Earlier this week, the Boston Bar Association filed an amicus brief in the case of Committee for Public Counsel Services v. Attorney General (SJC-12471), the matter arising from the Amherst Drug Lab Scandal, where it was discovered that thousands of drug tests were compromised by the misconduct of state chemist Sonja Farak. The scandal grew, however, when it was later revealed that the response to the misconduct once discovered was also tainted by serious prosecutorial misconduct. Since then, thousands of cases have been dismissed by the District Attorneys and Attorney General’s Office, but three remaining questions have been reserved and reported to the full Supreme Judicial Court.
One of those questions asks whether additional prophylactic measures are appropriate to address future cases involving widespread prosecutorial misconduct. The BBA thinks the answer to that question is yes. In an amicus brief filed earlier this week, and drafted by Amicus Committee Co-Chairs David Siegel of New England Law | Boston and Elizabeth Ritvo of Brown Rudnick LLP, we explain why the question deserves an affirmative response and offer the court a suggestion for one such prophylactic measure that would help to prevent the types of misconduct and improve the responses to the discovery of this conduct, mitigating the harms of any future scandals like those that have plagued the Massachusetts criminal justice system in recent years.
As Ritvo notes in the BBA’s statement on the brief:
The misconduct here undermines the integrity of the entire justice system, and now is the time to move beyond the ”few bad apples” narrative and establish systemic reforms that will help to formalize and improve the much-needed mechanisms to prevent and respond to these crises.
Keep reading to learn more about the CPCS v. AG case, the BBA’s history on these issues, and the content of our amicus brief.
In September 2017, the American Civil Liberties Union of Massachusetts (ACLUM), the Committee for Public Counsel Services (CPCS) and the law firm Fick and Marx LLP, filed a petition arguing that the misconduct at issue in the case warrants dismissal with prejudice for all “Farak Defendants” , after it was found that she had stolen and tampered with drug samples and tested evidence while under the influence of drugs for nine years.
Unlike the Annie Dookhan scandal from the Hinton Lab that was at issue in the Bridgeman cases, dismissal was also warranted based on a second type of egregious government misconduct: the failure of two lawyers in the Massachusetts Attorney General’s Office to disclose all relevant, exculpatory evidence in the matter, which delayed and impeded the determination of the full scope of this misconduct, and the misleading of the defense attorneys and the Superior Court judge handling the consolidated lab cases. The principal issue in the consolidated cases by defendants seeking post-conviction relief (withdrawal of their guilty pleas, dismissal or new trials) was the period of Farak’s misconduct.
In December 2016, the Superior Court scheduled a hearing on the timing and scope of Farak’s misconduct and the reasons for the AGO’s failure to disclose exculpatory evidence. Superior Court Justice Thomas Carey found:
Despite the drug lab defendants’ diligent discovery efforts, [Assistant Attorneys General] Kaczmarek and Foster managed to withhold the mental health worksheets through deception. They tampered with the fair administration of justice by deceiving [the court] and engaging in a pattern calculated to interfere with the court’s ability impartially to adjust discovery in the drug lab cases and to learn the scope of Farak’s misconduct.
Since that decision, the 11 District Attorney’s (DA) offices have dismissed thousands of cases, and earlier this month Justice Frank Gaziano finalized these dismissals and issued an order vacating an estimated 11,000 convictions in 7,7000 criminal cases. In January, Justice Gaziano reserved and reported questions for full bench review, including the third question, which became the focus of the BBA brief:
whether 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.
Petitioners ACLU and CPCS briefed the questions posed in the Reservation and Report in March, and in relation to the third question argued that the court should issue “standing orders on the responsible handling of government misconduct and exculpatory evidence” and “order monetary sanctions responsive to the AGO’s misconduct.” Specifically, the Petitioners ask for three standing orders:
- Standing Bridgeman Order: This first order would formalize the protocols the created in the Bridgeman litigation, requiring, among other things, the prosecutor’s office to supply a list of relevant cases to the Chief Justice of the Trial Court and CPCS when a prosecutor knows or has reason to believe that misconduct occurred in one or more cases.
- Standing Cotto Order: This proposed order would govern criminal cases that a government attorney may have tainted, whether that discovery is made before or after a conviction and require the attorney, or the attorney’s agency, to notify the Chief Justice of the Trial Court, CPCS, and the Bar Counsel’s office of the Board of Bar Overseers within thirty days when that attorney knows that the misconduct may have affected a criminal case.
- Standing Brady Order: The final standing order proposed calls upon the Court to require trial courts to issue an order governing prosecutors’ disclosure obligations in Brady v. Maryland, 373 U.S. 83 (1963) and Massachusetts law, setting disclosure deadlines, emphasizing the duty to disclose exculpatory evidence extends throughout the course of a case, and specifying sanctions for violating it.
In their recently filed reply brief, the AGO agrees that standing orders are an appropriate prophylactic measure in response to the third question, and even supports all three standing orders outlined in the Petitioner’s brief, but also posits that monetary sanctions are not warranted. The brief filed by the DAs also notes that monetary sanctions are not appropriate but departs from the AGO and argues that the proposed prophylactic measures are “not necessary, practicable, or appropriate where long-standing rules and clear guidance from this court provide the best measures to address any future occurrence of misconduct, should it arise.”
The parties will present their arguments to the full bench on May 8.
The BBA has a long history of advocating for reforms in line with our interests as articulated in the brief here: “to facilitate access to justice for all defendants in criminal cases and to ensure the timely, fair and efficient administration of justice by reducing the risk of widespread prosecutorial misconduct.”
Nearly a decade ago, the BBA Task Force to Prevent Wrongful Convictions produced the Report: “Getting it Right: Improving the Accuracy and Reliability of the Criminal Justice System in Massachusetts.” That Report highlighted the Association’s continued interest in the development of measures that would improve the practices of prosecutors and defense attorneys and prevent wrongful convictions. Among other things, the Report specifically points to “police and prosecution failures to produce required discovery” and “inadequate defense counsel performance” as two of the most common sources of wrongful convictions.
Continuing these efforts, the BBA, in 2012, felt inspired and compelled to respond to the scandal unfolding at the Hinton Drug Lab, and established the Drug Lab Crisis Task Force to review the facts, identify lessons learned, and propose recommendations. The Task Force Report, released in 2014, made a number of recommendations, including an independent auditing function, with the authority to conduct full and complete investigations, where all forensic services employees could confidentially report concerns about the internal operations or coworkers’ performance.
Two years later, the BBA submitted an amicus brief in the Bridgeman litigation arguing for dismissal of all those cases where Dookhan served as the primary or secondary chemist and urging the Court to exercise its powers of general superintendence to “mitigate the impact of the Commonwealth’s ‘egregious’ misconduct and…reaffirm the commitment of the judicial system to due process and fairness.” You can read more about that brief here.
The BBA brief in this case highlights this past work and our continued interests in these areas as it calls for the court to adopt forward-looking measures. As put by BBA President Mark Smith of Laredo & Smith LLP:
Access to justice is at the core of the BBA’s mission, and we are proud to continue our advocacy on matters relating to widespread misconduct and wrongful convictions. We hope the Court will consider the measures proposed in the brief and take steps to ensure the Commonwealth has a procedure in place that will ensure access to a fair and efficient justice system.
The BBA brief echoes support for the position of the Petitioners and Respondent Attorney General mentioned above that the Court issue standing orders on the Bridgeman protocol, the disclosure obligations for lawyer misconduct that may have tainted a case, and the disclosure obligations under Brady v. Maryland, 373 U.S. 83 (1963) and Massachusetts law. However, it additionally suggest that the Court adopt a standing order that establishes a mandatory obligation to report for every prosecutor who, at any point, gains knowledge of, or credible information of, misconduct by any lawyer or non-lawyer on the prosecution team.
The brief notes that mandatory reporting is important to promoting accountability and mitigating the scope of the damage caused by any misconduct. The creation of a record also allows for patterns and repeated misconduct to be revealed and addressed sooner rather than later. Specifically, the brief argues that such a standing order could require:
- Any intentional misconduct by any non-lawyer agent of the prosecution team be promptly reported to the supervisory prosecutor.
- Any repeated intentional misconduct by non-lawyers, and any lawyer misconduct, should be made to a statewide power of sufficient authority (like the Chief Justice of the Trial Court or a specially designated judicial officer, in addition to the supervisory prosecutor).
While any lawyer misconduct or repeated intentional non-lawyer misconduct should be made known to a judge in the case, the reporting requirements would also apply to those matters where a case does not yet exist. Finally, the brief makes clear that any reports, whether to a supervisory prosecutor or a central judicial authority or judicial officer, should be made in writing.
The Brief further addresses just why mandatory reporting is so necessary in matters like those at issue in this case, first illuminating that such reporting is “a consistent feature of the modern administrative state” (quoting In Re Grand Jury Investigation, 437 Mass. 240, 355 (2002)). Mandatory reporting is used when the interests at stake are high, and identifying misconduct like that displayed here is a critical matter of ensuring due process and the integrity of the criminal justice system. In addition, mandatory reporting is needed when the consequences of non-discovery could be sweeping, and here, it may impact thousands of cases and involve, as described by Judge Carey, “a problem of systemic magnitude.” Finally, it’s especially essential when the observer may not be in an independent or neutral position from which to determine the extent of the activity.
The brief additionally hones in on the standards that should trigger the obligation to report, first noting that: the “knowledge of” or “credible information of” standard is familiar to the court through other rules, including SJC Rule 3:09 of the Massachusetts Code of Judicial Conduct and SJC Rule 3:07 of the Massachusetts Rules of Professional Conduct. In addition, the brief notes that it is essential the obligation operates with minimum amount of discretion, in line with MRPC 3.8, and without regard to materiality.
Notably, the brief makes clear that the reporting obligation should apply regardless of whether a specific case is identified or pending, as it is equally important that such misconduct is addressed before a conviction or even a charge is brought. This is the exact point where system-wide catastrophes like those in the Amherst and Hinton Labs, can be prevented without denying and delaying justice for thousands of Massachusetts residents.
And finally, the brief clarifies that instances of repeated intentional misconduct by a non-lawyer agent, or any lawyer, should be reported to a central judicial authority or judicial officer. Each of the recent examples of systemic misconduct resulted in the designation of one or more judges to handle the similar questions arising in multiple cases, and having one single authority designated in advance to receive the report would simplify and clarify this process. In addition, it would more quickly move it outside the wholly adversarial context, if a particular case already exists, into a framework overseen by a neutral body.
As summarized by Professor Siegel in the statement on the brief:
We have seen in recent years the dire consequences of misconduct that goes unreported for too long. The fair administration of justice requires prompt discovery and response, and a standing order that establishes an obligation for disclosure would help to minimize the risk of the sweeping injustices thousands endured following the Amherst and Hinton Drug Lab scandals.
A massive thanks goes out to our Amicus Committee for making the brief possible, and especially to David Siegel and Elizabeth Ritvo for their drafting efforts. Continue to watch this space for more updates as the case proceeds.
Legislative and Public Policy Manager
Boston Bar Association