing the “particularly insidious” nature of Dookhan‘s misconduct and that it “belies reconstruction,” we adopted a conclusive presumption of egregious government misconduct as an accommodation to those defendants able to establish Dookhan‘s role in producing the evidence upon which their conviction was based. Id. Later in Bridgeman v. District Attorney for the Suffolk Dist., 471 Mass. 465 (2015) (Bridgeman I), we declined the invitation to implement a global remedy for the thousands of cases affected by Dookhan‘s misconduct “at this time.” Id. at 487. Signaling a preference for a measured approach rather than the more drastic global remedy advocated by the petitioners, we noted that “our decisions in Scott and [Commonwealth v. Charles, 466 Mass. 63 (2013)], have provided Dookhan defendants . . . with meaningful solutions for addressing concerns that have arisen as these defendants attempt to challenge their drug convictions.” Id.
Since Bridgeman I, however, Scott‘s promise as a hedge against the wholesale violation of the due process rights of this class of defendants has been undermined by the sheer magnitude of the problem. Scott was decided without the benefit of the investigative reports establishing the scope of Dookhan‘s misconduct.2 The court reasonably assumed, therefore, that the jurisprudential shortcut to proving Dookhan‘s misconduct would make a case-by-case approach workable. Because we now know the extent of Dookhan‘s misconduct and that it has not yet been mitigated in any significant respect by the measures in Scott and Charles, that assumption is no longer valid. With a clearer eye on the scope of the problem, Scott‘s characterization of Dookhan‘s misconduct as a “lapse of systemic magnitude” still stands as an apt factual and legal context for the petitioners’ claims. Scott, 467 Mass. at 352.
In this case, as in Scott, we are called upon to “exercise our superintendence power [under
1. Due process rights. The due process rights at stake here, “the opportunity to be heard ‘at a meaningful time and in a meaningful manner‘” (citation omitted), Bridgeman I, 471 Mass. at 479, weigh heavily in Scott‘s remedial calculus for two reasons: the serious and ongoing collateral consequences to the class of defendants convicted on the strength of Dookhan‘s tainted evidence; and the necessity to avoid unnecessary delay beyond the four years that already have elapsed in providing these defendants a “meaningful” opportunity to establish prejudice from Dookhan‘s misconduct. The court, ante at 320-321, paints a grim picture of how lives are upended by the serious collateral consequences of drug-related convictions. The picture is even more grim when one considers that many, if not most, of these defendants have already served their sentences.4 They have paid their debt to society whether they owed one or not. The years spent incarcerated cannot be restored to these defendаnts, but a fair and just resolution can make amends. What due process requires then
In Bridgeman I, 471 Mass. at 479, the court declined to adopt a global remedy in part based on the “substantial efforts that are being made to deal with the impact of Dookhan‘s misconduct.” With at least the prospect of a speedy resolution of the cases in which Dookhan was the primary or confirmatory chemist, the court was content to delay a more robust remedy to allow those efforts to accomplish their purpose.5 Id. at 487. Here, however, we have come to an end point in assessing the impact of Scott and Charles in resolving the outstanding cases of this type. The district attorneys have identified 24,000 cases, more or less, that must be adjudicated on the prejudice prong of Scott. Thus, the scope of the current challenge is clear. The remedy, in accounting for defendants’ due process right to a prompt hearing, must have some reasonable prospect for immediate resolution of the 24,000 cases to avoid exacerbating the serious consequences of delay. I am not persuaded that the court‘s case-by-case model meets this test in circumstances where the defendants’ due process rights are paramount.
2. Integrity of the criminal justice system. It is beyond dispute that Dookhan‘s misconduct, the details of which have spread beyond the legal community,6 has undermined public trust in the integrity of the criminal justice system. In a case such as this, coming before the court as a consequence of Dookhan‘s serious corruption of our criminal justice system, the court‘s task is not merely to decide the rights of the parties. The court must also act, within the boundaries of the law, to restore the public‘s faith in the integrity of the courts. Unlike the right to counsel crisis in Lavallee, Dookhan‘s misconduct is not a problеm of the Legislature‘s making. See Lavallee, 442 Mass. at 246. The duty to protect, and restore when necessary, the integrity of the criminal
With no clear sign from the court that it grasps the scope of the damage and the need for an approach that will eliminate “root and branch”7 all of the attendant consequences, the public is left to wonder if the process by which a court imposes the sanction of a loss of liberty is fair and just. Restoring the integrity of the criminal justice system requires that the court acknowledge and make amends for the shortcomings in a system that permitted Dookhan to “go rogue” for so long without detection.9 Those shortcomings call into question the integrity of the entire criminal justice apparatus for gathering and reporting the evidence that juries rely on in deciding a defendant‘s guilt or innocence. The perceived legitimacy of court-imposed restraints on a defendant‘s liberty rises or falls on the integrity of the evidence. If the mistrust engendered by the individual and institutional failures that produced this scandal is allowed to remain, it will have far-reaching adverse consequences for the ability of our courts to maintain the public‘s faith in the promise of equal justice for all. Because I am not persuaded that the case-by-case model adopted by the court can accomplish this essential purpose, this factor weighs in favor of the global remedy advocated by the petitioners.
3. Efficient administration of justice. There is no question that, despite the best efforts of the parties, thousands of defendants affected by Dookhan‘s misconduct still languish without notice of their rights or even a realistic opportunity for redress. The four-year delay in the resolution of the cases tainted by Dookhan‘s misconduct, as discussed above, adequately makes the point that the administration of justice has been anything but efficient. Yet, the court gives insufficient weight to this factor in adopting a case-by-case adjudication model.
First, the success of phase one, which anticipates a substantial culling of the 24,000 cases, depends entirely on the voluntary cooperation of the district attorneys. Ante at 326. Understandably, the court has not asserted any authority to compel the dismissal of cases. See Commonwealth v. Pellegrini, 414 Mass. 402, 405 (1993) (“Prosecutors have broad discretion in determining whether to prosecute a case“). In this respect, the court‘s model does not change the status quo: the district attorneys already have, and have had for the duration of the Dookhan crisis, the sole authority voluntarily to dismiss these cases. It is undisputed that the district attorneys have cooperated in identifying the defendants presumed to have been affected by Dookhan‘s misconduct. However, without some basis for a reasonable belief that the district attorneys will follow through on the suggestion to dismiss thousands of cases with prejudice, the court does not inspire confidence in the success of the model.
Second, the timetable for the accomplishment of the various phases of the case-by-case model is unrealistic and unachievable. The court acknowledges that “substantial vetting” is required under phase one. Ante at 328. Yet, the district attorneys are given only ninety days to sift through the 24,000 cases that have been connected to Dookhan‘s misconduct. If past is prologue, and taking into account the delays in getting to where we are now, accomplishing this task within the ninety-day window adopted for the court‘s model is highly unlikely. Likewise, the thirty-day deadline in phase two for notice to the defendants whose cases will not be dismissed without prejudice is problematic for the same reason. To the extent that the time frames reflect a calculation that absolute compliance by the district attorneys and the Committee for Public Counsel Services will adequately accommodate the defendants’ due process rights, I have no confidence that the court‘s faith in the рracticality of the process will be rewarded. Unless the court is prepared to declare that reasonable requests for delay, even those based on the impracticality of the
With the defendants’ due process right to a prompt hearing hanging in the balance, I cannot accept an untimely, and ultimately unworkable, case-by-case model as an appropriate resolution of the issue before us.
4. Other public interests. None of the other public interests at stake here warrants a disposition that prolongs a global remedy for the defendants who are presumed to have been victims of Dookhan‘s misconduct. First, the likelihood that the vast majority of the defendants in the cases in which Dookhan was the primary or confirmatory chemist have completed their sentences mitigates the most compelling public interest at stake here: public safety. On the other side of the ledger, the serious and enduring collateral consequences of these convictions remain extant, resulting in manifest injustice to those defendants. The court weighs the rights of the defendants “against the necessity for preserving society‘s interest in the administration of justice” and concludes that this factor favors the Commonwealth. Ante at 316, quoting Commonwealth v. Cronk, 396 Mass. 194, 198-199 (1985). In my view, this calculation is demonstrably erroneous. Society‘s interest in the administration of justice is hardly served by a remedy that defers to the Commonwealth in deciding which, if any, cases are to be dismissed with prejudice and, in all other respects, depends on the defendants to opt into the scheme to benefit from the possibility that the case will be dismissed with prejudice. Ante at 326-332.
In sum, the Scott factors weigh heavily in favor of the defendants in the cases tainted by Dookhan‘s misconduct. The scope and egregiousness of that misconduct, combined with the four-year delay in providing relief to the defendants affected by it, compels a global remedy. It is difficult to imagine a scenario where, faced with the detritus from a scandal of similar magnitude, a court would hesitate to order a global remedy. The question comes to mind, “If not now, when?”10