Bridgeman v. District Attorney for the Suffolk District

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SJC-11764

KEVIN BRIDGEMAN & others1 vs. DISTRICT ATTORNEY FOR THE SUFFOLK
DISTRICT & another.2

Suffolk. January 8, 2015. - May 18, 2015.

Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk,
& Hines, JJ.

Controlled Substances. Constitutional Law, Plea, Conduct of
government agents, Judicial review, Sentence, Delay in
commencement of prosecution. Due Process of Law, Plea,
Sentence, Delay in commencement of prosecution,
Intervention in civil action. Committee for Public Counsel
Services. Attorney at Law, Attorney as witness. Practice,
Criminal, Plea, Postconviction relief, New trial, Sentence,
Delay in commencement of prosecution, Conduct of government
agents, Cross-examination by prosecutor. Evidence, Guilty
plea, Certificate of drug analysis, Disclosure of evidence,
Cross-examination. Supreme Judicial Court, Superintendence
of inferior courts. Practice, Civil, Intervention.

Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on January 9, 2014.

The case was reported by Botsford, J.

1
Yasir Creach and Miguel Cuevas; Committee for Public
Counsel Services (CPCS), intervener.
2
District Attorney for the Essex District. For the sake of
simplicity, we refer to the district attorneys for the Suffolk
and Essex Districts as "the Commonwealth."
 2

Matthew R. Segal (Daniel N. Marx with him) for the
petitioners.
Benjamin H. Keehn, Committee for Public Counsel Services
(Nancy J. Caplan, Committee for Public Counsel Services, with
him) for the intervener.
Vincent J. DeMore, Assistant District Attorney, for
District Attorney for the Suffolk District.
Quentin Weld, Assistant District Attorney, for District
Attorney for the Essex District.
Jean-Jacques Cabou, of Arizona; Joanna Perini-Abbott, of
Oregon; & Daniel Gelb & Elizabeth A. Lunt, for National
Association of Criminal Defense Lawyers & another, amici curiae,
submitted a brief.
Richard Marshall, of New York, & Aaron M. Katz, C. Thomas
Brown, Mark Vaughn, & Barbara J. Dougan, for Families Against
Mandatory Minimums & others, amici curiae, submitted a brief.

SPINA, J. The present case is the latest in a series of

cases concerning the egregious misconduct of Annie Dookhan, a

chemist who was employed in the forensic drug laboratory of the

William A. Hinton State Laboratory Institute (Hinton drug lab)

from 2003 until 2012.3 Kevin Bridgeman, Yasir Creach, and Miguel

Cuevas (collectively, the petitioners) are three individuals who

pleaded guilty to various drug offenses in cases where Dookhan

signed the certificates of drug analysis (drug certificates) on

the line labeled "Assistant Analyst." On January 9, 2014, prior

to this court's decision in Commonwealth v. Scott, 467 Mass. 336

(2014), the petitioners filed a petition in the county court

3
The details of Annie Dookhan's misconduct in the forensic
drug laboratory of the William A. Hinton State Laboratory
Institute (Hinton drug lab) have been well documented and,
therefore, will not be repeated in the present case. See, e.g.,
Commonwealth v. Scott, 467 Mass. 336, 338-342 (2014).
 3

pursuant to G. L. c. 211, § 3, asking the court for two forms of

relief. First, they asked for the establishment of a rule

whereby defendants who have been convicted of drug offenses, and

who successfully obtain new trials based on Dookhan's

misconduct, cannot thereafter be charged with or convicted of

more serious offenses than those of which the defendants

originally were convicted, or be given longer sentences than

originally were imposed. Second, the petitioners requested an

order requiring those district attorneys who prosecuted so-

called "Dookhan defendants"4 to (1) notify all such defendants

within ninety days whether the Commonwealth intends to

reprosecute them;5 (2) vacate the convictions in those cases

where the defendants are not so notified; and (3) conclude any

reprosecutions within six months. On May 27, 2014, following

the release of our decision in Scott, supra,6 the Committee for

4
We use the term "Dookhan defendants" to refer generally to
those individuals who were convicted of drug offenses and in
whose cases Dookhan signed the certificate of drug analysis
(drug certificate) on the line labeled "Assistant Analyst."
These cases all arose in Barnstable, Bristol, Dukes, Essex,
Middlesex, Norfolk, Plymouth, and Suffolk Counties, except for
one case that arose in Worcester County.
5
As noted by the single justice, the petitioners appear to
propose notification to all Dookhan defendants, irrespective of
whether they have sought and obtained postconviction relief.
6
Relying on Ferrara v. United States, 456 F.3d 278, 290
(1st Cir. 2006), this court articulated in Scott, 467 Mass. at
346-358, a two-prong framework for analyzing a defendant's
motion to withdraw a guilty plea under Mass. R. Crim. P. 30 (b),
 4

Public Counsel Services (CPCS) filed a motion to intervene under

Mass. R. Civ. P. 24 (a), 365 Mass. 769 (1974), to join the

petitioners' requests for relief and to seek additional relief

for all Dookhan defendants.7 The Commonwealth opposed both the

petition for relief pursuant to G. L. c. 211, § 3, and the

motion to intervene. After several hearings, a single justice

as appearing in 435 Mass. 1501 (2001), in a case involving the
misconduct of Dookhan at the Hinton drug lab. Under the first
prong of the analysis, a defendant must show egregious
misconduct by the government that preceded the entry of the
defendant's guilty plea and that occurred in the defendant's
case. Scott, supra at 347-354. We recognized that, given the
breadth and duration of Dookhan's malfeasance, it might be
impossible for a defendant to show the required nexus between
government misconduct and the defendant's own case. Id. at 351-
352. Consequently, we established a special evidentiary rule
whereby a defendant seeking to vacate a guilty plea under rule
30 (b) as a result of the revelation of Dookhan's misconduct,
and proffering a drug certificate from the defendant's case
signed by Dookhan on the line labeled "Assistant Analyst," would
be entitled to "a conclusive presumption that egregious
government misconduct occurred in the defendant's case." Id. at
352. Application of this conclusive presumption in a particular
case meant that a defendant's evidentiary burden to establish
each element of the first prong of the Ferrara-Scott framework
was satisfied. Id. at 353-354. The defendant then had the
burden under the second prong of the analysis of particularizing
Dookhan's misconduct to his or her decision to tender a guilty
plea. Id. at 354. That is to say, the defendant had to
"demonstrate a reasonable probability that he [or she] would not
have pleaded guilty had he [or she] known of Dookhan's
misconduct." Id. at 355. A successful showing on this second
prong of the Ferrara-Scott framework would warrant an order
granting the defendant's motion to withdraw his guilty plea.
7
CPCS does not represent any of the petitioners. It seeks
intervention to assert and protect the interests of numerous
other Dookhan defendants for whom it inevitably will be called
on to provide (or already is providing) representation.
 5

on October 21, 2014, reserved and reported the entire case to

the full court.

For the reasons that follow, we now conclude that (1) a

defendant who has been granted a new trial based on Dookhan's

misconduct at the Hinton drug 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; (2) the motion to intervene filed by

CPCS is allowed; (3) a so-called "global remedy" will not be

implemented at this time; (4) a lawyer who represented a Dookhan

defendant at the plea stage of criminal proceedings is not

barred by the advocate-witness rule from subsequently

representing that defendant and testifying at an evidentiary

hearing on the defendant's motion to withdraw a guilty plea; (5)

the scope of cross-examination of a Dookhan defendant at a

hearing on a motion to withdraw a guilty plea is left to the

broad discretion of the motion judge; and (6) the testimony of a

Dookhan defendant at a hearing on a motion to withdraw a guilty

plea is only admissible at a subsequent trial for impeachment

purposes if the defendant chooses to testify.8

8
We acknowledge the amicus briefs submitted by Families
Against Mandatory Minimums and others, and by the National
Association of Criminal Defense Lawyers and the Massachusetts
Association of Criminal Defense Lawyers.
 6

1. Background. a. Kevin Bridgeman. On April 8, 2005,

members of the Boston police department's drug control unit were

conducting an undercover operation in the theater district.

Officer Greg T. Walsh approached Bridgeman and purchased two

rocks of what appeared to be "crack" cocaine for forty dollars

in controlled "buy" money. Officers then attempted to arrest

Bridgeman, whereupon he resisted and struck one of the officers

with a closed fist. When Bridgeman was searched after his

arrest, officers found twenty-two plastic bags containing what

appeared to be crack cocaine and the forty dollars in buy money.

On June 2, 2005, a Suffolk County grand jury indicted

Bridgeman on charges of possession of a class B controlled

substance (cocaine) with intent to distribute, as a second or

subsequent offense, G. L. c. 94C, § 32A (b) (count one);

distribution of a class B controlled substance (cocaine), as a

second or subsequent offense, G. L. c. 94C, § 32A (b) (count

three); violation of the controlled substances laws in proximity

to a school, G. L. c. 94C, § 32J (counts two and four); assault

and battery on a police officer, G. L. c. 265, § 13D (count

five); and resisting arrest, G. L. c. 268, § 32B (count six).

The Commonwealth produced drug certificates signed by Dookhan on

the line labeled "Assistant Analyst," stating that the

substances at issue contained cocaine as defined in G. L.

c. 94C, § 31. Pursuant to a plea agreement, Bridgeman pleaded
 7

guilty on October 4, 2005, to counts one (first offense), three

(first offense), five, and six. The Commonwealth's motion to

dismiss the second or subsequent offense portions of the

indictments and the school zone charges was granted.9

On July 26, 2007, members of the Boston police department's

drug control unit were conducting an undercover operation around

Boston Common. An undercover officer approached Bridgeman,

engaged him in conversation, walked with him to the Public

Garden, and then purchased two plastic bags containing what

appeared to be crack cocaine for forty dollars in buy money.

Bridgeman was arrested, and when he was searched, officers

found, among other items, ten additional bags containing what

appeared to be crack cocaine and the forty dollars in buy money.

On September 24, 2007, a Suffolk County grand jury indicted

Bridgeman on charges of possession of a class B controlled

substance (cocaine) with intent to distribute, as a subsequent

offense, G. L. c. 94C, § 32A (b) (count one); violation of the

controlled substances laws in proximity to a park, G. L. c. 94C,

§ 32J (count two); and distribution of a class B controlled

substance (cocaine), as a subsequent offense, G. L. c. 94C,

9
With respect to the charge of possession of cocaine with
intent to distribute, Bridgeman was sentenced to State prison
for two to three years. With respect to the charges of
distribution of cocaine, assault and battery on a police
officer, and resisting arrest, Bridgeman was sentenced to three
years' probation, to commence on and after his sentence for
possession of cocaine with intent to distribute.
 8

§ 32A (b) (count three). The Commonwealth again produced drug

certificates signed by Dookhan on the line labeled "Assistant

Analyst," stating that the substances at issue contained cocaine

as defined in G. L. c. 94C, § 31. Pursuant to a plea agreement,

Bridgeman pleaded guilty on April 17, 2008, to counts one and

three.10 The Commonwealth's motion to dismiss the park zone

charge was granted. Bridgeman has completed service of his

sentences, but has not yet filed a motion for postconviction

relief.11

10
With respect to the charges of possession of cocaine with
intent to distribute, subsequent offense, and distribution of
cocaine, subsequent offense, Bridgeman was sentenced to
concurrent terms of from three to five years in State prison, to
be served concurrently with the sentence he already was serving
on his 2005 conviction of possession of cocaine with intent to
distribute.
11
In an affidavit dated December 30, 2013, filed in
connection with the petition for relief under G. L. c. 211, § 3,
Bridgeman stated that, at the time he pleaded guilty to the
various drug charges, he was unaware of Dookhan's misconduct.
He further stated that, had he known about Dookhan's misconduct,
it was reasonably probable that he would have sought dismissal
of the indictments, would have tried to negotiate a different
plea agreement with the Commonwealth, or would have gone to
trial. In an affidavit dated December 19, 2013, Bridgeman's
trial counsel with respect to the 2007 charges stated that, at
the time he advised his client to plead guilty, he was not aware
of Dookhan's misconduct. If he had been aware of such
misconduct prior to Bridgeman's pleas, he would have sought
dismissal of the indictments, and he would have advised
Bridgeman to either negotiate for a better plea offer or
consider proceeding to trial. In an affidavit dated January 4,
2014, Bridgeman's trial counsel with respect to the 2005 charges
made similar representations.
 9

b. Yasir Creach. On January 7, 2005, members of the

Boston police department's drug control unit were conducting

surveillance in the Chinatown section of Boston. They observed

Creach engaging in a brief conversation with another man before

the two entered an alley marked with a "no trespassing" sign.

The officers followed the men into the alley and saw Creach

smoking from a glass tube that had been modified into a crack

pipe. The officers recovered one rock of what appeared to be

crack cocaine from the pipe, and Creach was placed under arrest.

Three days later, a criminal complaint issued from the Central

Division of the Boston Municipal Court Department charging

Creach with trespassing, G. L. c. 266, § 120 (count one); and

possession of a class B controlled substance (cocaine), G. L.

c. 94C, § 34. The Commonwealth produced a drug certificate

signed by Dookhan on the line labeled "Assistant Analyst,"

stating that the substance at issue contained cocaine as defined

in G. L. c. 94C, § 31. Creach pleaded guilty on April 20, 2005,

to both charges.12 He has completed service of his sentences,

but has not yet filed a motion for postconviction relief.13

12
According to the Commonwealth, Creach was sentenced to
concurrent terms of incarceration totaling one year in a house
of correction.
13
In an affidavit dated December 30, 2013, filed in
connection with the petition for relief under G. L. c. 211, § 3,
Creach stated that, at the time he pleaded guilty to the drug
charge, he was unaware of Dookhan's misconduct. He further
 10

c. Miguel Cuevas. On January 5, 2007, members of the

Salem police department were conducting an undercover operation

in the "Point" neighborhood of Salem. An undercover officer

contacted Cuevas by cellular telephone, the two met, and Cuevas

sold the officer a "twist" of what the officer believed to be

cocaine for forty dollars in buy money. Three days later,

undercover officers again contacted Cuevas by cellular telephone

and arranged to purchase more cocaine. Cuevas directed the

officers to meet him at the corner of Bridge and Rice Streets.

Once there, the officers picked up Cuevas from the side of the

road and drove him to the vicinity of a residence on Palmer

Street. Cuevas got out of the vehicle, disappeared from sight

for a few minutes, and then returned with another twist of what

the officers believed to be cocaine. On January 10, undercover

officers once more contacted Cuevas by cellular telephone and

arranged to purchase cocaine and heroin. The officers picked up

Cuevas at the corner of Bridge and Rice Streets and again drove

him to Palmer Street. Cuevas got out of the vehicle, briefly

stated that, had he known about Dookhan's misconduct, it was
reasonably probable that he would have tried to negotiate a
different plea agreement with the Commonwealth, or would have
gone to trial. In an affidavit dated December, 2013, Creach's
trial counsel stated that, at the time she advised her client to
plead guilty, she was not aware of Dookhan's misconduct. If she
had been aware of such misconduct prior to Creach's pleas, she
would have discussed with him the options of attempting to
secure a more favorable plea agreement with the Commonwealth or
proceeding to trial.
 11

entered Theo's Market, and then returned to the vehicle where he

sold the officers what appeared to be cocaine and heroin for

ninety dollars in buy money.

On October 5, 2007, an Essex County grand jury indicted

Cuevas on charges of distribution of a class B substance

(cocaine), as a second or subsequent offense, G. L. c. 94C,

§ 32A (d) (counts one, two, and three); and distribution of a

class A substance (heroin), as a second or subsequent offense,

G. L. c. 94C, § 32 (b) (count four). The Commonwealth produced

drug certificates signed by Dookhan on the line labeled

"Assistant Analyst," stating that the substances at issue

contained, respectively, cocaine and heroin as defined in G. L.

c. 94C, § 31. Pursuant to a plea agreement, Cuevas pleaded

guilty on January 30, 2009, to all four counts.14 The

Commonwealth did not pursue the second or subsequent offense

portions of the indictments. Cuevas has completed service of

his sentences.15 On October 18, 2012, Cuevas filed a motion to

14
Cuevas was sentenced to concurrent terms of between four
and one-half years and five years in State prison.
15
In an affidavit dated December 31, 2013, filed in
connection with the petition for relief under G. L. c. 211, § 3,
Cuevas stated that, at the time he pleaded guilty to the various
drug charges, he was not aware of Dookhan's misconduct. He
further stated that, had he known about Dookhan's misconduct, it
was reasonably probable that he would have sought dismissal of
the indictments, would have tried to negotiate a different plea
agreement with the Commonwealth, or would have gone to trial.
In an affidavit dated December 30, 2013, Cuevas's trial counsel
 12

withdraw his guilty pleas pursuant to Mass. R. Crim. P. 30 (b),

as appearing in 435 Mass. 1501 (2001), based on Dookhan's

misconduct at the Hinton drug lab. That motion remains pending.

2. Exposure to harsher punishment. The petitioners

contend that our decision in Scott has given rise to a

substantial fear among Dookhan defendants that by challenging

their drug convictions, they will subject themselves to harsher

punishment than was imposed when they pleaded guilty.16 For

example, they continue, a successful motion for a new trial

could result in the reinstatement of previously dismissed

charges that carry mandatory minimum sentences.17 In the

stated that, at the time he advised his client to plead guilty,
he was not aware of Dookhan's misconduct. If he had been aware
of such misconduct prior to Cuevas's pleas, he would have sought
dismissal of the indictments, and he would have advised Cuevas
to either negotiate for a better plea offer or consider
proceeding to trial.
16
In their petition for relief under G. L. c. 211, § 3, the
petitioners do not distinguish between defendants who pleaded
guilty and those who were convicted after a trial. Our decision
today only addresses those cases that were resolved on the basis
of guilty pleas.
17
The petitioners point to the case of Angel Rodriguez as a
cautionary tale. See Commonwealth vs. Rodriguez, Superior Ct.,
ESCR2007-00875 (Essex County). Rodriguez was indicted on a
charge of trafficking in cocaine (one hundred grams or more),
G. L. c. 94C, § 32E (b) (1). He pleaded guilty to a reduced
charge of trafficking in cocaine (twenty-eight to one hundred
grams), G. L. c. 94C, § 32E (b) (2), and was sentenced to State
prison for from five to seven years. After the revelation of
Dookhan's misconduct, Rodriguez filed a motion to vacate his
guilty plea pursuant to Mass. R. Crim. P. 30 (b). A judge in
the Superior Court allowed the motion. The Commonwealth then
 13

petitioners' view, the magnitude of Dookhan's misconduct has

placed enormous pressure on the Commonwealth to limit their

postconviction relief. They assert that the Commonwealth has an

aversion to the duplicative expenditure of scarce prosecutorial

resources, that the judicial system has a bias against retrying

issues that already have been decided, and that the Commonwealth

has a desire to preserve convictions. Consequently, the

petitioners argue that their fear of receiving a harsher

punishment has chilled the exercise of their postconviction

rights. Given these considerations, the petitioners contend

that this court should conclude that defendants who plead guilty

to drug offenses and subsequently are granted new trials based

on Dookhan's misconduct at the Hinton drug lab cannot (1) be

charged with more serious offenses than those of which they

initially were convicted; and (2) if convicted again, cannot be

given sentences longer than those that originally were imposed.

Preliminarily, before reaching the merits of the

petitioners' arguments, we must resolve a procedural matter.

The Commonwealth asserts that the petitioners' claims are not

ripe for review because the harm the petitioners have alleged --

harsher sentences following new trials -- is hypothetical. The

charged Rodriguez with trafficking in one hundred grams or more
of cocaine, a jury convicted him of that charge, and he was
sentenced to from eight years to eight years and one day in
State prison. The case of Angel Rodriguez suggests that
petitioners' fear is not baseless or unwarranted.
 14

Commonwealth correctly points out that, among the petitioners,

only Cuevas has sought postconviction relief by filing a motion

to withdraw his guilty pleas based on Dookhan's misconduct, and

according to the record, the motion remains pending. In the

Commonwealth's view, the harm alleged by the petitioners is

speculative until such time as the petitioners are granted new

trials, the Commonwealth charges the petitioners with more

serious offenses, and, if convicted, the petitioners actually

receive harsher punishments. Until those events unfold, the

Commonwealth continues, the petitioners' claims are not ripe for

review.

Generally speaking, "this court will not review [a] matter

until the entire case is ripe for review due to the burdensome

nature of 'piecemeal appellate review.'" Campana v. Directors

of the Mass. Hous. Fin. Agency, 399 Mass. 492, 499 n.16 (1987).

However, given the significance of this case in light of the

thousands of defendants who have been affected by Dookhan's

misconduct and now are considering whether to pursue

postconviction relief, coupled with the impact our decision will

have on the timely administration of justice in all Hinton drug

lab cases, we conclude that it is appropriate to review the

petitioners' claims now in accordance with our broad powers of

superintendence under G. L. c. 211, § 3. See Diatchenko v.

District Attorney for the Suffolk Dist., 466 Mass. 655, 657 n.5
 15

(2013), S.C., 471 Mass. 12 (2015). We agree with the single

justice that in the unique circumstances of this case, the

interests of justice dictate immediate resolution of the

petitioners' claims. Moreover, we have said that where, as

here, "the single justice has, in [her] discretion, reserved and

reported the case to the full court, we grant full appellate

review of the issues reported." Id., quoting Commonwealth v.

Goodwin, 458 Mass. 11, 14-15 (2010).

We turn to the merits of the petitioners' arguments. Since

the revelation of Dookhan's egregious misconduct at the Hinton

drug lab -- a lapse of widespread magnitude in the criminal

justice system -- we have found it necessary to exercise our

general superintendence power to ameliorate its damaging

effects. In the early stages of the crisis, this court reviewed

and resolved the legality of plea colloquies conducted by

special magistrates appointed by the Chief Justice of the

Superior Court Department of the Trial Court to preside over

criminal proceedings in cases relating to the Hinton drug lab.

See Commonwealth v. Charles, 466 Mass. 63, 65-66, 88-89 (2013).

Then, in Scott, we articulated a workable approach by which

judges should evaluate and decide individual motions to withdraw

guilty pleas brought by defendants affected by Dookhan's

misconduct. See Scott, 467 Mass. at 352. See also note 6,

supra. Now, with this approach in place, it is incumbent on the
 16

court to address uncertainties regarding the legal implications

of a defendant's decision to challenge his or her ostensibly

tainted drug conviction, and the propriety of returning the

parties to the positions they occupied before entering into a

plea agreement. These matters are ones of systemic concern that

this court shall resolve through the exercise of its general

superintendence powers under G. L. c. 211, § 3, so as to ensure

that a fear of more punitive consequences, as expressed by the

petitioners, does not render their right to seek postconviction

relief a flawed option. See Charles, supra at 88-89.

It is well established that "[r]emedies for prosecutorial

misconduct should be tailored to the injury suffered and should

not unnecessarily infringe on competing interests."

Commonwealth v. Cronk, 396 Mass. 194, 199 (1985). See

Commonwealth v. Wood, 469 Mass. 266, 290-292 (2014);

Commonwealth v. Frith, 458 Mass. 434, 439-440 (2010);

Commonwealth v. Cinelli, 389 Mass. 197, 209-210, cert. denied,

464 U.S. 860 (1983). "[P]rosecutorial misconduct requires that

the rights of defendants be balanced against the necessity for

preserving society's interest in the administration of justice."

Cronk, supra. See Scott, 467 Mass. at 352. In the ordinary

course, "when a defendant withdraws his [guilty] plea after

sentencing, he may receive a harsher sentence than was

originally imposed." Commonwealth v. DeMarco, 387 Mass. 481,
 17

486 (1982). See Commonwealth v. DeJesus, 468 Mass. 174, 178

(2014) (judge vacated defendant's plea of guilty and reinstated

portion of indictment charging defendant with trafficking in

cocaine, which had been dismissed under terms of plea

agreement); Commonwealth v. Therrien, 359 Mass. 500, 502-505

(1971) (allowance of defendant's motion to withdraw plea of

guilty to murder in second degree subjected defendant to trial

on charge of murder in first degree with attendant penalties).

However, a defendant who files a motion to withdraw a guilty

plea as a consequence of Dookhan's misconduct is not doing so in

the context of an ordinary criminal case in which the original

charges brought by the Commonwealth, and their attendant

sentences, simply can be reinstated as if the plea bargain had

never occurred.

A return to the status quo ante would mean ignoring the

egregious misconduct of Dookhan and disregarding its impact on

criminal defendants whose drug samples she analyzed. This

course of action would present a defendant with two options. A

defendant could choose not to file a motion for postconviction

relief and accept the fact that his or her convictions may have

been tainted by Dookhan's misconduct. Alternatively, a

defendant could choose to file a motion to withdraw his or her

guilty plea and, if allowed, accept the fact that he or she may

be subject to a harsher punishment than was imposed when he or
 18

she pleaded guilty. Either way, defendants wrongly would bear

the burden of a systemic lapse that, in the circumstances of the

Hinton drug lab, we have said is entirely attributable to the

government, even though there is no indication that prosecutors

had actual knowledge of Dookhan's misconduct during their

prosecutions of the Dookhan defendants. See Scott, 467 Mass. at

347-352. Were it not for Dookhan's actions, defendants would

not be in the position of having to seek postconviction relief

from her malfeasance in the first instance. Moreover, it cannot

be overlooked that many Dookhan defendants already have served

the sentences to which they and the Commonwealth agreed. A

return to the status quo ante simply is not a legally tenable

solution, given that "[w]e must account for the due process

rights of defendants . . . [and] the integrity of the criminal

justice system." Scott, supra at 352. The proper solution is

one that takes into consideration the interests of the Dookhan

defendants and the Commonwealth, recognizing 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 our remedy inure to defendants." Id. See Lavallee v.

Justices in the Hampden Superior Court, 442 Mass. 228, 246

(2004).

A plea bargain often has been compared to an enforceable

contract. See Commonwealth v. Tirrell, 382 Mass. 502, 512
 19

(1981); Commonwealth v. Cruz, 62 Mass. App. Ct. 610, 611 (2004).

"[W]hen a plea rests in any significant degree on a promise or

agreement of the prosecutor, so that it can be said to be part

of the inducement or consideration, such promise must be

fulfilled." Santobello v. New York, 404 U.S. 257, 262 (1971).

See Correale v. United States, 479 F.2d 944, 947 (1st Cir. 1973)

("the most meticulous standards of both promise and performance

must be met by prosecutors engaging in plea bargaining"). We

have said that "when the prosecutor enters into plea bargain

agreements, 'the court will see that due regard is paid to them,

and that the public faith which has been pledged by him is duly

kept.'" Commonwealth v. Santiago, 394 Mass. 25, 28 (1985),

quoting Commonwealth v. Benton, 356 Mass. 447, 448 (1969). See

Cruz, supra at 612; Doe v. District Attorney for the Plymouth

Dist., 29 Mass. App. Ct. 671, 673 (1991). See also Reporters'

Notes to Mass. R. Crim. P. 12, Mass. Ann. Laws Court Rules,

Rules of Criminal Procedure, at 1491-1492 (LexisNexis 2014-

2015).

Here, before the revelation of Dookhan's misconduct, the

petitioners and the Commonwealth entered into plea agreements

that both parties considered to be mutually advantageous and

fair. The petitioners agreed to waive various constitutional

rights associated with proceeding to trial, and to relieve the

Commonwealth of its burden of proving the petitioners' guilt
 20

beyond a reasonable doubt. See Commonwealth v. Lopez, 447 Mass.

625, 628 (2006) (guilty plea constitutes waiver of three

constitutional rights: right to jury trial, right to confront

one's accusers, and privilege against self-incrimination). See

also Commonwealth v. Russell, 470 Mass. 464, 468 (2015) ("In a

criminal case, due process requires that the Commonwealth prove

the defendant's guilt beyond a reasonable doubt"). In exchange,

the Commonwealth agreed to reduce the charges against the

petitioners,18 and, consequently, the sentences that would be

imposed by a judge. Any subsequent motions to withdraw those

guilty pleas must be viewed as an inevitable result of the

disclosure of Dookhan's misconduct. That being the case, the

Commonwealth cannot simply reprosecute the petitioners as if the

plea agreements had never existed, thereby giving the

Commonwealth a second bite at the proverbial apple in its

efforts to convict the petitioners. Instead, the Commonwealth

must be held to the terms of its plea agreements.19

18
It does not appear from the record that the charges
against Creach actually were reduced as a consequence of his
plea agreement with the Commonwealth. That said, the writing on
the tender of plea form is virtually unreadable.
19
In those cases where Dookhan defendants have completed
service of their sentences, the Commonwealth has obtained the
full benefit of its plea agreements. If, following a Dookhan
defendant's successful withdrawal of a guilty plea, the
Commonwealth could reinstate previously dismissed charges that
carry mandatory minimum sentences and reprosecute a defendant on
all of the charges, the Commonwealth ultimately could benefit
 21

Therefore, we hold that in cases in which a defendant seeks

to withdraw a guilty plea under Mass. R. Crim. P. 30 (b) as a

result of the revelation of Dookhan's misconduct, and where the

motion is allowed, the defendant cannot (1) 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 (2) if

convicted again, cannot be given a more severe sentence than

that which originally was imposed. In essence, a defendant's

sentence is capped at what it was under the plea agreement. See

Ferrara v. United States, 372 F. Supp. 2d 108, 111 (D. Mass.

2005), aff'd, 456 F.3d 278 (1st Cir. 2006) (when determining

proper remedy for government misconduct, "[t]he court's goal is

to fashion a remedy that will, as much as possible, place [the

defendant] in the position that he would have been in if the

government had not violated his constitutional right to [d]ue

[p]rocess"). Our holding will enable the Commonwealth to

reprosecute defendants as appropriate, such as where there is

sufficient untainted evidence for the Commonwealth to satisfy

its burden of proving the charged crimes beyond a reasonable

doubt. At the same time, our holding also will safeguard the

integrity of the criminal justice system by ensuring that

from Dookhan's misconduct. Successful reprosecution of a
defendant could result in the imposition of a longer sentence.
Even if the Commonwealth's reprosecution were not successful,
such a defendant already would have served the agreed-upon
sentence under the previous plea agreement.
 22

defendants may challenge convictions of drug crimes based on

tainted evidence.

3. Undue delay in postconviction relief. The petitioners

assert that the Commonwealth has violated their due process

rights by unduly delaying the provision of postconviction relief

to Dookhan defendants. They point out that, among other lapses,

there is no comprehensive list of docket numbers identifying all

of the cases in which Dookhan served as either the primary or

secondary chemist,20 and that lawyers have not yet been appointed

for approximately 30,000 individuals. In the petitioners' view,

these delays have been prejudicial because the Dookhan

defendants must contend with the ongoing uncertainties over and

the collateral consequences of their purportedly tainted

convictions. The petitioners propose that we order the

following relief: (1) the Commonwealth should be given ninety

days to notify individual defendants, or their counsel, whether

20
The petitioners acknowledge that in September, 2014, the
district attorneys for the Suffolk and Essex Districts provided
CPCS with docket numbers for the cases from Suffolk and Essex
Counties, respectively, in which Dookhan analyzed the drug
samples as either the primary or secondary chemist. We are
aware that since the oral argument in this case, the district
attorneys for the Bristol and Norfolk Districts also have
provided to CPCS docket numbers for such cases in their
respective counties. Other district attorneys, including those
for the Cape and Islands, Middlesex, and Plymouth Districts,
have not done so.
 23

it intends to reprosecute their cases;21 (2) defendants who do

not receive such notification within ninety days will be

entitled to have their convictions vacated with prejudice; and

(3) if timely notice is provided, the Commonwealth will have six

months to bring the cases to trial or to conclude them with

guilty pleas.

With regard to the matter of undue delay, "[t]he guaranty

of a speedy trial set forth in the Sixth Amendment to the United

States Constitution (and art. 11 of the Massachusetts

Declaration of Rights) is not read as applying to the appellate

process." Commonwealth v. Lee, 394 Mass. 209, 220 (1985),

quoting Williams, petitioner, 378 Mass. 623, 625 (1979).

However, this court has said that "deliberate blocking of

appellate rights or inordinate and prejudicial delay without a

defendant's consent, may rise to the level of constitutional

error." Commonwealth v. Swenson, 368 Mass. 268, 279-280 (1975).

See Commonwealth v. Thomas, 400 Mass. 676, 684 (1987). "The

fundamental requirement of due process is the opportunity to be

heard 'at a meaningful time and in a meaningful manner.'"

Mathews v. Eldridge, 424 U.S. 319, 333 (1976), quoting Armstrong

v. Manzo, 380 U.S. 545, 552 (1965). See Paquette v.

Commonwealth, 440 Mass. 121, 131 (2003), cert. denied, 540 U.S.

1150 (2004). We recognize that an inordinate delay in resolving

21
See note 5, supra.
 24

the Hinton drug lab cases may result in a loss of liberty if an

incarcerated defendant's conviction is overturned, and "may

entail anxiety, forfeiture of opportunity, and damage to

reputation, among other conceivable injuries." Williams,

petitioner, supra at 626. At the same time, our response to

Dookhan's misconduct necessarily requires consideration of not

only "the due process rights of defendants," but also "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." Scott, 467 Mass. at 352.

Given the unprecedented circumstances surrounding the

debacle at the Hinton drug lab, and the substantial efforts that

are being made to deal with the impact of Dookhan's misconduct

on affected defendants, we conclude that, at this juncture, any

delays in the provision of postconviction relief do not "rise to

the level of constitutional error." Swenson, 368 Mass. at 280.

Our decisions in Scott, see note 6, supra, and Charles22 have

22
In Commonwealth v. Charles, 466 Mass. 63 (2013), this
court concluded that, "[i]n exceptional circumstances, a judge
of the Superior Court [has] the authority to allow a defendant's
motion to stay the execution of his sentence, then being served,
pending disposition of the defendant's motion for a new trial."
Id. at 79. We further concluded that special magistrates have
the authority under Mass. R. Crim. P. 47, 378 Mass. 923 (1979),
to conduct guilty plea colloquies with defendants in special
drug lab sessions, and to report their findings concerning such
issues as the voluntariness of the proposed plea and the factual
 25

provided Dookhan defendants and the Commonwealth with meaningful

solutions for addressing concerns that have arisen as defendants

attempt to challenge their drug convictions. In particular, the

special evidentiary rule that we created in Scott is designed to

enable a defendant "to establish the requisite nexus between

egregious government wrongdoing and the defendant's [own] case"

and to "relieve the trial courts of the administrative burden of

making duplicative and time-consuming findings in potentially

thousands of new trial motions regarding the nature and extent

of Dookhan's wrongdoing." Scott, 467 Mass. at 353. Affidavits

from assistant district attorneys in the Bristol, Essex,

Middlesex, Norfolk, and Suffolk Districts regarding the progress

of motions for new trials or motions to withdraw guilty pleas

filed by Dookhan defendants suggest that they are being resolved

at a steady pace.23

That said, we recognize that there has been some delay in

providing Dookhan defendants with postconviction relief given

basis for the plea to a presiding justice of the Superior Court.
See id. at 66, 85-87, 89-91.
23
These affidavits are included in the Commonwealth's
supplemental appendix, which is not a part of the record in this
case. The Commonwealth has not filed a motion to supplement the
record. At the same time, the petitioners have not filed a
motion to strike the Commonwealth's supplemental appendix. On
October 7, 2014, CPCS filed its own motion to supplement the
record pursuant to Mass. R. A. P. 8 (e), as amended, 378 Mass.
932 (1979). See note 27, infra. In light of our decision to
allow the motion filed by CPCS, see id., and in the interest of
fairness, we shall consider the Commonwealth's supplemental
appendix to be a part of the record in this case.
 26

their reluctance to file motions to withdraw their guilty pleas

because of fears that they will be reprosecuted on more serious

charges and will face harsher punishments than resulted from

their plea agreements. Here, for example, neither Bridgeman nor

Creach has filed a motion to withdraw his guilty pleas. Our

decision today should alleviate those fears and remove a

significant impediment to further proceedings pertaining to

their convictions.

We also realize that efforts to provide postconviction

relief to Dookhan defendants have been hampered by the inability

of CPCS to ascertain which cases may have been tainted by

Dookhan's misconduct. The 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 drug lab cases.24 During earlier

proceedings in this case in the county court, the Commonwealth

commendably provided the single justice and CPCS with the docket

numbers (and other relevant identifying information) of the

Suffolk County and Essex County cases in which Dookhan analyzed

the drug samples as either the primary or secondary chemist.

See Mass. R. Prof. C. 3.8 (d), 426 Mass. 1397 (1998) ("The

prosecutor in a criminal case shall . . . make timely disclosure

24
We focus here on CPCS, but recognize that not all Dookhan
defendants were represented by CPCS attorneys.
 27

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 . . ."). While recognizing that only the

district attorneys for the Suffolk and Essex Districts currently

are parties to this case, we encourage the district attorneys

for the districts in other counties in which Dookhan analyzed

drug samples as either the primary or secondary chemist to

assist the single justice in obtaining docket numbers (and other

relevant identifying information) for those cases. See note 20,

supra.

4. Motion to intervene by CPCS. We begin with some

pertinent background. On March 12, 2013, CPCS filed a motion to

intervene in earlier litigation arising as a consequence of

Dookhan's misconduct at the Hinton drug lab. See Commonwealth

vs. Charles, No. SJ-2013-0066, S.C., Commonwealth v. Charles,

466 Mass. 63 (2013). Among other reasons for its motion, CPCS

sought to "preserve its clients' due process rights to the just

and timely resolution of the many thousands of previously-

adjudicated cases tainted by the systemic malfeasance and

incompetence at the Hinton Drug Lab" and to "advocate for

remedies that [would] restore the integrity of the criminal

justice system." A single justice denied the motion, without

prejudice to renewal, concluding that it was premature in light

of the ongoing investigations of the Hinton drug lab by Attorney
 28

David Meier and by the office of the Inspector General. The

single justice stated that CPCS would have an opportunity to

renew its motion "at an appropriate time." In the view of CPCS,

now is the appropriate time for intervention on the side of the

petitioners.

On May 27, 2014, CPCS filed its motion to intervene in the

present case pursuant to Mass. R. Civ. P. 24 (a).25 CPCS agrees

with and supports the positions taken by the petitioners. It

contends that tens of thousands of defendants who pleaded guilty

to various drug offenses without any knowledge of Dookhan's

misconduct require the assistance of counsel to secure relief

from the violation of their due process rights, and CPCS

inevitably will be called on to provide (or already is

providing) representation. Beyond the issues raised by the

petitioners, CPCS asserts that its ability to assign counsel for

Dookhan defendants has been hindered by the position taken by

prosecutors in at least one county that a lawyer who represented

a defendant at the plea stage of criminal proceedings may not

thereafter represent and testify on behalf of that defendant at

a hearing on a motion to withdraw a guilty plea without

25
As acknowledged by CPCS, its motion to intervene does not
delve into our jurisprudence on intervention. Nonetheless, CPCS
has incorporated by reference the legal arguments that it made
in its prior motion to intervene, filed on March 12, 2013, and
that earlier motion has been included in the record of the
present case.
 29

violating Mass. R. Prof. C. 3.7 (a), 426 Mass. 1396 (1998)

(advocate-witness rule).26 In the view of CPCS, such "dual role

representation" should be permitted. CPCS also asserts that

Dookhan defendants are concerned about pursing postconviction

relief because special magistrates, at hearings on motions to

withdraw guilty pleas, have permitted wide-ranging cross-

examination of defendants regarding their factual guilt.27 CPCS

26
Rule 3.7 (a) of the Massachusetts Rules of Professional
Conduct, 426 Mass. 1396 (1998), provides, in pertinent part,
that "[a] lawyer shall not act as advocate at a trial in which
the lawyer is likely to be a necessary witness except where
. . . disqualification of the lawyer would work substantial
hardship on the client."
27
With respect to this issue, on October 7, 2014, CPCS
filed a motion to supplement the record pursuant to Mass. R. A.
P. 8 (e). It seeks to include in the record the transcript of a
hearing before a special magistrate and other papers from
Commonwealth vs. Cruz, Superior Ct., SUCR2009-10595 (Suffolk
County). CPCS asserts that these papers are relevant to the
question of the permissible scope of cross-examination when a
Dookhan defendant testifies in support of a motion to withdraw a
guilty plea. Defense attorneys have taken the position that
cross-examination on the facts of the case should be limited to
the defendant's understanding of the nature and extent of the
prosecution's evidence. Prosecutors have argued that the "full
context" of a defendant's plea decision under Scott, 467 Mass.
at 357, opens the door to an inquiry encompassing the
defendant's factual guilt. According to CPCS, rulings by
special magistrates on this issue have varied widely. For
example, in the Cruz case, supra, the special magistrate
permitted the prosecutor, over objection, to cross-examine the
defendant about his culpability for two drug offenses -- what he
had done, said, and known regarding the alleged contraband in
question -- and to ask the defendant whether he had pleaded
guilty because, in fact, he was guilty. In the view of CPCS,
the inclusion of these papers in the record will assist this
court in deciding whether the testimony of a Dookhan defendant
at a hearing on a motion to withdraw a guilty plea can be used
 30

takes the position that the testimony of a Dookhan defendant at

such a hearing should be deemed inadmissible in any subsequent

reprosecution of the defendant, except for perjury.28 The

Commonwealth opposes CPCS's motion to intervene on the grounds

that the interests of CPCS are adequately represented by the

petitioners, CPCS has not shown that it has other interests that

would be impaired by the disposition of the petition for relief

under G. L. c. 211, § 3, and CPCS seeks relief beyond the scope

of the petition.

Rule 24 of the Massachusetts Rules of Civil Procedure, 365

Mass. 769 (1974), provides:

"(a) Intervention of Right. Upon timely application
anyone shall be permitted to intervene in an action: (1)
when a statute of the Commonwealth confers an unconditional
right to intervene or (2) when the applicant claims an
interest relating to the property or transaction which is
the subject of the action and [the applicant] is so
situated that the disposition of the action may as a
practical matter impair or impede [the applicant's] ability

in a subsequent reprosecution of the defendant. The
Commonwealth has not filed an objection to CPCS's motion to
supplement the record, and the single justice included the
motion as part of her reservation and report to the full court.
Because the transcript and other papers from the Cruz case
provide helpful background information on this issue, we allow
the motion to supplement the record.
28
CPCS has raised several additional issues in its motion
to intervene. However, in a letter to the single justice dated
September 26, 2014, CPCS limited the issues that it wanted
reserved and reported to the full court to those that we have
mentioned.
 31

to protect that interest, unless [such] interest is
adequately represented by existing parties."29

Judges have "broad discretion in deciding whether to permit

intervention." Cruz Mgt. Co. v. Thomas, 417 Mass. 782, 785

(1994). See Corcoran v. Wigglesworth Mach. Co., 389 Mass. 1002,

1003 (1983).

Intervention should be allowed as of right when "(1) the

applicant claims an interest in the subject of the action, and

(2) [the applicant] is situated so that [its] ability to protect

this interest may be impaired as a practical matter by the

disposition of the action, and (3) [the applicant's] interest is

not adequately represented by the existing parties."30

Massachusetts Fed'n of Teachers, AFT, AFL-CIO v. School Comm. of

Chelsea, 409 Mass. 203, 205 (1991) (Massachusetts Fed'n of

Teachers). Given that rule 24 (a) (2) "does not articulate

explicit criteria for determining the sufficiency of the

asserted interest," appellate courts "have agreed that a

'flexible, rather than rigid approach is indicated,' and that

29
CPCS has not identified the subsection of Mass. R. Civ.
P. 24 (a), 365 Mass. 769 (1974), on which it bases its motion.
In the absence of an apparent statutory right to intervene, we
shall assume that CPCS is relying on rule 24 (a) (2).
30
Given that CPCS filed an earlier motion to intervene that
was denied as premature, we need not consider the threshold
question whether the present motion is timely. See Corcoran v.
Wigglesworth Mach. Co., 389 Mass. 1002, 1003 (1983); Bolden v.
O'Connor Café of Worcester, Inc., 50 Mass. App. Ct. 56, 61
(2000).
 32

'the requirement should be viewed as a prerequisite rather than

relied upon as a determinative criterion for intervention.'"

Bolden v. O'Connor Café of Worcester, Inc., 50 Mass. App. Ct.

56, 62 (2000), quoting Cosby v. Department of Social Servs., 32

Mass. App. Ct. 392, 395-396 (1992). The United States Supreme

Court has stated that the interest in the litigation must be

"significantly protectable," Donaldson v. United States, 400

U.S. 517, 531 (1971), and it "must be sufficiently direct and

immediate to justify the intervention." Bolden, supra. See

Johnson Turf & Golf Mgt., Inc. v. Beverly, 60 Mass. App. Ct.

386, 390 (2004). An interest that is "remote" or "contingent"

or "tangential" or "collateral" will not suffice. Bolden,

supra. "In the end, however, there is 'no convenient rule of

thumb' which we can employ [in deciding whether the interest

prerequisite has been satisfied], . . . and we are thrown back

upon the need for a practical, case-specific, fact-intensive

analysis." Id., quoting Mayflower Dev. Corp. v. Dennis, 11

Mass. App. Ct. 630, 635 (1981).

We add that "the 'interest' requirement should be viewed

more leniently in cases that, as here, implicate questions of

public interest" and the potential impairment of such interest.

Johnson Turf & Golf Mgt., Inc., supra. See, e.g., Cruz Mgt.

Co., 417 Mass. at 786 (Massachusetts Housing Finance Agency

[MHFA] allowed to intervene in case raising "significant
 33

question of how damages should be calculated in an action for a

breach of the implied warranty of habitability brought by a

tenant who [was] the beneficiary of rent subsidies" paid by MHFA

because, as administrator of so-called "Section 8" program, MHFA

was proper party to raise concerns about impact of litigation on

that program); Planned Parenthood League of Mass., Inc. v.

Blake, 417 Mass. 467, 468-469, 479 n.13, cert. denied, 513 U.S.

868 (1994) (Attorney General allowed to intervene in name of

Commonwealth to represent public interest in civil rights action

involving access to facilities providing abortion counselling or

services); Cosby, 32 Mass. App. Ct. at 396-397 (labor union

allowed to intervene as of right in litigation between several

members and employer where union had strong interest in

balancing conflicting policies underlying seniority provisions

and affirmative action requirements of collective bargaining

agreement, in preserving integrity of grievance process, and in

ensuring ability to protect interests of all union members).

An applicant for intervention as of right has the burden of

showing that representation of its interests by an existing

party will be inadequate. See Massachusetts Fed'n of Teachers,

409 Mass. at 206; Attorney Gen. v. Brockton Agric. Soc'y, 390

Mass. 431, 434 (1983). "The question whether the prospective

intervener is adequately represented necessarily turns to a

comparison of the interests asserted by the applicant and the
 34

existing party." Mayflower Dev. Corp., 11 Mass. App. Ct. at

636. See Massachusetts Fed'n of Teachers, supra ("There is no

single standard for determining when an applicant has carried

his burden because the circumstances of the case determine the

weight of that burden"). If the interest of the prospective

intervener "is identical to that of one of the present parties,

or if there is a party charged by law with representing his

interest, then a compelling showing should be required to

demonstrate why this representation is not adequate." Mayflower

Dev. Corp., supra at 637, quoting 7A C.A. Wright & A.R. Miller,

Federal Practice and Procedure § 1909, at 524 (1972) (Wright &

Miller). See Planned Parenthood League of Mass., Inc. v.

Attorney Gen., 424 Mass. 586, 599 (1997); Massachusetts Fed'n of

Teachers, supra at 206-207; Attorney Gen. v. Brockton Agric.

Soc'y, supra. If the prospective intervener's interest "is

similar to, but not identical with that of one of the parties, a

discriminating judgment is required on the circumstances of the

particular case, but [the applicant] ordinarily should be

allowed to intervene unless it is clear that the [existing]

party will provide adequate representation for the [applicant]."

Mayflower Dev. Corp., supra, quoting Wright & Miller, supra.

See Cosby, 32 Mass. App. Ct. at 397-398.

We conclude that CPCS's motion to intervene should be

allowed. CPCS is an entity established by statute to "plan,
 35

oversee, and coordinate the delivery of criminal and certain

noncriminal legal services" to indigent defendants.31 G. L.

c. 211D, § 1. It 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. It cannot be overstated that CPCS has been

and will be asked to expend significant resources to handle

countless numbers of these cases. We agree with the

Commonwealth that there is some overlap in the matters raised by

31
Pursuant to G. L. c. 211D, § 5, CPCS is required to
"establish, supervise and maintain a system for the appointment
or assignment of counsel at any stage of a proceeding, either
criminal or noncriminal in nature, provided, however, that the
laws of the commonwealth or the rules of the supreme judicial
court require that a person in such proceeding be represented by
counsel; and, provided further, that such person is unable to
obtain counsel by reason of his indigency." The Commonwealth
asserts that G. L. c. 211D does not authorize CPCS to intervene
on behalf of a broad class of unnamed defendants whom it may or
may not represent. Plainly, not all Dookhan defendants will be
represented by CPCS in the event they seek postconviction
relief. Nonetheless, the claims that have been raised in these
proceedings are fundamental to the mission and responsibilities
of CPCS, and will impact defendants beyond those currently
identified as clients of CPCS. See, e.g., Edwards, petitioner,
464 Mass. 454, 455, 458 (2013) (CPCS allowed to intervene in
case deciding whether, in determining reasonable compensation to
be paid expert retained by indigent petitioner seeking release
from commitment as sexually dangerous person, judge is bound by
hourly rate set by CPCS); Adoption of Meaghan, 461 Mass. 1006,
1006 (2012) (CPCS allowed to intervene to seek ruling whether
father and child entitled to appointed counsel in case initiated
by private parties involving termination of parental rights).
For these reasons, the fact that CPCS has moved to intervene on
behalf of a broad class of unnamed individuals is not a bar to
the allowance of its motion.
 36

CPCS and the petitioners, especially with regard to the issue of

exposure to harsher punishment. However, the interests of CPCS

go well beyond those articulated by the petitioners.

CPCS is in the position of having to provide representation

to Dookhan defendants in eight counties, and, as such, it has a

compelling interest in advocating for uniform practices and

solutions that will ensure consistent treatment for all of those

defendants, irrespective of their individual jurisdictions.

Limiting our review in this case to the specific concerns raised

by the petitioners will hamper the timely ability of CPCS to

address wider problems that inevitably have arisen as Dookhan

defendants consider whether to pursue postconviction relief.

The interests of CPCS are not and cannot be adequately

represented by the petitioners. At the same time, contrary to

the Commonwealth's assertion, CPCS is not attempting improperly

to interject in these proceedings matters that are independent

from or wholly unrelated to the relief sought by the

petitioners. Contrast Coggins v. New England Patriots Football

Club, Inc., 397 Mass. 525, 539 (1986); Rothberg v.

Schmiedeskamp, 334 Mass. 172, 178 (1956). The additional issues

raised by CPCS are directly connected to its ability to provide

representation for Dookhan defendants and to its assessment of

the benefits of pursing postconviction relief for those

individuals. At this juncture, it is appropriate that CPCS,
 37

which will be shouldering much of the burden for attempting to

resolve the Hinton drug lab cases, be permitted to intervene in

the present case.

5. Global remedy. CPCS contends that, in accordance with

our broad powers of superintendence under G. L. c. 211, § 3,

this court should implement a "global remedy" to resolve, once

and for all, the tens of thousands of cases affected by

Dookhan's egregious misconduct at the Hinton drug lab. In the

view of CPCS, the time and expense of proceeding on a case-by-

case basis has become untenable. Therefore, it proposes a two-

part solution. First, CPCS asserts that this court should

vacate the convictions of all Dookhan defendants. Second, it

continues, this court should dismiss all such cases with

prejudice or, in the alternative, give the Commonwealth a

limited opportunity to reprosecute individual cases in which

there is sufficient untainted evidence to prove the drug charges

beyond a reasonable doubt. Those cases that are not

reprosecuted within one year, CPCS asserts, should be dismissed

with prejudice in accordance with the speedy trial rule, Mass.

R. Crim. P. 36 (b) (1) (D), as amended, 422 Mass. 1503 (1996).

We decline to implement a global remedy at this time. As

we have said, our decisions in Scott and Charles have provided

Dookhan defendants and the Commonwealth with meaningful

solutions for addressing concerns that have arisen as these
 38

defendants attempt to challenge their drug convictions. Our

decision today will go a long way in resolving additional

concerns that have surfaced and in moving these cases forward

towards resolution. We stated in Scott, 467 Mass. at 352, that

when fashioning a workable approach for handling these cases, we

must "account for 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." We also 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. at 354 n.11, and cases cited. In

our view, the implementation of a "one size fits all" approach

is not presently a workable solution.

6. Advocate-witness rule. CPCS asserts that, by

necessity, the vast majority of its assignments of counsel to

Dookhan defendants for the pursuit of postconviction relief have

been to the same attorneys who handled the defendants' guilty

pleas. However, according to CPCS, prosecutors in at least one

county have objected to this dual role representation, arguing

that it is prohibited by Mass. R. Prof. C. 3.7 (a). CPCS

contends that, given the urgent need for timely resolution of
 39

innumerable Hinton drug lab cases, rule 3.7 (a) should not

disqualify a lawyer who represented a Dookhan defendant at the

plea stage of criminal proceedings from subsequently

representing that defendant and testifying at an evidentiary

hearing on the defendant's motion to withdraw a guilty plea. We

agree.

Rule 3.7 (a) of the Massachusetts Rules of Professional

Conduct states, in relevant part, that "[a] lawyer shall not act

as advocate at a trial in which the lawyer is likely to be a

necessary witness except where . . . disqualification of the

lawyer would work substantial hardship on the client" (emphasis

added). In Smaland Beach Ass'n, Inc. v. Genova, 461 Mass. 214,

219-226 (2012) (Smaland), this court discussed the purposes and

scope of attorney disqualification under rule 3.7 (a). We

stated that "[t]he primary purpose of the rule is 'to prevent

the jury as fact finder from becoming confused by the

combination of the roles of attorney and witness.'" Id. at 220,

quoting Steinert v. Steinert, 73 Mass. App. Ct. 287, 291 (2008).

See comment [2] to rule 3.7 ("A witness is required to testify

on the basis of personal knowledge, while an advocate is

expected to explain and comment on evidence given by others. It

may not be clear whether a statement by an advocate-witness

should be taken as proof or as an analysis of the proof"). In

addition, rule 3.7 (a) obviates the possibility that a lawyer
 40

"will appear to vouch for his own credibility," Culebras Enters.

Corp. v. Rivera-Rios, 846 F.2d 94, 99 (1st Cir. 1988); mitigates

the perception that "the testifying lawyer may well be

distorting the truth for the sake of his client," id.; and

"relieves the opposing counsel of the difficult task of cross-

examining his lawyer-adversary." Smaland, 461 Mass. at 220.

See Borman v. Borman, 378 Mass. 775, 786-787 (1979); Serody v.

Serody, 19 Mass. App. Ct. 411, 413-414 (1985). Weighing against

these benefits is the substantial countervailing fact that rule

3.7 (a) "carries with it the severe consequence of stripping a

party of chosen counsel." Smaland, supra. See Commonwealth v.

Perkins, 450 Mass. 834, 853 & n.15 (2008) (criminal defendant

generally enjoys right to be represented by counsel of own

choosing).

Significantly, we pointed out in Smaland, 461 Mass. at 225,

that rule 3.7 (a), by its plain language, prohibits a lawyer

from acting as both an advocate and a necessary witness "at

trial." There, the court analyzed the prohibitions of rule 3.7

(a) in the context of a lawyer-witness's pretrial representation

of his clients and concluded that "an attorney considered to be

a necessary witness may participate in pretrial proceedings,

though it would be particularly prudent first to secure client

consent after consultation." Smaland, supra at 226. We

determined that such a reading of rule 3.7 (a) "adheres to its
 41

text and fulfils its underlying purposes." Id. Concerns about

potential jury confusion, cross-examination of a lawyer-

adversary, and the appearance of impropriety "are absent or, at

least, greatly reduced, when the lawyer-witness does not act as

trial counsel, even if he performs behind-the-scenes work for

the client in the same case." Id., quoting Culebras Enters.

Corp., 846 F.2d at 100.

Relying on the plain language of rule 3.7 (a), and

considering the context in which dual role representation has

arisen vis-à-vis the Hinton drug lab cases, we conclude that the

rule does not bar such representation. The request by CPCS to

proceed with dual role representation does not involve plea

counsel acting as both an advocate and a necessary witness "at

trial." To the contrary, plea counsel will be acting in those

capacities during a motion proceeding before a judge. There

will be no jury that might become "confused by the combination

of the roles of attorney and witness." Steinert, 73 Mass. App.

Ct. at 291. To the extent that plea counsel may be in the

position of having to comment on his or her own credibility, the

judge is amply able to make the necessary credibility

determinations without being swayed by any improper

considerations. Apart from the defendant, plea counsel is

likely the only individual who can attest to the circumstances

surrounding the defendant's decision to plead guilty, and such
 42

testimony is critical to the judge's decision whether to allow a

motion to vacate a guilty plea. See Scott, 467 Mass. at 354-355

("the defendant must demonstrate a reasonable probability that

he would not have pleaded guilty had he known of Dookhan's

misconduct"). At the time of plea negotiations, neither the

defendant nor plea counsel could have imagined the events that

later would unfold at the Hinton drug lab, or entertained the

thought that plea counsel would be called as a witness at a

subsequent proceeding. See comment [4] to rule 3.7 ("It is

relevant that one or both parties could reasonably foresee that

the lawyer would probably be a witness"). Given the numbers of

Dookhan defendants and of attorneys able to represent them,

having plea counsel continue their representation of former

clients is a sensible approach for resolving these cases in a

timely and efficient manner. Plea counsel already will be

familiar with a defendant's case and can expeditiously work

toward bringing it to a conclusion.

We recognized in Smaland, 461 Mass. at 227 n.20, that

"combining the roles of advocate and witness may create a

conflict of interest [as] governed by Mass. R. Prof. C. 1.7, 426

Mass. 1373 (1998) (conflict of interest), or Mass. R. Prof. C.

1.9, 426 Mass. 1342 (1998) (prior representation)." See comment

[1] and [5] to rule 3.7. The Commonwealth asserts that dual

role representation presents a conflict of interest because the
 43

Commonwealth likely will elicit information from counsel that is

harmful to a defendant, particularly an admission that, apart

from the drug certificate, the evidence against the defendant

was strong. See Commonwealth v. Shraiar, 397 Mass. 16, 21

(1986) ("A genuine conflict of interest arises whenever trial

counsel is called upon to give testimony adverse to his

client"). Determining the existence of a conflict of interest

is "primarily the responsibility of the lawyer involved,"

comment [5] to rule 3.7, and is a matter for discussion with the

client. See Mass. R. Prof. C. 1.7 (b) (2). A defendant may

consent to dual role representation notwithstanding a conflict

of interest. See id; comment [5] to rule 1.7. See also

Perkins, 450 Mass. at 853. We conclude that Mass. R. Prof. C.

3.7 (a) does not bar dual role representation of a Dookhan

defendant at a hearing on a motion to withdraw a guilty plea,

although "it would be particularly prudent first to secure

client consent after consultation."32 Smaland, 461 Mass. at 226.

Ultimately, as acknowledged by CPCS, the decision whether to

32
We add that, in light of our conclusion, dual role
representation at a Dookhan defendant's hearing on a motion to
withdraw a guilty plea also does not run afoul of Rule 12 of the
Rules of the Superior Court 1017 (LexisNexis 2014-2015), which
states: "No attorney shall be permitted to take part in the
conduct of a trial in which he has been or intends to be a
witness for his client, except by special leave of the court"
(emphasis added).
 44

continue with plea counsel or request the appointment of a new

attorney should remain in the hands of the defendant.

7. Scope of testimony by Dookhan defendants. Finally,

CPCS raises two related claims pertaining to the testimony of a

Dookhan defendant at a hearing on a motion to withdraw a guilty

plea. First, CPCS contends that cross-examination of a

defendant should not be permitted to delve into the defendant's

guilt or innocence of the underlying crime, unless the defendant

asserts a claim of actual innocence. As we understand its

argument, CPCS does not seek to preclude cross-examination

regarding the alleged facts of a given case, acknowledging that

the Commonwealth should be free to question the defendant about

his or her assessment of the nature and strength of the evidence

against the defendant. However, CPCS wants to prevent the

Commonwealth from turning the defendant's request for

postconviction relief into what CPCS views as a game of

"gotcha," where the Commonwealth's strategy is to ask the

defendant about his or her guilt (and presumably elicit a

response that he or she is not guilty) and then argue that the

defendant is a liar because the defendant's testimony at the

motion hearing contradicts his or her testimony from the plea

colloquy. CPCS asserts that allowing the Commonwealth to pursue

this line of cross-examination is unfair and prejudicial.

Therefore, it continues, this court should limit the scope of
 45

cross-examination to questions concerning the defendant's

knowledge about the Commonwealth's evidence at the time he or

she pleaded guilty. We decline to adopt CPCS's proposed

evidentiary rule.

As CPCS correctly points out, a Dookhan defendant at a

hearing on a motion to withdraw a guilty plea "must demonstrate

a reasonable probability that he would not have pleaded guilty

had he known of Dookhan's misconduct." Scott, 467 Mass. at 355.

"Ultimately, a defendant's decision to tender a guilty plea is a

unique, individualized decision, and the relevant factors and

their relative weight will differ from one case to the next."

Id. at 356. We have emphasized that "the full context of the

defendant's decision to enter a plea agreement will dictate the

assessment of his claim that knowledge of Dookhan's misconduct

would have influenced [his] decision to plead guilty." Id. at

357. A judge's determination whether a defendant has made the

necessary showing will be based on "the totality of the

circumstances." Id. at 358.

It is well established that the scope and extent of cross-

examination is left to a judge's broad discretion. See

Commonwealth v. Horne, 466 Mass. 440, 447 (2013); Commonwealth

v. Johnson, 431 Mass. 535, 538 (2000). See also Commonwealth v.

Gagnon, 408 Mass. 185, 192 (1990), S.C., 430 Mass. 348 (1999),

quoting Commonwealth v. Underwood, 358 Mass. 506, 513 (1970)
 46

(judge determines extent to which "the accuracy, veracity, and

credibility of a witness may be tested" on cross-examination).

Consequently, whether the Commonwealth should be allowed to

cross-examine a defendant on his or her guilt or innocence of

the underlying crime is a matter for the motion judge to decide.

If permitted, the judge can assess the Commonwealth's arguments

about the defendant's truthfulness in the context of defense

counsel's countervailing arguments about the essential reasons

for the defendant's guilty plea. Judges are aware that, on

occasion, defendants have an incentive to plead guilty for

reasons other than actual guilt, including to avoid the

imposition of mandatory minimum sentences in the event they are

found guilty after trial. See Commonwealth v. Nikas, 431 Mass.

453, 455 (2000), and cases cited.

Second, and dovetailing with the issue just discussed, CPCS

contends that the testimony of a Dookhan defendant at a hearing

on a motion to withdraw a guilty plea should not be admissible

at a subsequent trial on the defendant's guilt. In the view of

CPCS, the Commonwealth cannot put a defendant in the position of

having to surrender the privilege against self-incrimination in

order to secure the allowance of the motion, and then turn

around and use the defendant's testimony from the motion hearing

against the defendant at trial. If such testimony is admissible

at trial, CPCS continues, defendants will be deterred from
 47

seeking postconviction relief in the first place. CPCS argues

that, in light of Dookhan's egregious misconduct, this result

would be inherently unfair.33

In Simmons v. United States, 390 U.S. 377 (1968), the

United States Supreme Court considered the issue whether a

defendant's testimony at a suppression hearing regarding his

standing to allege a violation of his rights under the Fourth

Amendment to the United States Constitution could be admitted

against him at trial on the question of his guilt or innocence.

See id. at 382, 389-390. Given that the defendant would be

obliged either to give up a valid Fourth Amendment claim, or

effectively waive his Fifth Amendment privilege against self-

incrimination, the Court found it "intolerable that one

constitutional right should have to be surrendered in order to

assert another." Id. at 394. Accordingly, the Court held that

"when a defendant testifies in support of a motion to suppress

evidence on Fourth Amendment grounds, his testimony may not

thereafter be admitted against him at trial on the issue of

guilt unless he makes no objection." Id. See Commonwealth v.

Rivera, 425 Mass. 633, 637 (1997) (recognizing rule articulated

in Simmons).

33
The Commonwealth asserts that this issue is not ripe for
review because the harm alleged by CPCS is hypothetical. For
the reasons already articulated, we conclude that it is
appropriate to consider CPCS's claim now in accordance with our
broad powers of superintendence under G. L. c. 211, § 3.
 48

Here, although the rights asserted by a Dookhan defendant

are somewhat different from those in Simmons, we reach a similar

conclusion. A defendant has a "constitutional due process right

to a fair trial." Commonwealth v. Henderson, 411 Mass. 309, 310

(1991). See Scott, 467 Mass. at 352. See also Strickland v.

Washington, 466 U.S. 668, 684 (1984). For a Dookhan defendant,

the ability to exercise the right to a fair trial is contingent,

in the first instance, on the allowance of a motion to withdraw

a guilty plea. However, the allowance of such a motion may

depend in significant measure on the defendant's willingness to

sacrifice the privilege against self-incrimination to enable the

motion judge to assess the full context of the defendant's

decision to plead guilty. See Scott, 467 Mass. at 357.

Alternatively, a Dookhan defendant can sacrifice the right to a

fair trial by asserting the Fifth Amendment privilege against

self-incrimination at the hearing, thereby increasing the

likelihood that his or her motion to withdraw a guilty plea will

be denied. Having to make this choice places the defendant in

an untenable position. On the one hand, the defendant is

compelled to be a witness against himself or herself in order to

obtain relief from egregious government misconduct that may well

have tainted his or her conviction. On the other hand, the

defendant is deterred from pursuing his or her postconviction

rights under Scott by not seeking to withdraw the guilty plea,
 49

thereby perpetuating the injustice arising from Dookhan's

misconduct. The relief afforded by the allowance of a motion to

withdraw a guilty plea would be illusory if the Commonwealth

then could turn around and use the defendant's testimony against

him or her at trial. Accordingly, we conclude that the

testimony of a Dookhan defendant at a hearing on a motion to

withdraw a guilty plea is only admissible at a subsequent trial

for impeachment purposes if the defendant chooses to testify.34

See Commonwealth v. Rivera, 425 Mass. at 637, and cases cited

(rule articulated in Simmons, 390 U.S. at 394, "has not been

applied to exclude the use of prior inconsistent statements for

impeachment purposes").

8. Conclusion. For the foregoing reasons, we conclude

that (1) a defendant who has been granted a new trial based on

Dookhan's misconduct at the Hinton drug 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; (2) the motion to intervene

filed by CPCS is allowed; (3) a so-called "global remedy" will

not be implemented at this time; (4) a lawyer who represented a

Dookhan defendant at the plea stage of criminal proceedings is

34
In accordance with Mass. R. Crim. P. 12 (f), as appearing
in 442 Mass. 1511 (2004), statements made by a Dookhan defendant
at a plea colloquy are not admissible at a subsequent trial.
 50

not barred by the advocate-witness rule from subsequently

representing that defendant and testifying at an evidentiary

hearing on the defendant's motion to withdraw a guilty plea; (5)

the scope of cross-examination of a Dookhan defendant at a

hearing on a motion to withdraw a guilty plea is left to the

broad discretion of the motion judge; and (6) the testimony of a

Dookhan defendant at a hearing on a motion to withdraw a guilty

plea is only admissible at a subsequent trial for impeachment

purposes if the defendant chooses to testify. The case is

remanded to the single justice for further proceedings,

consistent with this opinion, as appropriate.

So ordered.