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SJC-12430

COMMONWEALTH vs. JUSTINO ESCOBAR.

April 18, 2018.

Controlled Substances. Constitutional Law, Plea, Conduct of 

government agents. Due Process of Law, Plea, Disclosure of 

evidence. Supreme Judicial Court, Superintendence of 

inferior courts. Practice, Criminal, Plea, Conduct of 

government agents, Disclosure of evidence, New trial.

Evidence, Certificate of drug analysis, Disclosure of 

evidence.

The defendant, Justino Escobar, pleaded guilty to cocaine 

trafficking in 2009 and was sentenced to a term of from eight to 

twelve years in State prison. In July, 2015, he filed a motion 

for a new trial and a related motion to conduct postconviction 

discovery, seeking to have his conviction vacated pursuant to 

Commonwealth v. Ware, 471 Mass. 85 (2015), and Commonwealth v. 

Scott, 467 Mass. 336 (2014). In his motions, Escobar argued

that the Commonwealth had not fully investigated misconduct at 

the William A. Hinton State Laboratory Institute (Hinton drug

lab).1 In his view, the Inspector General's investigation of the 

 

1 The now well-known saga surrounding the Hinton drug lab 

stemmed from the egregious misconduct of former laboratory

employee Annie Dookhan. See, e.g., Bridgeman v. District 

Attorney for the Suffolk Dist., 476 Mass. 298, 300 (2017) 

(setting forth protocol to address legacy of Dookhan's 

misconduct and to protect rights of affected defendants). 

Although the samples in Escobar's case were analyzed at the 

Hinton drug lab, in December, 2008, they were not analyzed by 

Dookhan. Escobar, therefore, is not among the thousands of 

defendants whose cases have thus far been affected by or 
2

Hinton lab was incomplete because it did not inquire into 

whether any chemist other than Annie Dookhan had acted 

improperly.2

Escobar subsequently filed a motion to vacate his 

conviction and for the dismissal of the underlying charge as 

well as a motion for a so-called "Cotto order" pursuant to this 

court's decision in Commonwealth v. Cotto, 471 Mass. 97 (2015). 

After a hearing, in July, 2017, a judge in the Superior Court 

denied without prejudice the motions to vacate and for a Cotto

order; allowed in part the motion for postconviction discovery, 

ordering limited discovery; and declined to rule on the motion 

for a new trial pending completion of that limited discovery.3 

Escobar appealed. We allowed his application for direct 

appellate review, and affirm.

On the basis of the record that was before her, the judge's 

rulings were correct. As she noted, Escobar's core argument is 

that the chemist who analyzed the samples in his case, Della 

Saunders, had "testing productivity numbers" comparable to those 

of Dookhan. In Escobar's view, this raises the question whether 

Saunders, like Dookhan, also engaged in misconduct. In light of 

his arguments, the judge determined that some limited 

postconviction discovery was warranted, and she thus allowed, in 

 

benefited from the protocol set forth to address Dookhan's 

misconduct.

2 Escobar's argument stems, at least in part, from the fact 

that Sonja Farak was employed at the Hinton drug lab before she 

was employed at the Department of Public Health's State 

Laboratory Institute in Amherst (Amherst drug lab). As is now 

known, Farak engaged in her own egregious misconduct while 

working at the Amherst drug lab. See, e.g., Commonwealth v. 

Cotto, 471 Mass. 97, 98 (2015). In Escobar's view, the fact 

that there has been no investigation into Farak's conduct while 

she worked at the Hinton drug lab suggests that, overall, the 

investigation into the Hinton drug lab was not sufficiently 

thorough.

3 The length of time that passed between when Escobar first 

filed his motion for a new trial and when the Superior Court 

judge acted on that and the subsequent motions appears to have 

resulted from the Commonwealth's initial delay in responding to 

the motions as well as from a stay imposed by the Superior 

Court, in June, 2016, pending this court's decision in 

Bridgeman, supra.
3

part, Escobar's motion on this point.4 She also concluded, 

reasonably, that she could not fairly rule on Escobar's motion 

for a new trial until that limited discovery was complete.

The judge's denials of Escobar's other motions were equally 

reasonable, and, importantly, were without prejudice. Escobar 

premised his motion to vacate on the purported "misconduct" of 

the Inspector General for failing to fully investigate the 

goings-on at the Hinton drug lab. In denying the motion, the 

judge stated that she found no support for Escobar's position on 

the record before her and "at this time." She thus left the 

door open for Escobar to raise the issue again after the 

postconviction discovery that she had authorized was complete. 

Similarly, the judge's denial of Escobar's motion for a Cotto

order turned on the fact that not only was Escobar's request too 

broad, but that whether any kind of order might be warranted 

would depend on whether Escobar's motion for a new trial 

ultimately has any merit.5

In his appeal to this court, Escobar asks us to rule 

definitively on the substantive merits of his position -- that 

is, that the Commonwealth has a duty to investigate the Hinton 

drug lab and has committed a breach of that duty. We decline to 

 

4 The judge ordered the Commonwealth to produce certain 

information pertaining to Della Saunders, including 

nonprivileged portions of her personnel file; notes related to 

interviews of Saunders conducted from 2002 to present related to 

investigations of the Hinton or Amherst drug labs; a list of the 

court cases in which Saunders testified as the "certifying" 

chemist from 2005 to 2008; and available data on the numbers and 

types of drug tests that Saunders performed at the Hinton drug 

lab from 2005 to 2008.

5 In any event, as to Escobar's motion for a Cotto order, 

the judge had no authority to issue the type of order that 

Escobar sought. In the Cotto case, we exercised our general 

superintendence power "'to fashion a workable approach' for 

giving defendants whose evidence samples were analyzed by Farak 

at the Amherst drug lab an opportunity to discover whether, in 

fact, their cases were affected by her misconduct." Cotto, 471 

Mass. at 114 (2015), quoting Commonwealth v. Scott, 467 Mass. 

336, 352 (2014). We indicated that "a thorough and timely 

investigation would be the appropriate course to follow" and 

also addressed the alternative, should the Commonwealth decline 

to undertake such an investigation. Id. at 115. The judge here 

had no such authority.
4

do so. Escobar is in a position, in the trial court, to conduct 

the postconviction discovery that has been authorized and then 

to proceed, on the basis of whatever he may learn, with his 

motion for a new trial. In the course of those proceedings, the 

substantive issues that he raises can be fully addressed and the 

record fully developed. Our consideration of the case in its 

current posture, beyond what we have done here, would make 

little sense where there still remains much to be considered in 

the first instance in the trial court, and where that 

consideration will result in a more fully developed record for 

purposes of an appeal.6

The orders of the Superior Court on Escobar's motions to

vacate his conviction and dismiss the underlying charge; for a 

Cotto order; for postconviction discovery; and for a new trial 

are therefore affirmed. Nothing in our decision today prevents 

either party from appealing any subsequent rulings of the trial 

court once the underlying proceedings are complete.

So ordered.

James P. McKenna for the defendant.

Vincent J. DeMore, Assistant District Attorney, for the 

Commonwealth.

Julia Bell Andrus, Special Assistant Attorney General, for 

Office of the Inspector General, amicus curiae, submitted a 

brief.

Christopher K. Post, Committee for Public Counsel Services, 

& Luke Ryan, for Robert White & another, amici curiae, submitted 

a brief.

 

6 Although we decline to rule, at this time, on the issue 

whether the Inspector General failed to fulfil a duty or to 

thoroughly investigate the Hinton drug lab, we note that nothing 

in the current record suggests to us that the investigation was 

inadequate.