The Supreme Judicial Court, citing the U.S. Supreme Court's holding last year in Smith v. Arizona
, vacated and remanded for retrial a Massachusetts attorney's 2021 conviction for smuggling anti-addiction medication into the Plymouth County Jail by allegedly hiding it in legal paperwork.The court concluded that going forward, a substitute witness cannot testify about opinions and conclusions that are based on the work of another analyst, saying that such testimony is effectively hearsay.
"We conclude that our evidentiary rule does not pass constitutional muster where an expert testifies to an opinion that depends on the truth of the testimonial hearsay of a nontestifying analyst," including situations where the testifying expert's opinion is based on an independent analysis of raw data generated by the original analyst, Justice Dalila Wendlandt wrote for the court.
The court had, since a 2009 decision requiring live testimony in support of lab test results, allowed prosecutors to call a substitute witness to testify when the original analyst is unavailable.
In June 2024, the Supreme Court concluded that the rights of a defendant charged with drug offenses may have been violated by the Arizona prosecutor's reliance on a substitute witness to testify about a lab report — a scenario similar to the case against Elana Gordon.
Gordon, a solo practitioner in Bridgewater, Massachusetts, was charged with hiding 61 strips of the drug Suboxone, a brand name for sublingual strips containing two drugs, naloxone and buprenorphine, in a sheath of legal paperwork she brought into the jail in October 2018, to give to an inmate who was not her client. At the time, she was also facing an unrelated disciplinary investigation by the state bar and has not practiced since 2018.
The analysis of a drug lab chemist, Kimberly Dunlap, was a key piece of evidence against Gordon, but by the time of Gordon's trial in 2021, Dunlap had left the lab. Her former supervisor, Carrie LaBelle, instead testified about the results of tests run by Dunlap. Gordon was convicted of providing drugs to an inmate and sentenced to six months in jail.
Her conviction was affirmed by a state intermediate appellate court in 2023. After the Smith decision, Gordon obtained certiorari from the Supreme Court, which remanded the case to the state appeals court. The SJC took it up from there.
The court found that in light of Smith, that evidentiary rule "no longer comports with the right of confrontation, and the admission of such expert opinion testimony is an error of constitutional dimension."
The ruling found LaBelle's opinion was "independent in name only," saying that the supervisor never actually saw Dunlap perform the tests described in her notes and had no other basis besides those notes to conclude that she had followed protocol.
"Although LaBelle was a crime lab supervisor and had reviewed Dunlap's notes as part of that role, Dunlap (not LaBelle) was the witness against the defendant in a constitutional sense; cross-examination of LaBelle could not ferret out any incompetence, fraud, weaknesses, mistakes, or other limitations that might not be apparent on the face of Dunlap's notes," Justice Wendlandt wrote.
Two of the court's justices, while concurring with the court's decision to vacate and remand the case, disagreed as to the scope of the Smith decision and suggested that the majority was reading it too broadly.
Justice Serge Georges, joined by Justice Frank Gaziano, both veterans of the state's criminal trial sessions, said the court's conclusion that notes by the original analyst were intended as testimonial statements to be used at trial is speculative.
"That approach risks unduly expanding the scope of the confrontation clause and imposing constitutional barriers where they are not justified, disregarding the practical realities of scientific record-keeping," Justice Georges wrote. "It also goes further than the Supreme Court itself was willing to go in Smith, where the court expressly declined to decide whether the records at issue were testimonial, stating that the question was 'not now fit for [the court's] resolution.'"
The court also found that the other evidence in the case — including recorded phone calls between Gordon and inmates discussing the plan — was not sufficient to overcome the error, as the government had argued.
"In brief, LaBelle's opinion regarding the meaning of the raw data depended on the truth of Dunlap's testimonial hearsay as to the procedures and protocols Dunlap said she followed," Justice Wendlandt wrote. "Thus, the Commonwealth has not shown that LaBelle's erroneously admitted testimony based on and relating that testimonial hearsay had 'little or no effect' on the jury."
Several legal advocacy groups and criminal defense lawyers submitted friend of the court briefs, including the Innocence Project and its New England affiliate, which pointed to two recent scandals at separate state drug labs involving chemists who failed to perform tests, tampered with samples, and in one case, used some of the drugs while suffering from addiction.
"These scandals provide concrete examples of how drug testing results cannot be taken at face value, since such analyses involve numerous procedural steps where an analyst could take shortcuts or make errors – errors that may not be included in documentation and a surrogate witness would not be able to adequately address or explain," the Innocence Project said in its brief.
Beth Stone, a spokesperson for the Plymouth County District Attorney's Office, said its appellate lawyers are reviewing the decision and considering next steps.
The office had signed onto an amicus brief submitted by the National District Attorneys Association to the U.S. Supreme Court in the Smith case, saying the requirement to provide testimony from the original analyst in every case could create insurmountable hurdles for prosecutors.
A message seeking comment from counsel for Gordon did not immediately receive a response Wednesday.
The government was represented by Arne Hantson of the Office of the Plymouth County District Attorney.
Gordon was represented by Christopher DeMayo of the Law Office of Christopher DeMayo.
The case is Commonwealth v. Gordon, case number SJC-13735, in the Supreme Judicial Court of the Commonwealth of Massachusetts
--Additional reporting by Katie Buehler. Editing by Kelly Duncan.
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