Comm. for Pub. Counsel Servs. v. Attorney Gen.

• Decision Date: 11 October 2018
• Docket Number: SJC-12471
• Citation: Comm. for Pub. Counsel Servs. v. Attorney Gen., 480 Mass. 700, 108 N.E.3d 966 (Mass. 2018)
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: COMMITTEE FOR PUBLIC COUNSEL SERVICES & others v. ATTORNEY GENERAL & others.

480 Mass. 700

108 N.E.3d 966

COMMITTEE FOR PUBLIC COUNSEL SERVICES & others¹

v.ATTORNEY GENERAL & others.²

SJC-12471

Supreme Judicial Court of Massachusetts, Suffolk..

Argued May 8, 2018

Decided October 11, 2018

Rebecca A. Jacobstein, Committee for Public Counsel Services(Benjamin H. Keehn, Committee for Public Counsel Services, also present) for Committee for Public Counsel Services.

Matthew R. Segal(Carlton E. Williams & Daniel N. Marx also present) for Hampden County Lawyers for Justice, Inc., & others.

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

Joseph A. Pieropan, Assistant District Attorney(Susanne M. O'Neil, Hallie White Speight, Shoshana Stern, & Sara Concannon DeSimone, Assistant District Attorneys, also present) for District Attorney for the Berkshire District & others.

The following submitted briefs for amici curiae:

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

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

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

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

Steven Fitzgerald, pro se.

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

GAZIANO, J.

We are called upon, in the exercise of our broad powers of superintendence over the courts of the Commonwealth, to remedy egregious governmental misconduct arising out of the scandal at the State Laboratory Institute in Amherst at the campus of the University of Massachusetts (Amherst lab or lab).The misconduct at issue involves evidence tampering by a chemist, Sonja Farak, who stole drugs submitted to the lab for testing for her own use, consumed drug "standards" that are required for testing, and manipulated evidence and the lab's computer system to conceal her actions.The government misconduct at issue also involves the deceptive withholding of exculpatory evidence by members of the Attorney General's office, who were duty-bound to investigate and disclose Farak's wrongdoing.

This is our third decision addressing the Amherst lab scandal.SeeCommonwealth v. Cotto, 471 Mass. 97, 27 N.E.3d 1213(2015);Commonwealth v. Ware, 471 Mass. 85, 27 N.E.3d 1204(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.SeeCotto, supra at 109-110, 27 N.E.3d 1213.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, 27 N.E.3d 1213.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, 27 N.E.3d 1213.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, 27 N.E.3d 1213.

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, andG. L. c. 231A, § 1, claiming that the misconduct by the district attorneys and members of the Attorney General's office required the imposition of a "global remedy."The petitioners requested that the single justice construct a "global remedy" by vacating and dismissing all convictions tainted by the Commonwealth's misconduct.More particularly, the petitioners argued that all drug convictions in which the samples had been tested by the Amherst lab during Farak's almost nine-year tenure should be vacated and dismissed.In addition, the petitioners asked the single justice to exercise the court's superintendence authority and to issue prophylactic standing orders designed to ensure that, in the future, the Commonwealth timely discloses exculpatory evidence, and that procedures are in place to prevent a recurrence of a similar situation.

Following a number of hearings, the district attorneys agreed to the vacatur and dismissal of approximately 8,000 cases in which Farak had signed a drug certificate.Two district attorneys did not agree to dismissal of all charges, in their respective counties, in which Farak had signed the drug certificate.The single justice reserved and reported the matter to the full court, and issued three questions for the parties to answer in their briefs.The reported questions asked:

"1.Whether the defendants in some or all of the ‘third letter’cases are entitled to have their convictions vacated, and the drug charges against them dismissed with prejudice, given the undisputed misconduct of the assistant Attorneys General found by Judge Carey in Commonwealth vs. Erick Cotto, Hampden Sup. Ct., No. 2007-770, 2017 WL 3897107(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"³cases in which Farak had signed the drug certificates, rendering moot the first reported question.

Before this court, however, the respondent district attorneys contest the relief sought by the petitioners: dismissal of all cases where the drug samples had been tested by the other chemists who worked at the Amherst lab during Farak's tenure.The district attorneys argue that there is no factual basis for a conclusion that Farak's misconduct compromised the analyses performed by other chemists at the Amherst lab, and that prosecutorial misconduct does not merit dismissal of such a large group of cases as is at issue here.In addition, the district attorneys contend that existing rules of criminal procedure and professional conduct are adequate to ensure that prosecutors disclose exculpatory evidence and do so in a timely manner.

The respondentAttorney 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, 67 N.E.3d 673(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 authorityand vacate and dismiss all criminal convictions tainted by governmental wrongdoing.While dismissal with prejudice "is a remedy of last resort," it is necessary in these circumstances(citation omitted).Id. at 316, 67 N.E.3d 673.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...