Drug money pads DA, police budgets

By Jessica Trufant and Laura Krantz

Massachusetts law enforcement officials in the past three years have seized as much as $33 million in cash, cars, cell phones, bank accounts and other property in the name of stopping drug crime.

But loose forfeiture laws and a lack of transparency in accounting make it nearly impossible to determine exactly where the money comes from and how local police and district attorneys spend it.

The state’s 11 district attorneys deposited a combined $16.8 million in their forfeiture accounts during fiscal years 2009, 2010 and 2011, the most recent data available. District attorneys split proceeds with local and state police, meaning $33.6 million was potentially seized in three years. State records don't account for local shares, so the distribution isn't clear.

Police say they have every right to seize property that helps criminals carry out their work. But because police do not have to charge a person with a crime to seize his or her property, experts say the practice turns the American principle of innocent until proven guilty on its head.

And amid fallout from the Annie Dookhan state drug lab scandal - in which the Franklin resident faces allegations she faked or lied about drug test results in thousands of criminal cases in her role as a state chemist - officials from all sides are asking whether law enforcement might soon be forced to return some seized assets, if convictions are overturned and drug criminals are set free.

Cash and cars

Massachusetts General Law, Chapter 94C, Section 47, allows law enforcement officers to take anything they have probable cause to believe was proceeds of or used in a drug crime.

In addition to the drugs, police can take cars, any money they find or anything else they believe they can prove was obtained through drug dealing or involved in the crimes.

"It’s usually cash and cars," said Natick attorney Daniel Cappetta, who handles drug cases daily in Framingham District Court.

He said sometimes police take nothing, while other times they take items he said seem only loosely tied to alleged crimes.

“I can point to a number of different times when I’ve seen police seize things that I thought was unfair to the individual,” he said.

Milford Police Chief Tom O’Loughlin said police seize property not only as evidence but to punish drug dealers.

“They know we seize cars if you’re selling drugs,” said O’Loughlin.

Framingham Police collected $862,163 in fiscal 2012 and $285,913 in fiscal 2011, according to Chief Steven Carl. In Milford, police seize about $50,000 annually, O’Loughlin said.

Of the combined $16.8 million district attorneys deposited in 2009, 2010 and 2011, Bristol County DA Samuel Sutter’s office collected the most, $3.4 million. Middlesex County followed with $2.6 million in deposits and Worcester County deposited $2.2 million.

Middlesex District Attorney Gerry Leone said seizing property is as much a deterrent for criminals as it is a way to fund more crime fighting. As a result, police usually don’t seize property that would cost more for upkeep, he said, like a dilapidated home or a car with many payments owed.

"At the end of the day, it’s a business decision,” Leone said.

He said there is not a conflict of interest when police get paid for pursuing drug crime.

“We never make a decision whether to do a case on what the proceeds will be. That’s a very dangerous area,” Leone said.

Newton attorney Randall Power disagreed.

“They’re going to say that it is a penalty to the drug dealer - to penalize him - but it's also a way to complement their budget,” he said.

In the past five years, the Middlesex DA’s office seized 515 cars, according to records obtained from Leone’s office through a public records request. However, that data includes some vehicles seized for reasons besides drug crimes.

Among cars seized in 2012 were a 1998 Pontiac Firebird, a 1991 Porsche 928, a 2006 Mercedes S430, a 2001 Honda Odyssey minivan and many Honda Civics and Toyota Camrys.

Police in Middlesex County also have seized cell phones, computers, an engagement ring, GPS devices and Lottery scratch tickets, according to the records.

Tangled up in Dookhan?

Franklin chemist Annie Dookhan last fall was charged with evidence tampering in 34,000 drug cases across the commonwealth.

"There’s the potential of tremendous problems for the state if a judge determines that some or many of the forfeitures need to be reversed," said Richard Eustis, a Southborough attorney whose client is one of hundreds who have been released.

Leone’s office cancelled its 2012 vehicle auction because of uncertainty about the drug lab cases.

But Leone said a person restored of his or her civil liberty is not necessarily entitled to get his or her vehicle back, especially because police only need to be 51 percent sure property could be connected with drug crime in order to take it.

Eustis argues that many clients simply admit to sufficient facts, not guilt. If charges are dismissed because evidence was tainted, he said, a person should get his or her property back.

"There are many people in the legal field who have never been comfortable with the seizure of property with a probable cause standard, and this situation shows why," Eustis said.

Free cash?

When law enforcement officials seize property, they deposit it into special bank accounts separate from annual budgets. DAs submit a one-page annual report to the Legislature about the forfeiture account, but otherwise the spending goes essentially unmonitored, except for an audit every three years.

Forfeiture laws roughly outline how the money should be used, but records obtained by the Daily News show most spending falls into a nondescript category called "other law enforcement purposes."

District attorneys were reticent to explain how they spend the money, saying they did not want to compromise their investigatory tactics by sharing too much detail.

In Middlesex County, the DA’s office deposited $740,826.86 in fiscal year 2011, records show.

The largest amount, $220,370, was spent on "other law enforcement purposes", followed by $149,515 of additional money given to local police departments. "Technical equipment or expertise" accounted for $65,800, and $32,167 went to "protracted investigations." In the end, $3,124 – just 0.4 percent of the total - was returned to claimants.

In Worcester County, "other law enforcement purposes" include everything from purchasing bottled water, office supplies and furniture, to paying for printing and attendance at conferences, accounting records show.

Officials say they do not spend the drug money on salaries, but their pattern of spending it on daily operations raises the question of whether they could operate without it.

An audit of the Worcester County District Attorney Joseph Early's office, released Friday by state Auditor Suzanne Bump’s office, found the accounting of forfeiture funds disorganized and incomplete. It found the money was spent on everything from a Zamboni ice resurfacing machine to $15,000 for tree-trimming services, which are legal uses.

A statement from Early's office says district attorneys work to not only prosecute crime, but prevent it, and providing children with afterschool activities and a place to play furthers that mission.

“(Early) believes that an aggressive, proactive approach to preventing crime is one of the best uses of funds that are confiscated from the drug dealers that are ruining our neighborhoods. The law enforcement purpose for the use of these funds is very clear: it is the prevention of crime," it says.

An audit of the Bristol County District Attorney’s office, also released Friday, found similar lapses in record keeping, including $126,000 in grant money erroneously deposited in the forfeiture account and a $700,000 discrepancy between the Seized Fund Logbook and the bank account balance.

In Worcester County between fiscal 2009 and 2011, records show the DA’s office spent $152,000 in forfeiture funds on office furniture, supplies and equipment - not including telephones, telecommunication or IT costs, on which that office spent another $101,086.

The law allows up to 10 percent of forfeiture funds to be used for drug rehabilitation and education, and other anti-drug or neighborhood watch programs.

In all, the audit found the Worcester DA's office spent $205,000 in the 15-month audit period on community activities.

In Middlesex County, Leone described the youth programs he funds with drug money, including a summer jobs program to discourage teens from selling drugs. In both 2011 and 2012, his office donated $100,000 of drug forfeiture money to 11 community programs.

Leone said the money also buys equipment that helps with surveillance, and pays for trial experts and operating expenses. He said his office doesn’t rely on the money but likes to know it’s there.

“We never know how bad the economy and the budgets are going to get,” he said.

Police departments use proceeds in similar ways. O’Loughlin said the Milford department’s Town Meeting appropriation for radios wasn’t enough to cover the cost, so he made up the difference with seized drug money.

"If there’s equipment the department has a need for, and funds are tight as far as the budgeting process, we’ll use the money for that," he said.

In Framingham, Carl said his department uses the money to pay for trainings, vehicles, undercover drug buys and overtime for undercover operations.

Punishment before a crime?

Sudbury attorney Mark Helwig said the forfeiture law unfairly separates the criminal conviction from the civil forfeiture.

He said many clients don’t fight the civil cases because they are focused on their criminal convictions or can’t pay for an attorney to represent them in the civil case, since the law does not grant court-appointed attorneys for the civil case as it does in criminal proceedings.

"I’m kind of against punishment that happens before something’s been proven," he said.

Leone said his office goes after sophisticated, dangerous drug lords, where seizures can stymie vast drug dealing operations.

But local attorneys say they deal more often with police who seize beat-up cars of clients charged with relatively minor drug infractions.

Natick attorney Cappetta said police seizing a 1998 Honda Civic or $500 don't break up a major trafficking operation, but the seizure does eliminate means for that person to pursue an honest living.

"All they do is sort of increase the cycle of poverty that may have put him in the position to deal drugs in the first place," he said.