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Commonwealth v. Cotto

Superior Court of Massachusetts, Hampden

June 26, 2017

Commonwealth
v.
Erick Cotto and Related Cases [1]

          MEMORANDUM OF DECISION AND ORDER ON MOTIONS FOR POST-CONVICTION RELIEF

          Richard J. Carey, Justice.

         I. Introduction

         These cases emanate from the scandal at the Amherst drug lab and are before me on the defendants' motions to dismiss their indictments, to withdraw guilty pleas, and/or for a new trial, pursuant to Mass.R.Crim.P. 30(b).[2] The defendants were convicted in Hampden Superior Court between May of 2006 and September of 2014 of drug offenses based on substances tested, mostly by chemist Sonja Farak, at the Amherst drug lab.

         Following news in January 2013 that Farak was being prosecuted by the Attorney General's Office (AGO) on charges of drug theft and tampering at the lab, many defendants whose drug analysis certificates had been issued by Farak moved for post-conviction discovery from the AGO, for relief under Rule 30(b), and/or to dismiss their indictments. In 2013 and most of 2014, the AGO successfully opposed most of the discovery motions. After hearings, the Superior Court (Kinder, J.) ruled on the Rule 30(b) motions and motions to dismiss in accordance with his finding, on the basis of the evidentiary record before him, that Farak's misconduct was limited to stealing and tampering with cocaine for approximately six months, from July 2012 until January 18, 2013. Many defendants sought appellate review.

         On January 4, 2014, Farak pled guilty to indictments for drug tampering and theft. Nearly ten months later, on October 30, 2014, drug lab defendants finally obtained access to the rest of the Farak investigation evidence possessed by the AGO and learned that the AGO had withheld exculpatory evidence about the scope of Farak's misconduct. On November 13, 2014, the AGO turned over to district attorneys, who gave drug lab defendants, 289 pages of documentary evidence not previously turned over, including seven pages of mental health worksheets and other papers supporting a strong inference that Farak's misconduct began before 2012.

         This occurred as the Supreme Judicial Court considered the drug lab defendants' appeals from Judge Kinder's rulings on drug lab defendants' motions. In those cases, the Supreme Judicial Court called for a more thorough investigation into Farak's misconduct. See Commonwealth v. Cotto, 471 Mass. 97, 112, 115, 27 N.E.3d 1213 (2015). Subsequently, two investigative reports were issued. In the first, Assistant Attorney General Thomas Caldwell investigated the scope of Farak's misconduct, and flaws in the operation of the Amherst lab and issued a report (the Caldwell Report). In the second investigative report, retired Superior Court Justice and Special Assistant Attorney General Peter A. Velis and retired District Court Justice and Special Assistant District Attorney Thomas T. Merrigan oversaw an investigation that resulted in a report rejecting the drug lab defendants' claim that the AGO had withheld exculpatory evidence.

         Based on an expanded record, the defendants now allege that the following types of government misconduct warrant post-conviction relief (1) Farak's drug tampering and theft; (2) the AGO's failure to disclose exculpatory evidence, particularly seven pages of Farak's mental health worksheets; (3) the AGO's failure to conduct an adequate investigation in 2013 on the nature and scope of Farak's misconduct; and (4) misconduct by former Springfield Police Department (SPD) narcotics evidence officer Kevin Burnham, who was indicted for stealing money from the SPD's evidence room.[3] Many defendants further contend that serious flaws in the operation of the Amherst drug lab render unreliable the drug analysis performed in their cases.

         In their Joint Proposed Findings of Fact, the parties have stipulated to 520 facts and 154 exhibits. In December 2016, I conducted a six-day evidentiary hearing on the scope of governmental misconduct. At that hearing, 17 witnesses[4] testified and 132 more exhibits were admitted, bringing the total number of exhibits to 286. Subsequently, through March 2017, each of the defendants was heard on his or her motions and some continued to file briefs through May 2017. Based on the credible evidence presented and after consideration of the parties' written and oral submissions, I make the following findings of fact and then undertake an individualized analysis of the defendants' motions for post-conviction relief.[5]

         II. Subsidiary Findings of Fact

         A. The Amherst Drug Lab

         Sonja Farak worked as a chemist at the Amherst drug lab from August 2004 until its closure on January 18, 2013. The lab was located on the campus of the University of Massachusetts at Amherst in a building shared with the university. It was operated by the Massachusetts Department of Public Health (DPH) from its inception in the 1960s until July of 2012, when it was transferred to the Massachusetts State Police (MSP), which ran it until January 18, 2013. By 1987, the lab's primary function was the analysis of suspected controlled substances for law enforcement agencies involved in the prosecution of criminal cases in western Massachusetts.

         From 2008 until the lab's closure, four employees worked at the lab: the supervisor, James Hanchett; the evidence officer, Sharon Salem, who received and documented evidence submitted to the lab by police; and chemists Farak and Rebecca Pontes. I credit the testimony of Hanchett, a highly trained, experienced supervisor who began working as an analyst at the lab in 1977 and was promoted to supervisor in 2008. I also credit the testimony of Salem and Pontes, who, like Hanchett, were competent and committed employees.

         While under DPH, the Amherst lab was a satellite lab which received only minimal financial support and oversight from DPH or the Commonwealth's main drug lab, the Hinton lab, located in the Jamaica Plain section of Boston. Between 2006 and July of 2012, DPH visited the Amherst lab only once or twice, and no money was made available to the Amherst lab for continuing education or for the training and imposition of protocols and record keeping needed for accreditation. The lab never obtained accreditation. Due to its small staff and low overhead costs, with free use of the state building housing it and operating at an annual budget of approximately $300, 000, the lab was able to avoid repeatedly threatened closures between 2004-2013. The Amherst lab survived those threats, thanks to the vigorous advocacy of the western Massachusetts law enforcement community, which argued that the Amherst lab was cost effective and productive. The lab even took on testing of backlogged samples from the Hinton lab. The lab was essentially a financially strapped state entity with--apart from Farak--dedicated employees doing the best they could in difficult circumstances.

         The chemists tested for authenticity various controlled substances submitted by law enforcement agencies, issued drug analysis certificates, and testified in criminal proceedings regarding their analysis. Many substances, such as cocaine and heroin, were tested chemically by running small samples through a Gas Chromatograph (GC) and then through a Mass. Spectrometer (MS), [6] and comparing the results to reference standards, which are known controlled substances, as explained below.

         Between at least 2002 to October of 2012, the Amherst lab failed to adhere to some best practices recognized by that time. In April of 2002, a team from the National Forensic Science Technology Center (NFSTC) visited the Amherst lab to evaluate the sufficiency of forensic services in the Commonwealth. The NFSTC expressed concern over the condition of the lab's physical plant and its lack of formal quality systems consistent with the standards set by the American Society of Crime Laboratory Directors/Laboratory Accreditation Board (ASCLD/LAB)[7] or those of the Scientific Working Group for the Analysis of Seized Drugs (SWGDRUG), which recommends the minimum standards for the forensic examination of seized drugs. (Jt. Proposed Finding 54.)

         The 2002 NFSTC report urged the Amherst lab to develop quality assurance safeguards, such as written protocols for the analysis of substances, peer reviews of reports, and a proficiency testing program. (Jt. Proposed Findings 288-92.) The 2002 NFSTC report concluded that although the lack of those safeguards had not produced " a knowledgeable effect on the outcome of chemical analysis as of yet, in the future reducing quality might jeopardize correct, error-free results" as the lab's caseloads increased. (Jt. Proposed Finding 293.)[8]

         Until October of 2012, the Amherst lab practices did not measure up to the SWGDRUG recommendations in several concerning respects. First, the lab lacked written protocols for testing procedures. Second, chemists occasionally left samples unsealed in the temporary safe. Third, chemists were not required to run " blanks" between each GC/MS test in order to clean the testing equipment. Instead, each chemist determined when to run a blank. Chemists usually ran blanks after every 5 to 10 tests, although at times, they performed over a dozen tests before running blanks. The failure to decontaminate the GC/MS after every test would frequently result in " carry over" or residue remaining from the previous tests, which would have to be distinguished by the individual chemists. (CR 29 fn.27.)

         The AGO's expert credibly testified at the evidentiary hearing that the risk of contamination from not running a blank after each sample was not likely to prejudice defendants except in cases involving minuscule samples. Although the risk of contamination rose with the more samples that were run after a blank, I find that, with the exception of Farak, other chemists at the Amherst lab would have detected the need to run a blank and did so as necessary to ensure reliable test results. I further find that the defendants' expert, forensic chemistry consultant Heather Harris, did not provide any persuasive testimony supporting an inference that the risk of contamination posed an unacceptable risk of prejudice to any of the defendants here.

         Another questioned practice at the Amherst lab until October of 2012 concerns lab standards. Lab standards are drug substances against which police-submitted suspected drug samples are compared in analysis. There are two types of standards: primary standards, which labs purchase from pharmaceutical companies and bear a certificate of analysis, and secondary standards, which are manufactured in the lab using police-submitted drug samples.

         Manufacturing standards in the lab, rather than purchasing them from pharmaceutical companies, was a widely accepted practice in State forensic laboratories well before Hanchett's arrival at the Amherst lab in 1977. The manufacture and use of secondary standards was justified at the Amherst lab until mid-2012 on several grounds. Few pharmaceutical companies manufactured standards for some of the substances, such as heroin, in the early years of the Amherst lab. Some substances could be easily and cost-effectively created in the labs. In the 1970s, the Drug Enforcement Agency (DEA) taught lab analysts, including Hanchett, how to manufacture standards and recommended that practice to help labs cut costs. It was not unusual for other State labs to make and use secondary standards up until 2012.

         Between 2008 and October of 2012, due to the Amherst lab's financial straits, Hanchett replaced depleted primary standards of heroin, cocaine, LSD and methamphetamine with ones he had manufactured in accordance with the DEA's instructions. He used small amounts of substances originally submitted by police departments for analysis and which had been analyzed to be heroin or cocaine. The manufacture and use of secondary standards at the Amherst lab ended in October of 2012, pursuant to a directive of the MSP.

         I find that the secondary standards Hanchett manufactured yielded sufficiently accurate analytical results. I generally credit Hanchett's testimony that, apart from Farak: (1) analysts using secondary standards at the Amherst lab were able to determine through testing when those standards were no longer accurate or operational; and (2) upon detecting that secondary lab standards had degraded to the point of being non-operational, analysts took appropriate measures to ensure reliable test results, such as cleaning out the equipment and using different standards. (Hanchett 146.) Although the use of primary standards had become the " gold" standard by 2012, the use of secondary standards manufactured by Hanchett at the lab was acceptable, reliable, and consistent with the lab's goal of identifying controlled substances. Despite the fact that by 2012, the use of secondary lab standards was no longer permitted at the Amherst lab, the defendants were not prejudiced by the use of them at the Amherst lab by chemists other than Farak.

         The employees at the Amherst lab had full access to the drug standards, all of which were kept in a refrigerator and in a locked cabinet to which the employees had a key. Although Hanchett was responsible for ordering, receiving and inventorying the standards, there were no audits of the standards until July of 2012. The lab was locked but accessible 24 hours a day, seven days a week, to all lab employees by a swipe card and a key, the latter of which recorded no information about who entered and exited the lab or when. The lab had no cameras or other security monitoring equipment.

         Police-submitted drug lab samples were generally stored in a vault across the hall from the lab. All lab employees could open the vault with either a key or a swipe card, and the lab had no policy restricting chemists' access to the vault. Employees also used a safe in the middle of the lab for overnight storage of samples on which testing was incomplete. The safe was secured with a lock with a combination known to all of the lab employees.

         The evidence room, where police delivered drug samples from criminal cases, had a computer in which the lab's evidence officer, Salem, documented the weights of the samples. The lab employees all knew the pass code to access the computer, so any employee could log on to the computer and alter the weights of the samples typed into the computer record. Moreover, because every lab employee had 24/7 access to the lab, all the workstations, the vault, the computer inventory system, and the standards kept in the cabinet and refrigerator, chemists could assign samples to themselves. The complete lack of security at the Amherst lab was a fundamental flaw which enabled Farak to tamper with drugs without detection.

         In her years of employment at the Amherst lab, Farak received no continuing education, proficiency testing, or real supervision. Although Hanchett spent much of his time in the lab, rather than in his separate office across the hall from the lab, he testified that he never reviewed Farak's testing, as she had been trained at the Hinton lab and he believed that she seemed to be doing a good job until the last half of 2012. Salem's office was also across the hall from the lab, where Farak and Pontes worked. The extent to which anyone but Pontes worked regularly in close proximity to Farak is unclear.[9]

         Due to the deficiencies identified above and others, the Amherst lab was never accredited, although some steps were taken in late 2012 toward accreditation. While I credit testimony that the practices of the Amherst lab until July of 2012 were generally poor and that security gaps throughout the operation of the lab were highly problematic with respect to Farak's conduct, I find in all other respects those practices have not been shown to have materially prejudiced the defendants.[10] Notwithstanding the flaws in the Amherst lab, its employees, apart from Farak, correctly used accepted, scientifically-valid practices with the GC/MS to arrive at reliable analyses of suspected substances. With the exception of Farak's work, I credit the conclusion of the MSP's report based on its October 10, 2012, quality assurance audit (discussed below) that the Amherst lab was free from any deficiency in analytical procedure, was kept in an orderly fashion, and that work flowed through the lab smoothly. (Exh. 1.)

         B. Farak's Mental Health Challenges and Early Use of Controlled Substances

         Much of the evidence of Farak's addiction and drug tampering as set forth in the Caldwell Report is derived from the records of Farak's mental health treatment providers and Farak's testimony before a Hampshire County Grand Jury in September 2015.[11]

         Farak was born in 1978 and at age 16 was diagnosed with depression. She was treated with Wellbutrin. She excelled academically and was co-valedictorian of her high school class. In the spring of 1997, as a freshman in college, she had a five-day psychiatric hospitalization. During college, she took four types of medication: Wellbutrin, Remeron, Effexxor and Zoloft. She performed well in college, graduated in the spring of 2000, and in her first and only year of doctoral studies (2000-2001), she began regularly using alcohol and marijuana and experimented with cocaine, ecstasy (methylenedioxymethampetamine, also known as MDMA), and heroin.

         From January of 2002 until May of 2003, Farak worked for DPH where she conducted testing to detect HIV. During that 16-month period, she continued and perhaps increased her consumption of alcohol and recreational drugs, including MDMA and marijuana, and she first tried methamphetamine.[12]

         C. Farak's Misconduct at Amherst Lab

         1. Farak's Use of Lab Standards (Beginning in 2004/2005)

         In August of 2004, Farak transferred to the Amherst lab. By early 2005, she was stealing and consuming methamphetamine standards from the lab every morning. Between 2005-2009, that consumption grew to several times per day. I credit her testimony that, aside from a few days or a week of sobriety during that four-year period, she was under the influence of methamphetamine (and, at times, other controlled substances) at the lab nearly every day, all day, and that when she did not take methamphetamine, she experienced severe lethargy, irritability, and the inability to focus and be productive, to the point where she would call in sick from work.

         By the beginning of 2009, Farak had stolen nearly the lab's entire methamphetamine standard and she began stealing and using the amphetamine and phentermine lab standards. Throughout 2009, she used amphetamine and phentermine, which she claims gave her increased energy, alertness and focus.[13] She denies that her productivity and accuracy in testing suffered while she was using those stimulants, but her testimony is undercut by her report to her therapist that at times, stimulants caused her to experience visual disturbances.

         2. Farak's Use of Standards and Police-Submitted Samples (2009-2013)

         In January of 2009, Farak began receiving substance abuse counseling. On January 15, 2009, she had her first meeting with therapist Sarah Hawrylak. On April 28, 2009, Farak confided to Hawrylak that she had been using illegal substances, primarily methamphetamine, for a long period of time, and that she had been using drugs from her State drug lab job by taking portions of samples that had been submitted for testing. (Jt. Proposed Findings 145-47.) By at least April of 2009, Farak was using police-submitted samples from the lab to feed her addiction.[14]

         In 2009, in conjunction with using amphetamine standards, Farak was also using standards of ketamine, MDMA, MDEA, and LSD (including police-submitted samples) and cocaine while she was working. Farak claims that in 2009, she did not use the cocaine standard daily. I credit the Caldwell Report that

in early 2009, Farak took for her personal use a relatively small amount from police-submitted samples--what she termed " acceptable loss" . . . [which was] approximately five percent of the sample that would take into account the testing and moisture loss due to evaporation in storage.

(CR 11-12.) In early July of 2009, Farak told her therapist that she had reduced her alcohol consumption but had been engaging daily in " other risky behavior." Farak's treatment records support an inference that she was suffering from physical and emotional withdrawal symptoms on July 23, 2009, but that she relapsed on August 14, 2009, and resumed daily usage. On August 25, 2009, Farak told her therapist that she was almost out of her drug supply and wanted to stop using drugs. (Jt. Proposed Finding 153.) Between late August and September 8, 2009, Farak reportedly had six days of sobriety.

         In early September of 2009, Farak began to use the lab's cocaine standard, but not daily. (Jt. Proposed Findings 156-58.) Farak admitted that at the end of 2009, she took a few grams from a 500 grams cocaine sample which had been submitted by police in a case involving the United States Postal Service, and she used the cocaine at the lab and at home. (CR 12; Jt. Proposed Findings 162-63.)

         In late 2009, Farak reported to her therapist a worsening depression. The therapist referred Farak to a psychiatrist, Barry Federman, M.D., and asked him if the Lamictal, a medication prescribed to treat depression, was working properly. Federman met with Farak, described her mood as " great, " and increased her Lamictal dosage. On January 5, 2010, Farak told her therapist that she had stopped taking Lamictal during the last week of December and in its place took LSD. In late January 2010, Farak admitted to her therapist that, contrary to her prior reports, she had been using cocaine for several weeks and ketamine occasionally.

         In 2010, Farak performed all of her lab work while she was under the influence of narcotics. On February 23, 2010, Farak expressed concern to her therapist that her co-workers might know about her taking drug samples. Farak testified before the grand jury that throughout 2010, she used lab standards heavily but generally abstained from siphoning from police-submitted samples, except LSD. (CR 12.) Farak admitted to her therapist that in late February and all of March of 2010, she used cocaine, alcohol, and marijuana, and that by late March, she was using LSD in addition to cocaine and alcohol. (Jt. Proposed Findings 174-76.) On April 19, 2010, Farak told her therapist that she had not taken illegal substances for three weeks in early April, but then relapsed and took cocaine, ketamine and MDMA.

         On May 13, 2010, Farak told a ServiceNet clinician that, as reported by the clinician,

Starting in about 2005, she has a history of abusing a number of different classes of drugs, including cocaine, cannabis, methamphetamine, and fen fen. She had a week long cocaine binge in March . . . She admits to stealing drugs from the . . . lab . . . She has episodes of spacing out for hours at home, and admits to worrying about what others are thinking about her at work.

(Jt. Proposed Finding 177.) The ServiceNet clinician's notes also reveal that Farak reported that " when abusing stimulants, she has had perceptual disturbances in the past, including paranoia and auditory hallucinations." (Jt. Proposed Finding 185.) Because on almost a daily basis Farak abused narcotics in 2005 to 2009 while she was working, there is no assurance that she was able to perform chemical analysis accurately or to detect when the equipment for testing drugs needed adjustments to work properly.

         In 2011, Farak's use of cocaine ramped up, as she used lab standards, police-submitted powder cocaine, and she began to smoke rocks of crack cocaine. The latter practice quickly led to her becoming very heavily addicted. By the fall of 2011, she had exhausted the lab standards of methamphetamine, amphetamine and ketamine, and the lab's cocaine standards were substantially diminished. At that time Farak used crack cocaine during work hours in the lab. She was totally controlled by her addiction, which gave her what she described as " ridiculously intense" cravings. She nonetheless testified that she believed that there were no inaccuracies in her testing, a belief which defies logic.

         In early 2012, Farak used drugs from the lab while she was at work and at home. She smoked crack cocaine during work hours in a bathroom and after work hours in the lab. On January 9, 2012, Farak was extremely impaired. That morning she smoked crack cocaine, and at lunchtime, she consumed a police-submitted sample of LSD. (Jt. Proposed Findings 203-05.) She later recalled that the sensation of colors in the wind left her unable to function well at work, to drive her car, or to attend therapy. Despite her grand jury testimony that she did not recall running any tests that day, the record shows that on January 9, 2012, Farak endorsed certificates of analysis, including in the Penate case, and that she used the GC/MS that day.

         Farak's attempts at sobriety failed. By April of 2012, her theft and consumption of police-submitted samples rapidly increased. On four occasions during the last half of 2012, Farak manufactured crack cocaine at the lab by removing and cooking cocaine when large quantities of powdered cocaine had been submitted. At that point, Farak was smoking crack cocaine ten to twelve times a day. She would do so at the lab, at home, and while driving. In 2012, Farak attended individual and group therapy sessions while under the influence of crack cocaine and did not disclose her intoxication to her therapists or the group.

         Farak testified that she began taking other chemists' samples in the summer of 2012. (Jt. Proposed Finding 226.) She took approximately six of Hanchett's samples of crack cocaine, including a sample of 3.5 grams submitted by the Northampton Police Department, and a 24.5 gram sample from the Pittsfield Police Department, and repackaged them in Hanchett's pre-initialed evidence bags. Farak also took 30 grams of a 73 gram SPD submission of cocaine assigned to Pontes, used it to make crack cocaine at the lab when she was not scheduled to work, later replaced the cocaine with a counterfeit substance, and put the sample into a bag pre-initialled by Pontes.

         At times, Farak removed narcotics after the police-submitted samples had been analyzed so that any certificates originally generated by other chemists were still accurate, even though a retesting of those samples would likely yield different results showing counterfeit substances, such as baking soda, soap, wax, clay, or water. Farak frequently removed from the drug vault cocaine samples that she had already tested, then she ingested the cocaine and resealed the evidence bags. At other times, Farak removed portions of samples that had not yet been tested and manipulated the samples so that she would receive them for testing and other chemists would not notice the inaccuracies in the weights.

         In late 2012, Farak hid her drug tampering by manipulating the lab inventory list on the evidence computer. She altered the documented weights on the computer and in her lab notebook, changed the order of assigned samples so she would be assigned the samples she preferred, and replaced original drug receipts with ones reflecting the samples' weight after her tampering. (Jt. Proposed Finding 255.) On July 8, 2012, Farak assigned herself a batch of twenty samples submitted by Westfield police. In late 2012, Farak took 100 grams from a one kilogram sample of powder cocaine submitted by the Chicopee Police Department and used it to manufacture crack cocaine at the lab. She also took 200 grams of powder cocaine from a Holyoke case.

         Farak's scheme was at times facilitated by the submission of evidence by SPD narcotics evidence officer Kevin Burnham, who held that position from 1984 until his retirement on July 25, 2014. (Jt. Prop. Finding 492-96.) On most Wednesdays, Burnham brought in samples which were often unsealed. When Farak anticipated the arrival of SPD submissions, she occasionally turned down the heat sealers to prevent a good seal. (Jt. Proposed Findings 492-98.) Subsequently, Farak removed those submissions for her own use and resealed them over the original seal mark so her tampering would go unnoticed. There is no evidence that Burnham tampered with any of the samples of suspected drugs he submitted to the Amherst lab.

         Despite her impairment, Farak tried to do her job well for three reasons: to obtain accurate, fair results; to know what the substances were in case she wanted to use them herself; and to draw less attention to herself by correctly performing testing. In her grand jury testimony, Farak credibly explained:

I never did that [dry labbing]. You want the accurate result. If there was a question if something was positive or negative, you called it negative. And, like I said, for my sake and towards that end, yeah, I wanted it for possible use. I wanted to know what it was, but I also thought that it would draw less attention if I also tested everything correctly.

(Exh. 56, pp. 173-74.) In 2012, co-workers sensed changes in Farak. Hanchett noticed in the late summer or early fall that Farak's productivity had dropped, that her work station had become messy, that stacks of paper were not being filed properly, that her physical appearance had deteriorated, and that she was nosey about large samples submitted in drug trafficking cases. (CR 23.) In September or October of 2012, Hanchett approached Farak to discuss her decline in productivity, as her analysis numbers had fallen by half. Hanchett did not believe Farak's excuse, that she had spent a lot of time in court, and he asked her to focus on testing. (Prosecution memo at 7, citing Hanchett's grand jury testimony.) Salem noticed in the last months of 2012 that Farak had lost weight and was moody. (CR 37.) Salem and Pontes observed in those months that Farak was leaving the lab frequently during the day. (CR 42.)

         Nonetheless, Farak's co-workers praised her work. Salem, an entirely credible witness, described Farak as an excellent chemist who was very intelligent and knew her chemistry, and that she was meticulous in her note taking and work.[15] (Salem 199-200). Pontes also characterized Farak's lab notes as very good. Hanchett testified that he viewed Farak as a meticulous employee who was dedicated to her work. (CR 23.) Hanchett never watched Farak test a sample and had testified that he had never retested any of her samples. While the Amherst lab was under DPH control, Farak was not required to take a proficiency test to confirm that her analytical steps were proper. (Hanchett 141, 150; Salem 200, 206-07.) In contrast to analysis performed in the Hinton lab, where each sample was tested by a primary chemist and later by a different confirmatory chemist, in the Amherst lab, only one chemist performed all the analysis. Therefore, the accuracy of Farak's chemical analysis cannot be assumed, much less confirmed.

         3. Scrutiny of Amherst Drug Lab (July-October of 2012)

         On July 1, 2012, as the Annie Dookhan scandal was unfolding, control of the Amherst lab passed from DPH to the MSP. The discovery of Dookhan's improper testing methods at the Hinton lab led to her resignation as an analyst in early 2012, her arrest in September of 2012, her arraignment on December 17, 2012, on 27 charges, and her conviction and sentencing on November 11, 2013. In contrast to the Dookhan case, there is no evidence that Farak engaged in " dry labbing" [16] or that she intentionally contaminated samples to turn negative ones into positive ones. Whereas Dookhan's misconduct was motivated by a desire to increase her apparent productivity and to further what she perceived to be the mission of the Commonwealth of getting criminals off the streets rather than to advance her own individual unlawful scheme, Farak's motive was simply to feed her drug addiction. See Commonwealth v. Scott, 467 Mass. 336, 339, 5 N.E.3d 530 (2014); Commonwealth v. Cotto, 471 Mass. 97, 109, 27 N.E.3d 1213 (2015). In a sense, the Dookhan cases are principally evidence tampering cases, whereas the Farak cases are principally drug theft cases, with evidence tampering being a collateral consequence. The two scandals coincide, however, in their potential impact on many drug lab defendants' convictions.

         On August 7, 2012, Hanchett hosted a meeting in which MSP's quality assurance staff, including Sergeant Joseph Ballou, visited the Amherst lab. Ballou did not detect anything unusual or suspicious about Farak during their encounter. Hanchett told MSP staff that day how he manufactured the lab's standards, and he was told to discontinue that practice and to inventory the lab standards. He did so and discovered that they were more depleted than he had expected. He voiced his concern to Salem, and said he was unsure whether the depletion in standards was due to normal usage or from wrongdoing. Hanchett told Pontes and Farak and mentioned that it looked like somebody had been using a lot of standards.

         On October 10, 2012, the MSP inspected and audited the Amherst lab and interviewed the chemists to assess the lab work and to move the lab toward accreditation. Farak later testified that she had smoked crack cocaine that morning and again at lunchtime, just before her 1 p.m. interview, which lasted 15-20 minutes. Her behavior raised no suspicions. (CR 19.)

         Nothing in that process led MSP to shut down the lab. The MSP issued its report on the audit months later, days after Farak's arrest, and mandated changes in lab protocol, such as requiring the use of forms for technical and testimony reviews, keeping balance calibration logs, and implementing a system to address narcotic inventory and/or weight variances. (Jt. Prop. Finding 453.) Significantly, notwithstanding the many recommended changes in lab practices, as noted above, the 2012 MSP report concluded that the lab was free from any deficiencies in analytical procedure, was kept in an orderly fashion, and that work flowed through it smoothly. (Exh. 1.)

         As part of the investigation and prosecution related to the Dookhan scandal, Assistant Attorney General Anne Kaczmarek met briefly with Farak in the fall of 2012 at another drug lab. Kaczmarek, like Ballou, did not detect anything suspicious about Farak during their meeting. During the same period, Farak told her therapists that she was nervous that her misconduct would be discovered. She started covering her tracks more and, likely after Hanchett spoke to her about the depleted standards, Farak ceased tampering with standards. As described below, all of Farak's stealing, tampering and covering up would end on January 18, 2013, when her evidence tampering and addiction were discovered.

         Based on the credible evidence presented, I find, regarding the scope and nature of Farak's misconduct, that: (1) from 2004 until January 18, 2013, while working at the Amherst lab, Farak was, on almost a daily basis, under the influence of narcotics, and at other times was suffering the effects of withdrawal; (2) those narcotics included, but were not necessarily limited to, methamphetamine, amphetamine, phentermine, ketamin, MDMA. MDEA, LSD, and cocaine; (3) Farak was acutely addicted to cocaine from at least January of 2009 to January 19, 2013; (4) Farak's use of narcotics while at the lab caused her, at unknown times, to experience hallucinations and other visual distortions, to experience what she described as " ridiculously intense cravings, " to feel like her mind was racing, and to take frequent breaks from work to use drugs; (5) Farak's drug use impaired her ability to test and analyze controlled substances and to check the equipment and instruments used to analyze suspected drugs on occasions which cannot be identified; (6) by 2009, and possibly earlier, Farak began to steal and consume police-submitted drug samples of cocaine; (7) by at least late 2009, and possibly earlier, until her arrest in January 2013, Farak regularly stole, tampered with, and used police-submitted cocaine samples; (8) some of the tampered drug samples had been assigned to Farak while others in the last half of 2012 had been assigned to and already tested by Hanchett and Pontes; (9) the drug certificates issued by Hanchett and Pontes are reliable and accurate, despite Farak's possible tampering with some of those samples after they were tested; (10) Farak altered the weights recorded in the lab's computer inventory system of some samples; and (11) Farak replaced some drugs with counterfeit substances. Farak's theft, tampering, and use of narcotics at the lab created a problem of systemic magnitude.

         D. Discovery of Farak's Misconduct (January 18, 2013)

         On January 17, 2013, Sharon Salem was attempting to match drug analysis certificates with corresponding samples when she realized that she was missing samples in two cases. She determined in the two missing cases that Farak had done the testing and had confirmed that they were cocaine. The next morning, January 18, Salem told Hanchett about the missing samples. Hanchett searched the lab and found at Farak's work station an envelope containing the cut open packaging for the two missing samples. The substances in the packaging were retested and determined not to contain cocaine. Hanchett also discovered counterfeit drug paraphernalia under Farak's work station. He notified the lab director, MSP Major James Connolly, of these discoveries. Connolly instructed Hanchett to close the lab immediately so a second lab audit could commence.

         On the morning of January 18, Farak had been at the Springfield District Court to testify in a case in which she had issued a drug certificate. During the court's midday recess, Farak went to her car, where she ate lunch and used crack cocaine before returning to court. Just before entering the courtroom to testify, two MSP detectives, who had tracked down Farak, asked to speak with her. She agreed, and Trooper Robin Whitney interviewed Farak in a conference room in the District Attorney's office in the courthouse. The recorded interview began at 2:07 p.m. At approximately 2:29 p.m., Whitney asked Farak whether there would be any reason that a crack pipe would be under her work station. At that point, Farak said, " I think I'm going to hold off talking and talk to my MOSES [union] representative, if that's alright." Whitney immediately terminated the interview. (Exh. 5A.) Farak refused to consent to a search of her car. Police then seized her vehicle and had it towed to the MSP barracks' garage in Northampton. Farak was given a ride to her home. MSP alerted the AGO and launched a coordinated investigation into Farak's suspected misconduct.

         E. Roles of AGO Employees in Farak Matter

         With respect to the Farak case in 2013, the AGO had three major tasks: the investigation of Farak's misconduct, the prosecution of Farak, and the disclosure of evidence which could be used by drug lab defendants whose convictions were placed in question by Farak's misconduct. In order to address the drug lab defendants' key claim that the AGO withheld from them exculpatory evidence, it is useful at this point to outline the roles, relative authority and responsibilities of each of the AGO employees involved.

         In 2013, the AGO was led by Attorney General Martha Coakley. The First Assistant AG was Edward Bedrosian and the Deputy AG was Sheila Calkins. The AGO is comprised of four bureaus, one being the Criminal Bureau which was in charge of the prosecutions of Farak and Dookhan. The Chief of the Criminal Bureau in 2013 was John Verner. Within the Criminal Bureau at that time were up to 11 divisions and/or units, two of which are relevant here. The first is the Enterprise and Major Crimes Division, whose chief for the first nine or ten months of 2103 was Dean Mazzone.[17] The Enterprise and Major Crimes Division is staffed with prosecutors, including " line prosecutor" AAG Anne Kaczmarek, who was assigned to prosecute Dookhan and Farak. The Enterprises and Major Crimes Division was also staffed with MSP Detective Lieutenant Robert Irwin and Sergeant Joseph Ballou, who directed and/or conducted investigations and turned over evidence to the prosecutors in the Dookhan and Farak cases.

         A second division within the Criminal Bureau and pertinent to this matter is the Appeals Division, which, inter alia, represents State officers and agencies who are served with subpoenas and summonses in discovery. In 2013, the Chief of the Appeals Division was Randall Ravitz and the Deputy Chief was Suzanne Reardon. Within the Appeals Division, all of the Farak discovery matters were assigned to a new AAG, Kris Foster, whose supervisors were (from lower to higher levels of seniority) Reardon, Ravitz, Verner, Calkins, Bedrosian and Coakley.

         First Assistant AG Bedrosian learned of the Farak investigation from its inception. During the initial stages, Bedrosian attended high level meetings concerning the Farak matter. (Bedrosian 131-32.) " Any major decisions [regarding the Farak case] were with the consent of the Attorney General based on advice given to her, probably by me, [Verner], and even [Kaczmarek]." (Bedrosian 132.) When asked who was calling the shots in the Farak matter, Bedrosian named Kaczmarek, Verner, himself and Calkins. Calkins acknowledged that the Farak matter was considered " a big deal" in the AGO.

         Verner, although responsible for the Farak prosecution due to his position as chief of the Criminal Bureau, was also responsible for supervising 110 individuals through 11 different divisions and/or units and over 50 lawyers. Verner, in his words, did not micro-manage " experienced lawyers on discovery." (Verner 190.) I credit that testimony. Verner also credibly testified that " after that weekend [of the search of Farak's car], I [was] not intimately involved in the Farak investigation. I'm the Bureau Chief, so I'm getting updated on the case like all the other cases . . ." (Verner 130.)

         F. Search Warrant for Farak's Vehicle

         Late on Friday, January 18, 2013, Hampshire County Assistant District Attorney Jeremy Bucci telephoned Mazzone to inform him that there was a problem with the Amherst lab. (Mazzone 50.) Over that weekend of January 19-20th, Verner, Kaczmarek, and Bedrosian learned of the investigation. (Mazzone 51.) On the evening of January 18, 2013, investigators met at the Northwestern District Attorneys Office to prepare an application for a warrant to search Farak's car. At 1 a.m. on January 19th, that application was granted. It authorized a search for substances that could be used as drug adulterants, controlled substances, and paperwork associated with controlled substances. (Exh. 172.)

         As noted earlier, Farak's car had been towed to a garage bay at the MSP barracks in Northampton. Most of the other garage bays there were empty, leaving the troopers several empty bays in which to work. On January 19, 2013, at 3:32 a.m., Detective Lieutenant Robert Irwin, Sergeant Joseph Ballou, and Trooper Randy Thomas began executing the warrant. All three were MSP troopers assigned to the AGO. Irwin, who worked out of the Boston AGO, was the senior ranking officer directing the search of Farak's vehicle. Ballou and Thomas were assigned to the Springfield AGO. Geographical considerations led to Ballou soon becoming the case officer, tasked with organizing search warrants, reviewing seized evidence, and working with the prosecutor to communicate what had been found and what else should be done. (Thomas 58, 66.) The case officer is also responsible for turning over reports, evidence logs, and photographs of the physical evidence to the prosecuting AAG. In addition to Irwin, Ballou and Thomas, a crime scene services officer was present to photograph the interior and exterior of the car and the evidence.

         The execution of the search warrant lasted approximately 90 minutes. During that period, Irwin communicated with Verner by telephone or email. (Irwin 93-94; Verner 124.) Verner, in turn, emailed Bedrosian about the search at 4:07 a.m. and again at 5:38 a.m.

         Execution of the search warrant was challenging. In addition to the early hour and the officers being tired from being awake for nearly 24 hours, Farak's car was filthy and in complete disarray, with stacks of bags, boxes, papers, manila envelopes marked with lab or case numbers, and junk everywhere.[18]

         Irwin, Ballou, and Thomas each searched a different section of the vehicle. As they came across items they believed might have evidentiary value, they moved them to the ground outside the car but within the garage. Irwin and Ballou then brought the evidence to Thomas, the evidence officer, who noted the evidence in the evidence log.

         Inside Farak's car, officers found envelopes and documents bearing information concerning cases and substances tested at the Amherst lab and K-pack bags marked with Hanchett's initials.[19] They also discovered a paper with Pontes' initials written repeatedly, supporting an inference that Farak had been practicing writing them in order to learn to forge them. Farak's car contained plastic bags with assorted pills, a white powdery substance which appeared to be cocaine, and a brown tar-like substance which resembled heroin. Detectives found crack cocaine weighing 5.6 grams and a separate rock of crack cocaine. (Prosecution Memo p. 9.)

         Detectives found hundreds of papers, most of which were inside lab folders. (Ballou 142.) Among the papers was a 2011 NFL game schedule and copies of news articles printed in 2011 and which reported on persons who had been investigated, charged or sentenced for illegal possession or theft of controlled substances.[20] Attached to one of the articles was a handwritten note reading, " Thank [G]od I'm not a law enforcement officer " (emphasis in original).

         Detectives also seized from Farak's car what is at the crux of most of the drug lab defendants' motions for relief: seven pages now referred to as " mental health worksheets, " including: (a) ServiceNet diary cards with handwritten notes by Farak, (b) Emotion Regulation worksheets with Farak's handwritten notes, (c) a Distress Tolerance Worksheet, and (d) various other sheets relating to Farak's therapy, including a page with handwriting and titled " Homework, " dated November 16, 2011.

         The ServiceNet diary cards are used by therapy clients to document the intensity of their urges to engage in certain behaviors such as taking drugs and to report whether they acted on an urge. One of the ServiceNet diary cards found in Farak's car has no name but covers the week of Tuesday, December 20th through Monday, December 26th without referencing a year. In connection with each of those days, Farak described her emotions and whether she felt and acted on urges to use drugs. That card bears notations that Farak took drugs on many of those days. Her entry for Thursday was that she " tried to resist using" work, but ended up failing. (I know I should have called, but had thoughts about the last time I called." For the following day, Friday, she wrote, " " work use w/out debating doing it--my thought about it "identity issue (i.e., wavering back and forth about whether I want to use)." On Saturday, December 24th, Farak noted that she was mad because she had missed watching part of a Patriots football game.[21]

         The other ServiceNet diary card has Farak's first name but no dates. That card contains several references to Christmas and to a football game on that Sunday. The entries indicate that Farak either drank alcohol or took drugs every day that week. The entry for that Friday was that she was " going to use phentermine, but when I went to take it I saw how little (v. little) there is left and ended up not using."

         With the mental health worksheets were two undated Emotion Regulation worksheets. In one of them, Farak described the " prompting event" as: " got good sample " work & having urges to use (& knowing that I will be the only one here after lunch)." She continued in the next entry:

I know I should call Anna [Kogan, her therapist], but I don't want to. I can lie on my homework. I'm a bad person for having urges. I'm a bad person for not wanting to try to stop them. It doesn't matter--I won't get caught.

         She further wrote that her " head is running 100 m/h" and she " can't sit still." She described the urge: " Hurry up and prepare fuse (my mind says to get it out of way, but I don't think that will be the end of it). Give in and go with urge." The second Emotion Regulation worksheet contains notes that Farak will " call Anna to commit to not using" and that Farak had " 12 urge-ful samples to analyze out of next 13." Another page in what appears to be Farak's handwriting reads at the top " Homework 11-16-11." On that page, Farak wrote that she would lie to her prescriber in order to not be taken off one of her medications.

         The mental health worksheets were significant because they: (1) disclosed Farak's admission of drug use and theft of police-submitted samples while she was working at the lab; (2) supported inferences that Farak's misconduct occurred as early as 2011; and (3) revealed that Farak was receiving treatment for drug addiction and that her treatment providers likely would have more information about the scope of Farak's drug use and theft at the lab.

         A thorough review of each piece of evidence seized was not feasible at the search warrant execution scene due to the condition of Farak's car, the number of items in the car, the early morning hour, and the search location. A closer review of the evidence is typically undertaken by the case officer following the search. I find that on January 19, 2013, the detectives did not have the opportunity to review carefully the mental health worksheets and did not then recognize their significance. After searching Farak's vehicle, detectives placed the evidence in boxes and transported the boxes to a secure evidence locker in the Springfield AGO.

         G. The Arrest and Initial Arraignment of Farak

         Later on Saturday, January 19, 2013, at 10:30 p.m., Farak was arrested and charged by criminal complaint with two counts of tampering with evidence, possession of cocaine and possession of heroin. That weekend, Kaczmarek was assigned to prosecute Farak.

         On Monday, January 21, 2013, at 8:32 a.m., Bedrosian emailed Irwin, saying he wanted to speak with Kaczmarek, Calkins, and Verner about the Farak case. (Irwin 99-100.) On Tuesday, January 22, 2013, Kaczmarek appeared at Farak's initial arraignment in Eastern Hampshire District Court.

         H. Vehicle Search Warrant Return and Police Report

         On January 23, 2013, Trooper Randy Thomas filed the search warrant return, listing numerically the items found during the search of Farak's vehicle. Item one is described on the return as a manila envelope with letters and numbers containing an evidence bag and unknown papers. Item two is described as an envelope for Hanchett. Items four, five and eight are all described as " assorted lab paperwork." (Thomas 23.) Farak's mental health worksheets were placed together in item four and were not identified in the search warrant return.

         Thomas explained that the use of the label of " assorted lab paperwork" is " a common practice we use with search warrants when we have voluminous documents, to be able to secure that and get away from the scene, so that it can be reviewed more thoroughly later, " and that " it looked to us at first look it was lab paperwork and that's why it was titled as such and it was secured." (Thomas 25.) When asked by defense counsel, " when you write down 'assorted lab paperwork' on your search warrant return, you may not have ever seen what was seized, correct?" to which Thomas replied, " I probably did not go through it in detailed fashion before the warrant return was done, yes." (Thomas 25-26.) Thomas acknowledged that search warrant returns also sometimes categorize seized documents as " personal papers, " but stated that he personally did not recall seeing personal papers in the search of the vehicle. (Thomas 28-29.) I credit Thomas' testimony that he identified the items on the search warrant return as " assorted lab paperwork" (numbered four, five and eight) because he did not look carefully at each of the papers and because they were inside lab folders, so he assumed that they were assorted lab paperwork.

         On January 25, 2013, Thomas filed a police report on the execution of the vehicle search warrant certifying that it represented an accurate and detailed inventory of all the property taken from the car. Notwithstanding that representation, Thomas testified that he probably did not look at the evidence seized before finalizing that report. (Thomas 30.) The police report, like the search warrant return, did not reference the mental health worksheets.

         I. Searches for Evidence at Amherst Lab in Late January 2013

         1. Search of Farak's Duffle Bag

         On January 25, 2013, police executed the search of the duffle bag from Farak's work station and found substances that could be used to dilute or replace cocaine: a bar of soap with a razor blade, baking soda, candle wax, off-white flakes, and oven-baked clay. The bag also contained items commonly used in the drug trade, such as plastic lab dishes, a plastic bag containing a wax paper fold, and fragments of copper wire.

         The duffle bag also held several laboratory " K-pack" lab evidence bags, one with the initials " RP" for Pontes and two (which had been cut open) with the initials " SF" for Farak. The various K-pack evidence bags were dated between December 16, 2012, to January 6, 2013. This evidence supported an inference that in December 2012 and/or January 2013, Farak had been tampering with evidence previously tested by and assigned to Pontes. As mentioned above, Farak had testified that in 2012, she began taking other chemists' samples, including a submission of cocaine assigned to and already tested by Pontes. Farak later replaced the cocaine with a counterfeit substance and put the sample into a bag pre-initialled by Pontes.

         2. Inventory of Drug Evidence

         On January 19, 2013, the MSP had conducted an inventory of all drug evidence at the Amherst lab and learned that four drug samples were missing. This was in contrast to the inventory completed four months earlier which revealed no missing samples. The discovery of four missing samples was the basis of Farak's indictments as discussed below.

         3. Search of Farak's Workstation

         On January 28, 2013, the MSP searched the lab and recovered a vial of white powder from the top of Farak's desk. The vial was tagged as " Item Number 56." (Exh. 14.) It was analyzed and found to contain acetaminophen and oxycodone. (Exh. 6A.) Investigators found a total of 11.7 grams of cocaine at Farak's desk. (Prosecution Memo p. 9.)

         J. The First Wave of Drug Lab Defendants' Motions

         Farak's misconduct was discovered within a year of the Dookhan scandal. It was expected that, as in the Dookhan cases, a wave of defendants whose drug certificates were signed by Farak would soon file motions for discovery and post-conviction relief. By late January of 2013, that expectation became a reality. Superior Court Regional Administrative Justice C. Jeffrey Kinder was specially assigned to handle those motions, and Hampden County Assistant District Attorney Frank Flannery was placed in charge of responding to such motions on behalf of the Commonwealth. Because the AGO was prosecuting Farak, it had a duty to disclose to district attorneys' offices handling the drug lab cases all exculpatory evidence it gathered in the investigation and prosecution of Farak. Flannery and other ADAs across Massachusetts relied upon the AGO to fulfill its responsibility to provide them with Farak-related discovery which those ADAs in turn were required to provide to defendants potentially affected by Farak's misconduct. That is what the AGO did in the Dookhan cases and what was expected in the Farak cases.

         During the December 2016 evidentiary hearing before me, Kaczmarek, Mazzone, Calkins, and Verner all testified that they were aware that the drug lab defendants were entitled to receive all exculpatory evidence held by the AGO. Both Verner and Kaczmarek sent letters to district attorneys identifying some of the exculpatory evidence held by the AGO in the investigation of Farak. In his letters dated March 27, 2013, to district attorneys, Verner listed potentially exculpatory evidence found in the AGO's Farak investigation and Verner recognized in those letters that the AGO had an obligation to provide such evidence to district attorneys. (Verner 129, Exh, 165.)

         When Kaczmarek was asked whether she thought she had any obligation to turn over evidence to district attorneys handling Farak's cases, she first replied, " Yes. I suppose I had a certain obligation in the interest of, you know, public interest and this investigation." (Kaczmarek 190-91.) When asked if she understood that it was her job to give the Hampden ADA the Farak discovery, she replied, " I don't know if I'd use the word 'obligation, ' but we were providing information to the DA's offices, yes." (Kaczmarek 191.) When asked who had the duty to turn over discovery to the drug lab defendants (through the district attorneys), Kaczmarek responded that it was the AGO, but " I don't think it was my specific obligation . . . I don't think that goes part and parcel with prosecuting Sonja Farak, but we were doing--the Attorney General's Office was, and there was a breakdown." (Kaczmarek 192.)

         K. Initial Concerns About the Scope of Farak's Misconduct

         A major question in the AGO from the time of the first suspicion of Farak's drug tampering was the scope of her misconduct and how many drug lab convictions it may have undermined. The prosecution initially assumed that Farak's drug tampering was limited to the time period of the last half of 2012, and solely to cocaine, because police found cocaine in Farak's car. That assumption was at odds with the evidence uncovered even at that early juncture. By late January 2013, the evidence recovered by investigators from Farak's car, work station, duffle bag and the lab supported reasonable inferences that: (1) Farak was addicted to and had stolen from the lab cocaine, phentermine, oxycodone and possibly heroin; (2) her misconduct occurred as early as 2011; and (3) she may have tampered with samples assigned to Pontes and Hanchett, as she inexplicably had K-pack bags with their initials on them.

         First, investigators found in Farak's car several documents which linked Farak's drug use to 2011. These included Farak's therapy " homework" dated November 16, 2011, and her mental health worksheets which, if considered with prior calendars and/or the 2011 NFL schedule found in her car, showed that she used drugs in December 2011.

         In addition to investigators' discovery of cocaine, heroin, oxycodone and phentermine in conducting searches, the AGO had received information from prosecutors signalling that Farak's misconduct may not have been limited to cocaine in the four months before her arrest. On January 23, 2013, Ballou informed Kaczmarek, Verner, and Irwin that he had received a call from a Hampden County prosecutor about a Springfield drug case involving two samples tested by Farak in 2012. Ballou was told that one sample reportedly had signs of tampering and the other was returned after testing with fewer pills than were originally seized. Ballou wrote, " I'm inclined to go seize the evidence and take statements, but I'm also concerned that this may be the first of many such calls." Kaczmarek responded,

I think this is the tip of the iceberg . . . [Y]our idea of statements and seizing evidence is good. We might also want to start with Springfield PD to see if they can start an inventory of their drug evidence--whether Farak was chemist or not.

         Verner agreed, " I think we should look into it." Ballou replied that he would call the ADA and get more information, and Irwin wrote, " Agree. Joe make sure you document everything." Ballou wrote, " I'll get all of this in writing."

         Ballou's investigation revealed that on March 16, 2012, Springfield narcotics officer Greg Bigda had seized 51 pills while executing a search warrant. After he counted them, and a second officer recounted them to confirm that there were 51 pills, Bigda identified them as oxycodone by referring to an online pill identifier. To his surprise, Farak had issued a certificate stating that the pills contained no illegal drugs, and when he retrieved them, there were 61 pills rather than 51, and that they were different in color and markings than the ones he had seized.

         When informed of the pill discrepancy, Kaczmarek dismissively replied in an email to Ballou, " Please don't let this get more complicated than we thought. If she was suffering from back injury, maybe she took the oxies." (Exh. 231.) When asked to explain that reply, Kaczmarek testified in December 2016 that she feared that if Farak's drug tampering turned out to be more complicated than they had thought, " an avalanche of work" would hit " us."

         In contrast to what transpired with respect to Dookhan and the Hinton lab, which were the subject of broad investigations, [22] no full fledged investigation into the scope of Farak's misconduct began until long after her conviction. In January of 2013, Verner expressed interest in Ballou investigating the scope of Farak's misconduct. In contrast to Kaczmarek, nothing in the record suggests that Verner was then worried that a broader investigation would trigger an " avalanche of work" for his office. Verner's responsibilities as chief of the Criminal Bureau required him to delegate the Farak prosecution to Kaczmarek and trust that the appropriate investigations were being conducted. At some point during the prosecution of Farak, Verner viewed the Farak criminal investigation and prosecution as limited to " what was in front of us, the car, things that were readily apparent" and the " bigger investigation was going to be [by] somebody else." (Verner 205.) Likewise, also at some unspecified point, Irwin told two other MSP captains that the directive from the AGO's Criminal Division was that the investigation into Farak was to focus on Farak's wrongdoings associated with her arrest. (Irwin 123.)

         Verner informed Major James Connolly, the head of MSP crime lab in Maynard, that the AGO was not doing a full investigation on the Amherst lab, that the district attorneys' offices needed their Farak drug samples to be retested at another lab, and that the AGO was not going to be involved with the results of those tests. The record is silent as to whether the Office of the Inspector General conducted an investigation into Farak or the Amherst drug lab.[23] Kaczmarek improperly discouraged such an investigation. In February of 2013, Hampshire County Assistant District Attorney Jeremy Bucci was quoted in a local news report as saying that his office was waiting to hear whether the Amherst drug lab would be investigated by the OIG. On February 26, 2013, Kaczmarek sent an email to then Senior Counsel at OIG, Audrey Mark, a friend, who was leading the investigation at the Hinton lab. Kaczmarek attached the news report and wrote, " Audrey--when they ask you to do this audit--say no. Actually, it's very different than [the Hinton lab in Jamaica Plain]. A professional lab." (Kaczmarek 90.) Mark replied, " Am I allowed to say no ???" and Kaczmarek then wrote, " I should have. It's pretty far."

         L. Ballou Emailed Mental Health Worksheets to Kaczmarek, Verner and Irwin

         Approximately a week or two after the search of Farak's car, Ballou, the now established " case officer" in the Farak investigation, started " going through each piece of paper and tr[ied] to review it in more detail." (Ballou 145.) A few days before February 14, 2013, Ballou examined carefully all the evidence seized from Farak's vehicle and realized that the mental health worksheets constituted evidence of Farak's admissions and, therefore, that they carried considerable evidentiary significance. (Ballou 12/13/2016, 208-09.) As he was in the process of making that discovery, he telephoned Kaczmarek. He was uncertain whether they spoke that day or the next, but when they did speak, he described for her the mental health worksheets.

         Significantly, on February 14th at 3:31 p.m., Ballou emailed scanned copies of some of the mental health worksheets to Kaczmarek, Verner and Irwin. (Exh. 205; Irwin 154.)[24] At that point, the mental health worksheets became not only physical evidence stored at the Springfield AGO, but documentary copies in the email accounts of Ballou, Kaczmarek, Verner and Irwin. The emailed copies of the mental health worksheets then became parts of their files.

         Ballou did not send all of the mental health worksheets, but sent only those which he believed were the most important and potentially inculpatory or relevant to the Farak case which Kaczmarek needed to see. (Ballou 12/14/16 19.) Ballou also sent in the same email copies of some of the news articles found in Farak's car and printed out in 2011. The subject line of Ballou's email reads " Farak Admissions." In the body of the email, Ballou wrote, " Here are the forms of the admissions of drug use that I was talking about." It was clear that such evidence constituted important exculpatory evidence for drug lab defendants and that such evidence supported a finding that the scope of Farak's misconduct warranted further investigation.

         M. Prosecution Memorandum for Presentation to Grand Jury; Verner's First Distribution to District Attorneys Regarding Potentially Exculpatory Information (March 2013)

         In late March of 2013, after reviewing the evidence against Farak and in preparation for the presentation to the grand jury, Kaczmarek drafted the prosecution memorandum (prosecution memo) and submitted it to Mazzone for his review and approval. Mazzone was aware that Kaczmarek had worked on that document with Verner. (Mazzone 53.)

         The prosecution memo lists among the " items of note" recovered from Farak's vehicle " mental health worksheets describing how Farak feels when she uses illegal substances and the temptation of working with urgeful samples." (Exh. 163.) In a footnote to that list, the prosecution memo states, " These worksheets were not submitted to the grand jury out of an abundance of caution, in order to protect possibly privileged information. Case law suggests, however, that the paperwork is not privileged." (Exh. 163.)

         Mazzone did not see the mental health worksheets, but discussed them with Kaczmarek and recognized that (1) even if they were HIPAA-protected, they could be presented to the grand jury under an exception, but (2) they were not relevant or necessary to the presentation of the crimes for which Farak was charged. (Mazzone 54.) Mazzone reviewed the prosecution memo, approved it on March 27, 2013, and sent it to his superior, Verner, for his review and approval. (Mazzone 53.)

         Verner and Kazcmarek discussed the potential problems of presenting to the grand jury evidence of Farak's admissions in the mental health worksheets. (Verner 167.) The prosecution memo contains a notation by Verner regarding the mental health worksheets as follows: " Paperwork not turned over to DA's Office yet." (Verner 169; Mazzone 57.) Verner's notation supports an inference that he expected that the mental health worksheets would be turned over to the district attorneys.[25]

         At that time, the extent of Farak's drug tampering remained an unanswered question, as can be inferred by the conclusion of the prosecution memo:

We are also hoping that the defendant, once indicted, will detail how long she has been abusing drugs and how many cases are affected. Farak would expect some consideration in sentencing for that information.

(Exh. 163.)

         Also on March 27, 2013, the same day that Verner noted on the prosecution memo that the mental health worksheets had not yet been turned over to the district attorneys, he sent a letter to all eleven district attorneys in the Commonwealth informing them that in its investigation of Farak, the AGO had acquired potentially exculpatory information and materials which it was obligated to provide to the district attorneys and that the AGO was meeting that obligation. (Verner 111.) That letter reads as follows:

This Office is investigating Sonja Farak, a chemist who conducted analysis of suspected narcotic samples out of the Amherst drug laboratory. Ms. Farak is currently charged in Belchertown District Court with two counts of tampering with evidence, one count of possession of Class A substance, and one count of possession of a Class B substance. During our investigation, this Office has produced or otherwise come into possession of information, documents and reports. Pursuant to this Office's obligation to provide potentially exculpatory information to District Attorneys as well as information necessary to your Offices' determination about how to proceed with cases in which related narcotics evidence was tested at the Amherst laboratory, please find the below the listed materials: . . .

(Exhs. 165 & 260; Verner 160-61.) The 16 items listed in Verner's letter refer to reports by Ballou and Thomas, transcripts of interviews of Amherst lab chemists, an evidence report form, evidence recovery log with photos, a 13-page evidence log, and other reports. There was no reference to the mental health worksheets. Kaczmarek also sent district attorneys a similar communication in the Farak case, but omitted the mental health worksheets.

         In late March of 2013, Kaczmarek, Mazzone, Verner and Calkins all knew that the mental health worksheets containing Farak's drug admissions would not be presented to the grand jury and had not been turned over to the district attorneys. Although the AGO had reason not to present the evidence to the grand jury, there was no explanation as to why it had not been turned over to district attorneys on March 27, 2013.

         Thus, by the end of March 2013, the mental health worksheets had been: (1) identified within the AGO as significant and exculpatory; (2) the sole subject of Ballou's February 14, 2013 email; (3) sent by Ballou via email to Kaczmarek, Verner, and Irwin, and thus became a part of their files; (4) intentionally excluded from presentation to the grand jury; (5) expressly identified in the prosecution memo with Verner's handwritten notation that, " This paperwork not turned over to DA's offices yet"; and (6) not turned over to district attorneys' offices across the Commonwealth.

         N. Farak's Indictment and Second Arraignment (April 2013)

         On April 1, 2013, a Statewide Grand Jury indicted Farak on charges of evidence tampering, theft of a controlled substance, and unlawful possession of cocaine. Whereas Farak had originally been charged by criminal complaint with two counts of tampering with evidence and possession of heroin and cocaine, her indictment was on four counts of tampering with evidence, four counts of stealing cocaine from the lab, and two counts of unlawful possession of cocaine. Commonwealth v. Ware, 471 Mass. 85, 88, 27 N.E.3d 1204 (2015).[26] The indictments were transferred to Hampshire County Superior Court, where Farak was arraigned on April 22, 2013. Kaczmarek appeared for the AGO and Attorney Elaine Pourinski appeared for Farak.

         O. Kaczmarek Told Pourinski That Mental Health Worksheets Would Not Be Given to Drug Lab Defendants

         On April 22, 2013, Pourinski received from Kaczmarek a certificate of discovery and discovery materials on CDs, including the mental health worksheets in which Farak admitted to using drugs. Subsequently, most likely in the summer of 2013, Kaczmarek informed Pourinski at the Hampshire Superior Court that the AGO considered the mental health worksheets to be privileged and that the AGO was not going to turn them over to the drug lab defendants. (Pourinski 21-22.)[27]

         I find that by the summer of 2013, Kaczmarek had determined that the AGO was not going to give the mental health worksheets to the drug lab defendants. Kaczmarek was accorded significant deference in leading the Farak prosecution. She had the trust of her superiors and she circumscribed the scope of Ballou's investigation into Farak's misconduct. As explained below, Kaczmarek's view and statements largely controlled the AGO's responses to the drug lab defendants' discovery motions insofar as that discovery would have led to the mental health worksheets.

         P. Drug Lab Defendants' Discovery Motions And Scheduling of Consolidated Evidentiary Hearing

         While Farak's prosecution was pending, drug lab defendants whose certificates of analysis had been signed by Farak filed motions for post-conviction relief and discovery. One of those defendants, Penate, had not yet been tried and had moved for discovery. On May 14, 2013, Penate moved to compel discovery of items relating to Farak's arrest and prosecution. The discovery was not forthcoming. On July 15, 2013, Penate moved to dismiss most of the indictments against him based in part upon the government's noncompliance with its obligation to turn over evidence requested by the defense. On July 22, 2013, Judge Mary-Lou Rup heard that motion, determined that in order to rule upon it, an evidentiary hearing was necessary regarding the scope of Farak's misconduct, and she reminded the Hampden District Attorney's office of its

obligation to seek [evidence] from government agencies (including the Office of the Attorney General) and to produce exculpatory evidence that may be favorable to this defendant's case, and not simply turn a blind eye to what is not in its immediate control.

         At that point, neither the drug lab defendants, the district attorneys, nor Judge Rup knew that the AGO possessed the mental health worksheets but had not turned them over to the district attorneys.

         On July 25, 2013, Judge Kinder consolidated 16 unrelated post-conviction Farak cases involving 15 defendants[28] for an evidentiary hearing to be conducted on September 9, October 7, and October 23, 2013. Judge Kinder limited the hearing to: (1) the timing and scope of Farak's misconduct; (2) the timing and scope of the negative findings in the MSP's October 2012 quality assurance audit of the Amherst lab; and (3) how the alleged criminal conduct and audit findings might have impacted the drug testing in the drug lab defendants' cases.

         Judge Kinder designated as lead counsel for the defendants Attorneys Luke Ryan and Jared Olanoff. The Commonwealth and Penate, then in pre-trial proceedings, agreed that the evidence to be taken in the consolidated evidentiary hearing would be used to resolve Penate's motion to dismiss, upon which Judge Kinder conducted an additional hearing on October 2, 2013.

         Q. Drug Lab Discovery (August through October 2013)

         In August through October of 2013, the drug lab defendants sought discovery through multiple avenues, including: (1) subpoenas duces tecum served on Ballou (in Penate and Watt cases); (2) a subpoena duces tecum served on Kaczmarek (in the Penate case); (3) a motion by Penate and Rodriguez to inspect the evidence seized from Farak's car; (4) a motion by Penate to compel the AGO to produce, inter alia, inter and intra-office correspondence relating to the scope of Farak's misconduct; and (5) Rodriguez's motion for discovery of evidence that a third party had knowledge of Farak's alleged malfeasance prior to her arrest.[29]

         1. Subpoenas Duces Tecum to Ballou

         On August 22, 2013, Ballou and Kaczmarek received subpoenas duces tecum in the Penate case. The subpoenas commanded the production of " Copies of any and all inter-office correspondence pertaining to the scope of evidence tampering and/or deficiencies at the Amherst Drug Laboratory from January 18, 2013, to the present." (Exhs. 198, 199.)

         In late August of 2013, Ballou also received a subpoena in the Watt case (0979CR1068) summonsing him to appear and testify at the evidentiary hearing beginning on September 9th, and to bring with him " all documents and photographs pertaining to the investigation of Sonja J. Farak and the Amherst Drug Laboratory." (Exh. 183.) That subpoena had the force of a court order to Ballou to bring to court on September 9th all documents pertaining to the Farak investigation. Among the documents responsive to the subpoenas to Ballou and Kaczmarek were copies of the mental health worksheets as scanned and sent by Ballou in his email dated February 14, 2013, which email and attachments became a part of Ballou's and Kaczmarek's files.

         Verner and Ravitz, with agreement by Reardon, assigned AAG Kris Foster the job of preparing and filing motions to quash the subpoenas and arguing motions before Judge Kinder on September 9, 2013. (Ravitz 13; Foster 13-14; Reardon 211.) Foster had just begun her employment with the AGO in July of 2013 after working as an ADA for several years.[30] In late August 2013, Ravitz met with Foster to go through the steps of preparing motions to quash. Ravitz does not recall telling Foster to review the files. (Ravitz 50-51.)

         The fundamental first step in preparing a motion to quash, after reading the subpoena, is to examine the materials sought. Foster should have collected the files from Ballou and Kaczmarek, reviewed their contents, and either asked Ballou and Kaczmarek to find responsive documents in their emails or she ought to have asked the IT department to check electronically stored information (ESI) to see what evidence responsive to the subpoenas existed. (Reardon 177.) Had Foster reviewed either of their files or the physical evidence or had she arranged for IT to check Ballou's and Kaczmarek's ESI, Foster would have seen the mental health worksheets.

         (a) AGO Communications Regarding Ballou Subpoenas

         The Ballou subpoenas prompted a flurry of emails and meetings in the AGO before and after the September 9th hearing. On Tuesday, September 3, 2013, at 8:42 a.m., Kaczmarek emailed Ravitz and Reardon, and copied Verner, informing them that, " This is the subpoena we were expecting." Minutes later, Kaczmarek continued,

[I am told] that the judge wants to come to the bottom of the issues mentioned below, making it unlikely he will allow a motion to quash. As long as the judge has set up the scope of the motion, and I am confident that Ballou will be pretty unhelpful in what the judge is trying to do, do we just let Ballou go?

         An hour later, Ravitz emailed Irwin, Mazzone, Reardon, and Meghan Scafati, Verner's administrative assistant, to set up a meeting regarding the subpoena to Ballou. Ravitz wrote, " One thing we can talk about is that sometimes, even if we can't quash the subpoena, we will get its scope limited, so as to preclude certain types of questions." (Irwin 131.)

         (b) Foster Was Told That She Did Not Need to See Ballou File

         On September 3, 2013, Foster met with her superiors regarding the Ballou subpoena. (Foster 43-44.) This was the first in a series of five to fifteen minute meetings in Verner's office about the Farak discovery. When asked about that meeting, Foster testified,

I don't remember much more other than being told I didn't need to see the file, that there was nothing in it. This was before the September 9th hearing, but I don't remember what the date was. [I remember] being told that everything had been turned over, there's no need to see the trial file. It was an ongoing prosecution so I should just go with that.

(Foster 87.) Foster took this to mean that she should " take them for their word that everything had been turned over. They were my superiors, so that's what I did." (Foster 87-88.) Although Foster did not say that Kaczmarek attended that meeting, Foster testified that at some point, " Kaczmarek told me that those documents, she didn't want turned over, she didn't want produced, they'd already--everything had been produced." (Foster 16.) Kaczmarek testified that when Ballou received his subpoena duces tecum, " at that time I don't know if I even realized that those worksheets hadn't been turned over." (Kaczmarek 182-83.) She contradicted herself, however, as she also testified that she would not have told Foster in September 2013 that everything in her file had already been disclosed because " I think that I knew the mental health records hadn't been disclosed up until that point." (Kaczmarek 133.) I find that Kaczmarek intentionally gave Foster, Reardon, at least one ADA, and likely her supervisors, the misimpression that everything in Ballou's file had been turned over to the District Attorneys' Offices.[31] Kaczmarek was accorded and exerted significant control over the Farak matters, including discovery, the scope of the AGO's investigation, and the prosecution of Farak.

         Foster never reviewed the evidence sought under any of the subpoenas or discovery motions in the Farak matter. There is no merit to her excuse that she made no independent decisions about this case because the AGO protocol gave line AAGs like herself very little discretion. (Foster 91-92.) Foster chose to follow instructions and information received from Kaczmarek while ignoring established protocol, common sense, and, as explained below, subsequent unambiguous directives from her superior, Reardon, and more importantly court orders from Judge Kinder.

         (c) Foster's Preparation of Motions to Quash

         From September 3rd to 6th, 2013, Foster prepared the motion to quash the Ballou subpoena in the Watt case. To guide her, Ravitz gave Foster a sample motion which sought relief from the obligation to produce information concerning the psychological treatment of individuals. Foster incorporated that language in the final, filed version of the motion to quash. In another case, Foster copied the same language in a draft but Ravitz instructed her to delete it because it was irrelevant and to tailor her arguments to the types of information claimed to be protected. (Foster 50-51.)

         Foster's draft motion to quash Watt's subpoena to Ballou argued that the documents and information sought were privileged because there was an ongoing investigation and/or because the documents were protected work product. Alternatively, the motion drafted by Foster sought a protective order to restrict the scope of the subpoena by not requiring the AGO to produce seven types of information, including " emails responsive to the subpoena, but not already contained in the case file specifically listed therein" and " information concerning the health or medical or psychological treatment of individuals." Foster later used this exact language in drafts approved by Ravitz in several memoranda aimed at limiting discovery in the Penate case.[32] This wording and these grounds were not inadvertent but deliberately intended to relieve the AGO from having to produce the mental health worksheets.

         Foster had no reasonable basis to believe that any of these arguments had merit. She had not seen the evidence and was therefore unable to determine what it was and whether the drug lab defendants already had obtained what they were requesting. The second basis, that the documents were privileged, was questioned even by Kaczmarek in the prosecution memo, and in any event could not have been evaluated by Foster without her having seen the evidence. Equally untenable was Foster's third argument for quashing the subpoena. When pressed to explain during the December 2016 evidentiary hearing why an ongoing investigation constituted grounds for quashing the subpoena, Foster's illogical response had nothing to do with any investigation, but instead was that Kaczmarek did not want the documents to be produced and that they had already been turned over. (Foster 16.)

         On September 5th, Foster asked Reardon to review her draft motion to quash. Reardon testified that she learned from reading that draft that the AGO possessed psychological or medical documents which it sought to shield from discovery by claiming that they were protected by a privilege against disclosing information related to psychological or medical treatment. Reardon never saw the mental health work sheets. (Reardon 175-76.) I find Reardon credible and credit her testimony.

         Reardon returned Foster's draft with instructions that she review the Ballou file pertinent to the Farak matter and obtain more information about what had been turned over already to the drug lab defendants. Where the draft represented that nearly all of the documents responsive to the subpoena would constitute CORI, Reardon asked Foster if that were true. Reardon noted that she would be more comfortable knowing what documents were at issue and what had been turned over before raising the CORI privilege. Reardon urged Foster to confirm the accuracy and truth of her representations about the contents of the documents at issue. (Foster 49.) When Reardon asked Foster if she had reviewed the Ballou files, Foster falsely responded that she had done so. (Reardon 178, 210.)

         (d) Evidentiary Hearing on September 9, 2013

         At the September 9th hearing, Judge Kinder denied the AGO's motion to quash the Ballou subpoena in the Watt case insofar as it related to Ballou's testimony at the evidentiary hearing. Judge Kinder then heard Foster's request for a protective order that the AGO not be required to produce all of Ballou's file, which, stunningly, neither Ballou nor Foster had brought to the hearing.

Judge Kinder: My first question is, have you actually personally reviewed the file to determine that there are categories of documents in the file that fit the description of those that you wish to be protected?
Foster: I have been talking with AAG Kaczmarek who has been doing the investigation for the Attorney General's Office. She has indicated that several documents, emails, ...

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