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Committee for Public Counsel Services v. Attorney General

Supreme Judicial Court of Massachusetts, Suffolk

October 11, 2018

COMMITTEE FOR PUBLIC COUNSEL SERVICES & others[1]
v.
ATTORNEY GENERAL & others.[2]

          Heard: May 8, 2018

         Civil action commenced in the Supreme Judicial Court for the county of Suffolk on September 20, 2017.

         The 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., & others.

          Thomas E. Bocian, Assistant Attorney General (Anna E. Lumelsky & Thomas A. Caldwell, Assistant Attorney General) for Attorney General.

          Joseph 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 & others.

         The following submitted briefs for amici curiae:

          Jessica Ring Amunson, of the District of Columbia, & Andrew C. Noll for Legal Ethics and Criminal Justice Scholars & another.

          Douglas I. Koff, of New York, Adam S. Hoffinger & Nicholas A. Dingeldein, of the District of Columbia, & Radha Natarajan for The Innocence Project, Inc., & another.

          David M. Siegel & Elizabeth A. Ritvo for Boston Bar Association.

          Clark M. Neily, III, & Jay R. Schweikert, of the District of Columbia, Monica Shah, & Emma Quinn-Judge for Cato Institute & another.

          Steven Fitzgerald, pro se.

          Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

          GAZIANO, J.

         We are 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 wrongdoing.

         This is 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.

         On 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.

         The 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.

         Following 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 asked:

"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."

         After the matter had been reported to the full court, the district attorneys agreed to dismiss all of the so-called "third letter"[3] cases in which Farak had signed the drug certificates, rendering moot the first reported question.

         Before 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.

         The 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).

         We 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 omitted). Id.

         Accordingly, 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.

         In 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.[4]

         Background.

         The 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 hearing.

         1. Amherst lab.

         In the 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 Massachusetts.

         From at 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.

         2. Farak's employment.

         Farak 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.

         3. Misuse of lab samples.

         Farak 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.

         At some 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.[5] 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.

         By the 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.

         In 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.

         Farak 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 [her]."

         In 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."[6]

         To hide 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.

         In one 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.

         Judge 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 substance.

         After 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.

         4. Farak's arrest.

         On 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.[7] State police officers then alerted the office of the Attorney General.

         On the 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.

         On 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.

         On 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.

         Assistant 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.

         5. Attorney ...


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