Bridgeman v. District Attorney for the Suffolk District

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SJC-12157

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

Suffolk. November 16, 2016. - January 18, 2017.

Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, &
Budd, JJ.

Controlled Substances. Constitutional Law, Conduct of
government agents. Due Process of Law, Disclosure of
evidence, Presumption. Supreme Judicial Court,
Superintendence of inferior courts. Practice, Criminal,
Postconviction relief, Conduct of government agents,
Disclosure of evidence, Plea, New trial. Evidence,
Certificate of drug analysis, Disclosure of evidence.

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, District
Attorney for the Bristol District, District Attorney for the
Cape and Islands District, District Attorney for the Middlesex
District, District Attorney for the Norfolk District, and
District Attorney for the Plymouth District.
 2

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 & 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

chemist at the William A. Hinton State Laboratory Institute

(Hinton lab). In Bridgeman v. District Attorney for the Suffolk

Dist., 471 Mass. 465, 487 (2015) (Bridgeman I), the petitioners

and the intervener, the Committee for Public Counsel Services

(CPCS), asked that we exercise our broad powers of
 3

superintendence to vacate the thousands of drug convictions

affected by Dookhan's misconduct because the time and expense of

case-by-case adjudication had become "untenable." We declined

at that time to adopt their proposed "global remedy." However,

the district attorneys have now provided the single justice with

lists identifying more than 20,000 defendants who could be

eligible for relief based on Dookhan's misconduct but who have

not yet sought relief from their drug convictions. As a result

of the number of potentially aggrieved defendants, the single

justice issued a reservation and report to the full court that

essentially invites us to reconsider whether the time has come

for a global remedy or whether further steps must be taken to

realistically implement the remedy of case-by-case adjudication

of potentially thousands of motions for a new trial.

After such reconsideration, we decline to adopt the

district attorneys' argument that we should stay the course we

had previously set and take no further action to protect the

rights of the "relevant Dookhan defendants."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

3
See note 8 and accompanying text, infra, for the
definition of the term "relevant Dookhan defendants."
 4

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 phase

one. In the third phase, CPCS shall assign counsel to all

indigent relevant Dookhan defendants who wish to explore the

possibility of moving to vacate their plea or for a new trial.

If the number seeking counsel is so large that counsel cannot be

assigned despite CPCS's best efforts, the single justice will

fashion an appropriate remedy under our general superintendence

authority for the constitutional violation, which may include

dismissing without prejudice the relevant drug convictions in

cases where an indigent defendant is deprived of the right to

counsel.
 5

We recognize that the implementation of this protocol will

substantially burden the district attorneys, CPCS, and the

courts. But we also recognize that Dookhan's misconduct at the

Hinton lab has substantially burdened the due process rights of

many thousands of defendants whose convictions rested on her

tainted drug analysis and who, even if they have served their

sentences, continue to suffer the collateral consequences

arising from those convictions. And we recognize as well that,

more than four years after Dookhan's misconduct was revealed,

more than 20,000 defendants who are entitled to a conclusive

presumption that egregious government misconduct occurred in

their case have yet to receive adequate notice that they may

have been victimized by Dookhan's misconduct, that they may file

a motion to vacate their drug conviction, and that they have a

right to counsel to assist them in the preparation of such a

motion. The remedy we order, challenging as it is to implement,

preserves the ability of these defendants to vindicate their

rights through case-by-case adjudication, respects the exercise

of prosecutorial discretion, and maintains the fairness and

integrity of our criminal justice system in the wake of a

laboratory scandal of unprecedented magnitude.4

4
We acknowledge the amicus briefs submitted by the National
Association of Criminal Defense Lawyers and the Massachusetts
Association of Criminal Defense Lawyers; the Boston Bar
Association; the National Association for Public Defense; and
 6

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 department concluded that "Dookhan failed

to follow [Hinton lab] protocols for the transfer and

documentation of samples for testing, and subsequently created a

false record of said transfers." Id. Dookhan was placed on

paid administrative leave and then resigned from her position,

effective March 9, 2012. Id.

In July, 2012, the Legislature transferred oversight of the

Hinton lab to the State police. See St. 2012, c. 139, § 56

(replacing G. L. c. 22C, § 39); St. 2012, c. 139, § 107

(repealing G. L. c. 111, §§ 12-13). See also Scott, 467 Mass.

338. In August, 2012, the State police initiated a more

extensive investigation of the Hinton lab, which "revealed

numerous improprieties surrounding Dookhan's conduct in the

lab." Id. at 339. See Charles, 466 Mass. at 64. Based in part

the New England Innocence Project and the North Carolina Center
on Actual Innocence.
 7

on Dookhan's confession of misconduct on August 28, 2012, the

State police investigation revealed, among other misconduct, the

following:

 Dookhan "admitted to 'dry labbing' for two to three years
prior to her transfer out of the [Hinton] lab in 2011,
meaning that she would group multiple samples together from
various cases that looked alike, then test only a few
samples, but report the results as if she had tested each
sample individually." Scott, supra.
 She admitted to "contaminating samples intentionally,
including turning negative samples into positive samples on
at least a few occasions." Id.
 She admitted that she removed samples from the evidence
locker in breach of Hinton lab protocols, postdated entries
in the evidence log book, and forged an evidence officer's
initials. Id.
 She falsified reports intended to verify that the gas
chromatography-mass spectrometer machine used in
"confirmatory"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

5
"Confirmatory" testing is often referred to in our
opinions as "secondary" testing. We use the terms
interchangeably.
 8

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

6
In addition to the State police investigation, the
Governor requested a top-to-bottom review of the William A.
Hinton State Laboratory Institute (Hinton lab) to determine
whether any other employees at the Hinton lab committed
malfeasance. The office of the Inspector General (OIG)
conducted a fifteen-month investigation of the Hinton lab that
included interviews with more than forty individuals and an
examination of more than 200,000 documents. The OIG concluded
that "Dookhan was the sole bad actor at the [Hinton lab]" and
that no other chemist at the laboratory knowingly aided her
misconduct. But the OIG report described massive deficiencies
by the Department of Public Health (department) in its oversight
and management of the Hinton lab. These deficiencies included a
lack of accreditation and inadequate chemist training; distant
or uninterested supervisors; inconsistent testing practices;
deviation from chain-of-custody guidelines; and faulty security.
This environment "gave Dookhan the freedom to start making and
following her own rules." Even when coworkers began raising red
flags about Dookhan, directors at the Hinton lab were
"habitually unresponsive" and "severely downplayed Dookhan's
major breach in chain-of-custody protocol." The OIG report
concluded that "all samples in which Dookhan was the primary
chemist should be treated as suspect and be subject to careful
review."
 9

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 judges in seven counties to preside over

special "drug lab" sessions. Id. at 65. To assist these judges

in the adjudication of these cases, the Chief Justice of the

Superior Court in November, 2012, exercised her authority under

Mass. R. Crim. P. 47, 378 Mass. 923 (1979), to appoint five

retired Superior Court judges as "Special Judicial Magistrates

of the Superior Court" to preside over postconviction motions

related to the Hinton lab. Id. at 66.

In Scott, 467 Mass. at 337-338, we considered the

appropriate legal standard where a defendant, in response to

government misconduct in his or her case, moves to withdraw a

7
These motions were facilitated by a special task force
established by the Governor in September, 2012. The task force,
led by attorney David Meier, used data from the department to
identify individuals who could have been affected by Dookhan's
misconduct. The task force then shared the lists with
prosecutors, defense attorneys, and judges, "so as to enable
each of the agencies and offices to respond appropriately." The
task force concentrated on identifying individuals most
adversely affected, such as those in custody, awaiting trial, or
on probation or parole. By December, 2012, the task force
identified approximately 10,000 individuals who fell in these
priority categories and who had to be notified immediately that
their cases potentially were affected by Dookhan's misconduct.
The task force also produced a more comprehensive list of
approximately 40,000 cases in which Dookhan served as a primary
or confirmatory chemist. At the time the task force completed
its final report, the criminal investigation of Dookhan and the
OIG's review of the Hinton lab were still ongoing.
 10

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).
 11

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. "Thus, even if Dookhan herself were to testify in each of

the thousands of cases in which she served as primary or

secondary chemist, it is unlikely that her testimony, even if

truthful, could resolve the question whether she engaged in

misconduct in a particular case." Id. at 352. Because it was

"reasonably certain . . . that her misconduct touched a great

number of cases," id., but "may be impossible" for any defendant

to prove that the drug analysis in his or her case was tainted

by her misconduct, id. at 351, we recognized that her

"particularly insidious form of misconduct, which belies

reconstruction," resulted in "a lapse of systemic magnitude in

the criminal justice system." Id. at 352.

To resolve this dilemma, we exercised our power of "general

superintendence of all courts . . . to correct and prevent

errors and abuses" under G. L. c. 211, § 3, and held that, where

Dookhan signed the drug certificate in a defendant's case as an

assistant analyst, that is, as the primary or confirmatory

chemist, see Scott, 467 Mass. at 353 n.9, a defendant who seeks
 12

to vacate his or her plea after learning of Dookhan's misconduct

"is entitled to a conclusive presumption that egregious

government misconduct occurred in [his or her] case." Id. at

352. The consequence of the conclusive presumption of egregious

government misconduct is that a defendant can satisfy the first

prong of the Ferrara test simply by showing that Dookhan signed

the drug certificate in his or her case as an assistant analyst.

Id. at 353.

We emphasized in Scott that the "special evidentiary rule"

of a conclusive presumption is "sui generis" -- "a remedy

dictated by the particular circumstances surrounding Dookhan's

misconduct" that was "intended to apply only to this narrow

class of cases in which a defendant seeks to withdraw his or her

guilty plea after having learned of Dookhan's misconduct." Id.

at 353-354. We declared that "it is most appropriate that the

benefit of our remedy inure to defendants" where, as here, there

is "government misconduct that has cast a shadow over the entire

criminal justice system." Id. at 352. The remedy of a

conclusive presumption, we concluded, takes into account "the

due process rights of defendants, the integrity of the criminal

justice system, the efficient administration of justice in

responding to such potentially broad-ranging misconduct, and the

myriad public interests at stake." Id.
 13

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

did not conclusively presume such prejudice. Id. at 354-355,

356. The defendant, therefore, bears the burden of proving "a

reasonable probability that he [or she] would not have pleaded

guilty had he [or she] known of Dookhan's misconduct," and

instead would have chosen to go to trial. Id. at 355. We noted

that, "[u]nlike evidence of the particular scope of Dookhan's

misconduct, evidence of the circumstances surrounding the

defendant's decision to tender a guilty plea should be well

within the defendant's reach." Id. at 354 n.11.

In Commonwealth v. Francis, 474 Mass. 816 (2016), we

reviewed the denial of a defendant's motion for a new trial

where the defendant had been convicted at trial of drug charges

after drug certificates were admitted in evidence that were

signed by Dookhan as an assistant analyst. We concluded that

the conclusive presumption of "egregious government misconduct"

is not limited to motions to withdraw guilty pleas, but that,

where the defendant has been convicted at trial, "[t]he

consequence of the conclusive presumption is that we deem it

error to have admitted the drug certificates or comparable

evidence regarding Dookhan's drug analysis where the defendant
 14

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
 15

their case as a primary or confirmatory chemist. We refer to

these as the "relevant Dookhan defendants."8

In Bridgeman I, 471 Mass. at 473-494, we considered two

sets of issues raised by relevant Dookhan defendants who

potentially were eligible for relief from their convictions

because of Dookhan's misconduct, but who had not yet moved for

postconviction relief. The first set of issues identified

concerns that were discouraging these defendants from seeking

that relief. The most significant was the risk that, if their

motion for a new trial were granted, the Commonwealth could

reprosecute them not only on the charge to which the defendants

had pleaded guilty but also on any charge that was dismissed at

the time of the plea, and seek a more severe sentence,

especially where the dismissed charge carried a mandatory

minimum sentence upon conviction. Id. at 472-473. Drawing

8
The term "Dookhan defendants" was defined in Bridgeman v.
District Attorney for the Suffolk Dist., 471 Mass. 465, 467 n.4
(2015) (Bridgeman I), "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.'" Because Bridgeman I was
decided before Commonwealth v. Ruffin, 475 Mass. 1003 (2016),
the term "Dookhan defendants" is broader than the term "relevant
Dookhan defendants," because it includes those with cases in
which Dookhan signed the drug certificate after their guilty
plea or admission to sufficient facts to warrant a guilty
finding. In light of our decision in Ruffin, the set of
defendants entitled to the conclusive presumption of egregious
government misconduct is limited to the "relevant Dookhan
defendants," and the relief we order infra is limited to this
set of defendants.
 16

broadly on the need to "ameliorate [the] damaging effects" of

Dookhan's misconduct, id. at 474, we held that "a defendant who

has been granted a new trial based on Dookhan's misconduct at

the Hinton . . . lab cannot be charged with a more serious

offense than that of which he or she initially was convicted

under the terms of a plea agreement and, if convicted again,

cannot be given a more severe sentence than that which

originally was imposed." Id. at 468.

The second set of issues in Bridgeman I concerned the

fairness and practicability of attempting individually to

resolve the multitude of motions for a new trial that

potentially could be brought by the Dookhan defendants. We

allowed the motion to intervene filed by CPCS under Mass. R.

Civ. P. 24 (a), 365 Mass. 769 (1974), recognizing that "[i]t has

a substantial and immediate interest in these proceedings given

its current and future responsibility for providing

representation to thousands of indigent Dookhan defendants who

want to pursue postconviction relief from their drug

convictions." Bridgeman I, 471 Mass. at 485-486. We then

addressed CPCS's contention that, because so many cases were

affected by Dookhan's misconduct, the "time and expense of

proceeding on a case-by-case basis has become untenable," and we

therefore should implement a "global remedy" to resolve these

cases pursuant to our broad powers of superintendence under
 17

G. L. c. 211, § 3. Bridgeman I, supra at 487. Under the global

remedy that CPCS proposed, we would vacate the convictions of

all Dookhan defendants. Id. CPCS offered two alternatives: we

could vacate the convictions with prejudice, and thereby bar any

reprosecution; or we could vacate the convictions without

prejudice, and allow the Commonwealth one year to reprosecute,

dismissing with prejudice all cases not reprosecuted within that

time period. Id.

We declined in Bridgeman I to implement a global remedy "at

this time." Id. We noted that "while '[i]t certainly is true

that we cannot expect defendants to bear the burden of a

systemic lapse, . . . we also cannot allow the misconduct of one

person to dictate an abrupt retreat from the fundamentals of our

criminal justice system.'" Id., quoting Scott, 467 Mass. at 354

n.11. We also noted that we had already provided "meaningful

solutions" to resolve these cases in Scott and Charles, and

that, in Bridgeman I, we were removing the barriers that made

defendants reluctant to file motions to withdraw their guilty

pleas. Id. at 480, 487. And we noted that some district

attorneys had made progress in providing CPCS with the docket

numbers of the cases in which Dookhan was the primary or

confirmatory chemist, and encouraged the remaining district

attorneys with such cases to assist the single justice in
 18

obtaining docket numbers for their districts.9 Id. at 481. We

recognized that "efforts to provide postconviction relief to

Dookhan defendants [had] been hampered by the inability of CPCS

to ascertain which cases may have been tainted by Dookhan's

misconduct," and that "[t]he ability of CPCS to identify clients

and to assign them attorneys who will represent their interests

in postconviction proceedings is crucial to the administration

of justice in the Hinton . . . lab cases." Id. at 480. We

remanded the case to the single justice for further proceedings

consistent with the opinion. Id. at 494.

The single justice joined as respondents the district

attorneys for the Cape and Islands, Middlesex, Norfolk, and

Plymouth districts, and allowed the motion of the district

attorney for the Bristol district to intervene. The single

justice ordered the district attorneys to produce lists with the

names, docket numbers, and personal identifying information for

every "adverse disposition concerning every G. L. c. 94C charge"

9
Only the district attorneys for the Suffolk and Essex
districts were parties to Bridgeman I, 471 Mass. at 481. They
provided CPCS with the relevant docket numbers in their
districts in September, 2014. Id. at 478 n.20. The district
attorneys for the Bristol and Norfolk districts later provided
CPCS with the relevant docket numbers before the issuance of the
opinion in Bridgeman I. Id. The district attorneys for the
Cape and Islands, Middlesex, and Plymouth districts had yet to
do so at the time that opinion issued. Id.
 19

of the "Dookhan defendants."10 In May, 2016, the district

attorneys produced lists that contained the names of more than

20,000 defendants with more than 24,000 cases where they had

pleaded guilty to a drug charge, had admitted to sufficient

facts to warrant a finding of guilty of a drug charge, or had

been found guilty at trial of a drug charge where Dookhan had

tested the alleged drugs as the primary or confirmatory

chemist.11

10
Because the list encompasses the "Dookhan defendants," it
includes some defendants who are not "relevant Dookhan
defendants." See note 8 and accompanying text, supra.
11
The lists were the product of the commendable and
laborious efforts of the Trial Court's information technology
department, which identified the set of all cases with a G. L.
c. 94C charge from 2003 to June, 2011, and of the district
attorneys' offices, which then identified the subset of these
cases where Dookhan was the primary or confirmatory chemist.
The district attorneys state that they have identified
approximately 20,544 defendants in 24,577 cases that featured at
least some evidence tested by Dookhan and that resulted in an
adverse consequence. The CPCS data analyst identified 24,391
cases in which defendants still face adverse dispositions on
drug charges where Dookhan was the primary or confirmatory
chemist. Both parties contend that the respective tallies are
not a perfect measure of the remaining pool of cases tainted by
Dookhan's misconduct. As earlier stated, these lists include
defendants who are not relevant Dookhan defendants because they
pleaded guilty or admitted to sufficient facts before Dookhan
signed the drug certificate as an assistant analyst. The
district attorneys claim that, apart from including the so-
called Ruffin defendants, the lists overcount the number of
relevant Dookhan defendants because they include some defendants
who already moved to vacate their pleas, and because they
include defendants who were codefendants in a case where Dookhan
was an assistant analyst. The Bridgeman petitioners and CPCS
claim that the lists actually undercount the number of remaining
defendants because of errors in the district attorneys' data.
 20

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 to any notice that presumed case-by-case

litigation, because they contended that, given the large number

of Dookhan defendants and the limited resources of CPCS, the

notice could not truthfully inform the Dookhan defendants that

attorneys were available to represent them in these cases. They

asked the single justice to reserve and report to the full court

the question "whether all cases involving misconduct by Annie

Dookhan should be dismissed or subjected to a court-ordered

deadline." The district attorneys opposed the reservation and

report, arguing that the notices would provide all Dookhan

defendants the opportunity to seek relief. They also contended

We need not resolve these differences and ascertain the precise
number of relevant Dookhan defendants because, even if we were
to adopt the district attorneys' estimates, there would still be
close to 20,000 relevant Dookhan defendants who might be
entitled to postconviction relief.
12
For the sake of simplicity, we will refer to both the
Bridgeman I petitioners and CPCS as the "Bridgeman petitioners"
for the remainder of this opinion, even though we recognize that
CPCS is an intervener rather than a petitioner in this case. We
refer to the "Bridgeman petitioners" because this is a civil
case seeking declaratory relief, even though we recognize that
the Bridgeman petitioners are each Dookhan defendants in
criminal cases.
 21

that the Bridgeman petitioners "significantly overstate[] the

apparent degree of interest on the part of the Dookhan

defendants in revisiting settled cases." The single justice

issued a reservation and report on August 16, 2016.

The district attorneys advised the single justice before

the issuance of the reservation and report that they intended to

send notices regardless of whether the case was reported to the

full court. On August 29, 2016, the district attorneys filed in

the county court a letter attaching the notice they intended to

send on or before September 1. The Bridgeman petitioners

informed the district attorneys that the notice was misleading

and poorly translated. At a hearing on September 6, the single

justice invited the district attorneys to delay sending the

notice, but the district attorneys announced that the mailing

had already begun. On September 7, CPCS filed an emergency

motion asking the full court to halt further dissemination of

the notice; the court denied the motion but ordered the district

attorneys to keep records of all documents and communications

arising from the notice.

The notice was mailed in an envelope with the return

address of "RG/2 Claims Administration LLC," and a post office

box in Philadelphia, Pennsylvania, along with the words

"IMPORTANT LEGAL NOTICE FROM THE COMMONWEALTH OF MASSACHUSETTS"
 22

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 between 2003 and

2011; that it has been determined that Dookhan tested the drugs

in the case; and that Dookhan "admitted to misconduct in her

work at the [Hinton] lab." It advised the defendant that,

because Dookhan tested the evidence, he or she has certain

rights, specifically, "the right to challenge the drug

conviction(s) listed in this notice" and that "if [the defendant

is] tried and convicted again, [he or she] will not face any

punishment greater than what [he or she] already received." The

notice asked the defendant to contact his or her original lawyer

on the case if he or she has any questions, and also invited the

defendant to speak with a new lawyer. The notice further

invited the defendant, should he or she not know how to contact

the original lawyer, to get that information at the criminal

clerk's office where the case was adjudicated, and provided the

Web site address where the physical address of the relevant

court can be found.14

13
RG/2 Claims Administration, LLC, is the vendor who
contracted with the district attorneys to distribute the notice.
14
The full English text of the notice is reprinted below:

"Dear [recipient]:
 23

A Spanish translation of the notice was included on the

bottom of the page. According to the Bridgeman petitioners,

this translation "contained numerous errors and was not readily

understandable to a person who speaks Spanish but not English."15

"According to court records, you were convicted of one or
more drug offenses in the [county] between 2003 and 2011.
It has been determined that chemist Annie Dookhan tested
the drugs in your case(s), [court name], [docket number]

"Ms. Dookhan admitted to misconduct in her work at the
[Hinton] lab. Because Ms. Dookhan tested evidence in your
case, you have certain rights:

"• You have the right to challenge the drug conviction(s)
listed in this notice. If your challenge succeeds,
your conviction(s) will be undone or 'vacated,' and
your case will be returned to active status.
"• The District Attorney's office may decide to try you
again on the vacated drug charge(s), but if you are
tried and convicted again, you will not face any
punishment greater than what you already received. In
other words, you cannot be additionally punished for
choosing to challenge your conviction(s).

"If you have any questions, please contact your original
lawyer on your case(s). You may also choose to speak to a
new lawyer. If you do not know how to contact your
original lawyer, you may get that information at the
criminal clerk's office at the court where your case was
handled. Addresses for all of the District and Superior
courts can be found at [State government Web site].

"For more information, you may contact the [district
attorney's office]."
15
The Bridgeman petitioners included in the record an
affidavit from Michael W. O'Laughlin, a qualified Spanish
interpreter, who attested that "the Spanish translation
contained within [the notice letter] is not accurate or clear."
He identified various flagrant errors in the translation of the
notice, including the following:
 24

The district attorneys have not offered any evidence to rebut

these claims or to defend the quality of the translation.

The district attorneys' vendor mailed 20,916 letters to

Dookhan defendants.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.

 The word "vacated" was translated in the notice as
"desocupar," meaning to physically vacate premises, not to
vacate a judicial decision.
 The verb tense in the same sentence was changed so that it
appeared that a successful motion may yield only the
possibility that the conviction would be vacated.
 The translation of "criminal clerk's office" described a
clerk who is himself also a violent felon.

O'Laughlin also described the translation of a crucial sentence
in the notice explaining the district attorney's ability to
retry the recipient's case as "unintelligible."
16
Because some defendants had cases in multiple counties,
the number of letters that were mailed exceeded the number of
defendants identified in the lists.
 25

 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

17
The Bridgeman petitioners have filed a motion to expand
the record to add an affidavit from Nancy J. Caplan, the CPCS
attorney in charge of its Hinton lab crisis litigation unit
(unit), which was created in April, 2013, to address indigent
defense matters relevant to the representation of Dookhan
defendants. Caplan attests that, after the district attorneys
sent the notice, CPCS asked the courts in the eight affected
counties and all bar advocates to direct all inquiries arising
from the notice to the unit so that CPCS could "provide counsel
to indigent Dookhan defendants so long as it had the resources
necessary to do so." She declares that, as of October 31, 2016,
the unit had received inquiries arising from the notice from 139
Dookhan defendants, who were defendants in 162 cases in which
Dookhan was the primary or confirmatory chemist.
 26

Discussion. The Bridgeman petitioners argue once again for

the global remedy that we declined in Bridgeman I, 471 Mass.

487, to implement "at this time." They ask that we vacate the

drug convictions of all Dookhan defendants and dismiss them with

prejudice or, in the alternative, vacate them without prejudice

and allow prosecutors one year to reprosecute the cases,

dismissing with prejudice all that are not reprosecuted within

one year for violation of the speedy trial rule, Mass. R. Crim.

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

contend that due process requires such a global remedy because,

even though four years have now passed since the scope of

Dookhan's misconduct was revealed, the defendants' entitlement

to a new trial on their drug convictions has yet to be

adjudicated in more than 24,000 cases. They also contend that

the notice sent by prosecutors to these defendants was "not a

serious effort to ensure that wrongful convictions will be

The motion also seeks to expand the record to include a
"statement" made by "the District Attorneys for all of the
Commonwealth's Districts" in ten separate criminal cases in
Hampden County involving misconduct by another chemist, Sonja
Farak, at the Department of Public Health's State Laboratory
Institute in Amherst. In that "statement," the district
attorneys inform the court that the Commonwealth will not
contest a finding of "egregious governmental misconduct" by
Farak in performing her duties at that laboratory under the two-
prong analysis set forth in Commonwealth v. Scott, 467 Mass. 336
(2014). We allow the motion to expand the record, but recognize
that the full scope of Farak's misconduct has yet to be
determined.
 27

addressed through case-by-case litigation," and was "so

misleading and incomplete" that its harm can be undone only by

relieving the defendants of the burdens of case-by-case

litigation. They claim that a global remedy is a necessary

exercise of our superintendence authority because a case-by-case

adjudication of so many cases is "doomed to fail" given the

limited resources of the Commonwealth's indigent criminal

defense system.

The district attorneys respond that "[t]here is no

convincing reason to retreat from the thoughtful remedies-based,

workable solution designed by the [c]ourt." They contend that

the notice mailed to the Dookhan defendants was fair, and that

the low response to the notice reflects that many defendants

"may conclude that they face no adverse impact at all from a

closed chapter in their lives," and "feel no urgency" to reopen

their case "before an adverse impact actually occurs." They

contend that, in light of the Dookhan defendants' response to

that notice, it is apparent that the Bridgeman petitioners have

greatly overstated the burden that will arise from case-by-case

adjudication of motions for a new trial. They also argue that

we should not vacate the convictions of Dookhan defendants who

have not moved to do so, because "mass vacatur would constitute

a complete abandonment of the careful weighing of the interests

of defendants, the public, and the criminal justice system that
 28

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 prejudice, allowing the

reprosecution of these cases, would be unfair to impose on

defendants who did not move for such relief, because it would

subject them without their approval to a new trial and the risk

of arrest if they failed to appear. In short, the district

attorneys argue that we should stay the course, because

individual case-by-case adjudication of motions for a new trial

brought by Dookhan defendants is both practical and fair.

1. Four relevant principles of our criminal justice

system. In Bridgeman I, 471 Mass. at 487, we recognized that

"we cannot expect defendants to bear the burden of a systemic

lapse," but we declined to implement a global remedy "at this

time" because we would not "allow the misconduct of one person

to dictate an abrupt retreat from the fundamentals of our

criminal justice system" (citation omitted). In revisiting here

whether the time is now ripe to implement a global remedy, it is

important to explain four relevant principles of our criminal

justice system that have guided our prior decisions relating to

this matter. First, where there is egregious misconduct

attributable to the government in the investigation or

prosecution of a criminal case, the government bears the burden
 29

of taking reasonable steps to remedy that misconduct. See

Strickler v. Greene, 527 U.S. 263, 281 (1999) (discussing

"special role played by the American prosecutor in the search

for truth in criminal trials" and broad duty to disclose

exculpatory information); Bridgeman I, supra at 480-481. Those

reasonable steps include the obligation to timely and

effectively notify the defendant of egregious misconduct

affecting the defendant's criminal case. See Ferrara, 456 F.3d

at 293 (government's failure to disclose exculpatory evidence to

defendant "was so outrageous that it constituted impermissible

prosecutorial misconduct sufficient to ground the petitioner's

claim that his guilty plea was involuntary"); Mass. R. Prof. C.

3.8 (d), as appearing in 473 Mass. 1301 (2016) ("The prosecutor

in a criminal case shall . . . make timely disclosure to the

defense of all evidence or information known to the prosecutor

that tends to negate the guilt of the accused or mitigates the

offense . . .").

As applied here, prosecutors had a responsibility timely

and effectively to disclose Dookhan's misconduct to all affected

defendants because Dookhan might erroneously have found

substances that were not controlled substances to be a

controlled substance, or to be a certain weight, creating the

risk that a defendant may have been found guilty of a drug crime

he or she did not commit. In addition, her egregious misconduct
 30

put in question the accuracy of the drug analysis and the

ability of the government to prove the nature and weight of the

alleged drugs beyond a reasonable doubt, which a defendant is

entitled to consider in making an informed and voluntary

decision whether to waive the right to trial and plead guilty

(or admit to sufficient facts to warrant a finding of guilt), or

to proceed to trial. The cost of notifying defendants of

egregious government misconduct must be borne by the prosecuting

district attorney's office, even if, as here, the fault belongs

to the Hinton lab and Dookhan, not the prosecutors.

Second, under our criminal rules, relief from a conviction

generally requires the defendant to file a motion for a new

trial. See Mass. R. Crim. P. 30 (b), as appearing in 435 Mass.

1501 (2001) (judge "upon motion in writing may grant a new trial

at any time if it appears that justice may not have been done"

[emphasis added]). See also Scott, 467 Mass. at 354. "A new

trial motion under Rule 30(b) is the appropriate vehicle to

attack the validity of a guilty plea or an admission to

sufficient facts." Reporters' Notes to Rule 30 (b), Mass. Ann.

Laws Court Rules, Rules of Criminal Procedure, at 1774

(LexisNexis 2016).

Third, dismissal with prejudice "is a remedy of last

resort." Commonwealth v. Cronk, 396 Mass. 194, 198 (1985).

Where a motion for a new trial is allowed, the conviction is
 31

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 dismissal of charges may become an appropriate

remedy." Id. at 198-199. This alternative principle is

narrowly applied; "the only reason to dismiss criminal charges

because of nonprejudicial but egregious police misconduct would
 32

be to create a climate adverse to repetition of that misconduct

that would not otherwise exist." Commonwealth v. Lewin, 405

Mass. 566, 587 (1989).

We dismissed drug charges with prejudice based on both

alternative grounds where two special agents of the United

States Drug Enforcement Administration spoke after arraignment

with the defendant without the approval of defense counsel,

disparaged defense counsel and the manner in which he was

conducting the defense, and encouraged the defendant to

cooperate with Federal authorities. Commonwealth v. Manning,

373 Mass. 438, 440 (1977). We concluded that this was "a

deliberate and intentional attack by government agents on the

relationship between Manning and his counsel in a calculated

attempt to coerce the defendant into abandoning his defense,"

id. at 443, and that "the officers' misconduct was so pervasive

as to preclude any confident assumption that proceedings at a

new trial would be free of the taint," id. at 444. We also

concluded that a "stronger deterrent" than a new trial was

warranted for this type of misconduct. Id.

In Scott and Francis, the remedy that we found appropriate

in cases where a defendant shows prejudice arising from

Dookhan's misconduct was the allowance of a motion for a new

trial and the vacatur of the conviction. We did not order the

dismissal of the defendant's drug charges with prejudice, or
 33

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 accomplished, or if the resources required to

implement it would overwhelm the limited resources available to

the courts. See Hilao v. Estate of Marcos, 103 F.3d 767, 786

(9th Cir. 1996) (affirming special master's award of

compensatory damages based on statistical methods to determine

amount owed to class of nearly 10,000 victims and survivors of

decedents who were tortured, executed, or "disappeared" by

Philippine military or paramilitary groups during fourteen-year
 34

rule of Ferdinand E. Marcos where "the time and judicial

resources required to try the nearly 10,000 claims in this case

would alone make resolution of Hilao's claims impossible").

Even when the number of persons injured is large and the problem

is complex, courts endeavor to craft a workable remedy; we do

not throw up our hands and deny relief because it would be too

difficult to accomplish. Cf. Brown v. Plata, 563 U.S. 493, 511

(2011) (in addressing prison overcrowding, "[c]ourts may not

allow constitutional violations to continue simply because a

remedy would involve intrusion into the realm of [executive]

administration"); Swann v. Charlotte-Mecklenburg Bd. of Educ.,

402 U.S. 1, 28 (1971) (when altering school attendance zones to

prevent racial segregation, "all awkwardness and inconvenience

cannot be avoided in the interim period when remedial

adjustments are being made"). Over the course of its history,

our judiciary has devised ways to provide redress to widespread

wrongs through such vehicles as class actions, derivative

actions, the consolidation of multiple related cases, and the

appointment of special masters and receivers. See, e.g., Mass.

R. Civ. P. 23, as amended, 471 Mass. 1491 (2015) (class

actions); Mass. R. Civ. P. 23.1, 365 Mass. 768 (1974)

(derivative actions by shareholders); Mass. R. Civ. P. 42, as

amended, 423 Mass. 1406 (1996) (case consolidation); Mass. R.

Civ. P. 53, as amended, 423 Mass. 1408 (1996) (appointment of
 35

special master). In short, we as a judiciary must and do find

ways to make justice not only fair but workable. See Demoulas

v. Demoulas, 428 Mass. 555, 580 (1998), citing 1 D. Dobbs,

Remedies § 2.1(3), at 63 (2d ed. 1993) ("Equitable remedies are

flexible tools to be applied with the focus on fairness and

justice").

2. Revisiting the need for a global remedy. We now

consider, in light of all that has happened and all that we have

learned since Bridgeman I, whether we should revisit our

decision to decline to adopt a global remedy "at this time" to

resolve the cases of the relevant Dookhan defendants.

Bridgeman I, 471 Mass. at 487.

a. The district attorneys' proposal to stay the course.

The district attorneys contend that our previous decisions have

provided an adequate remedy to the relevant Dookhan defendants.

This argument relies on the key premise that the notice mailed

to the Dookhan defendants adequately informed them that

Dookhan's misconduct affected their criminal case and that, as a

result, they may seek to vacate their drug conviction.

We reject this premise; we agree with the Bridgeman

petitioners that the notice sent by the district attorneys was

wholly inadequate to provide the relevant Dookhan defendants

with the information necessary to knowingly and voluntarily

decide whether they should explore with counsel the possibility
 36

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.

18
We recognize that recipients of the letter include both
individuals who pleaded guilty to Dookhan-related charges and
those who admitted to sufficient facts to warrant a guilty
finding. Because such an admission is the "functional
equivalent of a guilty plea" under G. L. c. 278, § 29D, and
because it exposes a defendant to some of the same collateral
consequences as a guilty plea, see Commonwealth v. Villalobos,
437 Mass. 797, 800 (2002), we treat the admission the same as a
guilty plea for the purposes of a motion for new trial. Luk v.
Commonwealth, 421 Mass. 415, 418 n.6 (1995). In the remaining
discussion we refer to a guilty plea and an admission to
sufficient facts to warrant a finding of guilty, collectively,
as a "guilty plea." See Scott, 467 Mass. at 337 n.1.
 37

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 status," but

did not explain what it meant for their case to be on "active

status."19 The Spanish translation of the letter is so poor that

the letter might not be understood by persons who speak only

Spanish.

The letter also failed to inform the Dookhan defendants

that they had a right to counsel if they sought to withdraw

their plea or move for a new trial and that, if they could not

afford counsel, one would be appointed for them. Instead, it

invited them to speak to their original lawyer on the case and,

if they did not know how to contact that lawyer, invited them to

obtain that information from the relevant criminal clerk's

office.20 The letter also invited them to contact the office of

the district attorney who prosecuted them "[f]or more

19
The letter did explain that, if the district attorney
decided to try them again on the vacated drug charge, they would
not face punishment greater than what they had earlier received
if they were convicted.
20
The letter also told recipients that they "may also
choose to speak to a new lawyer."
 38

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
 39

the crime of possession of heroin, cocaine, or more than thirty

grams of marijuana, is "deportable." 8 U.S.C. § 1227(2)(B)(i)

(2012). See Padilla v. Kentucky, 559 U.S. 356, 368 (2010);

Commonwealth v. DeJesus, 468 Mass. 174, 175 (2014). All

persons, including United States citizens, who are convicted of

drug crimes may be barred from public housing and from Federal-

and State-subsidized private housing. See 42 U.S.C. § 13661

(2012); 24 C.F.R. §§ 960.204(a)(1), 982.553(a)(1), (2)(ii);

G. L. c. 121B, § 32 (State-funded public housing); 760 Code

Mass. Regs. § 5.08(1)(d) (1996); 760 Code Mass. Regs.

§ 49.03(2)(f) (2012) (Massachusetts Rental Voucher Program); 803

Code Mass. Regs. § 5.04 (2012). A drug conviction may bar a

defendant from many categories of jobs and professional

licenses. See, e.g., G. L. c. 6, §§ 172 (c), 172A-172M. See

also Commonwealth v. Pon, 469 Mass. 296, 317 (2014) (collateral

consequences include homelessness and unemployment). It may

also prevent a defendant from receiving government benefits such

as cash assistance and unemployment benefits. See G. L.

c. 151A, § 25 (e) (unemployment benefits); 106 Code Mass. Regs.

§ 701.110(D) (2016) (cash assistance under transitional aid to

families with dependent children program). And it may render a

student temporarily ineligible for Federal financial aid,

thereby diminishing a defendant's ability to attend college. 20

U.S.C. § 1091(r)(1) (2012). A conviction of drug trafficking
 40

results in the automatic suspension of the defendant's driver's

license, which makes it more difficult to find and keep

employment. G. L. c. 90, § 22½, inserted by St. 2016, c. 64,

§ 1. A prior drug conviction may also result in a lengthy

minimum mandatory sentence for those subsequently convicted of

additional drug offenses, G. L. c. 94C, §§ 32 (b), 32A (b),

32B (b), 32C (b), 32D (b), 34, or of the illegal possession of a

firearm. G. L. c. 269, § 10G. In short, the adverse

consequences of an unjust conviction do not end when one

completes a jail or prison term, or a probationary period.

Given the inadequacy of the notice provided by the district

attorneys, the remarkably low response to that notice, and the

severe collateral consequences of drug convictions, justice and

fairness do not permit us simply to stay the course set in

Bridgeman I.

b. The Bridgeman petitioners' proposal for a global

remedy. The Bridgeman petitioners contend that, even with

adequate notice, no remedy premised on case-by-case adjudication

can work. They argue that, because of the severely limited

resources of CPCS -- the amount of State funding, the number of

qualified bar advocates, and the legislative limits on the

number of hours that bar advocates annually may bill to CPCS --

CPCS cannot possibly assign qualified counsel to represent all

the defendants who would file the postconviction motions that
 41

would result from truly adequate notice. They therefore contend

that it is both illusory and misleading to inform defendants

that, if they are indigent, counsel will be assigned to

represent them, where that will simply not be possible. They

contend that the only just and practical alternative under these

circumstances is the global remedy they propose, in which we

would vacate the drug convictions of all relevant Dookhan

defendants and dismiss them with prejudice, or dismiss them

without prejudice and allow prosecutors one year to reprosecute

these cases before they, too, would be dismissed with prejudice.

The proposed global remedy, however, is neither as just nor

as practical as the Bridgeman petitioners claim, and it would be

inconsistent with some of the principles that we earlier

articulated. In Scott and Francis, we granted relevant Dookhan

defendants a conclusive presumption of egregious government

misconduct, but we did not grant them a conclusive presumption

of prejudice; defendants still bore the burden of proving

prejudice. Where a relevant Dookhan defendant filed a motion to

withdraw a plea or for a new trial, and failed to prove

prejudice, the motion was denied. The global remedy proposed by

the Bridgeman petitioners would effectively declare a conclusive

presumption of prejudice.

Even where a relevant Dookhan defendant proved prejudice,

the defendant only obtained a new trial under Scott and Francis,
 42

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 not an adequate remedy. We did not prescribe this

medicine in Scott and Francis, and we are not convinced that it

is appropriate to do so now. And if we were to prescribe it

now, we would equitably have to address the claims of those who

earlier prevailed in proving prejudice and therefore won a new

trial, but not a dismissal with prejudice, and subsequently

either again pleaded guilty to the same or lesser charges or

were convicted at a new trial of the drug charges. They could
 43

justly contend that they are as entitled to a dismissal with

prejudice as are those who did not move for a new trial.

To vacate the convictions of all relevant Dookhan

defendants without prejudice would present other problems of

justice and practicality. We require a defendant to move for a

new trial for a reason -- without a motion, we cannot be sure

that a defendant wishes to accept the risk that the Commonwealth

will retry the defendant rather than issue a nolle prosequi.

Even though, as a result of our decision in Bridgeman I, 471

Mass. at 477, a defendant at a new trial would not be risking

conviction of a more serious crime or a longer sentence, a

defendant who is retried would still have to appear in court

when directed by the judge and endure the uncertainty and

disruption inherent in being a defendant in a criminal trial.

We might be skeptical of the district attorneys' contention that

most of the relevant Dookhan defendants do not wish to reopen "a

closed chapter in their lives," but it would not be surprising

if some defendants have no wish to relitigate their earlier

criminal cases and instead simply want to move on with their

lives.

Although we reject the global remedy proposed by the

Bridgeman petitioners, we accept two premises of their argument.

First, in light of the unusual circumstances of the relevant

Dookhan defendants, all who are indigent and wish to explore
 44

whether to move for a new trial under Mass. R. Crim. P. 30 (b)

are entitled to appointed counsel. We recognize that we have

declared that "an indigent defendant does not have an absolute

right under any provision of the United States Constitution or

the Massachusetts Declaration of Rights to appointed counsel in

preparing or presenting his motion for a new trial."

Commonwealth v. Conceicao, 388 Mass. 255, 261 (1983). But we

have also declared that the State must "ensure that indigent

defendants have meaningful access to this postconviction

proceeding," id., and that, "when a defendant presents a motion

for a new trial which raises a colorable or meritorious issue,

'it is much the better practice to assign counsel.'" Id. at

262, quoting Dillon v. United States, 307 F.2d 445, 448 (9th

Cir. 1962).

Generally, the decision whether to appoint counsel to

represent a defendant in preparing and presenting a motion for a

new trial rests with the sound discretion of the motion judge.

Mass. R. Crim. P. 30 (c) (5), as appearing in 435 Mass. 1501

(2001). But in the exercise of that discretion a judge should

appoint counsel where the failure to do so would deprive an

indigent defendant "of meaningful access" or result in

"fundamental unfairness." Conceicao, supra at 262, citing Ross

v. Moffitt, 417 U.S. 600, 616 (1974), and Lassiter v. Department

of Social Servs., 452 U.S. 18, 24-25 (1981).
 45

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
 46

(or indigent but able to contribute), the judge assigns CPCS to

provide representation for the party. S.J.C. Rule 3:10, § 6, as

appearing in 475 Mass. 1301 (2016). G. L. c. 211D, § 5 (CPCS

"shall establish, supervise and maintain a system for the

appointment or assignment of counsel" at any stage of criminal

proceeding where there is right to counsel and defendant is

indigent). If CPCS, despite its best efforts, were unable to

assign counsel to a defendant in a reasonably timely manner --

whether the reason be the absence of necessary funding by the

Legislature, the inability of CPCS to qualify adequate numbers

of private attorneys to serve as bar advocates because of the

low hourly fee mandated by the Legislature,21 the unavailability

of qualified bar advocates because of the limitation on the

21
The present statutory hourly rate for bar advocates is
fifty-three dollars for cases in the District Court and the
Boston Municipal Court, and sixty dollars for nonhomicide cases
in the Superior Court. G. L. c. 211D, § 11 (a). The only
change to these hourly rates since 2005 has been that the rate
applicable for cases in the District Court and Boston Municipal
Court was increased from fifty dollars to fifty-three dollars in
2015. See St. 2015, c. 46, § 119.
 47

number of hours they may bill annually,22 or a systemic overload

created by an overwhelming number of relevant Dookhan defendants

filing motions for a new trial (or the combination of all four

reasons) -- we would have to fashion an appropriate remedy under

our general superintendence authority for the constitutional

violation suffered by indigent criminal defendants. See

Lavallee, supra at 244. In Lavallee, where the list of CPCS-

qualified attorneys available to accept assignments in Hampden

County was inadequate to ensure the provision of counsel to

those with a right to counsel, the remedy we ordered was that a

criminal case against an indigent defendant must be dismissed

without prejudice if an attorney had not filed an appearance

within forty-five days of arraignment. Id. at 246.

We recognize that, if a substantial percentage of relevant

Dookhan defendants were to seek postconviction relief after

22
The annual cap on billable hours for bar advocates is
1,650 hours, and a bar advocate may not accept any new
appointment in a nonhomicide case after having billed 1,350
hours in that fiscal year. G. L. c. 211D, § 11 (b), (c). In
2016, in response to a shortage of bar advocates in care and
protection cases and children and family law cases, the
Legislature enacted legislation allowing the chief counsel of
CPCS, under certain circumstances, to waive the annual cap on
billable hours for bar advocates assigned to these cases,
provided that such a bar advocate not bill in excess of 1,800
billable hours for the year. G. L. c. 211D, § 11(d), amended
through St. 2016, c. 133, § 119. A comparable increase in the
annual cap on billable hours potentially could be enacted for
bar advocates assigned to criminal cases or, alternatively, the
time devoted to the representation of relevant Dookhan
defendants could be exempted from the annual cap.
 48

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, case-by-case adjudication poses the

considerable risk that the demand of indigent Dookhan defendants

for counsel might outstrip the supply of CPCS-qualified

attorneys to represent them, and require this court to implement

an appropriate remedy under our general superintendence

authority for the constitutional violation suffered by indigent

criminal defendants who are denied their right to counsel. If

past is prologue, that remedy will likely be the dismissal

without prejudice of their challenged drug convictions. See

Lavallee, 442 Mass. at 246.

c. New protocol for case-by-case adjudication. The

extraordinary magnitude of Dookhan's misconduct has left us with

only poor alternatives. We continue to believe that, despite

its considerable risks and burdens, case-by-case adjudication is

the fairest and best alternative to resolve the drug cases

potentially tainted by Dookhan's misconduct and the alternative

most consistent and in harmony with the relevant principles of

criminal justice that have and continue to guide us in this

extraordinary situation. But we recognize that, in light of the
 49

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

23
In a letter to the Governor on September 6, 2012, after
learning of the investigation of the Hinton lab, the district
attorneys declared, "If there has been any miscarriage of
justice due to the actions of Annie Dookhan or anyone else at
the [Hinton lab], correcting those miscarriages must be the
first priority." Press Release, MDAA Letter to Gov. Patrick Re:
DPH Drug Lab, State House News Serv. (Sept. 11, 2012). At oral
argument, the district attorneys similarly assured the court
that they will exercise their sound discretion in handling
motions for a new trial brought by the relevant Dookhan
defendants.
 50

alone,24 that approximately ninety per cent of these convictions

were obtained in the District Court or in the Boston Municipal

Court (which means that the drug charges were either

misdemeanors or felonies for which the district attorney did not

choose to seek indictments), and that virtually all of these

defendants have already served the entirety of their sentences

for these drug convictions.

Its success also depends on the cooperation of CPCS, which

will have to make best efforts in using the funding appropriated

by the Legislature to assign counsel to the relevant Dookhan

defendants who, after new notice, choose to explore the filing

of a motion for a new trial. We look to CPCS also for its

creativity and ingenuity in finding ways to assign attorneys to

represent as many relevant Dookhan defendants as is reasonably

possible.

To accomplish case-by-case adjudication of the drug cases

of potentially more than 20,000 relevant Dookhan defendants, we

establish the following protocol, to be completed in three

24
An analysis conducted by Paola Villarreal, a data science
fellow at the American Civil Liberties Union Foundation of
Massachusetts, revealed that approximately sixty-two per cent of
the adverse drug dispositions for Dookhan defendants were for
possession alone. At oral argument, in answer to a question
posed by a Justice, a prosecutor stated that he "[did] not know"
whether a majority of these cases were for "straight
possession."
 51

phases, and order its implementation by the single justice in

the form of a declaratory judgment.

i. Phase one. Upon the issuance of this opinion, each

district attorney shall commence an individualized review of

every Dookhan case in his or her district that was included on

the list that the district attorney earlier submitted to the

single justice. No later than ninety days after the issuance of

this opinion, each district attorney shall file three letters

with the county clerk.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

25
We recognize the difference between the date of the
issuance of our opinion and the date of the rescript, and have
specifically selected the former as the starting date.
 52

reprosecuted if a new trial were ordered, and the convictions

that the district attorney could not successfully reprosecute if

a new trial were ordered. Once these drug convictions are

vacated and dismissed with prejudice, the defendants shall be

notified of the action taken.26

The third letter shall identify all drug convictions on the

list that the district attorney does not move to vacate and

dismiss with prejudice. For each such conviction, the district

attorney shall certify that, if a motion for a new trial were

allowed, the district attorney could produce evidence at a

retrial, independent of Dookhan's signed drug certificate or

testimony, sufficient to permit a rational jury to find beyond a

reasonable doubt that the substance at issue was the controlled

substance alleged in the complaint or indictment. Such

independent evidence may include, for example, retesting of the

original drug evidence, a positive field test, or a specific

admission by the defendant regarding his or her knowledge of the

nature of the substance that was made before Dookhan signed the

drug certificate in the case. Only the relevant Dookhan

defendants identified in the third letter shall be provided with

new notice in phase two, discussed infra.

26
Where a defendant pleaded guilty to multiple charges at a
plea hearing or was convicted at trial of multiple counts, the
vacatur of these drug convictions with prejudice will not affect
any nondrug convictions or any drug convictions where Dookhan
was not the primary or confirmatory analyst.
 53

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

27
Our focus in the phase one protocol on whether the
Commonwealth could obtain a drug conviction against the relevant
Dookhan defendants with evidence untainted by Dookhan's
misconduct is comparable to the approach taken by New Jersey
courts following revelations of misconduct by a police officer
who made numerous drunk driving arrests. In State v. Gookins,
135 N.J. 42, 44-45 (1994), three defendants moved to vacate
their guilty pleas for driving while under the influence of
alcohol after the police officer involved in their arrests and
the administration of their breathalyzer tests was convicted of
falsifying the result of the breathalyzer test he had performed
on an undercover agent, and of stealing money from drivers whom
he had stopped. The defendants had pleaded guilty in reliance
on the results of their breathalyzer tests. Id. at 45. The New
Jersey Supreme Court vacated their convictions and issued an
order requiring the prosecution to certify to the trial court
 54

ii. Phase two. In the second phase of the protocol, no

later than thirty days after the expiration of the ninety-day

period in phase one, new notice shall be provided to all

relevant Dookhan defendants identified in the district

attorneys' third letters. The notice shall consist of a mailing

that is approved by the single justice as to its content, its

envelope, and its mode of delivery.28 The single justice shall

also have the authority to order additional forms of public

notice, such as through newspapers or social media, to enhance

the effectiveness of the mailing and to attempt to reach those

who might not receive it.

"all the evidence that it considers to be untainted that would
sustain the prosecution of these cases, . . . excluding the
testimony of [the convicted officer]." Id. at 51. The trial
court was instructed to hold a hearing "to determine whether
such evidence is sufficient to permit the State to proceed with
the case." Id. at 52. In a separate class action in the United
States District Court, the State consented to the appointment of
a special master to review all drunk driving cases of class
members involving the convicted officer and determine whether
those convictions should be reversed. Id. at 51. The special
master conducted an individualized review of these cases and
determined that "the only evidence inculpating the [defendants]
came from a police officer known to be corrupt." See Dickerson
vs. Kane, U.S. Dist. Ct., No. 92-2528 (D.N.J. July 17, 1995).
The District Court judge adopted the findings of the special
master and ordered the reversal of 151 drunk driving
convictions. Id.
28
We leave to the single justice the question whether
certified mail or some other comparable means of delivery is
appropriate to determine whether the defendant actually receives
the notice.
 55

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. CPCS is encouraged to

draft and include within the mailing a separate letter providing

the legal guidance and information that CPCS would generally

provide to a relevant Dookhan defendant who would telephone its

hotline. Because this guidance letter, unlike the notice,

constitutes legal advocacy and not simply legal information, and

might encourage relevant Dookhan defendants to move for a new

trial to eliminate the collateral consequences arising from

their drug conviction, the content of this letter shall not

require the approval of the single justice. Along with the

notice, the guidance letter, the check-off sheet, and the form

indigency affidavit, the mailing shall include a stamped, self-
 56

addressed envelope so that, once completed, the documents may be

returned to an address designated by the single justice. Where

a relevant Dookhan defendant returns the documents indicating

that he or she is indigent and wishes to explore with counsel

the filing of a motion for a new trial, the single justice shall

make an indigency determination and, where indigency is found,

shall order CPCS to assign counsel to the defendant. No action

shall be taken regarding any relevant Dookhan defendant's

conviction where he or she does not return the documents or

otherwise move for a new trial.

The single justice shall also address the challenge created

by the substantial number of relevant Dookhan defendants who

have yet to be successfully located. As it stands now, these

defendants have yet to be informed that the substance at issue

in their case was tested by Dookhan in the Hinton lab, that

Dookhan's misconduct over many years has been found to be

egregious government misconduct, and that they are entitled to

the conclusive presumption of egregious government misconduct if

they were to move for a new trial. Because they have not yet

been so informed, they effectively have been denied the

opportunity to seek redress for this misconduct.

The district attorneys have an obligation to take all

reasonable steps necessary to provide these individuals with

notice of Dookhan's misconduct, and that includes reasonable
 57

efforts to locate them, wherever they might be residing. Where,

despite reasonable efforts, the district attorneys are unable to

obtain an address for a relevant Dookhan defendant, or where the

notice is returned as undeliverable, the single justice shall

direct the relevant district attorney to locate the current

address of the defendant's last attorney of record in the case.

The notice and accompanying documents shall be sent to that

attorney, with a cover letter asking the attorney to make best

efforts to locate his or her former client so that effective

notice can be accomplished. In addition, the single justice

shall have the authority to direct the probation department to

include a notation in the missing defendant's board of probation

record indicating that the defendant is a relevant Dookhan

defendant, so that the defendant can receive the required notice

and related documents if he or she returns to court. For the

relevant Dookhan defendants who cannot otherwise be located, the

single justice shall also have the authority to order the use of

social or other media to provide the notice and related

documents, or information regarding them.

The financial burden of notifying defendants of egregious

government misconduct that affected their criminal cases must be

borne by the prosecuting district attorney's office, even if, as

here, the fault belongs to the Hinton lab and Dookhan, not the

prosecutors. Therefore, the cost of providing new and adequate
 58

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
 59

opportunity to be heard. At or after that hearing, if the

single justice determines that relevant Dookhan defendants have

been denied their right to counsel because of the inability of

CPCS, despite its best efforts, to assign counsel to represent

the defendants, the single justice may order that the drug

convictions at issue be vacated and dismissed without prejudice,

unless the interests of justice otherwise dictate.29 See

Lavallee, 442 Mass. at 246.

Conclusion. The case is remanded to the single justice for

the entry of a declaratory judgment as provided in this opinion

and for further action consistent with this opinion.30

So ordered.

29
We recognize our authority to appoint a special master to
assist the single justice in his or her exercise of our
superintendence authority in these cases. See S.J.C. Rule 2:13,
as appearing in 382 Mass. 749 (1981).
30
Because we recognize the challenges involved in
implementing the three-phase protocol, the single justice is
authorized to make necessary revisions if any part of it is
determined to be impracticable. In addition, if this protocol
for any reason were to prove inadequate in practice to remedy
the wrong despite the best efforts of the parties, the single
justice may issue a new reservation and report to the full
court.
 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 and 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 country. Mindful of this, I share the dissenting

Justice's frustration with the unacceptably glacial systemic
 2

response to date and join in her view that extraordinary measures

are now in order. For reasons explained in the court's opinion,

however, I regard the protocol announced today (Bridgeman II

protocol) as promising to be such a measure, but only if

implemented in a manner that countenances no further delays. For

the protocol to achieve its goals and end this "blight on the

integrity of our criminal justice system," post at , there must

be strict compliance with its stringent timelines and

requirements. Only this will forestall the need for a

"Bridgeman III" and different measures.

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
 3

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 a response that, consistent with

fundamental principles, will bring this deplorable episode

forthwith to a just resolution once and for all. May it be so.
 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 . 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 , 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

1
An exhaustive search of reported cases yielded not a
single case involving misconduct comparable to that committed by
Dookhan.
 2

alternative for remedying the 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 criminal justice system is vacatur and

dismissal with prejudice of the convictions of all relevant

Dookhan defendants. Therefore, I dissent.

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
 3

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

2
See ante at note 6.
 4

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 G. L. c. 211, § 3,] to fashion

a workable approach to motions to withdraw a guilty plea brought

by defendants affected by [Dookhan's] misconduct." Id. In this

undertaking, the appropriate analytical framework is that

articulated in Scott.3 We noted that in fashioning a remedy for

the "systemic lapse" caused by Dookhan's misconduct, "[w]e 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." Id. In

3
Without clearly explaining why, the court strays from the
analytical framework we adopted in Scott, relying instead on a
self-selected set of "principles" explained in elaborate detail.
Ante at . I agree that these principles are firmly rooted in
our jurisprudence, but they are not necessarily dispositive of
the issue presented here. Absent a reason to play by a
different set of rules from that articulated in Scott, 467 Mass.
at 352, and reiterated in Bridgeman I, 471 Mass. at 487, as an
appropriate standard to apply in "fashion[ing] a workable
approach" to handling the cases in which Dookhan was the primary
or confirmatory chemist, I would not spurn the analytical
approach adopted in Scott. The problem here is the same as it
was in Scott: the need to craft a fair and timely approach to
the resolution of these cases.
 5

balancing these factors as discussed below, I am persuaded that

the case for a global remedy as advocated by the petitioners is

compelling.

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, 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

4
An analysis conducted by a data science fellow at the
American Civil Liberties Union Foundation of Massachusetts found
that approximately sixty-two per cent of the convictions in the
cases tainted by Dookhan's misconduct were for possession only
and that about ninety-one per cent of these cases were resolved
in the District Court. These statistics support the assumption
that most defendants have completed their sentences.
 6

defendants, but a fair and just resolution can make amends.

What due process requires then is a remedy that is simple, sure,

and final. That means a remedy that is uncomplicated by the

myriad moving parts built into the court's case-by-case model,

free of the risk that further delay will prolong the only relief

that realistically can be offered to defendants who have already

served their sentences. This interpretation of what due process

requires at this point in the effort to solve the Dookhan

problem is supported by Scott and Bridgeman I.

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

5
The court observed that "[o]ur decision . . . will go a
long way in resolving additional concerns that have surfaced and
in moving these cases forward towards resolution." Bridgeman I,
471 Mass. at 487.
 7

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 problem of the Legislature's making. See

Lavallee, 442 Mass. at 246. The duty to protect, and restore

when necessary, the integrity of the criminal justice system

falls squarely upon the court.

With no clear sign from the court that it grasps the scope

6
See, e.g., Jackman, When a State's Drug Chemist Lies for
Years, Should All Her Cases Be Thrown Out?, Wash. Post, Sept.
29, 2016.
 8

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.8 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

7
See Green v. County Sch. Bd., 391 U.S. 430, 437-438
(1968)(using phrase to describe obligation to dismantle school
segregation fourteen years after command to do so in Brown v.
Board of Educ., 347 U.S. 483 [1954]).
8
Over the years, the racial impact of our sentencing
practices have come under scrutiny. See e.g., The Sentencing
Project, The Color of Justice: Racial and Ethnic Disparity in
State Prisons, at 3, 5, 7-8 & n.13, 16-18 (2016). Although
racial bias has not been documented, members of the public,
especially those in the communities of color, rarely parse such
reports in search of the real reason for disparate impact.
9
"Dookhan's consistently high testing volumes should have
been a clear indication that a more thorough analysis and review
of her work was needed." See Scott, 467 Mass. at 340.
 9

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.

The efficacy of the court's case-by-case model is at best

questionable, both because it is unworkable and because it is

likely to perpetuate further delay in providing a remedy to the

thousands of defendants affected by Dookhan's misconduct. Not

only is it lacking in the ability to insure a speedy resolution

of the 24,000 cases thus tainted, it is vulnerable to failure

for several practical reasons: the reliance on voluntary

cooperation of the district attorneys, and unrealistic

timetables.
 10

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 .

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 . 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
 11

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 practicality

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 timetable, will be denied, the more

likely scenario is that further indeterminable delay will occur.

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
 12

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 , 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.

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
 13

remedy. The question comes to mind, "If not now, when?"10

10
C. Taylor, Sayings of the Jewish Fathers 7 (2d ed. 1897)
(quoting Hillel the Elder).