Criminal – Exculpatory evidence – Misconduct

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Where the record showed widespread tampering and misconduct by a state lab chemist and the subsequent withholding of exculpatory evidence by members of the Attorney General’s office, the Court held that all convictions based on evidence that was tested at the subject lab on or after January 1, 2009, must be vacated and dismissed.

Background

“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.

“. . . 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, section 3, and G. L. c. 231A, section 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.  … 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).

“In considering how best to balance the rights of defendants affected by governmental misconduct and society’s interest in administering justice, we focused on four fundamental principles of our criminal justice system. See Bridgeman II, 476 Mass. at 315-318. …’First, where there is egregious misconduct attributable to the government in the investigation or prosecution of a criminal case, the government bears the burden of taking reasonable steps to remedy that misconduct.’ Second, ‘relief from a conviction generally requires the defendant to file a motion for a new trial.’ Third, ‘dismissal with prejudice “is a remedy of last resort,” but may be available in certain limited circumstances.’ Finally, ‘where large numbers of persons have been wronged, the wrong must be remedied in a manner that is not only fair as a matter of justice, but also timely and practical.’

“… The petitioners argue that the very strong medicine of dismissal with prejudice is required here. We agree. … It is difficult, however, to determine the appropriate scope of the dismissal remedy. …We therefore must determine whether the class of defendants whose cases are subject to dismissal with prejudice should include individuals whose convictions rest upon samples tested at the Amherst lab by chemists other than Farak.

“It is undisputed that Farak tampered with other chemists’ samples, both before and after they had been tested. By 2011, Farak intentionally was manipulating information in the inventory list stored on the lab’s computer to assign herself samples that involved drugs she wanted for her own use. In order to avoid detection of her theft of drugs before they had been analyzed, she altered the gross weight on the drug receipt before another chemist tested the sample, and then changed the weight back to the original number before law enforcement officers retrieved the samples after testing. Farak admitted that, by the summer of 2012, she also was tampering with other chemists’ samples after the samples had been tested, by cutting into sealed evidence bags to remove portions of the samples and then resealing the remainder in pre-initialed evidence bags that she had stolen from other chemists. In addition, she regularly replaced stolen drugs with counterfeit substances.”

Conclusion

“. . . In order to protect the integrity of the criminal justice system, and to afford relief to defendants whose convictions may have rested upon tampered evidence, we conclude that, in addition to those already dismissed where Farak signed the drug certificate, all convictions based on evidence that was tested at the Amherst lab on or after January 1, 2009, regardless of the chemist who signed the drug certificate, and all methamphetamine convictions where the drugs were tested during Farak’s tenure at the Amherst lab, must be vacated and dismissed.

“ … [W]e 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.”

Committee for Public Counsel Services v. Attorney General (Lawyers Weekly No. 10-167-18) (Gaziano, J.) Civil action commenced in the Supreme Judicial Court. Rebecca Jacobstein and Benjamin Keene for Public Counsel Services; Matthew Segal for Hampden County Lawyers for Justice, Inc.; Thomas Bocian for Attorney General; Joseph Pieropan for District Attorney for the Berkshire District  (SJC-12471)(Oct. 11, 2018).

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