Committee for Public Counsel Services v. Attorney General

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SJC-12471
COMMITTEE FOR PUBLIC COUNSEL SERVICES & others1 vs. ATTORNEY
GENERAL & others.2
Suffolk. May 8, 2018. - October 11, 2018.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
& Kafker, JJ.
Controlled Substances. Constitutional Law, Conduct of
government agents. Due Process of Law, Disclosure of
evidence, Conduct of prosecutor. Supreme Judicial Court,
Superintendence of inferior courts. Practice, Criminal,
Conduct of prosecutor, Conduct of government agents,
Postconviction relief. Evidence, Certificate of drug
analysis, Disclosure of evidence.
Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on September 20, 2017.
1 Hampden County Lawyers for Justice, Inc.; Herschelle
Reaves; and Nicole Westcott.
2 District Attorney for the Berkshire District, District
Attorney for the Bristol District, District Attorney for the
Cape and Islands District, District Attorney for the Eastern
District, District Attorney for the Hampden District, District
Attorney for the Northern District, District Attorney for the
Norfolk District, District Attorney for the Northwestern
District, District Attorney for the Plymouth District, District
Attorney for the Suffolk District, and District Attorney for the
Middle District.
2
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.
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
3
"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.
4
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
5
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 vs.
6
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
3 "Third letter" cases are "cases that the District
Attorneys intend to re-prosecute if motions for new trial are
allowed, and that they represent can be prosecuted independently
of any drug certificate signed by Farak, or related testimony."
See Bridgeman v. District Attorney for the Suffolk Dist., 476
Mass. 298, 328 (2017).
7
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
8
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
9
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.
4 We acknowledge the amicus briefs submitted by the Boston
Bar Association; the Cato Institute and the Center on the
Administration of Criminal Law; The Innocence Project, Inc., and
the New England Innocence Project; Legal Ethics and Criminal
Justice Scholars and the DKT Liberty Project; and Steven
Fitzgerald.
10
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,
11
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
5 As used in a drug laboratory, a "standard" is a known
controlled substance (e.g., cocaine or heroin) against which an
unknown sample submitted by a law enforcement officer is
compared to determine its identity. Using a gas
chromatographer/mass spectrometer, a chemist compares the mass
spectral patterns of the tested sample and the standard to
determine if there is a match.
Two types of standards are used in this testing. "Primary"
standards are pure drug samples acquired from pharmaceutical
companies, and are considered much the better practice.
"Secondary" standards are manufactured in a laboratory from
police-submitted samples that tested positive for a controlled
substance, and were purified to remove any adulterants. Due to
budget constraints, the Amherst lab regularly used secondary
standards until July, 2012, when the State police assumed
control of the lab.
12
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
13
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,
14
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
6 When crack cocaine was not readily available, Farak
manufactured it at her work station, using powder cocaine.
15
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
16
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.
7 Hanchett's discovery took place four months after Annie
Dookhan, a former chemist at the Hinton lab, had been arrested
for evidence tampering and obstruction of justice. See
Commonwealth v. Scott, 467 Mass. 336, 337, 339 (2014). By that
time, the Hinton lab had been closed due to Dookhan's
misconduct. See id. at 342.
 17
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.
18
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 General's investigation. The Attorney
General's office initially assumed that Farak's misconduct had
been limited to the six-month period of time immediately
preceding her arrest, and had consisted of stealing cocaine
19
samples for her own use, because of her addiction. An inventory
conducted at the time of Farak's arrest revealed only four
missing samples, whereas an inventory that had been conducted
four months earlier had not uncovered any missing samples.
Judge Carey found that the "assumption [concerning the time
frame of the misuse] was at odds with the evidence uncovered
even at that early juncture." By the end of January, 2013, the
evidence indicated 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 [evidence] bags with their
initials on them."
On January 23, 2013, Ballou received information from the
district attorney for the Hampden district concerning two cases
in which Farak had tested samples and the district attorney
later had discovered inconsistencies. In one case, a
Springfield narcotics officer indicated that he had submitted
for analysis fifty-one pills that resembled oxycodone; when he
retrieved the sample after testing, it contained sixty-one pills
with a different color and different markings. Farak, who
signed the drug certificate, had indicated on the certificate
that the sample contained no illegal substances. In the other
case, Farak certified the weight of a sample of cocaine as four
20
grams less than the weight recorded by police after it had been
seized. When Ballou brought these cases to Kaczmarek's
attention, she dismissed the importance of the missing
prescription pills by stating, "Please don't let this get more
complicated than we thought. If she were suffering from back
injury -- maybe she took some oxys?"
Upon further review of the documents found in Farak's
vehicle, Ballou discovered that the "assorted lab paperwork"
contained mental health records. These records 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."
On February 14, 2013, Ballou sent an electronic mail
message titled "FARAK Admissions" to Kaczmarek, Irwin, and John
Verner, who was then chief of the criminal bureau for the office
of the Attorney General. The text of the message provided,
"Here are those forms with the admissions of drug use I was
talking about. There are also news articles with handwritten
comments about other officials being caught with drugs. All of
these were found in her car inside of the lab manila envelopes."
21
Ballou attached the documents he had found to his message. Both
Kaczmarek and Verner were aware of the admissions before
receiving Ballou's message.
In preparation for grand jury proceedings, Kaczmarek
drafted a prosecution memorandum that referenced the mental
health records, with a footnote stating, "These [records] were
not submitted to the grand jury out of an abundance of caution,
in order to protect possibly privileged information." The
memorandum noted that the Attorney General's office was not
certain of the scope of Farak's misconduct, and that staff were
"hoping that the defendant, once indicted, [would] detail how
long she had been abusing drugs and how many cases are
affected." Verner and Dean Mazzone, then senior trial counsel
for the criminal bureau, each reviewed and approved the
memorandum. Verner wrote a comment near the footnote noting
that the mental health records had "not [been] turned over to
[the district attorney's] [o]ffice yet."
On April 1, 2013, a grand jury returned indictments
charging Farak with four counts of evidence tampering, four
counts of theft of a controlled substance, and two counts of
unlawful possession of cocaine. When Farak was arraigned on
April 22, 2013, Kaczmarek provided her defense attorney with the
entire file, including the mental health records. Later,
Kaczmarek told Farak's attorney that the Attorney General's
22
office considered the mental health records to be privileged
and, therefore, would not turn them over to defendants
challenging their convictions on the ground of Farak's
misconduct.
Kaczmarek sent an electronic mail message to Farak's
attorney on September 10, 2013, asking if Farak would be willing
to make a proffer to determine the scope of the misconduct. The
attorney responded that Farak would cooperate if she were to
receive a sentence of probation and immunity for additional
State and Federal charges. The Attorney General's office
declined to accept the offer. On January 6, 2014, Farak pleaded
guilty to all of the charges.
6. Amherst lab defendants. While the Attorney General's
office focused on prosecuting Farak, defendants whose drug
certificates had been signed by Farak began to file motions for
discovery and postconviction relief. On July 25, 2013, then
Superior Court Judge C. Jeffrey Kinder consolidated sixteen
postconviction claims, involving fifteen defendants. He
conducted an evidentiary hearing on the consolidated cases over
three days in September and October of 2013. Another defendant,
who had filed a motion to dismiss as part of his pretrial
proceedings, also participated in the hearing. Judge Kinder
limited the hearing to information concerning (1) the timing and
scope of Farak's misconduct; (2) the State police's quality
23
assurance audit from October, 2012; and (3) how Farak's
misconduct and the conditions at the Amherst lab might have had
an impact on the results of drug analyses the lab produced.
Judge Kinder also designated two attorneys as lead counsel for
the defendants.
From August through October, 2013, numerous defendants
served subpoenas duces tecum on Ballou and Kaczmarek and filed
motions in the Superior Court seeking to inspect the evidence
seized from Farak's vehicle. They also sought disclosure of the
Attorney General's office correspondence relating to the scope
of Farak's misconduct and any indication that a third party had
had knowledge of Farak's behavior prior to her arrest.
Assistant Attorney General Kris Foster, a member of the appeals
division of the criminal bureau, was assigned to respond to the
subpoenas and motions.
a. Subpoenas. After communicating with her superiors,
Foster filed motions to quash the subpoenas. She argued that
the Attorney General's office already had turned over all
nonprivileged information. In the alternative, Foster asked the
court to restrict the scope of the subpoenas by allowing the
government not to produce documents that contained the criminal
history of any individual, legal work product, or "[i]nformation
concerning the health or medical or psychological treatment of
individuals." Although internal policies for responding to
24
subpoenas indicated that a review of the file should be the
first step in responding to a request for a subpoena, and a
supervisor urged her to confirm the accuracy and truth of her
representations about the contents of the file, Foster did not
personally review Ballou's file.
On September 9, 2013, Judge Kinder denied the motion to
quash the Ballou subpoenas insofar as the documents related to
Ballou's testimony at the evidentiary hearing. When he inquired
of Foster concerning the Attorney General's office's request for
a protective order, she explained that she had not personally
reviewed the file and that neither she nor Ballou had brought
the file to the hearing. Judge Kinder instructed Foster to
examine Ballou's file by September 18, 2013, and to present to
him for in camera review on that date any material the Attorney
General's office believed was privileged. In electronic mail
messages among Foster, Kaczmarek, and Verner discussing the
hearing, Kaczmarek indicated that Ballou's file contained the
news articles and mental health records seized from Farak's
vehicle.
On September 16, 2013, Foster sent Judge Kinder a letter
stating, "After reviewing Sergeant Ballou's file, every document
in his possession has been disclosed. This includes grand jury
minutes and exhibits, and police reports. Therefore, there is
nothing for the Attorney General's office to produce for your
25
review on September 18, 2013." At that point, however, Foster
had yet to review Ballou's file, and she intentionally had used
the passive phrase "after review" so that she would not directly
misrepresent to Judge Kinder that she had personally examined
the file. At a subsequent hearing on October 2, 2013, Foster
again represented to Judge Kinder that the entire contents of
Ballou's file had been disclosed.
b. Motions to inspect. Within the same time frame, one of
the appointed defense counsel, Luke Ryan, asked the Attorney
General's office for permission to inspect the documents; as the
investigation was still ongoing, Kaczmarek refused. Kaczmarek
again rejected Ryan's efforts to examine the documents after
Ryan received permission from Hampden County Assistant District
Attorney Frank Flannery, who was in charge of the protocol for
handling the Amherst lab defendants' cases. At the hearing on
September 9, 2013, Ryan asked Judge Kinder for an order allowing
him access to the documents. Judge Kinder told Ryan that he
could file a motion for access if he were unable to make
arrangements with the Attorney General's office. Over the next
few days, Ryan sent Foster electronic mail messages asking for
permission to review the documents. Kaczmarek told Foster not
to allow these requests, because the documents were not relevant
to Ryan's case.
26
Ryan then filed a motion to inspect, pursuant to Mass. R.
Crim. P. 17 (a) (2), 378 Mass. 885 (1979). At a hearing on the
motion on October 2, 2013, Foster told Judge Kinder that the
documents sought were not relevant, and that the Commonwealth
would be prejudiced by the number of defendants who would seek
to review them. Concluding that he was "not persuaded that Rule
17 (a) (2) permits a third-party to inspect evidence held in a
pending criminal case . . . [p]articularly under the
circumstances of this case where the physical evidence has been
described in detail for the defendant and photographs of that
evidence have been provided," Judge Kinder denied the motion to
inspect.
c. Motions to compel. A different defendant filed a
motion to compel production by the Attorney General's office of
"copies of all inter and intra-office correspondence from
1/18/13 to present pertaining to the scope of evidence tampering
and/or deficiencies at the Amherst drug lab." Foster asserted
in response that such correspondence was protected by the work
product doctrine. At the hearing on October 2, 2013, Foster
told Judge Kinder that she had not personally examined the
correspondence, and she agreed that the requested information
would be exculpatory if it existed. Judge Kinder allowed the
motion to compel. The Attorney General's office then filed a
motion for clarification and requested that privileged work
27
product and material related to an ongoing investigation be
excluded; Judge Kinder allowed that motion, and limited the
scope of his earlier motion as the office of the Attorney
General had requested.
Another motion to compel, filed by a different defendant,
requested "any and all evidence suggesting that a third party
may have been aware of Farak's evidence tampering at the Amherst
lab prior to Farak's arrest in January 2013." Although the
mental health records were responsive to this discovery motion,
Foster again responded that the Attorney General's office had
turned over all materials, and claimed that "there [was] no
reason to believe that a third-party had knowledge of Farak's
alleged malfeasance prior to her arrest." Had the documents
been produced, they would have revealed that Farak's mental
health care providers knew of her evidence tampering as early as
2011. Judge Kinder denied the motion.
d. Judge Kinder's findings. Relying on representations
made by the Attorney General's office, Judge Kinder concluded
that Farak's misconduct began in July, 2012, and ended with her
arrest in January, 2013. He found that although Farak had been
an agent of the Commonwealth, there was insufficient evidence
that her misconduct began earlier than July, 2012, and that any
other deficiencies at the Amherst lab did not have an impact on
the reliability of her testing. As a result, Judge Kinder
28
denied the motions for postconviction relief by defendants who
had pleaded guilty before the summer of 2012; he also denied the
motion to dismiss filed by the defendant who was still in the
pretrial phase. Defendants whose motions were denied, and other
defendants who had not been part of the hearings before Judge
Kinder but who had filed motions which subsequently were denied
on the basis of his rulings, appealed. See Cotto, 471 Mass. at
99; Ware, 471 Mass. at 91-92.
7. Discovery of the mental health records. In
March, 2014, following Farak's guilty plea, an Amherst lab
defendant filed a motion to inspect the evidence from Farak's
criminal case. Ryan sent an electronic mail message to Foster
on June 23, 2014, on behalf of another defendant, asking for
permission to view that evidence; the message was unanswered.
On July 21, 2014, that defendant filed a motion for an order to
allow Ryan to inspect the evidence. The motion was allowed on
July 31, 2014.
On October 30, 2014, Ryan reviewed the evidence and
discovered multiple documents that had not been disclosed
previously, including the mental health records. On November 1,
2014, Ryan sent a letter titled "Newly Discovered Evidence" to
Assistant Attorney General Patrick Devlin, who had helped to
arrange the inspection. Ryan indicated that he had discovered
proof that Farak had been abusing drugs since at least 2011, in
29
contrast to Judge Kinder's findings, which were based on the
Attorney General's office's representations that Farak's drug
abuse and tampering with Amherst lab samples began in July of
2012. Ryan indicated that "[i]t would be difficult to overstate
the significance of these documents." He asked Devlin to allow
him to provide the mental health records to another attorney and
to other defendants who had sought postconviction relief based
on Farak's misconduct.
On November 5, 2014, Foster sent an electronic mail message
to Devlin, requesting a copy of the mental health records, which
she had never seen. In a letter dated November 13, 2014, the
Attorney General's office notified the district attorneys that
it was sending 289 pages of documentary evidence that had not
been turned over previously, including the mental health
records.
8. Decisions in Cotto and Ware. In December, 2014, this
court received filings from two defendants whose appeals from
the denials of their motions for postconviction relief were then
pending. See Cotto, 471 Mass. at 97; Ware, 471 Mass. at 85.
The defendant in Cotto, supra at 99, directly appealed from
Judge Kinder's ruling, and sought to withdraw the defendant's
guilty pleas. He claimed that Farak's misconduct predated his
guilty pleas in April, 2009, and that he would not have pleaded
guilty if he had been aware of the misconduct. Id. at 98-99.
 30
The defendant in Ware, supra at 90-92, sought postconviction
discovery and retesting of suspect drug samples; he argued that
allowance of his discovery request would be "reasonably likely
to uncover evidence that might warrant granting [him] a new
trial." In addition, he questioned the thoroughness of the
investigation by the Attorney General's office into the scope of
Farak's misconduct. See id. at 92.
On the basis of Judge Kinder's findings, and the eight
cases of tampering that had surfaced at that point, we
determined that "the scope of Farak's misconduct [did] not
appear to be . . . comparable to the enormity of Dookhan's
misconduct." See Cotto, 471 Mass. at 111. We therefore
declined to extend the conclusive presumption of egregious
government misconduct that was applicable in cases affected by
Dookhan's misconduct. See id., citing Commonwealth v. Scott,
467 Mass. 336, 352-353 (2014). We noted, however, "the
Commonwealth's failure to thoroughly investigate the matter of
Farak's misconduct," see Cotto, supra at 99, and indicated that
it was "imperative that the Commonwealth thoroughly investigate
the timing and scope of Farak's misconduct at the Amherst drug
lab in order to remove the cloud that has been cast over the
integrity of the work performed at that facility, which has
serious implications for the entire criminal justice system."
Id. at 115. See Ware, 471 Mass. at 96. We allowed the
31
Commonwealth one month to decide whether to undertake an
investigation. Cotto, supra. In June, 2015, the Attorney
General's office notified the Superior Court in Hampden County
that it would do so.
9. Velis and Caldwell Reports. Following this court's
remand and prior to the hearing before Judge Carey, the Attorney
General's office conducted its own investigation of the
situation at the Amherst lab. In June, 2015, the Attorney
General appointed retired Judge Peter A. Velis as a special
assistant attorney general and independent investigator to work
with Assistant Attorney General Thomas A. Caldwell. In August,
2015, the district attorney for the northwestern district
separately appointed retired Judge Thomas T. Merrigan as a
special assistant district attorney and independent investigator
for the northwestern district. The two judges then consolidated
their investigation, which was focused on issues raised by Ryan.
Two State police investigators were assigned to assist the
judges with the investigation of allegations of misconduct by
State police officers and prosecutors assigned to the office of
the Attorney General.
In September, 2015, the Attorney General's office also
undertook to examine the scope of Farak's misconduct and
initiated two grand jury investigations, in Hampshire and
Suffolk Counties, to hear evidence. Caldwell was assigned to
32
conduct the investigations. Farak testified before the
Hampshire County grand jury, over three days, concerning her
extensive drug use, theft of standards and police-submitted
samples, tampering with other chemists' samples, and
manufacturing of crack cocaine at her workbench.8
In November, 2015, Hanchett, Salem, and Pontes testified
before the Suffolk County grand jury concerning conditions at
the Amherst lab and their interactions with Farak. The Attorney
General's office also reviewed and introduced more than 4,700
electronic mail messages that Caldwell had obtained from
multiple sources; the Amherst lab records; and Farak's bank
records, telephone records, and communications while being held
in a house of correction awaiting trial.
On March 31, 2016, Judges Velis and Merrigan issued a
report which concluded,
"After our thorough review of the investigative
activities and their recommendations, we agree that there
is no evidence of prosecutorial misconduct or obstruction
of justice by the Assistant Attorney[s] General[] and
[State police] officers in matters related to the Farak
case."
On April 1, 2016, Caldwell submitted his completed report
(Caldwell Report) to Judge Carey, who had been assigned to the
matter after Judge Kinder was appointed to the Appeals Court.
8 In September, 2015, after she had pleaded guilty to
tampering charges, Farak testified before the grand jury under a
grant of immunity for any additional charges, concerning the
timing and scope of her misconduct.
33
The report summarized the information learned from the grand
jury investigations, and provided no recommendation on how to
proceed; the report concluded that "[t]he results of the
Commonwealth's investigation are now provided to the Court so
that the Court can determine how to proceed in the matters
before it" (footnote omitted).
10. Carey hearing. In 2015, ten defendants who had been
convicted of drug offenses between May, 2006, and
September, 2014, based on substances that had been tested at the
Amherst lab filed renewed motions to dismiss, to withdraw guilty
pleas, or for new trials. They asserted that they should be
awarded postconviction relief based on Farak's tampering; the
failure of the office of the Attorney General to disclose
exculpatory evidence and to conduct an adequate investigation in
2013 on the nature and extent of Farak's misconduct; and
inadequate conditions, policies, and procedures at the Amherst
lab. The cases were consolidated and assigned to Judge Carey on
December 7, 2015.
In December, 2016, Judge Carey conducted an evidentiary
hearing over six days at which Kaczmarek, Foster, Verner,
Mazzone, Ravitz, and Reardon testified. Edward Bedrosian
(former first assistant attorney general), and Sheila Calkins
(former deputy attorney general) also testified. In addition,
Judge Carey heard testimony from Ballou, Irwin, and Thomas of
34
the State police; Flannery; Farak's attorney; former Amherst lab
employees Hanchett, Salem, and Pontes; Timothy Woods, an
employee of the State police crime laboratory in Sudbury, who
conducted some retesting of substances that originally had been
tested at the Amherst lab; and two laboratory quality experts,
Robert Powers and Heather Harris. Although Farak did not
testify, Judge Carey reviewed her grand jury testimony from the
investigation by the office of the Attorney General. Judge
Carey considered Farak's grand jury testimony to be "generally
candid," but he did not credit her testimony regarding the
reliability of her analysis or the extent of her addiction and
her use of police-submitted samples, given the evidence that she
had lied to her therapist in order to downplay her substance
abuse. He did, however, credit other aspects of her testimony,
including her statement that she had not succeeded in forging
Hanchett's or Pontes's initials on evidence bags.
On June 26, 2017, Judge Carey released a memorandum of
decision in which he found that (i) Farak's misconduct,
beginning in 2004, "created a problem of systemic magnitude";
(ii) Foster and Kaczmarek exhibited "reprehensible" misconduct
in continually withholding the mental health records and
misleading Judge Kinder in a manner that constituted a fraud
upon the court; and (iii) there was "no evidence that a
comprehensive, adequate, or even reasonable investigation by any
35
office or agent of the Commonwealth had been attempted,
concluded, or disclosed prior to issuance of the Caldwell
Report." Judge Carey determined that evidence of deficiencies
at the Amherst lab was not a sufficient basis for postconviction
relief, but that the egregious misconduct by Farak, Foster, and
Kaczmarek irreparably harmed some defendants.
Judge Carey did not call into question, however, any of the
analysis performed by the other Amherst lab employees; he
concluded that any postanalysis tampering by Farak did not have
a negative impact on the defendants and thus did not justify
postconviction relief. He determined also that the misconduct
by the office of the Attorney General was limited to Foster and
Kaczmarek, whose "intentional and deceptive actions ensured that
justice would certainly be delayed, if not outright
denied, . . . violat[ing] their oaths as assistant attorneys
general and officers of the court."
The judge therefore concluded that, "at least with respect
to selected drug lab defendants, the deliberate misconduct [of
Kaczmarek and Foster] was so egregious that presumptive
prejudice arises, so that dismissal with prejudice is the
appropriate prophylactic remedy to deter similar future
misconduct." He limited the class of defendants entitled to
dismissal with prejudice to cases where (i) Farak had signed the
drug certificate; (ii) the defendants' had sought postconviction
36
relief or discovery between January 19, 2013, and November 1,
2014, and their efforts had been unsuccessful; and (iii) the
defendants' motions had been denied because of the misleading
evidentiary record presented to Judge Kinder. Judge Carey
indicated that the cases where defendants had filed motions to
withdraw guilty pleas would require a more individualized
factual inquiry to determine whether the defendant would have
acted differently if he or she had known of Farak's misconduct
at the time of the plea.9
11. Subsequent proceedings. In September, 2017, the
petitioners filed a petition pursuant to G. L. c. 211, § 3, and
G. L. c. 231A, § 1, in the county court, seeking relief based on
Judge Carey's decision. Specifically, the petitioners requested
dismissal with prejudice of all convictions "tainted by the
Commonwealth's misconduct." They also asked the single justice
to order the Commonwealth "to comply with its legal and ethical
obligations to respond to this lab scandal and any future
systemic crises."
Following a hearing on October 31, 2017, the single justice
issued an order on November 2, 2017, requiring the parties to
identify any cases in which there was agreement to vacate the
convictions and to dismiss the matters with prejudice. The
9 The respondents do not contest Judge Carey's factual
findings.
37
district attorneys agreed to vacate more than 8,000 convictions
of individuals whom they classified as "Farak defendants," and
to dismiss those charges with prejudice. According to the
district attorneys, the definition of "Farak defendants"
included any "defendants who pleaded guilty to a drug charge,
admitted to sufficient facts to warrant a finding of guilty on a
drug charge, or were found guilty of a drug charge in any case
in which Farak signed a drug certificate as an analyst between
August, 2004[,] and January, 2013, while she was employed at the
[Amherst lab], except for the so-called 'Ruffin defendants.'"10
At that point, there were approximately forty-five cases from
Berkshire and Bristol Counties that the district attorneys had
not agreed to dismiss; those cases subsequently have been
dismissed.
On January 26, 2018, the single justice reserved and
reported the case to the full court, and ordered the parties to
address three 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 vs.
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.
10"Ruffin defendants" are individuals who pleaded guilty
before receiving results of the drug analysis in their cases.
See Commonwealth v. Ruffin, 475 Mass. 1003, 1004 (2016).
38
"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."
On April 5, 2018, the single justice vacated and dismissed
with prejudice all convictions that were identified by the
district attorneys and the Attorney General on or before March
30, 2018.
Discussion. We address each of the reported questions in
turn.
1. "Third letter" cases. The first reported question asks
whether the defendants in "third letter" cases are entitled to
have their convictions vacated and dismissed with prejudice due
to prosecutorial misconduct. Under the protocol established in
Bridgeman II in response to Dookhan's misconduct, "third letter"
cases are "cases that the District Attorneys intend to re-
prosecute if motions for new trial are allowed, and that they
represent can be prosecuted independently of any drug
39
certificate signed by Farak, or related testimony." See
Bridgeman II, 476 Mass. at 328.
As stated, when the single justice reserved and reported
this case to the full court, there were approximately forty-five
"third letter" cases from Berkshire and Bristol Counties in
which Farak had signed the drug certificates and the district
attorneys had not agreed to dismiss the convictions with
prejudice. Because those cases have now been dismissed, the
first reported question is moot. See Lawyers' Committee for
Civil Rights & Economic Justice v. Court Administrator of the
Trial Court, 478 Mass. 1010, 1011 (2017) (upholding single
justice's dismissal of petition as moot where "no further
effective relief [could] be granted").
2. Definition of "Farak defendants." The second reported
question asks whether the class of "Farak defendants" includes
"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."
a. Bridgeman framework. We confronted a similar challenge
after the discovery of Dookhan's misconduct at the Hinton lab.
The Dookhan petitioners twice asked this court to utilize its
40
superintendence authority to vacate and dismiss all Dookhan
cases as a "global remedy." See Bridgeman II, 476 Mass. at 321–
322; Bridgeman v. District Attorney for the Suffolk Dist., 471
Mass. 465, 487 (2015) (Bridgeman I). The petitioners in those
cases argued that "the time and expense of proceeding on a case-
by-case basis [was] untenable," Bridgeman I, supra, and that "a
case-by-case adjudication of so many cases [was] 'doomed to
fail' given the limited resources of the Commonwealth's indigent
criminal defense system," so that "the only just and practical
alternative . . . [was] the global remedy," Bridgeman II, supra
at 314, 322. The district attorneys maintained that "individual
case-by-case adjudication of motions for a new trial brought by
Dookhan defendants [was] both practical and fair." Id. at 315.
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. See also Bridgeman I, 471 Mass. at 487, quoting Scott,
467 Mass. at 352 (declining to implement "global remedy," but
fashioning procedure intended to "account for the due process
rights of defendants, the integrity of the criminal justice
system, the efficient administration of justice in responding to
such potentially broad-ranging misconduct, and the myriad public
interests at stake").
41
"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." Bridgeman II, 476 Mass. at 315. We
similarly noted in Cotto, 471 Mass. at 112, that "[t]he
Commonwealth's obligation to conduct an investigation is
premised on a prosecutor's duty to learn of and disclose to a
defendant any exculpatory evidence that is held by agents of the
prosecution team, who include chemists working in State drug
laboratories. . . . It is incumbent on the Commonwealth to
perform this duty in a timely fashion. The burden of
ascertaining whether Farak's misconduct at the Amherst drug lab
has created a problem of systemic proportions is not one that
should be shouldered by defendants in drug cases." (Quotations
and citations omitted.)
Second, "relief from a conviction generally requires the
defendant to file a motion for a new trial." See Bridgeman II,
476 Mass. at 316. Such a motion is usually required because,
without it, "we cannot be sure that a defendant wishes to accept
the risk that the Commonwealth will retry the defendant rather
than issue a nolle prosequi." Id. at 323. The "uncertainty and
disruption inherent in being a defendant in a criminal trial"
should not be forced on anyone who does not desire to be
retried. Id.
42
Third, "dismissal with prejudice 'is a remedy of last
resort,'" but may be available in certain limited circumstances.
Id. at 316, quoting Commonwealth v. Cronk, 396 Mass. 194, 198
(1985). "Two parallel legal principles" balance "the rights of
defendants . . . against the necessity for preserving society's
interest in the administration of justice." Cronk, supra at
198-199. Under the first principle, "[w]here the prosecutor
fails to disclose evidence the defendant is entitled to receive
and the defendant is prejudiced by the failure to disclose, a
motion to dismiss should not be allowed absent a showing of
irremediable harm to the defendant's opportunity to obtain a
fair trial." Id. at 198. See Commonwealth v. Lam Hue To, 391
Mass. 301, 314 (1984) ("Such a drastic remedy would be
appropriate where failure to comply with discovery procedures
results in irremediable harm to a defendant that prevents the
possibility of a fair trial"). Alternatively, "prosecutorial
misconduct that is egregious, deliberate, and intentional, or
that results in a violation of constitutional rights may give
rise to presumptive prejudice . . . and the 'drastic remedy' of
dismissal of charges may become an appropriate remedy." See
Cronk, supra at 198-199. The latter theory should be narrowly
applied, and confined to situations where the misconduct has
"cast such doubt . . . as to poison the entire investigation,"
Commonwealth v. Hine, 393 Mass. 564, 571 (1984), and a "stronger
43
deterrent" is warranted to prevent repetition of such
misconduct. See Bridgeman II, 476 Mass. at 322; Commonwealth v.
Lewin, 405 Mass. 566, 587 (1989) ("The only reason to dismiss
criminal charges because of nonprejudicial but egregious police
misconduct would be to create a climate adverse to repetition of
that misconduct that would not otherwise exist"); Commonwealth
v. Manning, 373 Mass. 438, 444 (1977) ("The indictment itself is
so inextricably interwoven with the misconduct which preceded it
that the only appropriate remedy here is to dismiss the
indictment").
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." Bridgeman
II, 476 Mass. at 317. "A remedy that is perfect in theory is
not perfect in fact if it would take too long to be
accomplished, or if the resources required to implement it would
overwhelm the limited resources available to the courts." Id.
at 317-318.
We stated in Bridgeman II, 476 Mass. at 322-323, that
"dismissal with prejudice for government misconduct is very
strong medicine . . . [that] should be prescribed only when the
government misconduct is so intentional and so egregious that a
new trial is not an adequate remedy." Noting that Dookhan's
misconduct was not accompanied by misconduct by a prosecutor or
44
an investigator, we ultimately determined that the stronger
deterrent of dismissal with prejudice was not required. See id.
at 322. Accordingly, we established the Bridgeman II protocol
to allow efficient case-by-case adjudication of the remaining
cases affected by Dookhan's misconduct. Id. at 326.
b. Appropriate remedy. The petitioners argue that the
very strong medicine of dismissal with prejudice is required
here. We agree. The government misconduct by Farak and the
assistant attorneys general was "so intentional and so
egregious" that harsher sanctions than the Bridgeman II protocol
are warranted. See Bridgeman II, 476 Mass. at 322. Indeed,
before the briefs were filed, the district attorneys had agreed
to bypass the Bridgeman II protocol and to dismiss with
prejudice all convictions based on drug certificates signed by
Farak.
It is difficult, however, to determine the appropriate
scope of the dismissal remedy. In Cronk, 396 Mass. at 199, we
cautioned that "[r]emedies for prosecutorial misconduct should
be tailored to the injury suffered and should not unnecessarily
infringe on competing interests." See Commonwealth v. Carney,
458 Mass. 418, 427 (2010) (sanctions "should be limited to truly
remedial, and not punitive measures" [citation omitted]). We
therefore must determine whether the class of defendants whose
cases are subject to dismissal with prejudice should include
45
individuals whose convictions rest upon samples tested at the
Amherst lab by chemists other than Farak.
The petitioners contend that all convictions based on drug
samples tested at the Amherst lab during Farak's tenure should
be vacated and dismissed with prejudice, regardless of whether
Farak signed the drug certificate. They argue that the precise
scope of Farak's misconduct is "unknown (and at this point,
unknowable)," because of the Commonwealth's failure to conduct a
prompt and adequate investigation.11 They contend also that
dismissals with prejudice are "the only appropriate remedy" for
the egregious prosecutorial misconduct here, and that such
dismissals are "a necessary prophylactic in response to the
Commonwealth's transforming the courts into unwitting agents of
injustice."
The sweeping extent of this proposed remedy, however, is
not supported by the record. The only evidence of misconduct by
Farak between 2004 and 2009 is her theft of the methamphetamine
11The petitioners contend also that the Attorney General's
office and the district attorneys deliberately impeded
defendants' appellate rights by failing to inform defendants of
the misconduct at the Amherst lab while the matter was being
litigated. In our determination of the appropriate remedies, we
have considered the full scope of the misconduct by the office
of the Attorney General. We discern no fault, however, in any
actions by the district attorneys and their offices. The
district attorneys properly turned over the evidence they
received to defendants whose convictions were called into
question by Farak's misconduct, and engaged in time-consuming
work promptly to identify and notify individuals whose cases
were affected by Farak's misconduct.
46
oil standard. There is no evidence to support a finding that
Farak's consumption of portions of the methamphetamine standard
affected other chemists' analyses of other controlled
substances. Accordingly, the complete dismissal with prejudice
of all convictions based upon samples tested at the Amherst lab
during Farak's employment is not a sufficiently tailored remedy.
The district attorneys would limit the class of "Farak
defendants" to the individuals whose convictions rested upon
samples tested by Farak herself, precisely those individuals
whose cases already have been vacated and dismissed with
prejudice. The district attorneys reach their recommendation on
the basis of Judge Carey's findings that the integrity of the
analyses by other chemists was "not in question," and that
defendants who did not seek discovery or postconviction relief
were not "material[ly] connect[ed]" to the Attorney General's
office's egregious misconduct.
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
47
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.
We must remedy these forms of evidence tampering and cannot
limit relief only to those defendants where Farak signed the
drug certificate. Any interference with samples that calls into
question the accuracy of the drug certificates or prevents later
retesting of the original substance diminishes the reliability
and integrity of the forensic testing at the Amherst lab, and
also reduces public confidence in other drug certificates from
other laboratories. The district attorneys' proposal does not
go far enough to protect the rights of defendants whose
convictions rest upon samples that were tested at the Amherst
lab during the period of Farak's misconduct.
The appropriate remedy therefore lies between dismissing
all cases relying on samples tested at the Amherst lab,
regardless of the chemist who performed the analysis, and
dismissing no cases where samples were tested by chemists other
than Farak. The Attorney General's office suggests that,
48
because Farak testified that she tampered with other chemists'
samples in mid-June, 2012, any defendant whose conviction rests
upon evidence tested at the Amherst lab by any chemist between
June, 2012, and January, 2013, should be eligible to have the
conviction vacated and dismissed pursuant to the Bridgeman II
protocol. Although the Attorney General's office believes that
Farak tampered with only a small number of samples during that
period, Farak herself was unable to identify which samples she
had misused; the reliability of all samples tested during that
time period therefore is compromised.
Before the grand jury, Farak testified that her theft of
other chemists' samples was limited to a few cases. In response
to a question from the assistant district attorney, "At any
point . . . . did you ever manipulate or take samples from other
chemists at the laboratory?" she responded, "Yes." She then
detailed a few specific instances of having removed amounts from
other chemists' samples, and said that she would do so generally
if she was able to obtain an open, signed plastic bag with other
chemists' initials that the chemists used to reseal the samples
after they had completed their testing. She explained that she
would try not to use others' samples unless she had no "other
way" to obtain crack cocaine.
"If it was either me taking from my own evidence I analyzed
or other people's, I would definitely do my own. That was
one of the lines I had thought I would never cross. I
49
wouldn't tamper with evidence, that I wouldn't smoke crack
and then wouldn't touch other people's work due to how it
could look."
This testimony was consistent with Farak's proffer. "Farak took
from approximately six of Hanchett's samples; including a 24.5
gram crack cocaine sample from Pittsfield and a 3.5 gram crack
cocaine sample from Northampton. Farak used Hanchett's
initialed evidence bags to repackage the samples. Farak took
from one of Pontes' samples; specifically 30 grams of 73 grams
of powder cocaine from a Springfield case. Farak replaced the
cocaine with a counterfeit substance (baking soda) and made
crack cocaine with it."
There are two problems, however, with the assumption that
Farak did not steal from her colleagues prior to the summer of
2012. First, Judge Carey did not credit those portions of her
testimony that were at odds with what she had reported to her
therapists about her addiction and her theft of police-submitted
samples. In 2009, Farak told her therapist that she had
obtained drugs from the lab by taking portions of samples that
had been sent to the lab to be tested. Farak later testified
that she was totally controlled by her drug addiction, and that,
in tampering with police-submitted samples, she had begun
crossing lines that she never thought she would cross.
Second, Farak's testimony was not supported by
postconviction discovery produced by the Attorney General's
50
office as part of its investigation. The Attorney General was
unable to corroborate Farak's testimony before the grand jury,
and as part of her proffer, as to specific samples where she
said that she had taken portions of a sample that had been
assigned to another chemist.
Farak testified that she had skimmed from the samples in
three particular cases where she remembered the specific amounts
involved. She testified in detail as to the amounts that she
had removed from those samples. One was a case in which the
Springfield police department submitted a sample of seventy-
three grams of powder cocaine. The sample was assigned to
Pontes. The second was a case submitted by the Northampton
police department involving 3.5 grams of crack cocaine that had
been assigned to Hanchett, and the third was a sample of 24.5
grams of crack cocaine submitted by the Pittsfield police
department that had been assigned to Hanchett. The database
provided to the office of the Attorney General of all samples
tested at the Amherst Lab did not directly match any of these
cases, and the office of the Attorney General was unable to
confirm the existence of any such samples. Thus, the record
indicates that Farak's testimony as to the extent of her
misconduct was, at least at times, unreliable.
It is our responsibility, in the exercise of this court's
supervisory authority, to craft a remedy suitable to the
51
available, reliable evidence. As far as can be determined on
this record, Farak's drug use spiraled out of control at the
beginning of 2009, when she nearly depleted the jar of
methamphetamine oil and started to search for other sources of
drugs to satisfy her addiction. Around that time, Farak began
manipulating the computer system. She also started stealing
from police-submitted samples before and after they were tested,
and from samples that had been assigned to other chemists.
In light of the extensive and indeterminable nature of
Farak's misuse of police samples and the lab's standards, a much
more inclusive remedy is required than that suggested by either
the district attorneys or the Attorney General. 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. Accordingly, the class of
"Farak defendants" includes the defendants in all of these
cases.
52
3. Prophylactic measures. Finally, we turn to the third
reported question: whether the court should adopt additional
prophylactic measures to address any future cases involving
prosecutorial misconduct.
The petitioners argue that the court should issue three
standing orders to "create a better mechanism for addressing
government misconduct [than future lawsuits] and ensur[e]
disclosure of exculpatory evidence." The petitioners request
the court to issue a standing Brady order12 requiring specific
disclosures, and setting forth specific disclosure deadlines.
The Attorney General indorses this request; the district
attorneys argue that Mass. R. Crim. P. 14, as appearing in 442
Mass. 1518 (2004), and the rules of professional conduct
adequately address prosecutors' disclosure obligations. The
petitioners suggest that standing Bridgeman II and Cotto orders,
which would provide a procedure by which district attorneys
could report and remedy government misconduct, would be
appropriate so that any future misconduct of this nature could
be remedied without protracted litigation.13 The district
12 See Brady v. Maryland, 373 U.S. 83, 87 (1963).
13The petitioners request that the court fine the Attorney
General's office to punish its past misconduct adequately, and
to create an incentive for the Attorney General's office to put
into place meaningful controls to monitor, detect, and disclose
future misconduct. The Attorney General does not dispute that
the court has the authority, pursuant to Mass. R. Crim. P.
53
attorneys argue that the Bridgeman II and Cotto protocols would
be "one size fits all" attempts to resolve unknown future
misconduct, and that it would be preferable to tailor responses
to any particular case, should one arise.
a. Brady order. A prosecutor's core duty is "to
administer justice fairly." Commonwealth v. Tucceri, 412 Mass.
401, 408 (1992). To fulfil that duty, a prosecutor is required
to turn over exculpatory evidence to a defendant without regard
to its impact on the case. See generally Brady v. Maryland,
373 U.S. 83, 87 (1963) (explaining that failure to disclose
"evidence favorable to an accused . . . [that] is material
either to guilt or to punishment" is violation of due process).
Litigation strategy plays no role in this process.
14 (c) (1), to impose remedial monetary sanctions for a
discovery violation. See Commonwealth v. Frith, 458 Mass. 434,
439 (2010) (sanctions may be imposed under Mass. R. Crim. P.
14 [c] [1] for failure to comply with discovery obligations);
Commonwealth v. Carney, 458 Mass. 418, 427 (2010) (rule
14 [c] [1] sanctions should be "tailored appropriately to cure
any prejudice resulting from a party's noncompliance" with its
discovery obligations).
The Attorney General argues, however, that monetary
sanctions are unnecessary because the office of the Attorney
General has taken steps to avoid future misconduct, including
revising existing policies and procedures. We do not agree.
Based on our experience in Bridgeman II, we are aware of the
substantial costs associated with providing adequate notice to
thousands of individuals whose cases will be dismissed,
including hiring outside vendors to research last known
addresses. Because the office of the Attorney General is
responsible for the prosecutorial misconduct, it shall bear the
entire financial burden associated with notifying those affected
defendants that their cases have been dismissed.
54
Under our rules of professional conduct, a prosecutor is
required to "make timely disclosure to the defense of all
evidence or information known to the prosecutor that tends to
negate the guilt of the accused or mitigate the offense." Mass.
R. Prof. C. 3.8 (d), as appearing in 473 Mass. 1301 (2016). See
Mass. R. Prof. C. 3.4 (a), as appearing in 471 Mass. 1425 (2015)
(attorney prohibited from unlawfully obstructing another party's
access to evidence or from concealing evidence); Mass. R. Prof.
C. 3.8 (g), as appearing in 473 Mass. 1301 (2016) (prosecutor
may not avoid pursuit of exculpatory evidence); Mass. R. Prof.
C. 3.8 (i), as appearing in 473 Mass. 1301 (2016)
(postconviction disclosure of exculpatory evidence).
The due process clauses of the Federal Constitution and the
Massachusetts Declaration of Rights require that the
Commonwealth disclose to a defendant material, exculpatory
evidence in its possession or control. See United States v.
Agurs, 427 U.S. 97, 106-107 (1976); art. 12 of the Declaration
of Rights of the Massachusetts Constitution ("every subject
shall have a right to produce all proofs, that may be favorable
to him"); Commonwealth v. Bing Sial Liang, 434 Mass. 131, 135
(2001). "A prosecution that withholds evidence . . . which, if
made available, would tend to exculpate [a defendant] or reduce
the penalty helps shape a trial that bears heavily on the
defendant. That casts the prosecutor in the role of an
55
architect of a proceeding that does not comport with standards
of justice . . . ." Brady, 373 U.S. at 87.
Under our rules of criminal procedure, one of the nine
categories of "automatic discovery" that the Commonwealth must
provide to the defendant at or before the pretrial conference is
"[a]ny facts of an exculpatory nature."14 See Mass. R. Crim.
P. 14 (a) (1) (A) (iii), as amended, 444 Mass. 1501 (2005); E.B.
Cypher, Criminal Practice and Procedure § 26:8 (4th ed. 2014).15
Rule 14 also requires a prosecutor to disclose certain specific
categories of potentially exculpatory evidence, including all
statements made by the defendant, "all promises, rewards or
inducements made to witnesses the party intends to present at
trial," and "all statements made in the presence of or by an
identifying witness that are relevant to the issue of identity
or to the fairness or accuracy of the identification
14At the pretrial conference, the prosecutor and defendant
are to "consider such matters as will promote a fair . . .
disposition of the case," including discovery. See Mass. R.
Crim. P. 11 (a), as appearing in 442 Mass. 1509 (2004). We
emphasize that judges may choose to be active participants,
where necessary, to ensure compliance with disclosure
obligations.
15Rule 14 (a) of the Massachusetts Rules of Criminal
Procedure incorporates the constitutional disclosure
requirements of Brady. See Cassidy, Plea Bargaining, Discovery,
and the Intractable Problem of Impeachment Disclosures, 64 Vand.
L. Rev. 1429, 1481 (2011). See also Reporter's Notes to Mass.
R. Crim. P. 14 (a), Massachusetts Rules of Court, Rules of
Criminal Procedure (Thomson Reuters 2018).
56
procedures." See Mass. R. Crim. P. 14 (a) (1) (A) (i), (viii),
(ix).
We take this opportunity to reexamine our rules of criminal
procedure to determine whether they should be modified to better
facilitate the timely disclosure of exculpatory evidence, and
refer the question of an amendment of rule 14 to the court's
standing advisory committee on the rules of criminal procedure.
Rule 14 broadly defines exculpatory evidence as "[a]ny
facts of an exculpatory nature" (emphasis added). Mass. R.
Crim. P. 14 (a) (1) (A) (iii). See Commonwealth v. Hill, 432
Mass. 704, 715–716 (2000) (impeachment evidence is exculpatory);
Commonwealth v. Ellison, 376 Mass. 1, 22 n.9 (1978)
("'exculpatory' is not a technical term meaning alibi or other
complete proof of innocence, but simply imports evidence which
tends to negate the guilt of the accused . . . or, stated
affirmatively, supporting the innocence of the defendant"
[quotations omitted]). While rule 14 envisions a broad
disclosure requirement for exculpatory facts, the rule
explicitly identifies only a few specific categories of
potentially exculpatory information that a prosecutor must
disclose. See Mass. R. Crim. P. 14 (a) (1) (A) (i), (viii),
(ix) (Commonwealth must disclose defendant's statements,
"promises, rewards or inducements" given to prosecution
57
witnesses, and statements made during and about identification
procedures).
To provide more detailed guidance to prosecutors, we ask
the standing advisory committee to draft a proposed Brady
checklist to clarify the definition of exculpatory evidence. A
practice indorsed by the American Bar Association,16 a Brady
checklist establishes a more thorough baseline of the most
likely sources and types of exculpatory information for
prosecutors to consider. Brady checklists have been added to
the local rules in many Federal District Courts, in some
instances in response to prosecutorial misconduct. See
generally Sullivan, Enforcing Compliance with Constitutionally-
Required Disclosures: A Proposed Rule, 2016 Cardozo L. Rev. de
novo 138 (2016) (describing author's experience as trial judge
in case where sitting United States Senator was convicted but
Federal prosecutors concealed evidence favorable to defendant,
and discussing local rules that incorporate requirements of
Brady). See also Rule 26.2 of the Local Rules of the United
States District Court for the Northern District of Florida (eff.
Nov. 24, 2015); Rule 88.10 of the Local Rules of the United
States District Court for the Southern District of Florida (rev.
Dec. 1, 2017); Yaroshefsky, Prosecutorial Disclosure
16See American Bar Association, Resolution (rev. 2011),
http://www.abajournal.com/files/104A_Revised_2011.pdf
[https://perma.cc/5T2D-2DCR].
58
Obligations, 62 Hastings L.J. 1321, 1327-1328, 1346 (2011)
(describing American Bar Association Criminal Justice Standards
governing "Disclosure of Evidence by the Prosecutor," as well as
indorsing use of Brady checklists).
No checklist can exhaust all potential sources of
exculpatory evidence. It is crucial, therefore, that the
proposed amendment to rule 14 make clear that the potential
universe of exculpatory evidence includes, but is not limited
to, the types of evidence included in the checklist. See
generally Jones, Here Comes the Judge: A Model for Judicial
Oversight and Regulation of the Brady Disclosure Duty, 46
Hofstra L. Rev. 87, 113–114 (2018). See also Sullivan, supra at
148-149; Rule 116.2 of the Local Rules of the United States
District Court for the District of Massachusetts (eff. June 1,
2018). The committee should consider whether the categories
used in the Federal District Courts would be useful, and also
should consider whether any other categories would help
facilitate the disclosure of Brady materials.
We emphasize, in addition, that where a prosecutor is
unsure whether exculpatory information should be disclosed, due
to a concern regarding privilege or work product, or for any
other reason, the prosecutor must file a motion for a protective
order and must present the information for a judge to review in
camera. See Mass. R. Crim. P. 14 (a) (6). The judge will then
59
decide whether, and under what conditions, the information must
be disclosed. Id. Absent a protective order, no prosecutor,
whether in the office of the Attorney General or in the office
of a district attorney, has the authority to decline to disclose
exculpatory information.
b. Bridgeman II and Cotto orders. The petitioners argue
that the court should adopt standing orders based on the
procedures formulated in Bridgeman II and Cotto. A Bridgeman II
order would require that a prosecutor who knew, or had reason to
know, that misconduct had occurred in a particular case would
have ninety days to notify the Chief Justice of the Trial Court
and the Committee for Public Counsel Services and to provide
them with a list of cases affected by the misconduct. See
Bridgeman II, 476 Mass. at 328. The district attorneys then
would have the burden of establishing, for any case that they
did not agree to dismiss, that they had untainted evidence to
support the conviction. Id. A Cotto order would require a
government attorney who knows that attorney misconduct affected
a criminal case to notify the Chief Justice of the Trial Court,
the Committee for Public Counsel Services, and the Office of Bar
Counsel within thirty days. See Cotto, 471 Mass. at 114. The
petitioners argue that, when misconduct occurs, a lawsuit should
not be required in order to initiate these protocols. The
Attorney General agrees with the petitioners that the requested
60
standing orders should issue. The district attorneys contend,
however, that such standing orders do not take into
consideration that the Bridgeman II protocol placed the burden
on the district attorneys, in part out of necessity, because of
the need to adjudicate 20,000 convictions. The district
attorneys note also that such standing orders would be
repetitive of existing professional and ethical obligations for
attorneys in the Commonwealth.
In fashioning the remedy in Bridgeman II, we took into
account the scope of the misconduct and the number of
convictions implicated by the misconduct. See Bridgeman II, 476
Mass. at 317 ("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"). While we
do not "expect defendants to bear the burden of a systemic
lapse," id., the balance of equities will not always favor a
departure from the general principle that "relief from a
conviction generally requires the defendant to file a motion for
a new trial" (citation omitted). See id. at 316. If similar,
widespread abuse does come to light in the future, the
appropriate remedy must be complete, and it must correspond to
the scope of the misconduct. A court reviewing that misconduct
in the first instance is best positioned to determine the remedy
61
appropriate to a particular case. We therefore decline to adopt
standing Bridgeman II and Cotto orders.
Conclusion. We answer the reported questions as follows:
1. The question is moot, as there are no remaining "third
letter" defendants.
2. The class of "Farak defendants" includes 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,
where (i) Farak signed the certificate of analysis; (ii) the
conviction was based on methamphetamine and the drugs were
tested during Farak's tenure at the Amherst lab; or (iii) the
drugs were tested at the Amherst lab on or after January 1,
2009, and through January 18, 2013, regardless of who signed the
certificate of analysis.
3. Prophylactic measures are appropriate based on the
record in this case. We recommend that this court's standing
advisory committee on the rules of criminal procedure propose
amendments to Rule 14 of the Massachusetts Rules of Criminal
Procedure to include a Brady checklist and any other
modifications the committee believes would be beneficial,
consistent with this opinion.
The matter is remanded to the county court for entry of a
declaratory judgment, as set forth in this opinion, vacating and
dismissing the drug convictions of all "Farak defendants," as
defined herein, and for further proceedings consistent with this
opinion.
So ordered.