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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.
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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.
