BOSTON, May 6, 2013—A Suffolk Superior Court judge has denied two recidivist drug dealers’ motions to stay their sentences, which were based on convictions unrelated to a former Department of Public Health chemist now under indictment, Suffolk County District Attorney Daniel F. Conley said.
Regional Administrative Justice Jeffrey Locke denied motions by LANDERS IVEY (D.O.B. 6/18/59) and PAUL FIDLER (D.O.B. 4/17/65) to release them from prison while they await decisions on their respective motions to vacate their guilty pleas. Both men are serving time for drug distribution; neither one had the drug evidence in his case tested by Annie Dookhan, the former Department of Public Health chemist criminally charged by the Massachusetts Attorney General.
Ivey pleaded guilty on Jan. 7, 2010, to trafficking in OxyContin, admitting that he sent a large quantity of 80mg tablets packaged in candy boxes from Miami, Florida, to a Dorchester residence, where they were claimed by his associate. He was sentenced to a term of five to seven years.
Notwithstanding his own admission that he knowingly trafficked in a substance he knew to be powerful painkillers without a prescription, and notwithstanding the fact that the substance was certified as Oxycodone by a chemist other than Dookhan, Ivey moved to vacate his guilty plea and moved to be “immediately released” while he awaited the decision on that motion. Prosecutors opposed both motions.
“[T]he defendant has failed to establish any nexus between alleged misconduct at the Hinton Laboratory and the analysis of the drug exhibits at issue in this case, which involved different chemists from those under investigation by the Office of the Attorney General,” Locke wrote in a decision received by prosecutors on Friday. “Significantly, the drugs involved in the instant case were Oxycodone pills, and did not involve loose or powder substances which are at greater risk of tampering …. Indeed, Dookhan’s only apparent involvement was serving as a notary public to the Certificates of Analysis.”
Locke also noted Ivey’s prior record, which includes three state drug convictions, a federal drug conviction, and 10 separate defaults in various cases.
“He simply is not an appropriate candidate for a stay of sentence, much less release on personal recognizance,” Locke wrote.
Fidler pleaded guilty on Dec. 9, 2009, to possession of a Class A substance with intent to distribute for almost five grams of heroin that he had in his jacket pocket when Boston Police approached him after a drug deal he conducted in Chinatown. He was sentenced to three to five years. In the course of his plea, Fidler admitted that he possessed the substance, that he knew it to be heroin, and that he possessed it with the intent to sell it to others. In spite of those facts, he also moved to vacate the plea and to be released from prison while awaiting a decision on that motion.
As with Ivey’s case, Locke wrote that Fidler had “failed to establish any nexus between alleged misconduct at the Hinton Laboratory and the analysis of the drug exhibits in this case, which involved different chemists from those under investigation by the Office of the Attorney General.”
Moreover, Locke wrote, “Fidler’s criminal career spans 25 years and involves multiple convictions and state prison or house of correction sentences for like drug offenses. His criminal record is replete with defaults and violations of probation proceedings. He is not suitable for release on a stay.”
Jurors have also rejected the so-called “Dookhan defense.” In April, a Suffolk Superior Court jury deliberated for fewer than 15 minutes before convicting JULIO MEDINA (D.O.B. 8/14/58) of selling five bags of heroin to a police officer near a South End school. Dookhan certified the substance as heroin and prosecutors later resubmitted it for testing by another chemist who reached the same conclusion. But as with almost every drug case, the evidence went far beyond the certificates of analysis.
Jurors heard evidence that Medina, believed to be a drug dealer, agreed by phone to meet a plainclothes Boston Police officer for a transaction near a convenience store near the corner of Appleton and Berkeley streets. He told the officer to call when they were at the agreed-upon location. When the officer made that call, the evidence showed, Medina said he would arrive on a bicycle in five minutes.
A short time later, Medina rode up on a bicycle and asked the officer, “How many do you want?” The officer explained that he wanted five bags for $100. Medina spat five plastic bags from his mouth into his hand and gave them to the officer. The officer in turn provided Medina with $100 in pre-recorded buy money and asked if he could call Medina in the future. Medina said that he could.
Additional DCU officers moved in and arrested Medina after the sale. Medina removed an additional bag of heroin from his mouth and tried to discard it, but the officers recovered it. They also recovered the plainclothes officer’s buy money, additional cash, and Medina’s cell phone showing an incoming call from the plainclothes officer.
Boston Police submitted the drugs to the Department of Public Health drug-testing facility in August 2009 and Annie Dookhan was the confirmatory chemist. The substance in all six recovered bags of evidence was certified as heroin.
Medina defaulted at his 2010 trial date and was subsequently apprehended in late 2011. In June 2012, after learning of an earlier breach of protocol by Dookhan at the lab but before learning of the alleged malfeasance for which she is now criminally charged, prosecutors in an abundance of caution asked that the evidence in Medina’s case be re-tested. Once again, but this time by a different chemist, it was certified as heroin.
“It comes down to this,” Conley said. “If the evidence doesn’t support a conviction, or if the charges are unfair in light of all the facts, then we won’t proceed – not on a drug case and not on any other case. But we look beyond simply the chemist’s certificate when evaluating the evidence. We look to the sequence of events before and after the drugs are seized. We look at phone calls, packaging, weight, and the defendant’s record. These convictions were appropriate on the facts, the law, and the defendants’ own admissions.”
Ivey and Fidler were represented by attorney Veronica White. The motions to vacate their guilty pleas are still pending.
All defendants are presumed innocent until and unless proven guilty beyond a reasonable doubt.