Heard: May 8, 2018
action commenced in the Supreme Judicial Court for the
county of Suffolk on September 20, 2017.
case was reported by Gaziano, J.
Rebecca A. Jacobstein, Committee for Public Counsel Services
(Benjamin H. Keehn, Committee for Public Counsel Services,
also present) for Committee for Public Counsel Services.
Matthew R. Segal (Carlton E. Williams & Daniel N. Marx
also present) for Hampden County Lawyers for Justice, Inc.,
E. Bocian, Assistant Attorney General (Anna E. Lumelsky &
Thomas A. Caldwell, Assistant Attorney General) for Attorney
A. Pieropan, Assistant District Attorney (Susanne M.
O'Neil, Hallie White Speight, Shoshana Stern, & Sara
Concannon DeSimone, Assistant District Attorneys, also
present) for District Attorney for the Berkshire District
following submitted briefs for amici curiae:
Jessica Ring Amunson, of the District of Columbia, &
Andrew C. Noll for Legal Ethics and Criminal Justice Scholars
Douglas I. Koff, of New York, Adam S. Hoffinger &
Nicholas A. Dingeldein, of the District of Columbia, &
Radha Natarajan for The Innocence Project, Inc., &
M. Siegel & Elizabeth A. Ritvo for Boston Bar
M. Neily, III, & Jay R. Schweikert, of the District of
Columbia, Monica Shah, & Emma Quinn-Judge for Cato
Institute & another.
Fitzgerald, pro se.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
& Kafker, JJ.
called upon, in the exercise of our broad powers of
superintendence over the courts of the Commonwealth, to
remedy egregious governmental misconduct arising out of the
scandal at the State Laboratory Institute in Amherst at the
campus of the University of Massachusetts (Amherst lab or
lab). The misconduct at issue involves evidence tampering by
a chemist, Sonja Farak, who stole drugs submitted to the lab
for testing for her own use, consumed drug
"standards" that are required for testing, and
manipulated evidence and the lab's computer system to
conceal her actions. The government misconduct at issue also
involves the deceptive withholding of exculpatory evidence by
members of the Attorney General's office, who were
duty-bound to investigate and disclose Farak's
our third decision addressing the Amherst lab scandal. See
Commonwealth v. Cotto, 471 Mass.
97 (2015); Commonwealth v. Ware,
471 Mass. 85 (2015). Three years ago, we considered evidence
that Farak had stolen portions of samples from a handful of
cases that had been submitted to the lab for analysis. See
Cotto, supra at 109-110. Based on the
reported limited scope of Farak's misconduct, we
concluded that evidence tampering at the Amherst lab did not
constitute "a systemic problem" warranting
extraordinary relief. Id. at 110. We also expressed
our dissatisfaction with the Commonwealth's "cursory
at best" investigation into the timing and scope of
Farak's misconduct. Id. at 111-112. We remanded
the matter to the Superior Court to provide the Commonwealth
an opportunity to fulfil its duty to "learn of and
disclose . . . any exculpatory evidence that is held by
agents of the prosecution team, who include chemists working
in State drug laboratories" (citation and quotations
omitted) . Id. at 112, 120.
remand, on December 7, 2015, the Chief Justice of the
Superior Court appointed Superior Court Judge Richard J.
Carey to hear all cases arising from Farak's misconduct.
In December, 2016, Judge Carey conducted an evidentiary
hearing over six days, after which he found that the
government had vastly understated the extent of Farak's
misconduct. Moreover, he determined that two assistant
attorneys general had perpetrated a "fraud upon the
court" by withholding exculpatory evidence and by
providing deceptive answers to another judge in order to
conceal the failure to make mandatory disclosure to criminal
defendants whose cases were affected by Farak's
misconduct. The judge determined that certain cases in which
Farak had signed a certificate of drug analysis (drug
certificate) during her employment at the Amherst lab were
subject to dismissal. He found further, however, that
Farak's misconduct had not undermined testing results
reported by other chemists who had been assigned to the
Amherst lab during the period that Farak was employed there.
petitioners -- the Committee for Public Counsel Services;
Hampden County Lawyers for Justice, Inc.; and two named
former criminal defendants -- sought relief in the county
court through a petition pursuant to G. L. C. 211, § 3,
and G. L. c. 231A, § 1, claiming that the misconduct by
the district attorneys and members of the Attorney
General's office required the imposition of a
"global remedy." The petitioners requested that the
single justice construct a "global remedy" by
vacating and dismissing all convictions tainted by the
Commonwealth's misconduct. More particularly, the
petitioners argued that all drug convictions in which the
samples had been tested by the Amherst lab during Farak's
almost nine-year tenure should be vacated and dismissed. In
addition, the petitioners asked the single justice to
exercise the court's superintendence authority and to
issue prophylactic standing orders designed to ensure that,
in the future, the Commonwealth timely discloses exculpatory
evidence, and that procedures are in place to prevent a
recurrence of a similar situation.
a number of hearings, the district attorneys agreed to the
vacatur and dismissal of approximately 8, 000 cases in which
Farak had signed a drug certificate. Two district attorneys
did not agree to dismissal of all charges, in their
respective counties, in which Farak had signed the drug
certificate. The single justice reserved and reported the
matter to the full court, and issued three questions for the
parties to answer in their briefs. The reported questions
"1. Whether the defendants in some or all of the
'third letter' cases are entitled to have their
convictions vacated, and the drug charges against them
dismissed with prejudice, given the undisputed misconduct of
the assistant Attorneys General found by Judge Carey in
Commonwealth v. Erick Cotto, Hampden Sup. Ct., No.
2007-770 (June 26, 2017) (memorandum and order on
postconviction motions), and given the conduct of the
District Attorneys that the petitioners allege was improper.
"2. Whether the definition of 'Farak defendants'
being employed by the District Attorneys in this case is too
narrow; specifically, based on the material in the record of
this case, whether the appropriate definition of the class
should be expanded to include all defendants who pleaded
guilty to a drug charge, admitted to sufficient facts on a
drug charge, or were found guilty of a drug charge, if the
alleged drugs were tested at the Amherst Laboratory during
Farak's employment there, regardless [of] whether Farak
was the analyst or signed the certificates in their cases.
"3. Whether, as the petitioners request, the record in
this case supports the court's adoption of additional
prophylactic measures to address future cases involving
widespread prosecutorial misconduct, and whether the court
would adopt any such measures in this case."
the matter had been reported to the full court, the district
attorneys agreed to dismiss all of the so-called "third
letter" cases in which Farak had signed the
drug certificates, rendering moot the first reported
this court, however, the respondent district attorneys
contest the relief sought by the petitioners: dismissal of
all cases where the drug samples had been tested by the other
chemists who worked at the Amherst lab during Farak's
tenure. The district attorneys argue that there is no factual
basis for a conclusion that Farak's misconduct
compromised the analyses performed by other chemists at the
Amherst lab, and that prosecutorial misconduct does not merit
dismissal of such a large group of cases as is at issue here.
In addition, the district attorneys contend that existing
rules of criminal procedure and professional conduct are
adequate to ensure that prosecutors disclose exculpatory
evidence and do so in a timely manner.
respondent Attorney General contests the petitioners'
proposed remedy, as well as the result suggested by the
district attorneys. The Attorney General proposes a different
remedy. Based on Farak's admission that she began to
tamper with other chemists' samples in the summer of
2012, the Attorney General contends that those defendants
whose drug samples were tested between June, 2012, and
Farak's arrest in January, 2013, should be offered the
opportunity to obtain relief under the protocol established
by this court in Bridgeman v. District
Attorney for the Suffolk Dist., 476 Mass. 298, 316-317
(2017) (Bridgeman II).
conclude that Farak's widespread evidence tampering has
compromised the integrity of thousands of drug convictions
apart from those that the Commonwealth has agreed should be
vacated and dismissed. Her misconduct, compounded by
prosecutorial misconduct, requires that this court exercise
its superintendence authority and vacate and dismiss all
criminal convictions tainted by governmental wrongdoing.
While dismissal with prejudice "is a remedy of last
resort," it is necessary in these circumstances
(citation omitted) . Id. at 316. No other remedy
would suffice in this case, where the governmental misconduct
was "egregious, deliberate, and intentional," and
resulted in a violation of constitutional rights that
"give[s] rise to presumptive prejudice" (citation
to answer the second reported question, we rely on evidence
that Farak's misconduct between 2004, when she began
working at the Amherst lab, and the end of 2008 was limited
to stealing from a methamphetamine standard, and that, in
2009, she began stealing from police-submitted samples and
otherwise engaging in widespread evidence tampering. Thus, we
define the term "Farak defendant" to include, in
addition to those defendants whose drug certificate was
signed by Farak (and whose convictions have been vacated),
(1) those individuals who were convicted of methamphetamine
offenses during Farak's tenure at the Amherst lab; and
(2) those individuals whose convictions were based on drugs
tested in the Amherst lab on or after January 1, 2009, and
through January 18, 2013, the date the lab closed, regardless
of who signed the drug certificate of analysis.
response to the third reported question, we ask this
court's standing advisory committee on the rules of
criminal procedure to draft proposed amendments to rule 14 of
the Massachusetts Rules of Criminal Procedure to better
define the prosecutor's absolute duty to disclose
exculpatory evidence in a timely manner.
following facts are drawn from the findings by Judge Carey in
his exhaustive, 127-page memorandum and order on the
petitioners' motions to dismiss or for postconviction
relief, based on the evidence before him at the six-day
1960s, the Department of Public Health (DPH) began operating
a laboratory for drug testing on the campus of the University
of Massachusetts at Amherst. The State police took over
operation of the lab in July, 2012, and oversaw the lab until
its closure on January 18, 2013. The Amherst lab served as a
satellite laboratory for DPH's William A. Hinton State
Laboratory Institute (Hinton lab), which was located in the
Jamaica Plain area of Boston. By 1987, the Amherst lab's
primary function was the analysis of suspected controlled
substances submitted by law enforcement agencies in western
least 2008 until the closure of the Amherst lab, four
employees were assigned to it. These were chemists Farak and
Rebecca Pontes; supervisor James Hanchett; and evidence
officer Sharon Salem. The Amherst lab was "more laid
back [than the Hinton lab]," and had "basically ...
no oversight." Farak and Pontes, for example,
occasionally would assign evidence samples if the evidence
officer was not in the office, and every employee had
unfettered access to drug standards, police-submitted
samples, and the computer inventory system. Between 2006 and
July, 2012, officials from DPH visited the Amherst lab only
once or twice.
was hired in May, 2003, as a Chemist I at the Hinton lab; she
transferred to the Amherst lab in August, 2004. Farak worked
as a chemist at the Amherst lab until the lab closed on
January 18, 2013. The supervisor who preceded Hanchett
indicated on Farak's annual personnel reviews from 2004
to 2008 that she was a thorough analyst with high output, who
met or exceeded expectations in all performance criteria. In
June, 2005, DPH promoted Farak to Chemist II, and she was
assigned additional responsibilities, including testing
larger and more complex samples and repairing equipment.
Hanchett assumed supervision of the Amherst lab in June,
2008, and discontinued the practice of conducting annual
performance reviews. He and Farak's other coworkers
believed that, throughout most of her employment, Farak was
an excellent, meticulous chemist.
Misuse of lab samples.
began using alcohol and marijuana regularly around the year
2000, while she was in her first year of a Ph.D. program. She
occasionally experimented with other drugs, including
cocaine, methylenedioxy methamphetamine (also known as
"MDMA" or "Ecstasy"), and heroin.
point in late 2004 or early 2005, after transferring to the
Amherst lab, Farak discovered a large bottle of
methamphetamine oil in the unlocked refrigerator that held as
many as fifty standards. She used a pipette to remove some
of the methamphetamine from the bottle and squirted it into
her mouth. The methamphetamine gave her increased energy and
alertness, providing "the pep [she had] been looking
for." She later testified that she "felt
amazing" when using methamphetamine. Within a short
period of time, Farak was stealing and consuming portions of
the methamphetamine standard every morning. By 2009, her
consumption had increased to several times per day. She was
under the influence of methamphetamine much of the time she
was at work, including days when she testified in court.
end of 2008 or early 2009, Farak had almost completely
exhausted the methamphetamine standard. Around the same time,
Hanchett was planning to conduct an audit of the lab; Farak
became "slightly paranoid" that he would notice
that the amount of methamphetamine oil in the jar had
decreased substantially. To avoid this eventuality, she added
water to the jar. Thereafter, Farak began searching for other
standards to use. She discovered a "large jar" of
amphetamine and "a couple smaller containers of
phentermine," and she began to consume these drugs.
Additionally, throughout 2009, Farak also stole from the lab
standards for ketamine, MDMA, methylenedioxy ethylamphetamine
(MDEA), lysergic acid diethylamide (LSD), and cocaine.
early 2009, Farak also began substance abuse counselling. At
first, she declined to answer questions about her drug use.
On April 28, 2009, she admitted to her therapist that she had
been using illegal drugs for a long period of time, and that
she "obtain[ed] the drugs from her job at the [S]tate
drug lab, by taking portions of samples that [had] come in to
be tested." Farak explained that she initially had begun
by taking relatively small amounts from police-submitted
samples that fell within the "acceptable loss" of
approximately five per cent that ordinarily could be depleted
due to testing and evaporation in storage. On August 25,
2009, Farak told her therapist that she was "almost
out" of her drug supply.
later explained to her therapist that, in late 2009, she had
stolen cocaine from a large batch of samples submitted by
inspectors for the United States Postal Service, and
maintained that that was the first time she had tampered with
a submitted sample. She recalled the sample clearly because
of its size and its source, but also because that had been
the first time that she had crossed a line into a new level
of lab misconduct. According to Farak, "taking from . .
. evidence [was] a whole other level of morality [she]
never thought [she] would cross and [she] did and it scared
2011, Farak's cocaine use increased at the same time that
she used up lab standards; in response, she turned to
police-submitted samples of powder and "crack"
cocaine. By the end of 2011, Farak was "totally
controlled by [her] addiction." Throughout 2012, she was
smoking crack cocaine ten to twelve times per day, both when
she was at work and at home and while driving. Farak smoked
crack cocaine in the bathroom of the lab, at her lab bench
when no one else was around, in the evidence room, and in the
lab's fume hood so that she could "get rid of . . .
the smoke directly."
her burgeoning drug use from her colleagues, Farak began to
counterfeit crack cocaine using a variety of substances,
including rocks, soap chips, candle wax, and modeling clay,
and to manipulate the inventory list on the evidence
computer. By the end of 2011, Farak routinely manipulated the
computer system to assign herself the samples that she
wanted. If she skimmed from a sample before it was assigned
to anyone, she altered the gross weight on the drug receipt
so that the chemist who tested the sample would not notice;
following analysis, she changed the weight back to the
original amount so that the investigating officers would be
unaware of the tampering. Farak also lowered the temperature
on the heat sealers, so that samples brought in unsealed
could not be sealed properly, thereby allowing her easier
access without noticeable tampering.
illustrative case, Farak removed "a good hundred
grams" from a kilogram of cocaine that had been
submitted by the Chicopee police department. Unsure whether
the missing one hundred grams would be noticed, Farak
replaced the missing volume with a mixture of baking powder
and baking soda. On another occasion, she removed 200 grams
of powder cocaine from a Holyoke case and took the drugs home
to cook into crack cocaine.
Carey noted that Farak testified at the grand jury that
"she began taking other chemists' samples in the
summer of 2012." Farak testified that she took
approximately six of Hanchett's samples of crack cocaine
from his work station. These samples included "3.5 grams
submitted by the Northampton Police Department, and a 24.5
gram sample from the Pittsfield Police Department."
Farak replaced the crack cocaine with counterfeit substances
and placed the samples in bags that Hanchett had
pre-initialed to save time. Farak testified that, on another
occasion, she took thirty grams of cocaine from a
seventy-three-gram Springfield police department submission
that had been assigned to Pontes. She used it to manufacture
crack cocaine, and replaced the missing cocaine with a filler
the State police assumed control of the Amherst lab in July,
2012, their quality assurance team instructed Hanchett to
inventory the lab standards. At that point, Hanchett noticed
that the standards were more depleted than he had expected,
and mentioned that observation to Salem, Pontes, and Farak.
In September or October, 2012, Hanchett noticed that
Farak's productivity had dropped, and he encouraged her
to focus on her work. Aside from this single comment by
Hanchett, and despite Farak's almost daily drug use
starting in 2004, her coworkers did not question her work.
State police team members who met with Farak also did not
notice that she was under the influence of drugs.
January 17, 2013, Salem was matching drug certificates to
corresponding samples and noticed that two samples were
missing. She determined that both samples had been assigned
to Farak, who had identified them as cocaine. The next
morning, Salem told Hanchett about the missing samples.
Hanchett searched the lab and discovered at Farak's work
station an envelope containing the cut-open packaging for the
missing samples, as well as materials Farak used as fillers
to create counterfeit drugs. The substances in the packaging
tested negative for cocaine. Hanchett notified the lab
director, State police Major James Connolly, who instructed
Hanchett to close the lab immediately. State police
officers then alerted the office of the Attorney General.
morning of January 18, 2013, Farak was expected to testify in
a case in which she had issued a drug certificate. Two State
police detectives located her at the court house and
interviewed her. Following the interview, Farak refused to
consent to a search of her vehicle; the vehicle was seized
and towed to the garage at the State police barracks.
January 19, 2013, Farak was arrested on charges of tampering
with evidence, possession of cocaine, and possession of
heroin. On the same day, a clerk-magistrate issued a warrant
to search Farak's vehicle. Detective Lieutenant Robert
Irwin, Sergeant Joseph Ballou, and Trooper Randy Thomas, who
were assigned to the Attorney General's office, executed
the search warrant; a crime scene services officer
photographed the vehicle and the evidence found within it.
Among other things, the officers discovered bags containing
pills, a white powdery substance that resembled cocaine, a
brown tar-like substance that resembled heroin, and crack
cocaine. The vehicle also contained empty evidence bags
marked with Hanchett's initials, and a sheet of paper
that bore repeated written instances of Pontes's
initials. In addition, there were multiple manila envelopes
containing hundreds of pages marked with case numbers, some
dating back to 2008. Given time restraints and the sheer
volume of documents, the initial search warrant return listed
the folders and documents as "assorted lab
paperwork"; the officers intended to examine the
evidence more closely at a later time.
January 25, 2013, investigators also executed a search
warrant for Farak's duffel bag, which was found at the
Amherst lab, and discovered substances that could be used to
create counterfeit cocaine, including soap, baking soda,
candle wax, off-white flakes, and modeling clay, as well as
plastic lab dishes, wax paper, and fragments of a crack
cocaine pipe. In addition, they found empty evidence bags
that had been cut open; one bag was labeled with Pontes's
initials, and two were labeled with Farak's initials. On
January 28, 2013, State police searched Farak's work
station and found a vial of white powder that tested positive
for oxycodone; they also found 11.7 grams of cocaine in one
of her desk drawers.
Attorney General Anne Kaczmarek was assigned to prosecute the
case against Farak. As with the Attorney General's
investigation and prosecution of former DPH chemist Annie
Dookhan, the Attorney General's office agreed to provide
the district attorneys with information as the case unfolded.
The district attorneys, in turn, were required to provide any
such discovery to defendants whose convictions were called
into question by Farak's misconduct.