Crime
Judge orders a new trial after years of appeals, over questions of substitute expert witnesses.
A Massachusetts Supreme Judicial Court justice on Wednesday overturned the conviction of a lawyer accused of smuggling drugs into a prison, raising constitutional concerns over the prosecution’s use of a substitute expert witness.
The ruling follows years of appeals, and grants former attorney Elana Gordon a new trial.
According to court documents, in 2018, Gordon allegedly delivered two envelopes containing 61 orange strips of an unidentified substance to an inmate at the Plymouth County House of Correction.
The exchange occurred the day following two jail telephone calls with a first inmate, who instructed Gordon to transmit the “paperwork” to a second inmate and then pass it on to the first inmate.
Court documents say officers confiscated the envelopes because, based on training and experience, they suspected the orange strips were Suboxone.
Officers transported the strips to the crime lab, where forensic analyst Kimberly Dunlap tested one. Dunlap concluded that the strip contained a mixture of buprenorphine and naloxone, or Suboxone.
Court documents say that Dunlap recorded the procedures in her written remarks. A supervisor, Carrie LaBelle, reviewed the case file but was not involved in the testing.
The prosecution intended to call Dunlap to testify that the 61 strips were Suboxone. However, before jury selection, the prosecution notified the trial judge that LaBelle would act as a substitute chemist to identify the substance, because Dunlap was no longer with the lab.
LaBelle was “relying on a test performed by another person,” stated Judge Daila Argaez Wendlandt’s opinion.
In 2018, Plymouth County grand jury indicted Gordon for conspiracy to distribute Suboxone, possession of a Class B substance with the intention to distribute, and unlawfully delivering a Class B substance to a prisoner.
During the trial, Gordon’s defense maintained that she was not aware of the presence of any drugs in the envelopes.
The court tried the charges in 2021, and a jury returned a guilty verdict. A judge sentenced Gordon to six months in prison.
Gordon filed an appeal and later pleaded guilty to the conspiracy charge. The appeals court affirmed Gordon’s conviction.
Questions over substitute expert witness
Then, in June 2024, the U.S. Supreme Court issued a decision in Smith v. Arizona, a case involving five drug charges. In that case, the lab technician who tested the drugs did not testify, prompting the court to clarify how the constitutional right to confront witnesses applies to forensic experts.
Gordon’s case was then sent back to the Appeals Court for reconsideration.
The New England Innocence Project issued an amicus brief in the case.
The brief quoted the Supreme Court saying, “Expert evidence can be both powerful and quite misleading because of the difficulty in evaluating it.”
The amicus brief notes that forensic analysts, like witnesses, are vulnerable to error, exaggeration, bias, and fraud. However, unlike other evidence, forensic analysis can have an outsized influence on jurors.
The brief said, when forensic evidence is presented through surrogate witnesses, the risk of wrongful convictions increases because the underlying actions, inactions, expertise, and biases cannot be tested under cross-examination.
The brief said that to prevent wrongful convictions, the accused “must be able to confront the evidence against them, including and especially the forensic analyses that underlie their prosecution.”
“After tens of thousands of wrongful convictions were overturned because of lab scandals in the Commonwealth, we should do everything possible to ensure that any evidence admitted in criminal trials is reliable,” said the nonprofit’s executive director, Radha Natarajan, in a comment.
She continued, “Basic to that is a defendant’s right to cross-examine the analyst who claims to have conducted testing and obtained results that will be relied on by the jury.”
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