COMMONWEALTH OF MASSACHUSETTS

Supreme Judicial Court

No. SJC - 12471

COMMITTEE FOR PUBLIC COUNSEL SERVICES

& OTHERS,

v.

ATTORNEY GENERAL OF MASSACHUSETTS

& OTHERS

ON RESERVATION AND REPORT FROM

THE SUPREME JUDICIAL COURT FOR SUFFOLK COUNTY

BRIEF OF THE PETITIONERS

ON RESERVATION AND REPORT FROM THE
SUPREME JUDICIAL COURT FOR SUFFOLK COUNTY

Rebecca A. Jacobstein, BBO 651048 Daniel N. Marx, BBO 674523

Benjamin H. Keehn, BBO 542006 William W. Fick, BBO 650562
COMMITTEE FOR PUBLIC COUNSEL FICK & MARX LLP
SERVICES 100 Franklin Street, 7th Floor
PUBLIC DEFENDER DIVISION Boston, MA 02110
44 Bromfield Street (857) 321-8360
Boston, MA 02108 dmarx@fickmarx.com
(617) 910-5726
rjacobstein@publiccounsel.net Matthew R. Segal, BBO 654489
Ruth A. Bourquin, BBO 552985
Carlton E. Williams, BBO 600973
ACLU FOUNDATION OF MASS., INC.
211 Congress Street
Boston, MA 02110
(617) 482-3170
March 2018 msegal@aclum.org
 ii

TABLE OF CONTENTS
TABLE OF AUTHORITIES .............................. IV
INTRODUCTION ....................................... 1
ISSUES PRESENTED ................................... 4
STATEMENT OF THE CASE .............................. 5
STATEMENT OF FACTS ................................. 7
I. FARAK’S MISCONDUCT .............................. 7
II. THE AGO’S MISCONDUCT ............................ 9
A. The AGO’s withholding of exculpatory evidence
through deception .......................... 10
B. The AGO’s failure to correct its false
statements ................................. 16
C. The AGO’s failure to notify defendants ..... 17
III. THE DISTRICT ATTORNEYS’ OFFICES' FAILURE TO NOTIFY
DEFENDANTS .................................... 18

IV. THE AFFECTED DEFENDANTS .......................... 20

SUMMARY OF THE ARGUMENT ........................... 21
ARGUMENT .......................................... 23
I. Assistant Attorneys General, the Attorney
General’s Office, and District Attorneys’
Offices have each committed misconduct that has
exacerbated the Amherst Lab scandal. ........ 23
A. AAGs Foster and Kaczmarek violated
defendants’ constitutional rights and
defrauded the court. ..................... 24
B. The AGO breached its duty to investigate not
once, but twice. ......................... 27
1. In 2013, the AGO failed to investigate
the scope of Farak’s misconduct........ 27
2. In 2015, the AGO again failed to
adequately investigate the scope of
Farak’s misconduct. ................... 29
 iii

C. Both the AGO and the DAOs deliberately

blocked defendants’ appellate rights. .... 32
1. The AGO violated due process by failing
to alert courts to its attorneys’ false
statements and by failing to notify
defendants of its attorneys’ misconduct 33
2. The DAOs violated due process by failing
to notify defendants of Farak’s
misconduct. ........................... 35
II. This Court should vacate and dismiss the
convictions of all Amherst Lab defendants. . 36
A. Dismissals with prejudice are warranted
here. .................................... 37
1. Dismissals are warranted because the
misconduct harmed all Amherst Lab
defendants. ........................... 37
2. Dismissals with prejudice are also
warranted as a prophylactic remedy and to
protect the justice system’s integrity. 38
B. The dismissals should apply to all Amherst
Lab defendants. .......................... 42
III. The attorney misconduct at issue here warrants
additional prophylactic remedies. .......... 44
A. This Court should issue standing orders on
the responsible handling of government
misconduct and exculpatory evidence. ..... 45
B. This Court should also order monetary
sanctions responsive to the AGO’s
misconduct. .............................. 49
CONCLUSION ........................................ 53
CERTIFICATE OF COMPLIANCE ......................... 55
ADDENDUM TABLE OF CONTENTS ........................ 56
 iv

TABLE OF AUTHORITIES

State Cases
Bridgeman v. Dist. Attorney for the Suffolk Dist.,
471 Mass. 465 (2015) ............................. 3
Bridgeman v. Dist. Attorney for the Suffolk Dist.,
476 Mass. 298 (2017).........................passim
Cepulonis v. Commonwealth,
426 Mass. 1010 (1998) ........................... 50
Comm’r of Probation v. Adams,
65 Mass. App. Ct. 725 (2006) .................... 26
Commonwealth v. Bastarache,
382 Mass. 86 (1986) ............................. 45
Commonwealth v. Beal,
429 Mass. 530 (1999) ........................ 27, 29
Commonwealth v. Carney,
458 Mass. 418 (2010) ........................ 51, 53
Commonwealth v. Cotto,
471 Mass. 97 (2015)..........................passim
Commonwealth v. Cronk,
396 Mass. 194 (1985) ........................ 37, 50
Commonwealth v. Firth,
458 Mass. 434 (2010) ............................ 51
Commonwealth v. Hill,
432 Mass. 704 (2000) ............................ 33
Commonwealth v. Lee,
394 Mass. 209 (1985) ............................ 32
Commonwealth v. Lewin,
405 Mass. 566 (1989) ............................ 39
Commonwealth v. Libby,
411 Mass. 177 (1991) ............................ 32
Commonwealth v. Light,
394 Mass. 112 (1985) ............................ 37
Commonwealth v. Pagan,
 v

445 Mass. 315 (2005) ............................ 40

Commonwealth v. Pon,
469 Mass. 296 (2014) ............................ 44
Commonwealth v. Scott,
467 Mass. 336 (2014) ....... .........28, 32, 41, 43
Commonwealth v. Tucceri,
412 Mass. 401 (1992) ........................ 25, 41
Commonwealth v. Ware,
471 Mass. 85 (2015) .......... 3, 17, 27, 34, 35, 41
Commonwealth v. Washington W.,
462 Mass. 204 (2012) ............................ 38
Crocker v. Justices of Superior Court,
208 Mass. 162 (1911) ............................ 53
In re Neitlich,
413 Mass. 416 (1992) ............................ 26
Morash and Sons, Inc. v. Commonwealth,
363 Mass. 612 (1973) ............................ 53
Petition of Williams,
378 Mass. 623 (1979) ............................ 42
Rockdale Mgmt. Co. v. Shawmut Bank, N.A.,
418 Mass. 596 (1994) ........................ 26, 39
Secretary of Administration and Finance v. Attorney
General, 367 Mass. 154 (1975) ................... 33
Wong v. Luu,
472 Mass. 208 (2015) ............................ 40

Federal Cases
Brady v. Maryland,
373 U.S. 83 (1963) .............................. 49
Giglio v. United States,
405 U.S. 150 (1972) ............................. 39
Napue v. Illinois,
360 U.S. 264 (1959) ............................. 33
United States v. Reyes,
866 F.3d 316 (5th Cir. 2017) ..................... 26
 vi

Constitutional Provisions
Massachusetts Declaration of Rights, art. 1 ........ 33
Massachusetts Declaration of Rights, art. 10 ....... 33
Massachusetts Declaration of Rights, art. 12 ....... 33
Part II, c. 1, § 1, art. 4 of the Massachusetts
Constitution .................................... 33
U.S. Const. amend. XIV ............................. 33

Rules
Mass. R. Civ. P. 11 ................................ 51
Mass. R. Crim. P. 14 ............................... 51
Mass. R. Crim. P. 48 ........................... 51, 52
Mass. R. Prof. C. 3.3 .............................. 34
Mass. R. Prof. C. 5.1 .............................. 53
Mass. R. Prof. C. 8.3 .............................. 48

Other Authorities
Chief Judge DiFiore Announces Implementation of New
Measure Aimed at Enhancing the Delivery of Justice
in Criminal Cases, N.Y. Unified Court System (Nov.
8, 2017) ........................................ 49
Cynthia E. Jones, Here Comes the Judge: A Model for
Judicial Oversight and Regulation of the Brady
Disclosure Duty, 138 Hofstra L. Rev. 87, 111-13
(2017) .......................................... 49
Standing Brady Order, No. XX-XX (EGS), at
http://www.dcd.uscourts.gov/sites/dcd/files/Standin
gBradyOrder_November2017.pdf .................... 49
 INTRODUCTION

In 2017, this Court established a protocol that

led to the dismissal of nearly 22,000 convictions

tainted by the misconduct of former state chemist An-

nie Dookhan. Citing “the absence of any evidence of

misconduct by a prosecutor,” the Court did not impose

the “very strong medicine” of ordering specific dis-

missals. Bridgeman v. Dist. Attorney for the Suffolk

Dist., 476 Mass. 298, 322-23 (2017) (“Bridgeman II”).

That medicine, and further remedies, are now needed to

address the Amherst Lab crisis, which involves not on-

ly the undisputed lab misconduct of former state chem-

ist Sonja Farak, but also the unprecedented attorney

misconduct of the Attorney General’s Office and the

District Attorney’s Offices, which further prejudiced

Farak’s victims.

From 2004 to January 2013, Farak used drugs that

she stole from or manufactured in the Amherst Lab,

causing thousands of people to be wrongfully convicted

of drug crimes based on unreliable evidence. Unlike

Dookhan’s misconduct, Farak’s misconduct was not lim-

ited to the samples assigned to her; she also tampered

with samples assigned to other chemists.

From the outset, rather than work to remedy the

Amherst Lab crisis, prosecutors have tried to conceal

and minimize its scope. Beginning in 2013, former As-
 2

sistant Attorneys General Kris Foster and Anne Kaczma-

rek covered up the extent of Farak’s misconduct. They

did so primarily by withholding exculpatory evidence

and misleading the Superior Court into finding, incor-

rectly, that Farak’s drug use began in the summer of

2012 rather than sometime in 2004. Superior Court

Judge Richard Carey found, and the AGO does not dis-

pute, that these attorneys committed egregious miscon-

duct and “a fraud upon the court.” Add. 86.1

Meanwhile, the AGO consistently failed to inves-

tigate the full impact of Farak’s misconduct. It

scarcely investigated Farak at all before April 2015,

when this Court called for an investigation. Common-

wealth v. Cotto, 471 Mass. 97 (2015). Even then, the

AGO issued a report that uncritically repeated Farak’s

account of her misconduct, while failing to assess how

Farak’s actions affected defendants whose samples were

assigned to other chemists. RA 312-366.

Even after that lab and attorney misconduct came

to light, the AGO and DAOs effectively blocked its

victims from seeking relief. In November 2014, Attor-

ney Luke Ryan discovered the withheld evidence and im-

mediately notified the AGO, which simply forwarded

1
References to the record are as follows: Record
Appendix is RA; Addendum is Add.; Exhibits are Ex.;
and Cotto evidentiary hearing transcripts are T1-T6.
 3

that evidence to the DAOs without informing them, or

any court, that the AGO had made material false state-
ments to the Superior Court about Farak’s misconduct.

As a result, this Court upheld findings secured by pa-

tent falsehoods. Cotto, 471 Mass. at 111; Commonwealth

v. Ware, 471 Mass. 85, 94 (2015). Similarly, with the

exception of two District Attorney’s Offices, neither

the AGO nor most DAOs identified and notified the de-

fendants harmed by Farak, Foster, and Kaczmarek.

Thus, before the fall of 2017, when this case was

filed and DAOs agreed to an estimated 8,000 dismis-

sals, most victims of the Amherst Lab crisis had re-

ceived no relief whatsoever. They were kept in the

dark even as this Court issued regular directives

about the Commonwealth’s duty to identify and notify

wrongfully convicted people. Cotto, 471 Mass. at 112;

Ware, 471 Mass. at 95-96; Bridgeman v. Dist. Attorney

for the Suffolk Dist. , 471 Mass. 465, 481 (2015)
(“Bridgeman I”). These cases did not prevent the

attorney misconduct at issue here; they couldn‘t even

slow it down.

This remarkable record calls for relief beyond

the case law this Court has already established, and

beyond the dismissals to which the DAOs have already

agreed. To start, the Court should dismiss not only

the drug convictions of all defendants whose samples

 4

Farak tested, but also the convictions of all defend-

ants whose samples were processed by the Amherst Lab

during Farak’s tenure. Because of the AAGs’ fraud and

the AGO’s failure to investigate, as well as the AGO’s

and DAOs’ failure to identify and notify the wrongful-

ly convicted individuals, every Amherst Lab defendant

was prevented from gathering information about whether

misconduct compromised the evidence in their cases.

The Court should also issue two other prophylactic

remedies: standing orders designed to prevent future

scandals and reform the Commonwealth’s handling of

wrongful convictions, and monetary sanctions designed

to remedy the AGO’s misconduct and deter its recur-

rence.

Together, these remedies can mitigate the harm to

defendants, inoculate against further crises, and

restore the justice system’s integrity.

ISSUES PRESENTED
1. Following Sonja Farak’s undisputed lab mis-

conduct of Sonja Farak, did government attorneys vio-

late the rights of defendants by committing a fraud on

the court, failing to investigate adequately the im-

pact of Farak’s actions, and failing to identify and

notify Farak’s victims?

2. Given the unprecedented scope of attorney

misconduct at issue here, should this Court require

 5

the vacatur and dismissal of all drug convictions

arising from the Amherst Lab during Farak’s tenure?

3. To repair the damage of the misconduct and

ensure that it does not happen again, should this

Court impose additional prophylactic remedies, includ-

ing standing orders and monetary sanctions?

STATEMENT OF THE CASE

A Single Justice (Gaziano, J.) reserved and re-

ported this case on January 26, 2018. RA 386-389. The

Reservation and Report incorporates Judge Carey’s June

2017 ruling in Cotto, thus connecting this case to

litigation that began in 2013. RA 388.

In 2013, relying on statements by the Attorney

General’s Office, Superior Court Judge C. Jeffrey

Kinder found that Farak’s misconduct began in July

2012 and ended with her January 2013 arrest. The Com-

monwealth defended that finding on appeal — without

contradiction by the AGO — and this Court upheld it in

April 2015, while also calling for an investigation of

Farak’s misconduct. Cotto, 471 Mass. at 112-16.

In response to this Court’s Cotto decision, the

AGO issued a report in April 2016, which disclosed

that Farak’s misconduct began in 2004, and thus af-

fected thousands more defendants than the AGO had pre-

viously claimed. RA 312-366.

 6

On June 26, 2017, Judge Carey ruled in Common-

wealth v. Cotto, 0779CR00770 (and other cases), that

Judge Kinder’s inaccurate findings had been secured by

the egregious misconduct of former AAGs Foster and Ka-

czmarek. Add. 78, 140. Judge Carey found that Foster

and Kaczmarek intentionally withheld exculpatory evi-

dence and that Foster deceived Judge Kinder. Add. 86.

Judge Carey found that these actions were “a fraud up-

on the court,” Add. 86, and ruled that, with respect

to certain defendants, dismissal with prejudice was an

appropriate remedy. Add. 94.

In September 2017, Petitioners filed this case in

the Supreme Judicial Court for Suffolk County. RA 14-

42. Following a Single Justice order dated November 2,

2017, the DAOs agreed to the dismissal of an estimated

8,000 cases. RA 386. Meanwhile, in response to the pe-

tition, the AGO has declined to dispute Judge Carey’s

June 2017 finding that its former AAGs committed egre-

gious misconduct. RA 291. The AGO also supported peti-

tioners’ request to report this case to the full

court. RA 6 (Dkt. #64). But the AGO has not said what

remedies it believes to be warranted by the misconduct

of its former AAGs, or by the AGO’s later failures to

take corrective action.

 7

STATEMENT OF FACTS

The Amherst Lab crisis began with Farak, who en-

gaged in government misconduct for nearly a decade,

compromising thousands of drug cases. But it did not

end there. Following Farak’s arrest in January 2013,

the scandal metastasized because of the AGO’s inten-

tional misconduct, and because of the DAOs’ failure to

comprehensively identify and notify defendants. As a

result, for years, thousands of people have continued

to suffer the harsh consequences of wrongful convic-

tions.

I. Farak’s misconduct

Practices at the Amherst Lab were “generally

poor” and its security gaps were “highly problematic.”

Add. 27. “[M]ore laid back” than the Hinton Lab, the

Amherst Lab had “basically . . . no oversight,” RA

183-184, ¶¶87, 92, which meant that the “theft of con-

trolled substances could go undetected.” Ex. 185 at 6.

On January 18, 2013, the Amherst Lab’s supervisor

found packaging from missing drug samples at Farak’s

workstation and contacted the Massachusetts State Po-

lice, which immediately closed the Lab. Add. 39. The

next day, officers arrested Farak after searching her

car and finding evidence that, beyond tampering with

samples, she stole and consumed drugs. Add. 46. Farak

was later charged with tampering with evidence, steal-

 8

ing drugs, and drug possession, to which she pleaded

guilty on January 6, 2014. Add. 79.

The Commonwealth has conceded that “Farak commit-

ted egregious government misconduct in all cases in

which she signed drug lab certificates at the Amherst

lab.” Add. 83; Ex. 164. Almost daily while working at

the Lab, from August 2004 until January 18, 2013,

Farak was under the influence of methamphetamine, am-

phetamine, phentermine, ketamine, MDMA, MDEA, LSD, co-

caine, and other narcotics (or suffering withdrawal

from those substances). Add. 38. Farak’s use of nar-

cotics while at the lab caused her to experience hal-

lucinations and other visual distortions, to experi-

ence what she described as “ridiculously intense crav-

ings,” and to feel like her mind was racing. Add. 38.

By 2009 (and possibly earlier), Farak regularly stole

and consumed police-submitted samples of cocaine, some

of which had been analyzed by other chemists. Add. 38.

She replaced samples with counterfeit substances and

altered the weights recorded in the Lab’s computer

system. Add. 38.

The impact of Farak’s misconduct was not limited

to her cases; it affected all of the cases submitted

to the Amherst Lab. Add. 33. Farak extensively con-

sumed and tampered with “standards,” which are pure

forms of drugs that are used to test alleged drug sam-

 9

ples. Add. 28-30. She also tampered with many of her

colleagues’ samples. Add. 33. Farak has insisted,

without corroboration, that she did not tamper with

other chemist’s samples before the summer of 2012,

Add. 33, and that she did not steal from unassigned

samples from the drug safe before the end of 2012. RA

205-206, ¶¶252-256. But Farak had access to all sam-

ples at the Lab during her entire tenure, including

unsealed samples left overnight in the temporary safe.

Add. 23, 26. She also had access to the heat sealer,

which she manipulated so she could steal evidence more

easily, and to the computer system, which allowed her

to alter gross sample weights. Add. 34.

II. The AGO’s misconduct

The AGO prosecuted Farak. Paralleling its ap-

proach to prosecuting Annie Dookhan in the Hinton Lab

scandal, the AGO agreed with the DAOs on a protocol:

the AGO would send the DAOs Farak-related evidence

that tended to exculpate defendants in drug cases

prosecuted by the DAOs, so that the DAOs could dis-

close that evidence to defendants. RA 250; T5:107,

133, 210-11. As the DAs have correctly observed, this

protocol presumed that they could “reasonably rel[y]

on the representations of the AGO.” RA 378. But the

AGO did not uphold its end of the bargain. As ex-

plained below, AAGs Foster and Kaczmarek engaged in a

 10

cover-up, and the AGO later failed to alert the courts

and defendants whom they had misled. In the words of

one Assistant District Attorney, the scope of Farak’s

misconduct became a “moving target.”2

A. The AGO’s withholding of exculpatory

evidence through deception

The AGO assigned AAG Kaczmarek to prosecute

Farak, and it assigned AAG Foster to respond to sub-

poenas concerning that prosecution. Add. 40-41. In

those roles, AAGs Kaczmarek and Foster repeatedly mis-

led defense counsel about Farak’s misconduct; withheld

exculpatory evidence from defendants; and deceived the

Superior Court. Add. 86.

After Farak’s arrest, “a major question” for the

AGO was “how many drug lab convictions [Farak] may

have undermined.” Add. 50-51. But the AGO failed to

conduct an investigation to answer this question, and

AAG Kaczmarek even “encourage[ed] OIG Senior Counsel

Audrey Mark to decline any request to investigate the

Amherst lab.” Add. 87 n.37.

Meanwhile, the AGO “assumed” that Farak’s miscon-

duct was limited to late 2012, an assumption “at odds

with the evidence uncovered” by the Massachusetts

2
Affidavit of First Asst. Dist. Attorney Jen-
nifer N. Fitzgerald in Support of District Attorney
for Hampden County’s Response to Petition at 18 ¶28
(Nov. 28, 2017).
 11

State Police, and known to the AGO, at an “early junc-

ture.” Add. 51. In January 2013, the MSP searched

Farak’s car and found “mental health worksheets”

containing admissions by Farak that she had stolen and

used police-submitted samples at work; documentation

that Farak had sought counseling for addiction; and

proof that Farak had been stealing and abusing drugs

since at least 2011 (not 2012, as the AGO claimed).

Add. 46. On February 14, 2013, MSP Sergeant Joseph

Ballou sent these worksheets to AAG Kaczmarek and AAG

John Verner, chief of the criminal bureau, in an email

entitled “FARAK Admissions.” Add. 54-55; RA 91-102.

Ex. 205.

The AGO recognized that these worksheets were

“significant and exculpatory.” Add. 58. In late March

2013, AAG Kaczmarek drafted a memo referencing the

worksheets and acknowledging case law suggesting that

they were not privileged. Add. 55-56; Ex. 163. AAG

Verner noted on this memo: “Paperwork not turned over

to DA’s Office yet.” Add. 56; Ex. 163.

Because the AGO had not turned over this evidence

to defendants either, several defendants attempted to

learn what the MSP had found in Farak’s car. Add. 61.

The defendants pursued exculpatory evidence “through

multiple avenues,” Add. 61, including discovery

motions and subpoenas, and the AGO assigned AAG Foster

 12

to respond. At a Superior Court hearing on September

9, 2013, AAG Foster failed to produce Ballou’s file

which had been summonsed to court. Add. 67-69.

Although she had not reviewed the file, AAG Foster

argued for a protective order. Add. 67. Consequently,

Judge Kinder required AAG Foster to produce for in

camera inspection any documents that the AGO sought to

protect. Add. 68-69.

AAG Foster emailed five AGO colleagues about

Judge Kinder’s order, including AAG Kaczmarek, who in-

formed the group that Ballou’s file included Farak’s

“mental health worksheets.” Add. 70; RA 127; Ex. 210.

Yet Foster neither produced the worksheets nor re-

viewed the file. Add. 64. Instead, in September 2013,

she wrote Judge Kinder a letter falsely asserting

that, “after reviewing” the file, “every document”

possessed by Ballou “has been disclosed.” Add. 71; RA

129; Ex. 193.

 13

Judge Carey found that this letter was “intended

to, and did,” give Judge Kinder “the false impression

that Foster had personally reviewed Ballou’s file.”

Add. 71. These misrepresentations were not

inadvertent, rather, the AGO “piled misrepresentation

upon misrepresentation to shield the mental health

worksheets from disclosure.” Add. 74.

But for the efforts of defense counsel, the AGO

might have gotten away with it. In July 2014, Attorney

Luke Ryan finally secured leave to examine the evi-

dence seized from Farak’s car. Add. 79. Attorney Ryan

inspected the evidence in October 2014, and he found

 14

the worksheets and other previously undisclosed docu-

ments. Add. 79.

In June 2017, based on the failure to disclose,

the subsequent cover-up, and numerous other actions,3

Judge Carey concluded that AAGs Foster and Kaczmarek

had committed egregious misconduct with a “systemic”

impact. Add. 86-87. Judge Carey ruled that Judge

Kinder’s finding about the scope and duration of

Farak’s misconduct had been based on ”misrepresenta-

tions made by Foster and the limited evidence before

him.” Add. 78. But for the AGO’s fraud, Judge Carey

found, Farak defendants “would have obtained discovery

to support their claims for relief and would not have

spent as much time incarcerated.” Add. 87 (emphasis

added). Judge Carey also found that Kaczmarek

attempted to deceive him during her December 2016

testimony, when she “feign[ed] that she forgot about

the mental health worksheets.” Add. 86-87.

3
See, e.g., Add. 73-74 (noting the AGO’s “pa-
tently false” claim that evidence seized from the car
was “irrelevant”); Add. 77 (finding that AGO failed to
“squarely or honestly” address a discovery request
about third-party knowledge of Farak’s misconduct);
Add. 86 (finding that AAGs Foster and Kaczmarek
“withh[e]ld the mental health worksheets through de-
ception); Add. 86 (finding that misrepresentations by
AAGs Foster and Kaczmarek “did not stop in 2013”).
 15

Judge Carey concluded that AAGs Foster and

Kaczmarek committed “a fraud upon the court,” Add. 86,

which he summarized as follows:

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 en-
gaging in a pattern calculated to interfere
with the court’s ability impartially to ad-
judicate discovery in the drug lab cases and
to learn the scope of Farak’s misconduct. .
. . Their conduct constitutes a fraud upon
the court.

* * *

Kaczmarek knew that the mental health work-

sheets were exculpatory admissions by Farak,
that the drug lab defendants were entitled
to them, that the AGO had not turned them
over to the drug lab defendants, and that it
had no intention of doing so.

* * *

Foster’s denial in December 2016 of having

made any mistakes underscores her lack of a
moral compass. As attorneys, officers of the
court, and agents of the Commonwealth of
Massachusetts, Kaczmarek’s and Foster’s con-
duct is reprehensible and magnified by the
fact that it was not limited to an isolated
incident, but a series of calculated misrep-
resentations.

Add. 86-87.
 16

B. The AGO’s failure to correct its false

statements

Two days after finding the withheld worksheets,

Attorney Ryan wrote the AGO on November 1, 2014, to

sound the alarm. “It would be difficult,” his letter

explained, “to overstate the significance of these

documents.” Add. 80; RA 164; Ex. 166. AAG Verner was

“shocked” and “pissed” that the AGO had not turned

over the worksheets. T5:196:8-16, 198:4-5. Yet the AGO

did not alert the courts or defendants who were preju-

diced by AAG Foster’s and Kaczmarek’s deception. Nor

did it alert this Court, where Judge Kinder’s rulings

were on appeal, to confess error. See Cotto, 471 Mass.

97; Ware, 471 Mass. 85.

Instead of correcting its false statements, the

AGO corrected (in part) its failure to disclose excul-

patory evidence. On November 13, 2014, the AGO sent

the DAOs almost 300 pages of previously undisclosed

evidence from Farak’s car. Add. 80; Ex. 167. The AGO

acknowledged these were "potentially exculpatory" ma-

terials that it was “oblig[ed]” to disclose. Ex. 167.

But the AGO failed to mention that it had possessed

this evidence for twenty-two months, or that the AGO’s

falsehoods had infected still-pending litigation which

the DAOs were then conducting. Ex. 167.

The AGO’s misconduct had consequences. At oral

argument in Cotto and Ware, a Hampden County ADA —
 17

perhaps unaware of all facts known to the AGO — de-

fended Judge Kinder’s erroneous finding, based on the

AGO’s falsehoods, that Farak’s misconduct began in the

summer of 2012.4 This Court then upheld those find-

ings, Cotto, 471 Mass. at 111 & nn.13-14, concluded

that Farak’s misconduct was not “comparable” to Doo-

khan’s, and declined a “conclusive presumption of

egregious misconduct” in Farak‘s cases. Cotto, 471

Mass. at 111; Ware, 471 Mass. at 93.

C. The AGO’s failure to notify defendants

To this day, the AGO has not comprehensively

identified or notified defendants harmed by AAGs Fos-

ter and Kaczmarek. Instead, it claims to have assisted

the DAOs in their efforts to identify defendants. RA

294-95, 305 ¶10, 309 ¶45. In October 2015, a Deputy

Attorney General represented that he would contact the

DAOs to convene a discussion about identifying and no-

tifying defendants, RA 76-77, 80-83, but the AGO has

not claimed that he ever followed through. RA 308.

The AGO did not change course even in December

2016, when Foster gave testimony that was both self-

incriminating and contrary to the testimony of her

former AGO colleagues. On the witness stand, Foster

4
The Cotto and Ware arguments are available at
http://www.suffolk.edu/sjc/pop.php?csnum=SJC_11761,
and
http://www.suffolk.edu/sjc/pop.php?csnum=SJC_11709.
 18

confessed that she had made her representations about

the evidence in its possession to Judge Kinder even

though she had “not reviewed one document in the Farak

case,” T3:64, and, thus, without knowing whether her

representations were true. Foster also testified that

her AGO supervisors instructed her to make those rep-

resentations, an accusation that the supervisors de-

nied. Add. 62-63. Even so, the AGO insisted that AAGs

Foster and Kaczmarek made only “unintentional mis-

takes,” and it opposed vacating any convictions based

on their actions. RA 243, 246, 247, 248, 256, 257,

264, 270, 280, 286, 288.

Although the AGO has more recently asserted that

it is “open to a broader remedy in this case than the

one that resulted from Bridgeman,”5 it has yet to pro-

pose any remedy for people who were prejudiced by its

own misconduct in addition to Farak’s misconduct.

III. The District Attorneys’ Offices‘ failure to

notify defendants

After Farak’s January 2013 arrest, District At-

torneys pledged to be “proactive in identifying cases,

notifying defense counsel and bringing them before the

court.”6 But according to their own submissions, the

5
Attorney General’s Response to the Court’s Dec.
8, 2017 Interim Order at 3 (Dec. 18, 2017).
6
Statement from Massachusetts District Attor-
neys, Jan. 20, 2013, at https://www.northwesternda.
 19

DAOs limited notice to the relatively few defendants

who were still incarcerated on Farak-involved cases.

Before this case was filed, only two DAOs — Worcester

and Suffolk — attempted to give any notice in cases

involving non-incarcerated defendants.7

Thus, for nearly five years, there has been no

systematic notice to defendants harmed by this scan-

dal. None of the DAOs provided such notice in 2013,

following Farak’s arrest. Nor did they do so following

the AGO’s belated disclosure, in November 2014, of

previously withheld evidence. Nor did they even do so

in August 2016, when they acknowledged that Farak had

engaged in egregious misconduct affecting all of her

cases. Cf. RA 375-76 (referencing “complete or partial

lists” provided by the Worcester and Suffolk DAOs

“during the summer of 2016”).

The DAOs failed to notify defendants, even though

they were repeatedly urged to chart a different

org/news/statement-da-sullivan-amherst-drug-lab-
allegations.
7
See, e.g., Affidavit of First Asst. Dist. At-
torney Jane A. Sullivan in Support of District Attor-
ney for Worcester County’s Response to Petition at 4-5
¶¶5-6 (Nov. 29, 2017) (referencing letters prepared
for defendants); Affidavit of Asst. Dist. Attorney Ian
Leson in Support of District Attorney for Suffolk
County’s Response to Petition at 7 ¶11 (Nov. 30, 2017)
(discussing list of defendants provided to CPCS in Au-
gust 2016).
 20

course. For example, the AGO’s Criminal Bureau Chief,

Kimberly West, emailed the DAOs in August 2015 to say

that notification of non-incarcerated defendants was

“’something we should talk about as a group.’” RA 308

¶30. On October 1, 2015, West conferred with the DAOs,

but did not “come to a conclusion,” on “how [notifica-

tion] could be done.” Id. ¶33.

Likewise, in January 2017, CPCS and the ACLU of

Massachusetts wrote the DAOs to ask if, how, and when

they intended to notify Farak defendants. RA 45 ¶14,

55-57. These letters also suggested that the DAOs may

wish to access drug-case data that had been supplied

to the parties in Bridgeman, and which the DAOs in

that case had used to identify Dookhan defendants. Id.

Following brief discussions, the DAOs appeared to de-

cide to wait for Judge Carey’s ruling. RA 45-46 ¶¶15-

19.

IV. The affected defendants

There may be 8,000 drug convictions in which

Farak signed the relevant certificate of analysis, and

CPCS estimates that there may 19,000 total drug con-

victions (including the Farak-involved convictions)

involving samples tested at the Amherst Lab during

Farak’s tenure. RA 386; Add. 148. Because the AGO

sought to obscure all but a few months of Farak’s near

decade-long tenure at the Amherst Lab, it seems that

 21

more than 7,000 convictions in which Farak signed the

underlying certificate of analysis — now slated for

agreed-upon dismissals — would have remained on the

books indefinitely if the AGO’s misconduct had not

been discovered.

The petitioners here are the Committee for Public

Counsel Services (CPCS), the bar advocate organization

Hampden County Lawyers for Justice (HCLJ), and two

individuals: Herschelle Reaves and Nicole Westcott.

Ms. Reaves is a community activist whose advocacy

addresses unfairness in the justice system. RA 70-71.

She was convicted in 2008 of a drug possession offense

in which Farak signed the drug certifiate. RA 71. Ms.

Westcott works for ServiceNet, a company that provides

services to people suffering from addiction. RA 73.

She sustained at least three adverse dispositions in

which Farak signed the drug certificate. RA 74-75. No

one on behalf of the Commonwealth informed Ms. Reaves

or Ms. Westcott of Farak’s misconduct, or the

misconduct of AAGs Foster and Kaczmarek, before they

filed this case. RA 72, 75.

SUMMARY OF THE ARGUMENT

I. The sheer magnitude of government misconduct

in this case is unprecedented. Following Sonja Farak’s

extensive misconduct, AAGs Foster and Kaczmarek vio-

lated the due process rights of all Amherst Lab de-

 22

fendants by withholding exculpatory evidence through a

fraud on the court. The AGO violated its constitution-

al duties by twice failing to properly investigate

Farak’s misconduct, especially its impact on samples

not tested by Farak herself. And the AGO and the DAOs

blocked the appellate and post-conviction rights of

Amherst Lab defendants; the AGO failed to alert courts

to AAG Foster’s false statements, and both the AGO and

most DAOs failed to notify affected defendants of the

government misconduct by Farak, Foster, and Kaczmarek.

(Pp. 23-36)

II. All drug convictions from Farak’s tenure at

the Amherst Lab — not just those in which she signed a

drug certificate — should be dismissed for two rea-

sons. First, all Amherst Lab defendants have been ir-

remediably prejudiced by the Commonwealth’s miscon-

duct, because it prevented them from timely investi-

gating actionable claims about the impact of Farak’s

misconduct on their convictions. Second, prophylactic

considerations are of paramount importance here, to

account for the due process rights of defendants, the

integrity of the criminal justice system, and the ef-

ficient administration of justice. This Court should

leave “no doubt that such conduct will not be tolerat-

ed.” Commonwealth v. Manning, 373 Mass. 438, 444

(1977). (Pp. 36-44)

 23

III. This Court should order further prophylactic

remedies, such as standing orders and monetary sanc-

tions, both to deter future misconduct by government

attorneys and to penalize the Commonwealth for its

misconduct. Petitioners suggest three standings or-

ders: (1) an order mandating the Bridgeman protocol

for any outbreak of egregious misconduct of a member

of the prosecution team; (2) an order mandating notice

of and investigation into criminal cases that may have

tainted by a government attorney; and (3) an order

more clearly defining the Commonwealth’s discovery ob-

ligations. Imposing monetary sanctions on the AGO or,

in the alternative, individual AAGs, will both remedy

past wrongs and deter future ones. (Pp. 44-53)

ARGUMENT

I. Assistant Attorneys General, the Attorney Gen-

eral’s Office, and District Attorneys’ Offices
have each committed misconduct that has exac-
erbated the Amherst Lab scandal.

Farak’s misconduct was only the beginning of al-

most five years of misconduct that is not just legally

attributable to the government, but was in fact com-

mitted by prosecutors. This attorney misconduct in-
cluded: (1) the fraud on the court by AAGs Foster and

Kaczmarek, who withheld exculpatory evidence and made

false statements about the timing and scope of Farak’s

misconduct; (2) the AGO’s repeated failure to thor-
 24

oughly investigate Farak’s misconduct; and (3) the de-

liberate blocking of defendants’ appellate and post-

conviction rights by both the AGO, which failed to

alert the Superior Court or this Court to its attor-

neys’ material false statements, and the DAOs, who

largely joined the AGO in failing to identify and no-

tify defendants.

A. AAGs Foster and Kaczmarek violated defend-

ants’ constitutional rights and defrauded
the court.

“[S]uppression by the prosecution of requested

material evidence which is favorable to the accused is

a denial of due process.” Commonwealth v. Ellison , 376

Mass. 1, 21 (1978). That is what happened here, in

thousands of cases.

Rather than turn over the most significant excul-

patory evidence in their possession, AAGs Foster and

Kaczmarek “deliberately used deceptive tactics to

shield the mental health worksheets from disclosure.”

Add. 102. They disregarded their constitutional and

ethical obligations and “tampered with the fair admin-

istration of justice by deceiving Judge Kinder and en-

gaging in a pattern calculated to interfere with the

court’s ability impartially to adjudicate discovery in

the drug lab cases and to learn the scope of Farak’s

misconduct.” Add. 86.

 25

That deception went to the heart of what Judge

Kinder was trying to ascertain. As detailed above, AAG

Foster’s September 2013 letter was “intended to, and

did,” give Judge Kinder “the false impression that

Foster had personally reviewed Ballou’s file.” Add.

71. She also deceived Judge Kinder into believing the

AGO turned over all relevant documents. Add. 85-86. As

Judge Carey later found, AAG Foster filed pleadings

with “no reasonable basis to believe that any of [her]

arguments had merit,” and that “did not squarely or

honestly address” the issues before the court. Add.

65, 77. And she did all this with the intent “to re-

lieve the AGO from having to produce” exculpatory evi-

dence. Add. 65.

AAG Kaczmarek was equally deceptive. She purpose-

fully withheld the exculpatory mental health work-

sheets from defense counsel and intentionally gave at

least one ADA the misimpression that “all relevant

discovery” had been provided.8 Add. 64 n.31, 123.

Judge Carey found that Kaczmarek lied to him at the

8
Withholding this evidence was especially egre-
gious because defendants specifically and repeatedly
requested it. See Commonwealth v. Tucceri, 412 Mass.
401, 407 (1992) (“when the omission of the prosecution
is knowing and intentional or follows a specific re-
quest, a standard of prejudice more favorable to the
defendant is justified in order to motivate prosecu-
tors to be alert to defendants’ rights to disclo-
sure”).
 26

December 2016 evidentiary hearing, “feigning that she

forgot about the mental health worksheets,” when in

fact she knew they had not been turned over because

she had “no intention” of turning them over. Add. 86-

87.

As Judge Carey found, Foster and Kaczmarek’s mis-

conduct constituted “a fraud upon the court.” Add. 86.

Indeed, deceiving a court about the existence of un-

disclosed exculpatory evidence is the very definition

of fraud on the court. See Comm’r of Probation v. Ad-

ams, 65 Mass. App. Ct. 725, 730 (2006), citing In re

Neitlich, 413 Mass. 416, 423 (1992) (fraud on court
where attorney made false statement with intent to de-

ceive court); Rockdale Mgmt. Co. v. Shawmut Bank,

N.A., 418 Mass. 596, 598 (1994) (“[f]raud on the

court” includes “deceiving the institutions set up to

protect and safeguard the public”) (cleaned up).9

If the fraud by AAGs Foster and Kaczmarek had af-

fected only one case, that would have been signifi-

cant. But their misconduct affected thousands of de-

fendants, making this scandal the most significant

malfeasance by prosecutors in the history of the Com-

monwealth’s justice system.

9
This brief uses (cleaned up) to indicate that
internal quotation marks, alterations, and citations
have been omitted from quotations. See, e.g., United
States v. Reyes, 866 F.3d 316, 321 (5th Cir. 2017).
 27

B. The AGO breached its duty to investigate not

once, but twice.

When Farak’s misconduct came to light, the Com-

monwealth had a duty to investigate stemming from its

“duty to learn of and disclose to a defendant any ex-

culpatory evidence that is ‘held by agents of the

prosecution team.’” Ware, 471 Mass. at 95, quoting

Commonwealth v. Beal, 429 Mass. 530, 532 (1999). The

AGO twice neglected this duty. Its first failure came

in 2013, when it somehow managed to prosecute Farak

without investigating the scope of her misconduct. Its

second failure followed this Court’s Cotto decision in

2015, when it conducted an investigation that failed

to meaningfully scrutinize the impact of Farak’s mis-

conduct on defendants whose samples were tested by

other chemists.

1. In 2013, the AGO failed to investigate

the scope of Farak’s misconduct.

Judge Carey found no evidence “that a comprehen-

sive, adequate, or even reasonable investigation by

any office or agent of the Commonwealth had been at-

tempted, concluded, or disclosed” until, only at this

Court’s request, the AGO issued a report in April 2016

(the “Cotto Report”). Add. 88-89; RA 312. Comparing

the Commonwealth’s response to the Hinton Lab scandal

illustrates how “very limited” the initial investiga-

 28

tion into Farak’s misconduct was. Ware, 471 Mass. at

93.

In 2012, upon learning of an instance of Doo-

khan’s misconduct, the State police detective unit of

the Attorney General’s Office “launched a broader in-

vestigation . . . to ensure that her misconduct was

limited to [this] incident.” Commonwealth v. Scott ,

467 Mass. 336, 339 (2014). They found it to be “the

proverbial tip of the iceberg.” Id.

In January 2013, when confronted with Farak’s

misconduct by a chemist, the AGO pretended the iceberg

did not exist. AAG Kaczmarek was particularly con-

cerned that an investigation might trigger “an ava-

lanche of work.” Add. 52. Consequently, rather than

conduct an investigation, the AGO ignored evidence

that Farak’s misconduct was occurring as early as 2011

and affected other chemists’ samples, and it disre-

garded any leads that did not comport with its implau-
sibly narrow theory of the case.

The AGO proceeded as though the misconduct was

limited in scope, which was “at odds with the evidence

uncovered even at that early juncture.” Add. 51. AAG

Kaczmarek even discouraged another attorney from in-

vestigating. Add. 54. This “[i]ntentional[]

avoid[ance]” of “information that may be exculpatory

[was] a serious breach of prosecutorial ethics,” Com-

 29

monwealth v. Beal, 429 Mass. at 535 n.4, and a serious

violation of the constitutional rights of every de-

fendant at the Amherst Lab.

2. In 2015, the AGO again failed to ade-

quately investigate the scope of Farak’s
misconduct.

”[W]here there is egregious misconduct attributa-

ble to the government in the investigation or prosecu-

tion of a criminal case, the government bears the bur-

den of taking reasonable steps to remedy that miscon-

duct.” Bridgeman II, 476 Mass. at 315 (emphasis add-

ed). In Cotto, this Court directed the Commonwealth to

“thoroughly investigate the timing and scope of Fara-

k's misconduct at the Amherst drug lab” not only to

assess Farak’s actions, but 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.” Cotto, 471 Mass.

at 115. Yet the AGO has never adequately investigated

the effect of Farak’s misconduct on defendants whose

drug certificates she did not sign.

In response to Cotto, the AGO issued a report in

April 2016, which documented rampant drug use by

Farak, including her consumption of “standards” used

for testing drug samples. RA 312-66. It recounted

Farak’s admissions that she consumed samples assigned

to other chemists. RA 326-327. The Cotto Report did
 30

not, however, independently assess the impact of

Farak’s misconduct on the Amherst Lab or all defend-

ants who had samples analyzed there.10

There is reason to doubt Farak’s flawed and self-

serving testimony that she started to tamper with oth-

er chemists’ samples only in the summer of 2012, and

only after those samples had already been tested. To

start, Judge Carey found that Farak likely “mini-

mize[d] her substance abuse.” Add. 28 n.11. And be-

cause she was habitually under the influence of drugs,

or suffering from symptoms of withdrawal, Add. 139,

Judge Carey observed that Farak’s testimony that there

were no inaccuracies in her testing “defie[d] logic”

and was “undercut by her report to her therapists that

at times, stimulants caused her to experience visual

disturbances.” Add. 29, 32.

Additionally, at least some of Farak’s testimony

was inaccurate. By way of example, Farak stated that

she did not do any testing on January 9, 2012, a day

she was extremely impaired from her use of LSD. Add.

32. However, this was directly contradicted by records

10
Instead, the AGO simply repeats Farak’s testi-
mony about what she supposedly did, while noting that
it “has provided the facts gleaned from its investiga-
tion without evaluation, without any determination
about the credibility of any of the witnesses, and
without the drawing of any conclusions.” RA 366 n.43.
 31

showing that she ran the GC/MS and signed certificates

of analysis on that date. Add. 32.

There is no reason to believe that Farak could

give, let alone attempted to give, an accurate account

of her tampering with samples tested by other chem-

ists. It would be unreasonable to credit Farak’s tes-

timony about when she began stealing from other chem-

ists’ samples, which samples those were, and whether

she did so before they were tested. Add. 33. Nor is

there any reason to believe that Farak’s inflated

sense of her own competence did not extend to her pur-

ported ability to ensure that, when she tampered with

a sample before it was assigned, it would always be

assigned to her. Add. 33.

In these circumstances, a “reasonable step” to

remedy the failure to conduct an adequate investiga-

tion would have been to look beyond Farak’s testimony

for reliable evidence about the scope of her miscon-

duct. At the very least, the AGO should have: (1)

identified the samples tested by other chemists that

Farak said she tampered with, to confirm that her

memory was accurate; (2) spot-checked other chemists’

samples, both within and before the summer 2012

timeframe, to see if the timeframe Farak provided was

accurate; and (3) ascertained whether Farak compro-

 32

mised the integrity of the Amherst Lab’s computer in-

ventory system. Add. 83 n.36.

By failing to look behind Farak’s own account of

whether she compromised other chemists’ samples, the

AGO compounded, rather than remedied, its initial

failure to conduct a thorough investigation. As a re-

sult, defendants whose samples passed through the Am-

herst Lab, but whose drug certificates were not signed

by Farak, will likely never be able to establish how

her misconduct affected their cases. Cf. Scott, 467

Mass. at 352 (“[I]t is unlikely that [Dookhan’s] tes-

timony, even if truthful, could resolve the question

whether she engaged in misconduct in a particular

case”).

C. Both the AGO and the DAOs deliberately

blocked defendants’ appellate rights.

State agents violate due process when they delib-

erately block a defendant’s appellate rights, Common-

wealth v. Libby, 411 Mass. 177, 178 (1991), and such

“deliberate blocking” warrants dismissal. Commonwealth

v. Lee, 394 Mass. 209, 220-221 (1985). Here, the AGO

deliberately blocked defendants’ appellate and post-

conviction rights, not only by withholding exculpatory

evidence and failing to conduct an investigation, but

by failing to notify the courts of its false state-

ments. The DAOs further blocked defendants’ appellate

 33

and post-conviction rights by not notifying them of

Farak’s misconduct. These actions unconstitutionally

prevented defendants from challenging their convic-

tions.

1. The AGO violated due process by failing to

alert courts to its attorneys’ false state-
ments and by failing to notify defendants of
its attorneys’ misconduct.

When Attorney Ryan advised the AGO that its at-

torneys had withheld exculpatory evidence and made ma-

terial false statements to Judge Kinder, RA 155-65,

the AGO had a duty to notify this Court and the trial

court of its misrepresentations. See Commonwealth v.

Hill, 432 Mass. 704, 714 (2000). Due process, under

both the federal and state constitutions, prohibits

the Commonwealth from allowing false information “to

go uncorrected.” Napue v. Illinois, 360 U.S. 264, 269

(1959). See U.S. Const. amend. XIV; Part II, c. 1, §

1, art. 4 of the Massachusetts Constitution; Massachu-

setts Declaration of Rights, arts. 1, 10, 12. The AGO,

as “chief law officer of the Commonwealth,” also has

common law and ethical duties to correct its employ-

ees’ false statements to courts. Secretary of Admin-

istration and Finance v. Attorney General, 367 Mass.

154, 159 (1975).11

11
See also former Mass. R. Prof. C. 3.3(a)(2),
Add. 9 (requiring disclosure of “a material fact to a
 34

Yet the AGO did not inform Judge Kinder that his

decision as to the timing and scope of Farak’s miscon-

duct was based on the AGO’s false statements. Nor did

it inform this Court — where Cotto and Ware were pend-

ing until April 2015 — that one of Judge Kinder’s most

important findings, on the starting date of Farak’s

misconduct, had been secured through false statements.

Instead, in violation of due process and its common

law and ethical duties, the AGO allowed this Court to

render decisions based on inaccurate information.

Moreover, once AAGs Foster and Kaczmarek commit-

ted misconduct, their actions, and not just Farak’s,

became exculpatory evidence in Amherst Lab cases. The

AGO therefore had a duty to disclose that evidence to

thousands of defendants. Bridgeman II, 476 Mass. at

315; Ware, 471 Mass. at 95; Cotto, 471 Mass. at 112.

Yet the record contains no evidence that, before this

case was filed, the AGO directly notified a single de-

tribunal when disclosure is necessary to avoid assist-

ing a . . . fraudulent act by the client”); former
Mass. R. Prof. C. 3.3(a)(4), Add. 9-10 (stating, if an
attorney offers “material evidence” and comes to know
of its falsity, the attorney must “take reasonable re-
medial measures”). As of July 2015, Rule 3.3 even more
explicitly requires an attorney “to correct a false
statement of material fact or law previously made to
the tribunal by the lawyer.” Mass. R. Prof. C.
3.3(a)(1), as appearing in 471 Mass. 1416 (2015).
 35

fendant or defense lawyer of the actions of Kris Fos-

ter or Anne Kaczmarek. See RA 304-310.

2. The DAOs violated due process by failing

to notify defendants of Farak’s miscon-
duct.

In the context of the Commonwealth’s lab scan-

dals, one of the “reasonable steps” required of prose-

cutors is the timely and effective notification of de-

fendants. Bridgeman II, 476 Mass. at 315; see also

Ware, 471 Mass. at 95 (discussing the Commonwealth’s

duty to disclose exculpatory evidence held by the

prosecution team); Cotto, 471 Mass. at 112 (same).

The DAOs repeatedly failed to take this “reasona-

ble step.” Bridgeman II, 476 Mass. at 315. After Judge

Kinder found, in October 2013, that Farak committed

egregious government misconduct starting in July 2012,

the DAOs did not identify or notify the defendants

whose cases fell within that period. After Attorney

Ryan alerted the AGO, in November 2014, to evidence in

the AGO’s possession demonstrating that Farak’s mis-

conduct was occurring in 2011, no one identified or

notified the impacted defendants whose cases fell

within this larger timeframe. In 2015, AAG West had

discussions with the DAOs about identifying and noti-

fying all impacted defendants, yet the DAOs identified

and notified only those who were then incarcerated on

a Farak case. RA 308. And even after all eleven dis-
 36

trict attorneys conceded, in August 2016, that Farak’s

misconduct warranted a conclusive presumption of mis-

conduct back to August 2004, only two DAOs attempted

some form of notice to defense counsel. See supra,

n.5.

II. This Court should vacate and dismiss the con-

victions of all Amherst Lab defendants.

In Bridgeman II, when this Court stopped short of

dismissing all tainted convictions, it emphasized the

lack of evidence of misconduct by any prosecutor.

Bridgeman II, 476 Mass. at 322, 328. Here, evidence of

prosecutor misconduct is abundant. Dismissals with

prejudice are the only appropriate remedy for that

misconduct, which includes outrageous violations of

due process, fraud on the court, and the deliberate

blocking of appellate rights. Dismissals are also a

necessary prophylactic in response to the Common-

wealth’s transforming the courts into unwitting agents

of injustice.

As of this filing, there remains a “cloud” over

the integrity of all testing at the Amherst Lab, Cot-

to, 471 Mass. at 115, and every defendant who sus-

tained a drug conviction involving that Lab has been

harmed by prosecutor misconduct. To leave “no doubt

that such conduct will not be tolerated,” Manning, 373

Mass. at 445, this Court should dismiss with prejudice

 37

the wrongful convictions of all Amherst Lab defend-

ants.

A. Dismissals with prejudice are warranted

here.

Individually, each instance of misconduct war-

rants dismissing cases. In combination, justice de-

mands it.

1. Dismissals are warranted because the mis-

conduct harmed all Amherst Lab defend-
ants.

By intentionally concealing Farak’s misconduct

and twice failing to adequately investigate its timing

and scope, the AGO foreclosed, or at least prejudi-

cially delayed, all Amherst Lab defendants from seek-

ing post-conviction relief from their wrongful convic-

tions.

Dismissal of charges is appropriate where “de-

layed disclosure was due to deliberate and egregious

action by the prosecutor.” Commonwealth v. Cronk, 396

Mass. 194, 199 (1985). The Commonwealth’s purposeful

failure to disclose exculpatory evidence made it im-

possible for defendants to make effective use of that

evidence, and the prejudicial effect of the misconduct

is irremediable. See id. at 199; Commonwealth v.

Light, 394 Mass. 112, 114 (1985) (dismissal of charges
appropriate where prejudice not remedied by new tri-
al). It makes no difference that the defendants even-
 38

tually received the evidence; dismissal is required

because “[t]he opportunity eventually to present this

claim [does] not cure the loss of the earlier oppor-

tunity to present it.” Commonwealth v. Washington W.,

462 Mass. 204, 216-217 (2012).

Dismissal is also required due to the Common-

wealth’s constitutionally inadequate investigation.

After ruling in Cotto that the Commonwealth had “an

obligation to conduct an investigation” into Farak’s

misconduct, this Court remanded, stating:

It is imperative that the Commonwealth thor-

oughly 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 per-
formed at that facility, which has serious
implications for the entire criminal justice
system.

Cotto, 471 Mass. at 115. Yet on remand, the Common-

wealth failed again to thoroughly assess the scope of

Farak’s misconduct on other chemists’ cases.

2. Dismissals with prejudice are also war-

ranted as a prophylactic remedy and to
protect the justice system’s integrity.

In addition to dismissing cases when attorney

misconduct prejudices defendants, courts may do so to

deter further misconduct and to protect the justice

system’s integrity. One purpose of this prophylactic

is “to create a climate adverse to repetition of that
 39

misconduct that would not otherwise exist.” Bridgeman

II at 317, quoting Commonwealth v. Lewin, 405 Mass.

566, 587 (1989). Indeed, “prophylactic considerations

assume paramount importance in fashioning a remedy”

for attorney misconduct, because the “deliberate un-

dermining of constitutional rights must not be counte-

nanced.” Manning, 373 Mass. at 444. For similar rea-

sons, “prosecutorial misconduct that is egregious, de-

liberate, and intentional, or that results in the vio-

lation of constitutional rights may give rise to pre-

sumptive prejudice” even when no actual prejudice has

been proved. Cronk, 396 Mass. at 198-199 (cleaned up).

Attorney misconduct involving the deliberate de-

ception of a court is especially likely to trigger

these concerns because it is incompatible with “rudi-

mentary demands of justice.” Giglio v. United States ,

405 U.S. 150, 153 (1972) (cleaned up). To protect the

integrity of the justice system, courts have the in-

herent authority to dismiss a case upon a finding of

fraud on the court. See Rockdale Mgmt. Co., N.A., 418

Mass. at 598-599. This inherent power may be invoked

when an attorney knowingly makes misrepresentations to

the court, intentionally misleads the court, or know-

ingly conceals information that it has a duty to pro-

vide to the court. See Wong v. Luu, 472 Mass. 208, 219

(2015) (court may sanction attorney using inherent

 40

powers). While this judicial power is invoked sparing-

ly, its exercise is justified by exceptional circum-

stances. See Commonwealth v. Pagan, 445 Mass. 315, 322

(2005). If hiding exculpatory evidence, lying to a

court, and then covering up the original lies with

more lies are not exceptional circumstances, it is

hard to imagine what is.

Prophylactic considerations are also especially

important where, as here, an attorney’s deception

turns a court into an unwitting “instrumentality” of

injustice. Manning, 373 Mass. at 444. Such misconduct

is acutely dangerous because “only when the importun-

ings of government agents are unsuccessful will the

matter come to the attention of the courts.” Id. at

444. Without a doubt, that is what the AGO’s agents

attempted here. The AGO obtained, through deception,

court orders denying defendants access to exculpatory

evidence. It had courts send people back to jail, to

serve time they would not otherwise have served, based

on false representations as to the extent of the mis-

conduct of another government actor. And it induced

this Court to hold that defendants with a drug certif-

icate signed by Farak did not deserve conclusive pre-

sumptions of misconduct when they did, and the Common-

wealth has since so conceded.

 41

Dismissing all convictions tainted by this mis-

conduct will also help to restore what this Court has

called the “fundamentals of our justice system.”

Bridgeman II, 471 Mass. 465, 487, quoting Scott, 467

Mass. at 354 n.11. Previously, this Court has ex-

pressed concern that dismissing cases with prejudice

could “allow the misconduct of one person to dictate

an abrupt retreat from” those fundamentals. Id. Howev-

er, given the egregious and all-encompassing miscon-

duct by many government actors that occurred here,

dismissal with prejudice would not be an abrupt re-

treat from the fundamentals of our criminal justice

system, but a powerful and necessary validation of

them.

The fundamentals of our justice system require

prosecutors to disclose exculpatory evidence. The fun-

damentals of our justice system require prosecutors to

be honest with the court. The fundamentals of our jus-

tice system hold that “the duties of a prosecutor to

administer justice fairly, and particularly concerning

requested or obviously exculpatory evidence, go beyond

winning convictions.” Ware, 471 Mass. at 95, quoting

Commonwealth v. Tucceri, 412 Mass. at 408. This Court

should confirm that these fundamentals are not option-

al, and that if they are not adhered to this Court

will impose strong remedies. Under these “extreme con-

 42

ditions,” dismissal with prejudice is the only appro-

priate remedy for the Commonwealth’s substantial vio-

lations of due process. Petition of Williams, 378

Mass. 623, 628 & n.8 (1979).

B. The dismissals should apply to all Amherst

Lab defendants.

At the very least, every conviction in which

Farak signed a drug certificate should be vacated and

dismissed. It is undisputed that Farak committed egre-

gious misconduct, and thus it cannot be disputed that

the AGO’s misconduct prevented those defendants from

promptly or effectively exercising their rights.12

But the prosecutor misconduct at issue here war-

rants the dismissal with prejudice of every case aris-

ing from the Amherst Lab during Farak's tenure. Court-

ordered dismissals based on misconduct by a government

attorney should not be limited to cases where lab mis-

conduct is undisputed. Instead, prosecutor misconduct

should result in the dismissal of any case where the

defendant has an actionable claim of relief that was

delayed or impaired by prosecutor misconduct.

12
Defendants who pleaded guilty after January
2013 are also entitled to relief: their pleas were in-
voluntary because they were prevented from litigating
their post-conviction motions with full knowledge of
Farak’s misconduct by the same egregious attorney mis-
conduct.
 43

Every Amherst Lab defendant has such a claim. It

is undisputed that misconduct at the lab extended be-

yond samples assigned to Farak, and the precise scope

of that misconduct is unknown (and at this point, un-

knowable) due the Commonwealth’s misconduct in failing

to conduct a prompt and adequate investigation.

Nor would it be fair to give the AGO yet another

do-over. The Commonwealth was obliged to conduct a

“timely” investigation because “[t]he burden of ascer-

taining 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.” Cot-

to, 471 Mass. at 112. Bridgeman II, 476 Mass. at 317

(“[W]here large numbers of persons have been wronged,

the wrong must be remedied in a manner that is not on-

ly fair as a matter of justice, but also timely and

practical.”). Defendants whose cases were tested at

the Amherst Lab have unfairly shouldered this burden

for almost five years. They should not have to do it

any longer.

In fashioning a remedy, this Court should ac-

count for the due process rights of defendants, the

integrity of the criminal justice system, [and] the

efficient administration of justice.” Scott, 467 Mass.

at 352. These principles compel the conclusion that

all Amherst Lab cases must be dismissed. It would not

 44

be efficient to wait for the Commonwealth to complete

an adequate investigation, and it is not fair to de-

fendants that one has not been completed already. The

AGO should not be given a third bite at the apple when

the due process rights of defendants continue to be

adversely impacted by its “unacceptably glacial sys-

temic response.” Bridgeman II, 476 Mass. at 332 (Lenk,

J., concurring).

III. The attorney misconduct at issue here warrants

additional prophylactic remedies.

“Every day,” counsel for one District Attorney

recently observed, “there are collateral consequences”

for wrongfully convicted people. 13 Unfortunately, now

that prosecutors have improperly prolonged those con-

sequences for thousands of people, dismissals alone

cannot meaningfully repair the damage. Nor can dismis-

sals, without more, deter misconduct by other govern-

ment attorneys. After all, under the Bridgeman proto-

col, misconduct by a chemist and no one else has

yielded the dismissal of nearly all affected convic-

tions. It follows that, when government attorneys cov-

13
Statement of Asst. Dist. Attorney Ian Leson,
Committee for Public Counsel Services v. Attorney Gen-
eral, SJ-2017-0347 (Feb. 22, 2018) (transcript not yet
available); see Commonwealth v. Pon, 469 Mass. 296,
315-16 (2014) (“[J]udges may take judicial notice that
the existence of a criminal record . . . can present
barriers to housing and employment opportunities”).
 45

er up a chemist’s misconduct, thereby delaying relief

for thousands of injured individuals for years, the

remedy should exceed an uptick in the percentage of

cases dismissed. Here, at least two other remedies are

appropriate: standing orders and monetary sanctions.

A. This Court should issue standing orders on

the responsible handling of government mis-
conduct and exculpatory evidence.

The Amherst Lab scandal’s victims have learned,

the hard way, that case law is not self-executing. De-

spite several key decisions by this Court, and the

passage of several years since Farak’s arrest, there

was no comprehensive list of Farak’s cases when this

case began. Standing orders, as opposed to more law-

suits, would create a better mechanism for addressing

government misconduct and ensuring disclosure of ex-

culpatory evidence.

This Court has ample authority to issue standing

orders responsive to this crisis. With respect to “the

administration of the courts and the trial of cases,

[this Court] may impose requirements (by order, rule

or opinion) that go beyond constitutional mandates.”

Commonwealth v. Bastarache, 382 Mass. 86, 102 (1986).

For example, this Court has approved “model notices

and orders for use in all criminal cases” involving

the pretrial inspection of certain records that may be

 46

statutorily privileged.14 And one of the Court’s early

interventions in the Hinton Lab crisis was a standing

order.15

Given the subsequent conduct of the AGO and DAOs,

the Court should issue three standing orders on gov-

ernment misconduct and exculpatory evidence.

1. Standing Bridgeman Order. This Court should

issue a standing order, modeled on the Bridgeman pro-

tocol, governing criminal cases that any member of the

prosecution team, including an analyst responsible for

forensic evidence, may have tainted. The Bridgeman

protocol, of course, provided crucial guidance in the

Hinton Lab crisis. But even as prosecutors followed

that protocol in Bridgeman itself, they were failing

to do so in the Amherst Lab crisis, where (until re-

cently) no one had sued them. When prosecutors learn

of misconduct by a member of the prosecution team, it

should not take a lawsuit for the Bridgeman protocol

to begin; the protocol should be automatic.

A standing order should therefore mandate the

Bridgeman protocol for any instance of egregious mis-

conduct by any member of a prosecution team that has

14
In re: Order dated December 29, 2006 entered
in Commonwealth v. Dwyer, 448 Mass. 122 (2006) , Su-
preme Judicial Court (Nov. 30, 2007).
15
See Order, Supreme Judicial Court (Nov. 9,
2012).
 47

likely resulted in wrongful convictions. Under this

Bridgeman Order, when a prosecutor knows or has reason

to believe that misconduct occurred in one or more of

her cases, the prosecutor’s office should have no more

than 90 days to supply a list of relevant cases to the

Chief Justice of the Trial Court and CPCS. See Bridge-

man II, 476 Mass. at 300. For each case, the Bridgeman
Order should require the office to say whether it

agrees that the listed conviction(s) should be vacated

and dismissed with prejudice. Id. at 327-28. For each

conviction the office does not agree to have dis-

missed, the Order should require the prosecuting of-

fice to certify that it has untainted evidence suffi-

cient to permit a jury to find the elements of the of-

fense beyond a reasonable doubt. Id.

The Bridgeman Order should require the dismissal

with prejudice of any conviction for which the prose-

cuting office makes no certification in 90 days, un-

less within that window the office obtains a court or-

der finding compelling reasons to extend the deadline.

2. Standing Cotto Order. This Court should also

issue a standing order governing criminal cases —

whether pre- or post-conviction — that a government

attorney may have tainted. Under this Order, when a

government attorney knows that attorney misconduct may

have affected a criminal case, the attorney or the

 48

agency that employs her should have 30 days to notify

the Chief Justice of the Trial Court, CPCS, and the

Bar Counsel’s office of the Board of Bar Overseers.

Cf. Mass. R. Prof. C. 8.3. Notices provided under this

Order should specify: (a) the key facts known to the

reporting attorney or agency; (b) the potentially af-

fected cases; and (c) whether, how, and by when the

agency will investigate the misconduct. Cf. Cotto, 471

Mass. at 114. The Cotto Order should also provide

that, if the agency declines to investigate, or if a

court later finds that the agency’s investigation was

inadequate, the court may call for an independent in-

vestigation at the agency’s expense. In fact, this

Court could appropriately do so in this very case, be-

cause a thorough and independent investigation of the

AGO’s misconduct has never occurred.16

The Cotto Order should include a safe harbor for

compliance and penalties for noncompliance. For exam-

ple, the Order might disfavor sanctions against an

agency that forthrightly discloses the misconduct of

one of its attorneys. But it might favor sanctions,

16
Compare Aff. of the Hampden County Dist. At-
torney’s Office in Support of DAs’ Response to Peti-
tion at 4-6,8 (Nov. 30, 2017) (discussing March 2016
letter by a Special AAG and a Special ADA that found,
without discussion, “no evidence of prosecutorial mis-
conduct”).
 49

including referrals to Bar Counsel and the monetary

sanctions proposed below, when an agency fails to make

a required disclosure — especially when, as here, that

failure harms wrongfully convicted defendants.

3. Standing Brady Order. Finally, in criminal

cases, this Court should require trial courts to issue

an order governing prosecutors’ disclosure obligations

under Brady v. Maryland, 373 U.S. 83 (1963), and Mas-

sachusetts law. The Brady Order should set disclosure

deadlines, and it should emphasize that the duty to

disclose exculpatory evidence extends throughout the

case. The Order should specify sanctions for violating

it.17

B. This Court should also order monetary sanc-

tions responsive to the AGO’s misconduct.

Remedying past wrongs is one of the legal sys-

tem’s primary tools for deterring future wrongs. When

criminal conduct harms others, courts can order de-

17
See, e.g., Standing Brady Order, No. XX-XX
(EGS), at http://www.dcd.uscourts.gov/sites/dcd/files/
StandingBradyOrder_November2017.pdf; Chief Judge
DiFiore Announces Implementation of New Measure Aimed
at Enhancing the Delivery of Justice in Criminal Cas-
es, N.Y. Unified Court System (Nov. 8, 2017), at
https://www.nycourts.gov/PRESS/ PDFs/PR17_17.pdf; see
also Cynthia E. Jones, Here Comes the Judge: A Model
for Judicial Oversight and Regulation of the Brady
Disclosure Duty, 138 Hofstra L. Rev. 87, 111-13
(2017).
 50

fendants to pay restitution, which can both remediate

and deter. See Cepulonis v. Commonwealth , 426 Mass.

1010, 1011 (1998).

When attorney misconduct harms others, as oc-

curred here, courts can order the offending attorneys

to pay monetary sanctions. This Court should do so

here. Because AGO employees committed a “fraud upon

the court,” and because that fraud harmed thousands of

people, this Court should order the AGO, or in the al-

ternative individual former AAGs, to pay a monetary

fine that compensates the victims and deters future

wrongdoing.

The reasons for this sanction are well estab-

lished. “[P]rophylactic considerations may assume par-

amount importance” when attorneys commit intentional

misconduct, warranting measures “to create a climate

adverse to repetition.” Bridgeman II, 476 Mass. at

316-17; see Manning, 373 Mass. at 444. To advance

those considerations, the Court has recognized that

“[o]ther sanctions,” beyond dismissing charges,

“clearly are available against attorneys who are shown

to be in willful disregard of appropriate court or-

ders.” Cronk, 396 Mass. at 201 n.3.

There are several legal bases to order monetary

sanctions here. This Court can order fines, costs, and

fees to “correct and prevent errors and abuses . . .

 51

if no other remedy is expressly provided.” G. L. c.

211, § 3. Because AAG Foster’s false statements to

Judge Kinder came in response to civil process in a

criminal case, the Court can also impose sanctions un-

der the civil or criminal rules. See, e.g., Mass. R.

Civ. P. 11; Mass. R. Crim. P. 14, 48. Under the crimi-

nal rules, Rule 14 authorizes only remedial sanctions,

Commonwealth v. Carney, 458 Mass. 418, 418-19 (2010),

but Rule 48 also permits sanctions that punish past

misconduct, Commonwealth v. Firth, 458 Mass. 434, 442-

43 (2010), thereby deterring future misconduct. Rule

48 provides:

A wilful violation by counsel of the provi-

sions of these rules or of an order issued
pursuant to these rules shall subject coun-
sel to such sanctions as the court shall
deem appropriate, including citation for
contempt or the imposition of costs or a fi-
ne.

Rule 48’s elements are satisfied here, and a fine

would serve the interests of justice.

First, monetary sanctions against the AGO are ap-

propriate because its attorneys repeatedly and will-

fully violated court orders to the detriment of thou-

sands of people. In 2013, AAG Foster moved to quash

subpoenas issued to AAG Kaczmarek and Ballou. Judge

Kinder denied AAG Foster’s motions to quash, noting

she was under “a court order” to produce the subpoe-
 52

naed evidence. RA 118, 121. Foster did not do so. Sim-

ilarly, AAG Foster’s deceptive letter of September

2013 came in response to an order, issued orally by

Judge Kinder, giving her a deadline to produce Bal-

lou’s file. RA 126. Instead of complying, AAG Foster

deceived Judge Kinder about what he had called “the

Attorney General’s obligation with respect to Sergeant

Ballou’s file.” RA 125; see also RA 122, 123.

Second, this Court should impose monetary sanc-

tions on the AGO, no matter whether it also sanctions

Foster and Kaczmarek. In 2013 and 2014, AAGs Foster

and Kaczmarek acted on the Attorney General’s behalf

as attorneys for her law firm. RA 103-04, 105-14

(pleadings signed by Foster on behalf of “MARTHA COAK-

LEY[,] ATTORNEY GENERAL”). The AGO is therefore a

“counsel” subject to sanctions under Rule 48.

Holding the AGO accountable for Foster and Kacz-

marek’s fraud will deter future prosecutorial miscon-

duct. The AGO is ideally suited to prevent or mitigate

misconduct by its attorneys, and that is precisely

what it failed to do. Instead, for years, it made

things worse, first by declining to alert courts to

AAG Foster’s falsehoods, and later by opposing relief

for people harmed by those falsehoods. Thousands of

people, including petitioners Reaves and Westcott,

were harmed not just by AAGs, but by the AGO itself.

 53

Cf. Mass. R. Prof. C. 5.1 (discussing supervisory re-

sponsibility).18

Accordingly, this Court could order the AGO to

create and fund an account for the defendants it

harmed, from which disbursements could be made under

the Single Justice’s supervision. The Court could also

consider requiring the AGO to pay attorneys’ fees and

costs for proceedings necessitated by its misconduct.

CONCLUSION

“The purpose for which the courts are established

is to do justice.” Crocker v. Justices of Superior

Court, 208 Mass. 162, 179 (1911). Here, justice man-

dates the dismissal of all Amherst Lab cases, the en-

try of standing orders, and the imposition of monetary

sanctions.

18
This Court has already rejected as “unavail-
ing” any argument that sovereign immunity shields the
Commonwealth’s agents from court-ordered sanctions.
Carney, 458 Mass. at 433 n.20. In the Commonwealth,
governmental immunity is a “judicially created con-
cept” that this Court may waive where “justice and
public policy” do not call for it. Morash and Sons,
Inc. v. Commonwealth, 363 Mass. 612, 619, 623 (1973).
 54
Respectfully submitted,
COMMITTEE FOR PUBLIC COUNSEL
SERVICES,
By its attorneys,
____________________________
Rebecca A. Jacobstein, BBO 651048
Benjamin H. Keehn, BBO 542006
Committee for Public Counsel
Services
Public Defender Division
44 Bromfield Street
Boston, MA 02108
(617) 910-5726
rjacobstein@publiccounsel.net
Dated: 03/15/18
HAMPDEN COUNTY LAWYERS FOR
FOR JUSTICE,
HERSCHELLE REAVES, and
NICOLE WESTCOTT
By their attorneys,
____________________________
Daniel N. Marx, BBO 674523
William W. Fick, BBO 650562
Fick & Marx LLP
100 Franklin Street, 7th Floor
Boston, MA 02110
(857) 321-8360
dmarx@fickmarx.com
____________________________
Matthew R. Segal, BBO 654489
Ruth A. Bourquin, BBO 552985
Carlton E. Williams, BBO 600973
ACLU Foundation of Massachu-
setts, Inc.
211 Congress Street
Boston, MA 02110
(617) 482-3170
msegal@aclum.org
 55

CERTIFICATE OF COMPLIANCE

I hereby certify that this brief complies with

the Massachusetts Rules of Appellate Procedure.

_________ ________________________

Date Rebecca A. Jacobstein

 56

ADDENDUM TABLE OF CONTENTS

Massachusetts Rule of Civil Procedure

Rule 11 ..................................... Add.1

Massachusetts Rule of Criminal Procedure

Rule 14 ..................................... Add.2

Massachusetts Rule of Criminal Procedure

Rule 48 ..................................... Add.8

Massachusetts Rule of Professional Conduct

Rule 3.3 (Current) ......................... Add.8

Massachusetts Rule of Professional Conduct

Rule 3.3 (Prior) ........................... Add.9

Massachusetts Rule of Professional Conduct

Rule 5.1 .................................... Add.10

Massachusetts Rule of Professional Conduct

Rule 8.3 .................................... Add.11

Mem. of Decision & Order, Commonwealth v. Cotto,

No. 2007-770, June 26, 2017 ................. Add.12

Affidavit of Christopher K. Post ............... Add.145

 Add.
Add :. 111
Add

Addendum

Massachusetts Rule
Massachusetts Rule of
of Civil
Civil Procedure
Procedure

Rule 11 - Appearances and Pleadings

(a). Signing. Every pleading of a party represented by an attorney attorney shall

shall be
be signed
signed in
in his
his individual
individual
name by at least one attorney who is admitted to practice in this Commonwealth. The address of
each
each attorney,
attorney, telephone
telephone number,
number, and
and e-mail
e-mail address
address if if any
any shall
shall be
be stated.
stated. A
A party
party who
who isis not
not
represented by an attorney shall sign his pleadings and state his address, telephone number, and e-
mail
mail address
address ifif any.
any. Except
Except when
when otherwise
otherwise specifically
specifically provided
provided by by rule
rule or
or statute,
statute, pleadings
pleadings needneed
not be verified or accompanied by affidavit.
not be verified or accompanied by affidavit. The The signature of an attorney to a pleading constitutes
a certificate by him that he has read the pleading; that to the best of his knowledge, information,
and belief
and belief there
there is
is aa good
good ground
ground toto support
support it;
it; and
and that
that itit is
is not
not interposed
interposed forfor delay.
delay. If
If aa pleading
pleading
not signed,
is not signed, or
or is
is signed
signed with
with intent
intent to
to defeat
defeat the
the purpose
purposeof ofthis
thisRule,
Rule,ititmay
maybe bestricken
strickenand and the
the
action may proceed as though the pleading had not been filed. For a wilful violation of this rule an
attorney may
attorney may bebe subjected
subjected to
to appropriate
appropriate disciplinary
disciplinary action.
action. Similar
Similar action
action may
may bebe taken
taken if if
scandalous or indecent matter is inserted.

(b)
(b)Appearances. (1) The filing of any pleading, motion, or other other paper
paper shall
shall constitute
constitute anan
appearance by the attorney who signs it, unless the paper paper states
states otherwise.
otherwise. (2)
(2) An
An appearance
appearance inin aa
case
case may
may be
be made
made byby filing
filing aa notice
notice of
of appearance,
appearance, containing
containing the
the name,
name, address
address and
and telephone
telephone
number
number ofof the
the attorney
attorney or
or person
person filing
filing the
the notice.
notice. (3)
(3) No
No appearance
appearance shall,
shall, of
of itself,
itself, constitute
constitute aa
general appearance.

(c)
(c)Withdrawals. AnAn attorney
attorney may, without leave of of court,
court, withdraw
withdraw from a case by filing written
written
notice of withdrawal, together with proof of service on his client and all other parties, provided
that
that (1)
(1) such
such notice
notice is
is accompanied
accompanied by by the
the appearance
appearance ofof successor
successor counsel;
counsel; (2)
(2) no
no motions
motions are
are
then
then pending
pending before
before the
the court;
court; and
and (3)
(3) no trial date has been set. Under all other circumstances,
leave of court, on motion and notice,
notice, must
must be
be obtained.
obtained.

(d) Change of Appearance. In the event an attorney who has heretofore appeared, ceases to act, or
a substitute attorney or additional attorney appears, or a party party heretofore
heretofore represented
represented by
by attorney
attorney
appears without
appears without attorney,
attorney, or
or an
an attorney
attorney appears
appears representing
representing aa heretofore
heretofore unrepresented
unrepresented party,
party, or
or
a heretofore stated address or telephone number is changed, the party or attorney concerned shall
notify the
notify the court
court and
and every
every other
other party
party (or
(or his
his attorney,
attorney, ifif the
the party
party is
is represented)
represented) inin writing,
writing, and
and
the clerk
the clerk shall
shall enter
enter such
such cessation,
cessation, appearance,
appearance, or change on the docket forthwith. Until such
notification the court, parties, and attorneys may rely on action by, and notice to, any attorney
previously
previously appearing
appearing (or
(or party
party heretofore
heretofore unrepresented),
unrepresented), and and on
on notice,
notice, at
at an
an address
address previously
previously
entered.
entered. (e)
(e) Verification
Verification Generally.
Generally. When
When a pleading is required to be verified, or when an
affidavit is required or permitted to be filed, the pleading may be verified or the affidavit made by
the party,
the party, or
or by
by aa person
person having
having knowledge
knowledge of of the
the facts
facts for
for and
and on
on behalf
behalf of
of such
such party.
party.
 Add.
Add:.222
Add

Massachusetts Rule
Massachusetts Rule of
of Criminal
Criminal Procedure
Procedure

Rule 14
Rule 14 -- Pretrial
Pretrial Discovery
Discovery

(a) Procedures
(a) Procedures for
for Discovery.
Discovery. (1)
(1) Automatic
Automatic Discovery.
Discovery.

(A) Mandatory Discovery

(A)Mandatory Discovery for for the
the Defendant.
Defendant. The The prosecution
prosecution shall shall disclose
disclose toto the
the defense,
defense, and and
permit the
permit the defense
defense to to discover,
discover, inspect
inspect andand copy,
copy, each
each of of the
the following
following items
items and
and information
information at at or
or
prior
prior toto the
the pretrial
pretrial conference,
conference, provided
provided itit is is relevant
relevant to to the
the case
case and
and isis in
in the
the possession,
possession, custodycustody
or
or control
control of of the
the prosecutor,
prosecutor, persons
persons under
under the the prosecutor's
prosecutor's direction
direction andand control,
control, or or persons
persons who who
have
have participated
participated in in investigating
investigating or or evaluating
evaluating the the case
case and
and either
either regularly
regularly report
report to to the
the
prosecutor's
prosecutor's officeoffice or
or have
have done
done so so in
in the
the case:
case: (i)(i) Any
Any written
written oror recorded
recorded statements,
statements, and and the
the
substance
substance of of any
any oral
oral statements,
statements, made
made by by the
the defendant
defendant or or aa co-defendant.
co-defendant. (ii) (ii) The
The grand
grand jury
jury
minutes,
minutes, and and the
the written
written or or recorded
recorded statements
statements of of aa person
person who who has
has testified
testified before
before aa grand
grand jury.
jury.
(iii)
(iii) Any
Any facts
facts of
of an
an exculpatory
exculpatory nature.
nature. (iv)(iv) The
The names,
names, addresses,
addresses, and and dates
dates ofof birth
birth ofof the
the
Commonwealth's prospective
Commonwealth's prospective witnesses
witnesses otherother than
than law
law enforcement
enforcement witnesses.
witnesses. TheThe
Commonwealth shall
Commonwealth shall also
also provide
provide this
this information
information to to the
the Probation
Probation Department.
Department. (v) (v) The
The names
names
and business
and business addresses
addresses of of prospective
prospective law law enforcement
enforcement witnesses.
witnesses. (vi)(vi) Intended
Intended expert
expert opinion
opinion
evidence, other
evidence, other than
than evidence
evidence that
that pertains
pertains to to the
the defendant's
defendant's criminal
criminal responsibility
responsibility and and isis subject
subject
to subdivision
to subdivision (b)(2).
(b)(2). Such
Such discovery
discovery shall
shall include
include the the identity,
identity, current
current curriculum
curriculum vitae,vitae, and
and list
list of
of
publications
publications of of each
each intended
intended expert
expert witness,
witness, and and all
all reports
reports prepared
prepared by by the
the expert
expert thatthat pertain
pertain to to
the
the case.
case. (vii)
(vii) Material
Material and and relevant
relevant police
police reports,
reports, photographs,
photographs, tangible
tangible objects,
objects, allall intended
intended
exhibits,
exhibits, reports
reports ofof physical
physical examinations
examinations of of any
any person
person or or of
of scientific
scientific tests
tests or
or experiments,
experiments, and and
statements
statements of of persons
persons the the party
party intends
intends to to call
call as
as witnesses.
witnesses. (viii)
(viii) AA summary
summary of of identification
identification
procedures,
procedures, and and all
all statements
statements made
made in in the
the presence
presence of of or
or by
by an
an identifying
identifying witness
witness that that are
are
relevant
relevant to to the
the issue
issue ofof identity
identity or
or to
to the
the fairness
fairness or or accuracy
accuracy of of the
the identification
identification procedures.
procedures. (ix) (ix)
Disclosure of
Disclosure of all
all promises,
promises, rewards
rewards or or inducements
inducements made made to to witnesses
witnesses the the party
party intends
intends to to present
present
at
at trial.
trial.

(B)Reciprocal
(B) Reciprocal Discovery
Discovery forfor the
the Prosecution.
Prosecution. Following
Following thethe Commonwealth's
Commonwealth's delivery
delivery ofof all
all
discovery
discovery required
required pursuant
pursuant toto subdivision
subdivision (a)(1)(A)
(a)(1)(A) oror court
court order,
order, and
and on
on or
or before
before aa date
date agreed
agreed
to
to between
between the
the parties,
parties, or
or in
in the
the absence
absence ofof such
such agreement
agreement aa date
date ordered
ordered byby the
the court,
court, thethe
defendant
defendant shall
shall disclose
disclose to
to the
the prosecution
prosecution andand permit
permit the
the Commonwealth
Commonwealth to to discover,
discover, inspect,
inspect,
and
and copy
copy any
any material
material and
and relevant
relevant evidence
evidence discoverable
discoverable under
under subdivision
subdivision (a)(1)(A)(vi),
(a)(1)(A)(vi), (vii),
(vii), and
and
(ix) which
(ix) which the
the defendant
defendant intends
intends toto offer
offer at
at trial,
trial, including
including the
the names,
names, addresses,
addresses, dates
dates ofof birth,
birth,
and statements
and statements of
of those
those persons
persons whom
whom thethe defendant
defendant intends
intends to
to call
call as
as witnesses
witnesses at
at trial.
trial.

(C) Stay of
(C) Stay of Automatic
Automatic Discovery;
Discovery; Sanctions.
Sanctions. Subdivisions
Subdivisions (a)(1)(A)
(a)(1)(A) and
and (a)(1)(B)
(a)(1)(B) shall
shall have
have the
the
force
force and
and effect
effect of
of aa court
court order,
order, and
and failure
failure to
to provide
provide discovery
discovery pursuant
pursuant to to them
them may
may result
result in
in
application
application of
of any
any sanctions
sanctions permitted
permitted for for non-compliance
non-compliance with with aa court
court order
order under
under subdivision
subdivision
14(c).
14(c). However,
However, ifif in
in the
the judgment
judgment of of either
either party
party good
good cause
cause exists
exists for
for declining
declining to
to make
make any
any of
of
the
the disclosures
disclosures set
set forth
forth above,
above, itit may
may move
move for
for aa protective
protective order
order pursuant
pursuant toto subdivision
subdivision (a)(6)
(a)(6)
and
and production
production ofof the
the item
item shall
shall be
be stayed
stayed pending
pending aa ruling
ruling by
by the
the court.
court.
 Add.
Add . 333
Add:

Defendant, Codefendants,
(D) Record of Convictions of the Defendant,
(D) Codefendants, and
and Prosecution
Prosecution Witnesses.
Witnesses. At At
arraignment the
arraignment the court
court shall
shall order
order the
the Probation
Probation Department
Department toto deliver
deliver to
to the
the parties
parties the
the record
record of
of
prior complaints, indictments and dispositions of all defendants and of all witnesses identified
pursuant
pursuant to
to subdivisions
subdivisions (a)(1)(A)(iv)
(a)(1)(A)(iv) within
within 55 days
days of
of the
the Commonwealth's
Commonwealth's notification
notification to
to the
the
Department of
Department of the
the names
names and addresses of its witnesses.

(E)Notice
(E) Notice and
and Preservation
Preservation ofof Evidence.
Evidence. (i) (i) Upon
Upon receipt
receipt of
of information
information thatthat any
any item
item described
described
in subparagraph (a)(1)(A)(i)-(viii) exists, except that it is not within the possession, custody or
control of the prosecution, persons under its direction and and control,
control, or
or persons
persons who
who have
have
participated in
participated in investigating
investigating or
or evaluating
evaluating the the case
case and
and either
either regularly
regularly report
report to
to the
the prosecutor's
prosecutor's
office or have done so in the case, the prosecution shall notify the defendant of the existence of
the item
the item and
and all
all information
information known
known to to the
the prosecutor
prosecutor concerning
concerning thethe item's
item's location
location and
and the
the
identity of
identity of any
any persons
persons possessing
possessing it.
it. (ii)
(ii) At
At any
any time,
time, aa party
party may
may move
move forfor an
an order
order to
to any
any
individual, agency or other entity in possession, custody or control of items pertaining to the case,
requiring that
requiring that such
such items
items be
be preserved
preserved for for aa specified
specified period
period ofof time.
time. The
The court
court shall
shall hear
hear and
and rule
rule
upon the
upon the motion
motion expeditiously.
expeditiously. The
The court
court may
may modify
modify or or vacate such an order upon a showing
that preservation of particular evidence will create significant hardship, on condition that the
probative
probative value
value of
of said
said evidence
evidence is
is preserved
preserved by by aa specified
specified alternative
alternative means.
means.

(2) Motions for Discovery. The defendant may move, and following its filing of the Certificate of
Compliance
Compliance the
the Commonwealth
Commonwealth may may move,
move, for
for discovery
discovery of
of other
other material
material and
and relevant
relevant evidence
evidence
not required by subdivision (a)(1) within the time allowed by Rule 13(d)(1).

(3) Certificate
(3) Certificate ofof Compliance.
Compliance. When
When aa party
party has
has provided
provided all
all discovery
discovery required
required by
by this
this rule
rule or
or by
by
court order, it shall file with the court a Certificate of Compliance. The certificate shall state that,
to the
to the best
best of
of its
its knowledge
knowledge andand after
after reasonable
reasonable inquiry,
inquiry, the
the party
party has
has disclosed
disclosed and
and made
made
available
available all
all items
items subject
subject to
to discovery
discovery other than reports of experts, and shall identify each item
provided. If further discovery is subsequently provided, a supplemental certificate shall be filed
with the
with the court
court identifying
identifying the
the additional
additional items
items provided.
provided.

subsequently learns
(4) Continuing Duty. If either the defense or the prosecution subsequently learns of
of additional
additional
material which
material which itit would
would have
have been
been under
under aa duty
duty to
to disclose
disclose or
or produce
produce pursuant
pursuant to
to any
any provisions
provisions
of this rule at the time of a previous discovery order, it shall promptly notify the other party of its
disclose the
acquisition of such additional material and shall disclose the material
material in
in the
the same
same manner
manner asas
required
required for
for initial
initial discovery
discovery under
under this
this rule.
rule.

(5)Work Product. This rule does not authorize discovery by aa party

(5) party of
of those
those portions
portions of
of records,
records,
reports,
reports, correspondence,
correspondence, memoranda,
memoranda, or or internal
internal documents
documents of
of the
the adverse
adverse party
party which
which are
are only
only
the legal research, opinions, theories, or conclusions of the adverse party or its attorney and legal
staff, or
staff, or of
of statements
statements of
of aa defendant,
defendant, signed
signed oror unsigned,
unsigned, made
made to
to the
the attorney
attorney for
for the
the defendant
defendant
or
or the
the attorney's
attorney's legal staff.

Protective Orders.
(6) Protective
(6) Orders. Upon
Upon aa sufficient
sufficient showing,
showing, the
the judge
judge may
may at
at any
any time
time order
order that
that the
the
discovery or inspection be denied, restricted, or deferred, or make such other order as is
 Add.
Add:.444
Add

appropriate. The
appropriate. The judge
judge may
may alter
alter the
the time
time requirements
requirements of of this
this rule.
rule. The
The judge
judge may,
may, for
for cause
cause
shown, grant
shown, grant discovery
discovery to
to aa defendant
defendant on on the
the condition
condition that
that the
the material
material toto be
be discovered
discovered bebe
available only
available only to
to counsel
counsel for
for the
the defendant.
defendant. This
This provision
provision does
does not
not alter
alter the
the allocation
allocation of
of the
the
burden of
burden of proof
proof with
with regard
regard toto the
the matter
matter at
at issue,
issue, including
including privilege.
privilege.

(7) Amendment of
(7)Amendment of Discovery
Discovery Orders.
Orders. Upon
Upon motion
motion of
of either
either party
party made
made subsequent
subsequent toto an
an order
order
of the
of the judge
judge pursuant
pursuant toto this
this rule,
rule, the
the judge
judge may
may alter
alter or
or amend
amend the
the previous
previous order
order or
or orders
orders as
as the
the
interests of
interests of justice
justice may
may require.
require. The
The judge
judge may,
may, for
for cause
cause shown,
shown, affirm
affirm aa prior
prior order
order granting
granting
discovery
discovery to to aa defendant
defendant upon
upon the
the additional
additional condition
condition that
that the
the material
material toto be
be discovered
discovered bebe
available
available only
only toto counsel
counsel for
for the
the defendant
defendant

(8)A
(8) A party
party may
may waive
waive the
the right
right to
to discovery
discovery of of an
an item,
item, or
or to
to discovery
discovery ofof the
the item
item within
within the
the time
time
provided
provided inin this
this Rule.
Rule. The
The parties
parties may
may agree
agree to
to reduce
reduce oror enlarge
enlarge the
the items
items subject
subject to
to discovery
discovery
pursuant
pursuant to
to subsections
subsections (a)(1)(A)
(a)(1)(A) and
and (a)(1)(B).
(a)(1)(B). Any
Any such
such waiver
waiver or
or agreement
agreement shall
shall be
be in
in writing
writing
and
and signed
signed by
by the
the waiving
waiving party
party or
or the
the parties
parties to
to the
the agreement,
agreement, shall
shall identify
identify the
the specific
specific items
items
included, and
included, and shall
shall be
be served
served upon
upon allall the
the parties.
parties.

(b) Special
(b) Special Procedures.
Procedures.

(1) Notice
(1) Notice of
of Alibi.
Alibi.

Notice by
(A)Notice
(A) by Defendant.
Defendant. The The judge
judge may,
may, upon
upon written
written motion
motion ofof the
the Commonwealth
Commonwealth filed filed
pursuant
pursuant to to subdivision
subdivision (a)(2)
(a)(2) of
of this
this rule,
rule, stating
stating the
the time,
time, date,
date, and
and place
place at
at which
which the
the alleged
alleged
offense
offense was
was committed,
committed, order
order that
that the
the defendant
defendant serve
serve upon
upon the
the prosecutor
prosecutor aa written
written notice,
notice,
signed
signed byby the
the defendant,
defendant, of of his
his or
or her
her intention
intention to
to offer
offer aa defense
defense of
of alibi.
alibi. The
The notice
notice by
by the
the
defendant
defendant shall
shall state
state the
the specific
specific place
place or
or places
places at
at which
which the
the defendant
defendant claims
claims to
to have
have been
been atat the
the
time of
time of the
the alleged
alleged offense
offense andand the
the names
names and
and addresses
addresses of of the
the witnesses
witnesses upon
upon whom
whom the
the defense
defense
intends
intends to
to rely
rely to
to establish
establish the
the alibi.
alibi.

(B)Disclosure
(B) Disclosure ofof Information
Information andand Witness.
Witness. Within
Within seven
seven days
days of
of service
service of
of the
the defendant's
defendant's notice
notice
of
of alibi,
alibi, the
the Commonwealth
Commonwealth shall shall serve
serve upon
upon the
the defendant
defendant aa written
written notice
notice stating
stating the
the names
names and
and
addresses
addresses ofof witnesses
witnesses upon
upon whom
whom thethe prosecutor
prosecutor intends
intends to
to rely
rely to
to establish
establish the
the defendant's
defendant's
presence
presence atat the
the scene
scene ofof the
the alleged
alleged offense
offense and
and any
any other
other witnesses
witnesses to
to be
be relied
relied on
on to
to rebut
rebut
testimony of
testimony of any
any of
of the
the defendant's
defendant's alibi
alibi witnesses.
witnesses.

(C) Continuing Duty

(C) Continuing Duty to
to Disclose.
Disclose. IfIf prior
prior to
to or
or during
during trial
trial aa party
party learns
learns of
of an
an additional
additional witness
witness
whose identity,
whose identity, if
if known,
known, should
should have
have been
been included
included in
in the
the information
information furnished
furnished under
under
subdivision (b)(1)(A)
subdivision (b)(1)(A) or
or (B),
(B), that
that party
party shall
shall promptly
promptly notify
notify thethe adverse
adverse party
party or
or its
its attorney
attorney of
of the
the
existence
existence and
and identity
identity of
of the
the additional
additional witness.
witness.

(D) Failure
(D) Failure toto Comply.
Comply. Upon
Upon the
the failure
failure of
of either
either party
party to
to comply
comply with
with the
the requirements
requirements ofof this
this
rule,
rule, the
the judge
judge may
may exclude
exclude the
the testimony
testimony ofof any
any undisclosed
undisclosed witness
witness offered
offered by
by such
such party
party as
as to
to
the
the defendant's
defendant's absence
absence from
from or
or presence
presence atat the
the scene
scene of
of the
the alleged
alleged offense.
offense. This
This rule
rule shall
shall not
not
limit
limit the
the right
right of
of the
the defendant
defendant to
to testify.
testify. (E)
(E) Exceptions.
Exceptions. For
For cause
cause shown,
shown, the
the judge
judge may
may grant
grant an
an
 Add.
Add:. 555
Add

exception to any of the requirements of subdivisions (b)(1)(A) through (D) of this rule. (F)
Inadmissibility of
Inadmissibility of Withdrawn
Withdrawn Alibi.
Alibi. Evidence
Evidence of
of an
an intention
intention to
to rely
rely upon
upon an
an alibi
alibi defense,
defense, later
later
withdrawn, or of statements made in connection with that intention, is not admissible in any civil
or
or criminal
criminal proceeding
proceeding against
against the
the person
person who
who gave
gave notice
notice of
of that
that intention.
intention.

Health Issues.
(2) Mental Health Issues.

(A) Notice. If a defendant intends at trial to raise as an issue his or her mental condition at the
time of
time of the
the alleged
alleged crime,
crime, or or if
if the
the defendant
defendant intends
intends toto introduce
introduce expert
expert testimony
testimony on on the
the
defendant's mental condition at any stage of the proceeding, the defendant shall, within the time
provided for the filing of pretrial motions by Rule Rule 13(d)(2)
13(d)(2) or
or at
at such
such later
later time
time as
as the
the judge
judge may
may
allow, notify
allow, notify the
the prosecutor
prosecutor in in writing
writing of
of such
such intention.
intention. The
The notice
notice shall
shall state:
state: (i)
(i) whether
whether thethe
defendant intends to offer testimony of expert witnesses on the issue of the defendant's mental
condition at
condition at the
the time
time ofof the
the alleged
alleged crime
crime oror at
at another
another specified
specified time;
time; (ii)
(ii) the
the names
names andand addresses
addresses
of expert witnesses whom the defendant expects to call; and (iii) whether those expert witnesses
intend to
intend to rely
rely in
in whole
whole or or in
in part
part on
on statements
statements of of the
the defendant
defendant as as to
to his
his or
or her
her mental
mental condition.
condition.
The
The defendant
defendant shall
shall file
file aa copy
copy ofof the
the notice
notice with
with the
the clerk.
clerk. The
The judge
judge may
may for for cause
cause shown
shown allow
allow
late filing of the notice, grant additional time to the parties to prepare for trial, or make such other
order as
order as may
may bebe appropriate.
appropriate.

(B) Examination.
(B) Examination. If If the
the notice
notice of
of the
the defendant
defendant oror subsequent
subsequent inquiry
inquiry by by the
the judge
judge or or
developments in the case indicate that statements of the defendant as to his or her mental
condition
condition will
will be
be relied
relied upon
upon by
by aa defendant's
defendant's expert
expert witness,
witness, the
the court,
court, onon its
its own
own motion
motion or or on
on
motion of
motion of the
the prosecutor,
prosecutor, may may order
order the
the defendant to submit to an examination consistent with
the provisions of the General Laws and subject to the following following terms
terms and and conditions:
conditions: (i) (i) The
The
examination shall
examination shall include
include such
such physical,
physical, psychiatric,
psychiatric, and
and psychological
psychological teststests as
as the
the examiner
examiner deemsdeems
necessary to form an opinion as to the mental condition of the defendant at the relevant time. No
examination
examination basedbased on on statements
statements of of the
the defendant
defendant may
may be be conducted
conducted unless
unless thethe judge
judge hashas found
found
that (a)
that (a) the
the defendant
defendant thenthen intends
intends toto offer
offer into
into evidence expert testimony based on his or her
own statements or (b) there is a reasonable likelihood that that the
the defendant
defendant will will offer
offer that
that evidence.
evidence.
(ii) No
(ii) No statement,
statement, confession,
confession, or or admission,
admission, or or other
other evidence
evidence of of or
or obtained
obtained fromfrom the
the defendant
defendant
during the course of the examination, except evidence derived solely from physical examinations
or tests,
or tests, may
may bebe revealed
revealed to to the
the prosecution
prosecution or or anyone
anyone acting
acting on
on its
its behalf
behalf unless
unless so so ordered
ordered by by the
the
judge. (iii) The examiner shall file with the court a written report as to the mental condition of the
defendant
defendant at at the
the relevant
relevant time.
time. Unless
Unless thethe parties
parties mutually
mutually agree
agree to
to an
an earlier
earlier time
time ofof disclosure,
disclosure,
the
the examiner's report shall be sealed and shall not be made available to the parties unless (a)
examiner's report shall be sealed and shall not be made available to the parties unless (a) the
the
judge
judge determines
determines thatthat the
the report
report contains
contains no no matter,
matter, information,
information, or or evidence
evidence whichwhich is is based
based
upon
upon statements
statements of of the
the defendant
defendant as as to
to his
his or
or her
her mental
mental condition
condition at at the
the relevant
relevant time
time oror which
which
is otherwise within the scope of the privilege against self-incrimination; or (b) the defendant files a
motion requesting
motion requesting thatthat the
the report
report bebe made
made available
available to
to the
the parties;
parties; oror (c)
(c) after
after the
the defendant
defendant
expresses the clear intent to raise as an issue his or her mental mental condition,
condition, the the judge
judge isis satisfied
satisfied that
that
(1) the defendant intends to testify, or (2) the defendant intends intends to
to offer
offer expert
expert testimony
testimony based
based inin
whole or
whole or in
in part
part on
on statements
statements made
made by by the
the defendant
defendant as as to
to his
his or
or her
her mental
mental condition
condition at at the
the
Commonwealth's examiner
relevant time. At the time the report of the Commonwealth's examiner is is disclosed
disclosed to to the
the parties,
parties,
 Add.
Add:. 666
Add

the defendant shall provide the Commonwealth with a report of the defense psychiatric or
psychological
psychological expert(s)
expert(s) asas to
to the
the mental
mental condition
condition of
of the
the defendant
defendant atat the
the relevant
relevant time.
time. The
The
reports of both parties' experts must include a written summary of the expert's expected testimony
that fully
that fully describes:
describes: the
the defendant's
defendant's history
history and
and present
present symptoms;
symptoms; anyany physical,
physical, psychiatric,
psychiatric, and
and
psychological
psychological tests
tests relevant
relevant to to the
the expert's
expert's opinion regarding the issue of mental condition and
defendant relevant
their results; any oral or written statements made by the defendant relevant to to the
the issue
issue of
of the
the
mental condition
mental condition for
for which
which the
the defendant
defendant was
was evaluated;
evaluated; the
the expert's
expert's opinions
opinions as as to
to the
the
defendant's mental condition, including the bases and reasons for these opinions; and the
witness's qualifications.
witness's qualifications. If
If these
these reports
reports contain
contain both
both privileged
privileged and
and nonprivileged
nonprivileged matter,
matter, the
the
court may, if feasible, at such time as it deems appropriate prior to full disclosure of the reports to
nonprivileged portions.
the parties, make available to the parties the nonprivileged portions. (iv)
(iv) If
If aa defendant
defendant refuses
refuses to to
submit
submit toto an
an examination
examination ordered
ordered pursuant
pursuant to
to and
and subject
subject to
to the
the terms
terms and
and conditions
conditions of of this
this
rule, the court may prescribe such remedies as it deems warranted by the circumstances, which may
include
include exclusion
exclusion of
of the
the testimony
testimony of of any
any expert
expert witness
witness offered
offered by
by the
the defense
defense on on the
the issue
issue ofof the
the
defendant's mental condition or the admission of evidence of the refusal of the defendant to
submit
submit toto examination.
examination.

(C) Discovery for the purpose of a court-ordered examination under Rule 14(b)(2)(B). (i) (0 If
If the
the
judge orders
judge orders the
the defendant
defendant to to submit
submit to to an
an examination
examination under
under Rule Rule 14(b)(2)(B),
14(b)(2)(B), the the defendant
defendant
shall, within fourteen days of the court's designation of the examiner, make available to the
examiner the
examiner the following:
following: (a)(a) All
All mental
mental health
health records
records concerning
concerning the the defendant,
defendant, whether
whether
psychological, psychiatric, or counseling, in defense counsel's possession; (b) All medical records
concerning the
concerning the defendant
defendant in in defense
defense counsel's
counsel's possession;
possession; andand (c)(c) All
All raw
raw data
data from
from any any tests
tests oror
assessments administered
assessments administered to to the
the defendant
defendant by the defendant's expert or at the request of the
defendant's expert. (ii) The defendant's duty of production production set set forth
forth in
in Rule
Rule 14(b)(2)(C)(i)
14(b)(2)(C)(i) shallshall
continue
continue beyond
beyond thethe defendant's
defendant's initial
initial production
production during
during thethe fourteen-day
fourteen-day period
period andand shall
shall apply
apply
to any such mental health or medical record(s) thereafter obtained by defense counsel and to any
raw data
raw data thereafter
thereafter obtained
obtained from
from anyany tests
tests or
or assessments
assessments administered
administered to to the
the defendant
defendant by by the
the
defendant's expert
defendant's expert or
or at
at the
the request
request of of the
the defendant's
defendant's expert. (iii) In addition to the records
provided under Rule 14(b)(2) (C)(i) and (ii), the examiner may request request records
records from
from anyany person
person or or
entity
entity by
by filing
filing with
with the
the court
court under
under seal,
seal, in
in such
such form
form asas the
the Court
Court may may prescribe,
prescribe, aa writing
writing that
that
identifies the requested records and states the reason(s) for the request. The examiner shall not
disclose
disclose the
the request
request toto the
the prosecutor
prosecutor without
without either
either leave
leave ofof court
court or or agreement
agreement of of the
the defendant.
defendant.
Upon receipt of the examiner's request, the court shall issue issue aa copy
copy of of the
the request
request to to the
the defendant
defendant
and shall
and shall notify
notify the
the prosecutor
prosecutor that that the
the examiner
examiner hashas filed
filed aa sealed
sealed request
request forfor records
records pursuant
pursuant to to
Rule 14(b)(2)(C)(iii).
Rule 14(b)(2)(C)(iii). Within
Within thirty
thirty days
days of the court's issuance to the defendant of the examiner's
request, or within such other time as the judge may allow, the defendant shall file in writing any
objection that
objection that the
the defendant
defendant may may have
have toto the
the production
production of of any
any of of the
the material
material that
that the
the examiner
examiner
has requested. The judge may hold an ex parte hearing on the defendant's objections and may, in
the
the judge's
judge's discretion,
discretion, hear
hear from
from thethe examiner.
examiner. Records
Records of of such
such hearing
hearing shall
shall be
be sealed
sealed until
until the
the
report of the examiner is disclosed to the parties under Rule 14(b)(2)(B)(iii), at which point the
records related to the examiner's request, including the records records of of any
any hearing,
hearing, shall
shall bebe released
released to to
the
the parties
parties unless
unless the
the court,
court, in
in its
its discretion,
discretion, determines
determines that
that itit would
would be be unfairly
unfairly prejudicial
prejudicial to to the
the
defendant to do so. If the judge grants any part of the examiner's request, the judge shall indicate
 Add.
Add :. 777
Add

on the
on the form
form prescribed
prescribed byby the
the Court
Court the
the particular
particular records
records to
to which
which the
the examiner
examiner may
may have
have access,
access,
and the
and the clerk
clerk shall
shall subpoena
subpoena the the indicated
indicated record(s).
record(s). The clerk shall notify the examiner and the
defendant when the requested record(s) are delivered to the clerk's office and shall make the
record(s) available
record(s) available to
to the
the examiner
examiner andand the
the defendant
defendant for
for examination
examination andand copying,
copying, subject
subject to
to aa
protective order under the same terms as govern disclosure of reports under Rule 14(b)(2)(B)(iii).
The clerk's office shall maintain these records under seal except as provided provided herein.
herein. If
If the
the judge
judge
denies the
denies the examiner's
examiner's request,
request, the
the judge
judge shall
shall notify
notify the
the examiner,
examiner, the
the defendant,
defendant, and
and the
the
prosecutor of the denial. (iv) Upon completion
completion of of the
the court-ordered
court-ordered examination,
examination, the
the examiner
examiner
shall
shall make
make available
available to
to the
the defendant
defendant all
all raw
raw data
data from
from anyany tests
tests or
or assessments
assessments administered
administered to to
the
the defendant
defendant byby the
the Commonwealth's
Commonwealth's examiner
examiner oror at
at the
the request
request ofof the
the Commonwealth's
Commonwealth's
examiner.

(D)
(D) Additional
Additional discovery.
discovery. Upon
Upon aa showing
showing of
of necessity,
necessity, the
the Commonwealth
Commonwealth andand the
the defendant
defendant
may move for other material and relevant evidence relating to the defendant's mental condition.

(3) Notice
(3) Notice of
of Other
Other Defenses.
Defenses. If
If aa defendant
defendant intends to rely upon a defense based upon a license,
claim of authority or ownership, or exemption, the defendant shall, within the time provided for
the filing
the filing of
of pretrial
pretrial motions
motions by
by Rule
Rule 13(d)(2)
13(d)(2) or
or at
at such
such later
later time
time as
as the
the judge
judge may
may direct,
direct, notify
notify
the prosecutor in writing of such intention and file a copy of such notice with the clerk. If there is
a failure to comply with the requirements of this subdivision, a license, claim of authority or
ownership, or
ownership, or exemption
exemption may
may not
not be
be relied
relied upon
upon as
as aa defense.
defense. The
The judge
judge may
may for
for cause
cause shown
shown
allow a late filing of the notice or grant additional time to the parties to prepare for trial or make
such other
such other order
order as
as may
may be
be appropriate.
appropriate.

(4) Self Defense and First Aggressor.

(A)
(A)Notice by Defendant. If a defendant intends to raise raise aa claim
claim of
of self
self defense
defense and
and to
to introduce
introduce
evidence of the alleged victim's specific acts of violence to support an allegation that he or she was
the first
the first aggressor,
aggressor, the
the defendant
defendant shall
shall no
no later
later than
than 21
21 days
days after
after the
the pretrial
pretrial hearing
hearing oror at
at such
such
other
other time
time as
as the
the judge
judge may
may direct
direct for good cause, notify the prosecutor in writing of such
intention. The notice shall include a brief description of each each such
such act,
act, together
together with
with the
the location
location
and
and date
date to
to the
the extent
extent practicable,
practicable, and
and the
the names,
names, addresses
addresses andand dates
dates of
of birth
birth of
of the
the witnesses
witnesses the
the
defendant intends to call to provide evidence of each such act. The defendant shall file a copy of
such notice
such notice with
with the
the clerk.
clerk.

(B) Reciprocal Disclosure by the Commonwealth. No later than 30 days after receipt of the
defendant's notice,
defendant's notice, or
or at
at such
such other
other time
time as
as the
the judge
judge may
may direct
direct for
for good
good cause,
cause, the
the
Commonwealth shall
Commonwealth shall serve
serve upon
upon the
the defendant
defendant aa written
written notice
notice of
of any
any rebuttal
rebuttal evidence
evidence the
the
Commonwealth intends to introduce, including a brief description of such evidence together with
the names
the names ofof the
the witnesses
witnesses the
the Commonwealth
Commonwealth intends
intends to
to call,
call, the
the addresses
addresses and
and dates
dates of
of birth
birth of
of
other than law enforcement witnesses
other than law enforcement witnesses and the business address of law enforcement witnesses.
 Add.
Add:. 888
Add

(C) Continuing Duty to Disclose. If prior to or during trial a party learns of additional evidence
that,
that, if
if known,
known, should
should have
have been
been included
included in
in the
the information
information furnished
furnished under
under subdivision
subdivision
(b)(4)(A) or (B), that party shall promptly notify the adverse party or its attorney of such evidence.

(D)
(D) Failure
Failure to
to Comply.
Comply. Upon
Upon the
the failure
failure of
of either party to comply with the requirements of this
rule, the judge may exclude the evidence offered by such party party on
on the
the issue
issue of
of the
the identity
identity ofof the
the
first
first aggressor.
aggressor. (c)
(c) Sanctions
Sanctions for
for Noncompliance.
Noncompliance. (1) (1) Relief
Relief for
for Nondisclosure.
Nondisclosure. For For failure
failure to
to
comply with any discovery order issued or imposed pursuant to this rule, the court may make a
further order
further order for
for discovery,
discovery, grant
grant aa continuance,
continuance, or or enter
enter such
such other
other order
order asas itit deems
deems just
just under
under
the circumstances. (2) Exclusion of Evidence. The court may in its discretion exclude evidence for
noncompliance with a discovery order issued or imposed imposed pursuant
pursuant to to this
this rule.
rule. Testimony
Testimony of of the
the
defendant and
defendant and evidence
evidence concerning
concerning the
the defense
defense ofof lack
lack of
of criminal
criminal responsibility
responsibility which
which isis
otherwise admissible cannot be excluded except as provided by subdivision (b)(2) of this rule. (d)1 (d)]
Definition. The
Definition. The term
term "statement",
"statement", as
as used
used in
in this
this rule,
rule, means:
means: (1)
(1) aa writing
writing made,
made, signed,
signed, oror by
by aa
person having percipient knowledge of relevant facts and which contains such facts, other than
drafts
drafts or
or notes
notes that
that have
have been
been incorporated
incorporated into
into aa subsequent
subsequent draft
draft oror final
final report;
report; or or (2)
(2) aa written,
written,
stenographic, mechanical, electrical, or other recording, or transcription thereof, which is a
substantially verbatim recital of an oral declaration except that a computer assisted real time
translation,
translation, oror its
its functional
functional equivalent,
equivalent, made
made toto assist
assist aa deaf
deaf or
or hearing
hearing impaired
impaired person,
person, that
that isis
not transcribed or permanently saved in electronic form, shall not be considered a statement.

Rule
Rule 48
48 -- Sanctions
Sanctions (Applicable
(Applicable to District Court and Superior Court)

rules or
A wilful violation by counsel of the provisions of these rules or of
of an
an order
order issued
issued pursuant
pursuant to
to
these rules shall subject counsel to such sanctions as the court shall deem appropriate, including
citation for
citation for contempt
contempt or
or the
the imposition
imposition of
of costs
costs or
or aa fine.
fine.

Massachusetts Rule of Professional

Professional Conduct
Conduct

Tribunal. (July
Rule 3.3 - Candor Toward the Tribunal. (July 1,
1, 2015,
2015, current)
current)

(a) A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal or fail to
correct aa false
correct false statement
statement ofof material
material fact
fact or
or law
law previously
previously made
made toto the
the tribunal
tribunal by
by the
the lawyer;
lawyer; (2)
(2)
fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to
be directly adverse to the position of the client and not disclosed disclosed by
by opposing
opposing counsel;
counsel; oror (3)
(3) offer
offer
evidence
evidence that
that the
the lawyer
lawyer knows
knows to to be false, except as provided in Rule 3.3(e). If a lawyer, the
lawyer's client, or a witness called by the lawyer, has offered material evidence and the lawyer
comes
comes toto know
know of of its
its falsity,
falsity, the
the lawyer
lawyer shall
shall take
take reasonable
reasonable remedial
remedial measures,
measures, including
including ifif
necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the
testimony of
testimony of aa defendant
defendant in in aa criminal
criminal matter,
matter, that
that the
the lawyer
lawyer reasonably
reasonably believes
believes is
is false.
false.

A lawyer
(b) A lawyer who
who represents
represents aa client
client in
in an
an adjudicative
adjudicative proceeding
proceeding and
and who
who knows
knows that
that aa person
person
intends to
intends to engage,
engage, is
is engaging
engaging oror has
has engaged
engaged in
in criminal
criminal or
or fraudulent
fraudulent conduct
conduct related
related to
to the
the
 Add.
Add :. 999
Add

proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the
tribunal.

(c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding
including all appeals, and apply even if compliance requires disclosure of information otherwise
protected by Rule 1.6.

(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the
lawyer that will enable the tribunal to make an informed decision, whether or not the facts are
adverse.

(e) In a criminal case, defense counsel who knows that the defendant, the client, intends to testify
falsely may not aid the client in constructing false testimony, and has a duty strongly to discourage
the client from testifying falsely, advising that such a course is unlawful, will have substantial
adverse consequences, and should not be followed. (1) If a lawyer discovers this intention before
accepting the representation of the client, the lawyer shall not accept the representation. (2) If, in
the course of representing a defendant prior to trial, the lawyer discovers this intention and is
unable to persuade the client not to testify falsely, the lawyer shall seek to withdraw from the
representation, requesting any required permission. Disclosure of privileged or prejudicial
information shall be made only to the extent necessary to effect the withdrawal. If disclosure of
privileged or prejudicial information is necessary, the lawyer shall make an application to withdraw
ex parte to a judge other than the judge who will preside at the trial and shall seek to be heard in
camera and have the record of the proceeding, except for an order granting leave to withdraw,
impounded. If the lawyer is unable to obtain the required permission to withdraw, the lawyer may
not prevent the client from testifying. (3) If a criminal trial has commenced and the lawyer
discovers that the client intends to testify falsely at trial, the lawyer need not file a motion to
withdraw from the case if the lawyer reasonably believes that seeking to withdraw will prejudice the
client. If, during the client's testimony or after the client has testified, the lawyer knows that the
client has testified falsely, the lawyer shall call upon the client to rectify the false testimony and, if
the client refuses or is unable to do so, the lawyer shall not reveal the false testimony to the
tribunal. In no event may the lawyer examine the client in such a manner as to elicit any testimony
from the client the lawyer knows to be false, and the lawyer shall not argue the probative value of
the false testimony in closing argument or in any other proceedings, including appeals.

Rule 3.3 - Candor Toward the Tribunal (Prior)

(a) A lawyer shall not knowingly: (1) make a false statement of material fact or law to a
tribunal; (2)
tribunal; (2) fail
fail to
to disclose
disclose aa material
material fact
fact to a tribunal when disclosure is necessary to
avoid assisting a criminal or fraudulent act by the client, except as provided in Rule 3.3.(e);
(3) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to
the lawyer to be directly adverse to the position of the client and not disclosed by opposing
counsel; or (4) offer evidence that the lawyer knows to be false, except as provided in Rule
3.3(e). If a lawyer has offered, or the lawyer's client or witnesses testifying on behalf of the
 Add. 10
Add.10
Add:10

client have
client have given,
given, material
material evidence
evidence and
and the
the lawyer
lawyer comes
comes to
to know
know of
of its
its falsity,
falsity, the
the lawyer
lawyer
shall take
shall take reasonable
reasonable remedial measures.

(b) The duties

(b) The duties stated
stated in
in paragraph
paragraph (a)
(a) continue
continue to
to the
the conclusion
conclusion of
of the
the proceeding,
proceeding, including
including
all appeals,
all appeals, and
and apply
apply even
even if
if compliance
compliance requires disclosure of information otherwise
protected by Rule 1.6.

(c) A lawyer may refuse to offer evidence that the lawyer reasonably believes is false.

(d) In an
(d) In an ex
ex parte
parte proceeding,
proceeding, aa lawyer
lawyer shall
shall inform
inform the
the tribunal
tribunal of
of all
all material
material facts
facts known
known to
to
the lawyer which will enable the tribunal to make an informed decision, whether or not
the
the facts
facts are
are adverse.
adverse.

(e) In a criminal case, defense counsel who knows t hath the defendant, the client, intends to
testify falsely,
testify falsely, advising
advising that
that such
such aa course
course is is unlawful,
unlawful, willwill have
have substantial
substantial adverse
adverse
consequences, and
consequences, and should
should notnot be
be followed.
followed. If a lawyer discovers this intention before trial,
the lawyer shall seek to withdraw from the representation,representation, requesting
requesting anyany required
required
permission.
permission. Disclosure
Disclosure of of privileged
privileged or or prejudicial
prejudicial information
information shall shall be
be made
made only
only to
to the
the
extent necessary to effect the withdrawal. If disclosure of privileged or prejudicial
information is necessary, the lawyer shall make an an application
application to to with
with draw
draw exex parte
parte toto aa
judge
judge other
other than
than the
the judge
judge who who will
will preside
preside atat the
the trial
trial and
and shall
shall seek
seek to
to be
be heard
heard inin camera
camera
and have the record of the proceeding, except for an order granting leave to withdraw,
impounded. If
impounded. If the
the lawyer
lawyer is is unable
unable to to obtain
obtain the
the required
required permission
permission to to withdraw,
withdraw, the the
lawyer may
lawyer may not
not prevent
prevent thethe client
client from
from testifying.
testifying. IfIf aa criminal
criminal trial
trial has
has commenced
commenced and and
the lawyer discovers that the client intends to testify falsely at trial, the lawyer need not file
aa motion
motion to to withdraw
withdraw fromfrom thethe case
case if
if the
the lawyer
lawyer reasonably
reasonably believes
believes that
that seeking
seeking to to
withdraw will
withdraw will prejudice
prejudice the the client.
client. If, during the client's testimony or after the client has
testified, the lawyer knows that the client has testified falsely, the lawyer shall call upon the
client to
client to rectify
rectify the
the false
false testimony
testimony and,
and, if
if the
the client
client refuses
refuses or or is
is unable
unable toto do
do so,
so, the
the lawyer
lawyer
shall not reveal the false testimony to the tribunal. In no event may the lawyer examine the
client in such a manner as to elicit any testimony from the client the lawyer knows to be
false,
false, and
and the
the lawyer
lawyer shall
shall not
not argue
argue the
the probative
probative value
value of of the
the false
false testimony
testimony in in closing
closing
argument or in any other proceedings, including appeals.

Rule 5.1
Rule 5.1 -- Responsibilities
Responsibilities of
of Partners,
Partners, Managers
Managers and
and Supervisory
Supervisory Lawyers
Lawyers

(a)
(a)AA partner
partner in
in aa law
law firm,
firm, and
and aa lawyer
lawyer who
who individually
individually or
or together
together with
with other
other lawyers
lawyers possesses
possesses
comparable managerial
comparable managerial authority
authority in
in aa law
law firm,
firm, shall
shall make
make reasonable
reasonable efforts
efforts to
to ensure
ensure that
that the
the
firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the
Rules of
Rules of Professional
Professional Conduct.
Conduct.

(b) A lawyer having direct supervisory authority over another

another lawyer
lawyer shall
shall make
make reasonable
reasonable efforts
efforts
to ensure
to ensure that
that the
the other
other lawyer
lawyer conforms
conforms to
to the
the Rules
Rules of
of Professional
Professional Conduct.
Conduct.
 Add. 11
Add.11
Add:11

(c) A lawyer shall be responsible for another lawyer's violation of the Rules of Professional
Conduct if: (1) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct
involved; or (2) the lawyer is a partner or has comparable managerial authority in the law firm in
which the other lawyer practices, or has direct supervisory authority over the other lawyer, and
knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take
reasonable remedial action.

Rule 8.3 - Reporting Professional Misconduct

(a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional
Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as
a lawyer in other respects, shall inform the Bar Counsel's office of the Board of Bar Overseers.

(b) A lawyer who knows that a judge has committed a violation of applicable rules of judicial
conduct that raises a substantial question as to the judge's fitness for office shall inform the
Commission on Judicial Conduct.

(c) This Rule does not require disclosure of information otherwise protected by Rule 1.6.
 Add. 12
Add.12
Add:12

COMMONWEALTH
COMMONWEALTHOF
OFMASSACHUSETTS
MASSACHUSETTS

HAMPDEN,
HAMPDEN,ss.
ss. SUPERIOR
SUPERIORCOURT
COURT
INDICTMENT
INDICTMENTNO.
NO.2007-770
2007-770

COMMONWEALTH
COMMONWEALTH

vs.
vs.

ERICK
ERICKCOTTO
COTTO
and
andrelated
relatedcases'
cases'

MEMORANDUM
MEMORANDUMOFOFDECISION
DECISIONAND
ANDORDER
ORDERON
ON
MOTIONS
MOTIONSFOR
FORPOST-CONVICTION
POST-CONVICTIONRELIEF
RELIEF

1 Commonwealth
Commonwealthv.v.Glenda
GlendaLiz LizAponte,
Aponte,1279CR00226;
1279CR00226;Commonwealth
Commonwealthv.v.OmarOmarBrown,
Brown,0579CR01159;
0579CR01159;
Commonwealth
Commonwealthv.v.Omar OmarHarris,
Harris,1079CR01233;
1079CR01233;Commonwealth
Commonwealthv.v.Fiori
FioriLiquor',
Liguori,1279CR00624;
1279CR00624;Commonwealth
Commonwealthv.v.
Rolando
RolandoPenate,
Penate,1279CR00083;
1279CR00083; Commonwealth
Commonwealthv.v.Wendell
WendellRichardson,
Richardson,1279CR00399;
1279CR00399;Commonwealth
Commonwealthv.v.Bryant
Bryant
Ware,
Ware,0779CR.01072,
0779CR01072, 0979CR01072
0979CR01072 & &1079CR00253;
1079CR00253;andandCommonwealth
Commonwealthv.v.Lizardo
LizardoLee
LeeVega,
Vega,0979CR00097.
0979CR00097.
The
Thelist
listof
ofpending
pendingdrug
druglablabmatters
mattersbefore
beforeme
mehas
hasrecently
recentlybeen
beenreduced.
reduced.Earlier
Earlierthis
thisyear,
year,the
theCommonwealth
Commonwealth
withdrew
withdrewits itsopposition
oppositiontotoaamotion
motiontotodismiss
dismissby
byJermaine
JermaineWatt,
Watt,totoaamotion
motiontotowithdraw
withdrawaaguilty
guiltyplea
pleaininthe
theHarris
Harris
case,
case,and
andtotomotions
motionsfor
fornew
newtrial
trialfiled
filedby
byJohn
JohnSanchez
Sanchez(1079CR0004)
(1079CR0004)and andRolando
RolandoPenate.
Penate.Accordingly,
Accordingly,those
those
matters
mattersare
areno nolonger
longerbefore
beforeme.
me.
 Add. 13
Add.13
Add:13

TABLE
TABLEOF
OFCONTENTS
CONTENTS

I.I. Introduction
Introduction 11

II.
II. Subsidiary
SubsidiaryFindings
Findingsof
ofFact
Fact 44

A.
A.The
TheAmherst
AmherstDrug
DrugLab
Lab 44

B.
B.Farak's
Farak'sMental
MentalHealth
HealthChallenges
Challengesand
andEarly
EarlyUse
Useof
ofControlled
ControlledSubstances
Substances 10
10

C.
C.Farak's
Farak'sMisconduct
MisconductatatAmherst
AmherstLab
Lab 11
11

1.
1.Farak's
Farak'sUse
Useof
ofLab
LabStandards
Standards(Beginning
(Beginningin
in2004/2005)
2004/2005) 11
11

2.
2.Farak's
Farak'suse
useof
ofStandards
Standardsand
andPolice-Submitted
Police-SubmittedSamples
Samples(2009-2013)
(2009-2013) 12
12

3.Scrutiny
3. Scrutinyof
ofAmherst
AmherstDrug
DrugLab
Lab(July-October
(July-Octoberof
of2012)
2012) 19
19

D.
D.Discovery
Discoveryof
ofFarak's
Farak'sMisconduct
Misconduct(January
(January18,
18,2013)
2013) 22
22

E.
E.Roles
Rolesof
ofAGO
AGOEmployees
Employeesin
inFarak
FarakMatter
Matter 23
23

F.
F.Search
SearchWarrant
Warrantfor
forFarak's
Farak'sVehicle
Vehicle 25
25

G.
G.The
TheArrest
Arrestand
andInitial
InitialArraignment
Arraignmentof
ofFarak
Farak 29
29

H.
H.Vehicle
VehicleSearch
SearchWarrant
WarrantReturn
Returnand
andPolice
PoliceReport
Report 30
30

I.I.Searches
Searchesfor
forEvidence
EvidenceatatAmherst
AmherstLab
Labin
inLate
LateJanuary
January2013
2013 31
31

1.
1.Search
Searchof
ofFarak's
Farak'sDuffle
DuffleBag
Bag 31
31

2.
2.Inventory
Inventoryof
ofDrug
DrugEvidence
Evidence 32
32

3.
3. Search
Searchof
ofFarak's
Farak'sWorkstation
Workstation 32
32

J.J.The
TheFirst
FirstWave
Waveof
ofDrug
DrugLab
LabDefendants'
Defendants'Motions
Motions 32
32

K.
K.Initial
InitialConcerns
ConcernsAbout
Aboutthe
theScope
Scopeof
ofFarak's
Farak'sMisconduct
Misconduct 33
33

L.
L.Ballou
BallouEmailed
EmailedMental
MentalHealth
HealthWorksheets
Worksheetsto
toKaczmarek,
Kaczmarek,Verner
Vernerand
andIrwin
Irwin 37
37
 Add. 14
Add.14
Add:14

M. Prosecution
M. Prosecution Memorandum
Memorandum for for Presentation
Presentation to
to Grand
Grand Jury;
Jury; Verner's
Verner's First
First
Distribution to
Distribution to District
District Attorneys
Attorneys Regarding
Regarding Potentially
Potentially
Exculpatory Information
Exculpatory Information (March
(March 2013)
2013) 38
38

N. Farak's
N. Farak's Indictment
Indictment and
and Second
Second Arraignment
Arraignment (April
(April 2013)
2013) 41
41

0. Kaczmarek
0. Kaczmarek Told
Told Pourinski
Pourinski that
that Mental
Mental Health
Health Worksheets
Worksheets Would
Would Not
Not Be
Be
Given to
Given to Drug
Drug Lab
Lab Defendants
Defendants 42
42

P. Drug
P. Drug Lab
Lab Defendants'
Defendants' Discovery
Discovery Motions
Motions and
and Scheduling
Scheduling of
of Consolidated
Consolidated
Evidentiary Hearing
Evidentiary Hearing 42
42

Q. Drug
Q. Drug Lab
Lab Discovery
Discovery (August
(August Through
Through October
October 2013)
2013) 44
44

1.I. Subpoenas
Subpoenas Duces
Duces Tecum
Tecum to
to Ballou
Ballou 44
44

(a)AGO
(a) AGO Communications
Communications Regarding
Regarding Ballou
Ballou Subpoenas
Subpoenas 45
45

(b)Foster
(b) Foster Was
Was Told
Told That
That She
She Did
Did Not
Not Need
Need to
to See
See Ballou
Ballou File
File 46
46

(c)Foster's
(c) Foster's Preparation
Preparation of
of Motions
Motions to
to Quash
Quash 47
47

(d)Evidentiary
(d) Evidentiary Bearing
Hearing on
on September
September 9,
9, 2013
2013 50
50

(e)AGO's
(e) AGO's Follow-Up
Follow-Up to
to Judge
Judge Kinder's
Kinder's Order
Order for
for In Review
CameraReview
In Camera 52
52

2.Penate
2. Penateand
andRodriguez
RodriguezMotions
Motionsto
toInspect
InspectEvidence
Evidence 55
55

3.Penate's
3. Penate's Motion
Motion to
to Compel
Compel 58
58

4.Rodriguez'
4. Rodriguez'Motion
MotiontotoCompel
CompelProduction
Productionof
ofEvidence
EvidenceSuggesting
Suggesting
That aa Third
That Third Party
Party Knew
Knew of
of Farak's
Farak's Malfeasance
Malfeasance
Prior to
Prior to Her
Her Arrest
Arrest 60
60

5.Judge
5. JudgeKinder's
Kinder'sConclusions
ConclusionsAbout
Aboutthe
theScope
Scopeof
ofFarak's
Farak's Misconduct
Misconduct 61
61

R. Discussion
R. Discussion of
of aa Proffer
Proffer 61
61

S. Farak's
S. Farak's Conviction
Conviction (January
(January 2014)
2014) 62
62

T. Ryan
T. Ryan Finds
Finds Mental
Mental Health
Health Worksheets
Worksheets (October
(October 2014).
2014). 62
62

U. Cotto
U. Cotto Mandate
Mandate for
for Investigation
Investigation into
into Scope
Scope of
of Farak's
Farak's Misconduct
Misconduct 64
64
 Add. 15
Add.15
Add:15

III. Ultimate
III. Ultimate Findings
Findings of
of Fact
Fact 66
66

A. Farak's
A. Farak's Egregious
Egregious Government
Government Misconduct
Misconduct 66
66

Withholding of
B. Withholding
B. of Exculpatory
Exculpatory Evidence
Evidence as
as Egregious
Egregious Government
Government Misconduct
Misconduct 67
67

The Failure
C. The
C. Failure to
to Conduct
Conduct an
an Adequate
Adequate Investigation
Investigation in
in 2013
2013
Into Farak's
Into Farak's Misconduct
Misconduct 70
70

IV. Legal
IV. Legal Standards
Standards 72
72

A.Legal
A. Legal Standard
Standard for
for Motions
Motions to
to Dismiss
Dismiss Indictments
Indictments With
With Prejudice
Prejudice 72
72

B. Legal
B. Legal Standard
Standard for
for Motions
Motions Under
Under Mass.
Mass. R.
R. Crim.
Crim. P.
P. 30(b)
30(b) 78
78

V. Conclusions
V. Conclusions of
of Law
Law 83
83

A. Erick
A. Erick Cotto
Cotto 83
83

1.Factual
1. Factual and
and Procedural
Procedural Background
Background 83
83

2.Cotto's
2. Cotto's Motion
Motion to
to Dismiss
Dismiss 85
85

3.Cotto's
3. Cotto's Motion
Motion to
to Withdraw
Withdraw Guilty
Guilty Plea
Plea 86
86

B. Omar
B. Omar Harris
Harris 88
88

1.Factual
1. Factual and
and Procedural
Procedural Background
Background 88
88

2.Harris's
2. Harris's Motion
Motion to
to Dismiss
Dismiss 90
90

C. Rolando
C. Rolando Penate
Penate 91
91

1.Factual
1. Factual and
and Procedural
Procedural Background
Background 91
91

2.Penate's
2. Penate's Motion
Motion to
to Dismiss
Dismiss 93
93

D. Fiore
D. Fiore Liguori
Liguori 94
94

1.Factual
1. Factual and
and Procedural
Procedural Background
Background 94
94

2.Liquori's
2. Liquori's Motion
Motion to
to Dismiss
Dismiss 96
96

3.Liquori's
3. Liquori's Motion
Motion for
for aa New
New Trial
Trial 96
96
 Add. 16
Add.16
Add:16

E.
E. Lizardo
Lizardo Lee
Lee Vega
Vega 99
99

1.Factual
1. Factual and
and Procedural
Procedural Background
Background 99
99

2.
2.Vega's
Vega's Motion
Motion to
to Dismiss
Dismiss 101
101

3.
3.Vega's
Vega's Motion
Motion to
to Withdraw
Withdraw Guilty
Guilty Pleas
Pleas 101
101

F. Bryant
F. Bryant Ware
Ware 102
102

1. Factual
1. Factual and
and Procedural
Procedural Background
Background 102
102

(a) Ware's
(a) Ware'sMotion
Motionto
toDismiss
Dismiss2007
2007Indictments
Indictments 106
106

(b)Ware's
(b) Ware's Motions
Motions Under
Under Mass.
Mass.R.
R.Crim.
Crim.P.
P.30(b)
30(b)in
in2007
2007Case
Case 107
107

2.Ware's
2. Ware's2009
2009and
and2010
2010Cases
Cases 107
107

(a)Ware's
(a) Ware's Motion
Motion to
to Dismiss
Dismiss 2009
2009and
and2010
2010Cases
Cases 107
107

(b) Ware's
(b) Ware's Motions
Motions Under
Under Mass.
Mass. R.
R. Crim.
Crim. P.
P. 30(b)
30(b) in
in
2009&
2009 &2010
2010Cases
Cases 108
108

G. Omar
G. Omar Brown
Brown 111
111

1. Factual
1. Factual and
and Procedural
Procedural Background
Background 101
101

2.
2.Brown's
Brown's Combined
Combined Motion
Motion to
to Dismiss
Dismiss and
and to
to Vacate
Vacate Convictions
Convictions 112
112

H. Wendell
H. Wendell Richardson
Richardson 113
113

1.Factual
1. Factual and
and Procedural
Procedural Background
Background 113
113

2.Richardson's
2. Richardson's Motion
Motion to
to Dismiss
Dismiss 114
114

3.
3.Richardson's
Richardson's Motion
Motion to
to Withdraw
Withdraw Guilty
Guilty Pleas
Pleas 115
115

I.I. Glenda
Glenda Liz
Liz Aponte
Aponte 117
117

1.Factual
1. Factual and
and Procedural
Procedural Background
Background 117
117

2.Aponte's
2. Aponte's Motion
Motion to
to Dismiss
Dismiss 119
119

3.Aponte's
3. Aponte's Motion
Motion for
for Relief
Relief Under
Under Mass.
Mass. R.
R. Crim.
Crim. P.
P. 30(b)
30(b) 120
120
 Add. 17
Add.17

Conclusion 121

Order 125
 Add. 18
Add.18
Add:18

COMMONWEALTH OF
COMMONWEALTH OF MASSACHUSETTS
MASSACHUSETTS
HAMPDEN, ss.
HAMPDEN, ss. SUPERIOR COURT
SUPERIOR COURT
INDICTMENT NO.
INDICTMENT NO. 2007-770
2007-770

COMMONWEALTH
COMMONWEALTH

vs.
vs.

ERICK COTTO
ERICK COTTO
and related
and related cases'
cases'

MEMORANDUM OF
MEMORANDUM OF DECISION
DECISION AND
AND ORDER
ORDER ON
ON
MOTIONS FOR
MOTIONS FOR POST-CONVICTION
POST-CONVICTION RELIEF
RELIEF

I.I. Introduction
Introduction

These cases
These cases emanate
emanate from
from the
the scandal
scandal at
at the
the Amherst
Amherst drug
drug lab
lab and
and are
are before
before me
me on
on the
the

defendants' motions
defendants' motions to
to dismiss
dismiss their
their indictments,
indictments, to
to withdraw
withdraw guilty
guilty pleas,
pleas, and/or
and/or for
for aa new
new trial,
trial,

pursuant to
pursuant to Mass.
Mass. R.
R. Crim.
Crim. P.
P. 30(b).2 The defendants
30(b).2 The defendants were
were convicted
convicted in
in Hampden
Hampden Superior
Superior

Court between
Court between May
May of
of 2006
2006 and
and September
September of
of 2014
2014 of
of drug
drug offenses
offenses based
based on
on substances
substances tested,
tested,

mostly by
mostly by chemist
chemist Sonja
Sonja Farak,
Farak, at
at the
the Amherst
Amherst drug
drug lab.
lab.

Following news
Following news in
in January
January 2013
2013 that
that Farak
Farak was
was being
being prosecuted
prosecuted by
by the
the Attorney
Attorney

General's Office
General's Office (AGO)
(AGO) on
on charges
charges of
of drug
drug theft
theft and
and tampering
tampering at
at the
the lab,
lab, many
many defendants
defendants

whose drug
whose drug analysis
analysis certificates
certificates had
had been
been issued
issued by
by Farak
Farak moved
moved for
for post-conviction
post-conviction discovery
discovery

( Commonwealthv.v.Glenda
'Commonwealth GlendaLiz
LizAponte,
Aponte, 1279CR00226;
1279CR00226;Commonwealth
Commonwealth v. v. Omar
Omar Brown,
Brown, 0579CR01159;
0579CR01159;
Commonwealth v. Omar Harris,
Commonwealth Harris, 1079CR01233;
1079CR01233;Commonwealth
Commonwealth v. Fiori Liguori, 1279CR00624;
Fiori Liguori, 1279CR00624;Commonwealth
Commonwealthv.v.
RolandoPenate,
Rolando Penate, 1279CR00083;
1279CR00083; Commonwealth
Commonwealthv.v.Wendell
Wendell Richardson,
Richardson, 1279CR00399;
1279CR00399;Commonwealth
Commonwealthv.v. Bryant
Bryant
Ware, 0779CR01072,
Ware, 0779CR01072, 0979CR01072
0979CR01072 & & 1079CR00253;
1079CR00253; and
andCommonwealth
Commonwealthv.v.Lizardo
Lizard°Lee
LeeVega,
Vega, 0979CR00097.
0979CR00097.
Thelist
The listof
ofpending
pendingdrug
druglablabmatters
mattersbefore
before me
me has
has recently
recently been
been reduced.
reduced. Earlier
Earlier this
this year,
year, the
the Commonwealth
Commonwealth
withdrew its
withdrew its opposition
opposition toto aa motion
motion to to dismiss
dismiss by
by Jermaine
Jermaine Watt,
Watt, to
to aa motion
motion to
to withdraw
withdraw aa guilty
guilty plea
plea in
in the
the Harris
Harris
case, and
case, and toto motions
motions for
for new
new trial
trial filed
filed by
by John
John Sanchez
Sanchez (1079CR0004)
(1079CR0004) and and Rolando
Rolando Penate.
Penate. Accordingly,
Accordingly, those
those
matters are
matters are no
no longer
longer before
before me.
me.
22
Byorder
By orderdated
datedDecember
December7, 7,2015,
2015,Superior
Superior Court
Court Chief
Chief Justice
Justice Judith
Judith Fabricant
Fabricant specially
specially assigned
assigned me
me to
to
hear these
hear these and
and all
all cases
cases arising
arising from
from Farak's
Farak's misconduct.
misconduct.
 Add. 19
Add.19
Add:19

from
from the
the AGO,
AGO, for
for relief
relief under
under Rule
Rule 30(b),
30(b), and/or
and/or to
to dismiss
dismiss their
their indictments.
indictments. In
In 2013
2013 and
and most
most

of
of 2014,
2014, the
the AGO
AGO successfully
successfully opposed
opposed most
most of
of the
the discovery
discovery motions.
motions. After
After hearings,
hearings, the
the

Superior Court
Superior Court (Kinder,
(Kinder, J.)
J.) ruled
ruled on
on the
the Rule
Rule 30(b)
30(b) motions
motions and
and motions
motions to
to dismiss
dismissin
in

accordance with
accordance with his
his finding,
finding, on
on the
the basis
basis of
of the
the evidentiary
evidentiary record
record before
before him,
him,that
thatFarak's
Farak's

misconductwas
misconduct waslimited
limitedto
tostealing
stealingand
andtampering
tamperingwith
withcocaine
cocainefor
forapproximately
approximatelysix
sixmonths,
months,

from
from July
July 2012
2012 until
until January
January 18,
18, 2013.
2013. Many
Many defendants
defendants sought
sought appellate
appellatereview.
review.

On January
On January 4,
4, 2014,
2014, Farak
Farak pled
pled guilty
guilty to
to indictments
indictments for
for drug
drug tampering
tampering and
and theft.
theft. Nearly
Nearly

tenmonths
ten monthslater,
later,on
onOctober
October30,
30,2014,
2014,drug
druglab
labdefendants
defendantsfinally
finallyobtained
obtainedaccess
accessto
tothe
therest
restof
of

the
the Farak
Farak investigation
investigation evidence
evidence possessed
possessed by
by the
the AGO
AGO and
and learned
learned that
that the
theAGO
AGOhad
hadwithheld
withheld

exculpatory evidence
exculpatory evidence about
about the
the scope
scope of
of Farak's
Farak's misconduct.
misconduct. On
On November
November 13,
13, 2014,
2014,the
theAGO
AGO

turned over
turned over to
to district
district attorneys,
attorneys, who
who gave
gave drug
drug lab
lab defendants,
defendants, 289
289 pages
pages of
of documentary
documentary

evidence not
evidence not previously
previously turned
turned over,
over, including
including seven
seven pages
pages of
of mental
mental health
health worksheets
worksheets and
and

other
other papers
papers supporting
supporting aa strong
strong inference
inference that
that Farak's
Farak's misconduct
misconduct began
began before
before 2012.
2012.

Thisoccurred
This occurred as
as the
the Supreme
Supreme Judicial
Judicial Court
Court considered
considered the
the drug
drug lab
lab defendants'
defendants' appeals
appeals

from Judge
from Judge Kinder's
Kinder's rulings
rulings on
on drug
drug lab
lab defendants'
defendants' motions.
motions. In
In those
those cases,
cases, the
the Supreme
Supreme

Judicial
Judicial Court
Court called
called for
for aa more
more thorough
thorough investigation
investigation into
into Farak's
Farak's misconduct.
misconduct. See
See

Commonwealth v.v. Cotto,

Commonwealth Cotto, 471
471Mass.
Mass. 97,
97, 112,
112, 115
115 (2015).
(2015). Subsequently,
Subsequently, two
two investigative
investigative

reports were
reports were issued.
issued. In
In the
the first,
first, Assistant
Assistant Attorney
Attorney General
General Thomas
Thomas Caldwell
Caldwell investigated
investigatedthe
the

scope of
scope of Farak's
Farak's misconduct,
misconduct, and
and flaws
flaws in
in the
the operation
operation of
of the
the Amherst
Amherst lab
lab and
andissued
issuedaareport
report

(the
(theCaldwell
CaldwellReport).
Report).In
Inthe
thesecond
secondinvestigative
investigativereport,
report,retired
retiredSuperior
SuperiorCourt
CourtJustice
Justiceand
and

Special Assistant
Special Assistant Attorney
Attorney General
General Peter
Peter A.
A. Velis
Velis and
and retired
retired District
District Court
Court Justice
Justice and
and Special
Special

Assistant District
Assistant District Attorney
Attorney Thomas
Thomas T.
T. Merrigan
Merrigan oversaw
oversaw an
an investigation
investigation that
that resulted
resulted in
in aa report
report

22
 Add.
Add:2020
Add.20

rejecting the
rejecting the drug
drug lab
lab defendants'
defendants' claim
claim that
that the
the AGO
AGO had
had withheld
withheldexculpatory
exculpatoryevidence.
evidence.

Based
Basedon
onan
anexpanded
expandedrecord,
record,the
thedefendants
defendantsnow
nowallege
allegethat
thatthe
thefollowing
followingtypes
typesof
of

governmentmisconduct
government misconductwarrant
warrantpost-conviction
post-convictionrelief:
relief:(1)
(1)Farak's
Farak'sdrug
drugtampering
tamperingand
andtheft;
theft;(2)
(2)

the AGO's
the AGO's failure
failure to
to disclose
disclose exculpatory
exculpatory evidence,
evidence, particularly
particularly seven
seven pages
pages of
of Farak's
Farak's mental
mental

health
health worksheets;
worksheets; (3)
(3) the
the AGO's
AGO's failure
failure to
to conduct
conduct an
an adequate
adequate investigation
investigation in
in 2013
2013 on
on the
the

nature and
nature and scope
scope of
of Farak's
Farak's misconduct;
misconduct; and
and (4)
(4) misconduct
misconduct by
by former
former Springfield
SpringfieldPolice
Police

Department
Department (SPD)
(SPD) narcotics
narcotics evidence
evidence officer
officer Kevin
Kevin Burnham,
Burnham, who
who was
was indicted
indicted for
for stealing
stealing

money
money from
from the
the SPD's
SPD's evidence
evidence room.3
room.3Many
Many defendants
defendants further
further contend
contend that
that serious
serious flaws
flaws in
inthe
the

operation
operation of
of the
the Amherst
Amherst drug
drug lab
lab render
render unreliable
unreliable the
the drug
drug analysis
analysis performed
performed in
in their
their cases.
cases.

In their
In their Joint
Joint Proposed
Proposed Findings
Findings of
of Fact,
Fact, the
the parties
parties have
have stipulated
stipulated to
to 520
520 facts
facts and
and 154
154

exhibits. In
exhibits. In December
December 2016,
2016, II conducted
conducted aa six
six day
day evidentiary
evidentiary hearing
hearing on
on the
the scope
scope of
of

governmental
governmental misconduct.
misconduct. At
At that
that hearing,
hearing, 17
17 witnesses'
witnesses' testified
testified and
and 132
132 more
more exhibits
exhibits were
were

admitted, bringing
admitted, bringing the
the total
total number
number of
of exhibits
exhibits to
to 286.
286. Subsequently,
Subsequently, through
through March
March 2017,
2017,each
each

of the
of the defendants
defendants was
was heard
heard on
on his
his or
or her
her motions
motions and
and some
some continued
continued to
to file
file briefs
briefs through
through May
May

2017. Based
2017. Based on
on the
the credible
credible evidence
evidence presented
presented and
and after
after consideration
consideration of
of the
the parties'
parties' written
written

andoral
and oralsubmissions,
submissions,IImake
makethe
thefollowing
followingfindings
findings of
of fact
fact and
and then
then undertake
undertake an
an individualized
individualized

analysisof
analysis ofthe
thedefendants'
defendants'motions
motionsfor
forpost-conviction
post-convictionrelief.'
relief'

33
Those
Thosecharges
chargeswere
weredropped
droppedafter
afterOfficer
OfficerBurnham
Burnhamwas
wastragically
tragicallyfound
founddead
deadfrom
froman
anapparent
apparentsuicide
suicideon
on
theday
the dayhe
hewas
wasto
tohave
havepled
pledguilty.
guilty.
44
The
Thewitnesses
witnesseswere
wereAnne
AnneKaczmarek,
Kaczmarek,Kris
KrisFoster,
Foster,John
JohnVerner,
Verner,Dean
DeanMazzone,
Mazzone,Randall
RandallRavitz,
Ravitz,Suzanne
Suzanne
Reardon,
Reardon,Edward
EdwardBedrosian,
Bedrosian,Sheila
SheilaCalkins,
Calkins,Joseph
JosephBallou,
Ballou,John
JohnIrwin,
Irwin,Randy
RandyThomas,
Thomas,Frank
FrankFlannery,
Flannery,Elaine
Elaine
Pourinski,
Pourinski,James
JamesHanchett,
Hanchett,Sharon
SharonSalem,
Salem,Rebecca
RebeccaPontes,
Pontes,Timothy
TimothyWoods,
Woods,Healther
HealtherHarris,
Harris,and
andRobert
RobertPowers.
Powers.

55
TheCommonwealth
The Commonwealth hashas now
now turned
turned over
over much
much of
of the
the discovery
discovery requested
requested by
by the
the defendants.
defendants. I1commend
commend
the
thelevel
levelof
ofprofessional
professionalcooperation
cooperationand
andcourtesy
courtesybetween
betweendefense
defensecounsel,
counsel,the
theAGO,
AGO,and
andthe
thelocal
localprosecutors
prosecutorsin
in
the
theproceedings
proceedingsbefore
beforeme.
me.

33
 Add. 21
Add.21
Add:21

II. Subsidiary
II. Subsidiary Findings
Findings of
of Fact
Fact

A. The
A. The Amherst
Amherst Drug
Drug Lab
Lab

Sonja
SonjaFarak
Farakworked
worked as
as aa chemist
chemist at
at the
the Amherst
Amherst drug
drug lab
lab from
from August
August 2004
2004 until
until its
its

closure on
closure on January
January 18,
18, 2013.
2013. The
The lab
lab was
was located
located on
on the
the campus
campus of
of the
the University
Universityof
of

MassachusettsatatAmherst
Massachusetts Amherstin
inaa building
building shared
shared with
with the
the university.
university. ItIt was
was operated
operated by
by the
the

Massachusetts Department
Massachusetts Department of
of Public
Public health
Health(DPH)
(DPH)from
fromits
itsinception
inceptionin
inthe
the1960s
1960suntil
untilJuly
Julyof
of

2012, when
2012, when itit was
was transferred
transferred to
to the
the Massachusetts
Massachusetts State
State Police
Police (MSP),
(MSP), which
which ran
ranitituntil
untilJanuary
January

18,2013.
18, 2013.By
By1987,
1987,the
thelab's
lab'sprimary
primaryfunction
functionwas
wasthe
theanalysis
analysisof
ofsuspected
suspectedcontrolled
controlledsubstances
substances

forlaw
for lawenforcement
enforcement agencies
agencies involved
involved in
in the
the prosecution
prosecution of
of criminal
criminal cases
cases in
in western
western

Massachusetts.
Massachusetts.

From 2008
From 2008 until
until the
the lab's
lab's closure,
closure, four
four employees
employees worked
worked at
at the
the lab:
lab: the
the supervisor,
supervisor,

James Hanchett;
James Hanchett; the
the evidence
evidence officer,
officer, Sharon
Sharon Salem,
Salem, who
who received
received and
and documented
documented evidence
evidence

submitted to
submitted to the
the lab
lab by
by police;
police; and
and chemists
chemists Farak
Farak and
and Rebecca
Rebecca Pontes.
Pontes. II credit
credit the
the testimony
testimony of
of

Hanchett, aa highly
Hanchett, highly trained,
trained, experienced
experienced supervisor
supervisorwho
whobegan
beganworking
workingas
asan
ananalyst
analystatatthe
thelab
labin
in

1977 and
1977 and was
was promoted
promoted to
to supervisor
supervisor in
in 2008.
2008. II also
also credit
credit the
the testimony
testimony of
of Salem
Salem and
andPontes,
Pontes,

who,
who, like
like Hanchett,
Hanchett, were
were competent
competent and
and committed
committed employees.
employees.

Whileunder
While underDPH,
DPH,the
theAmherst
Amherstlab
labwas
wasaasatellite
satellitelab
labwhich
whichreceived
receivedonly
onlyminimal
minimal

financial support
financial support and
and oversight
oversight from
from DPH
DPH or
or the
the Commonwealth's
Commonwealth's main
main drug
drug lab,
lab, the
the Hinton
Hinton lab,
lab,

located
located in
in the
the Jamaica
Jamaica Plain
Plain section
section of
of Boston.
Boston. Between
Between 2006
2006 and
and July
July of
of 2012,
2012, DPH
DPH visited
visitedthe
the

Amherst lab
Amherst lab only
only once
once or
or twice,
twice, and
and no
no money
money was
was made
made available
available to
to the
the Amherst
Amherstlab
labfor
for

continuing education
continuing education or
or for
for the
the training
training and
and imposition
imposition of
of protocols
protocols and
and record
record keeping
keeping needed
needed

for accreditation.
for accreditation. The
The lab
lab never
never obtained
obtained accreditation.
accreditation. Due
Due to
to its
its small
small staff
staff and
and low
low overhead
overhead

44
 Add. 22
Add.22
Add:22

costs, with
costs, with free
free use
use of
of the
the state
state building
building housing
housing itit and
and operating
operating at
at an
an annual
annual budget
budget of
of

approximately $300,000,
approximately $300,000, the
the lab
lab was
was able
able to
to avoid
avoid repeatedly
repeatedly threatened
threatened closures
closures between
between 2004-
2004-

2013. The
2013. The Amherst
Amherst lab
lab survived
survived those
those threats,
threats, thanks
thanks to
to the
the vigorous
vigorous advocacy
advocacy of
of the
the western
western

Massachusetts law
Massachusetts law enforcement
enforcement community,
community, which
which argued
argued that
that the
the Amherst
Amherstlab
labwas
wascost
cost

effective
effective and
and productive.
productive. The
The lab
lab even
even took
took on
on testing
testing of
of backlogged
backlogged samples
samples from
from the
theHinton
Hinton

lab.
lab.The
Thelab
labwas
wasessentially
essentiallyaafinancially
financially strapped
strapped state
state entity
entity with--apart
with--apart from
from Farak--dedicated
Farak--dedicated

employeesdoing
employees doingthe
thebest
bestthey
theycould
couldin
indifficult
difficultcircumstances.
circumstances.

The chemists
The chemists tested
tested for
for authenticity
authenticity various
various controlled
controlled substances
substances submitted
submitted by
by law
law

enforcement
enforcement agencies,
agencies, issued
issued drug
drug analysis
analysis certificates,
certificates, and
and testified
testified in
in criminal
criminalproceedings
proceedings

regarding
regarding their
their analysis.
analysis. Many
Many substances,
substances, such
such as
as cocaine
cocaine and
and heroin,
heroin, were
were tested
tested chemically
chemically by
by

running
runningsmall
small samples
samples through
through aa Gas
Gas Chromatograph
Chromatograph (GC)
(GC) and
and then
then through
through aa Mass
Mass

Spectrometer (MS),6
Spectrometer (MS),6and
andcomparing
comparingthe
theresults
resultsto
toreference
referencestandards,
standards,which
whichare
areknown
known

controlled substances,
controlled substances, as
as explained
explained below.
below.

Between at
Between at least
least 2002
2002 to
to October
October of
of 2012,
2012, the
the Amherst
Amherst lab
lab failed
failed to
to adhere
adhere to
to some
somebest
best

practices
practices recognized
recognized by
by that
that time.
time. In
In April
April of
of 2002,
2002, aa team
team from
from the
the National
National Forensic
ForensicScience
Science

Technology
Technology Center
Center (NFSTC)
(NFSTC) visited
visited the
the Amherst
Amherst lab
lab to
to evaluate
evaluate the
the sufficiency
sufficiency of
of forensic
forensic

services
services in
in the
the Commonwealth.
Commonwealth. The
The NFSTC
NFSTC expressed
expressed concern
concern over
over the
the condition
condition of
ofthe
thelab's
lab's

physical
physical plant
plant and
and its
its lack
lack of
offormal
formalquality
qualitysystems
systemsconsistent
consistentwith
withthe
thestandards
standardsset
setby
bythe
the

American
American Society
Society of
of Crime
Crime Laboratory
Laboratory Directors/Laboratory
Directors/Laboratory Accreditation
AccreditationBoard
Board

66
TheGC
The GCand
andMSMSareareseparate
separatemachines
machineswhich
whichwork
worktogether.
together.GC
GCsplits
splitsthethemixtures
mixturesinto
intotheir
theircomponent
component
partsand
parts andthen
thenMSMSproduces
producesan anindividualized
individualizedbreakdown
breakdownof ofeach
eachsubstance
substancebeing
beingtested,
tested,like
likeaafingerprint.
fingerprint.Once
Oncethe
the
GC/MScompletes
GC/MS completesthe
thetesting,
testing,the
thechemist
chemistwrites
writesupupthe
theresults
resultsand
andgives
givesthem
themto tothe
theevidence
evidenceofficer.
officer.AAdetailed
detailed
descriptionof
description ofthe
theGC/MS
GC/MSanalysis
analysisisisset
setforth
forthin
inthe
theCaldwell
CaldwellReport
Report(CR)
(CR)atatp.p.7,7,n.8.
n.8.

55
 Add. 23
Add.23
Add:23

(ASCLD/LAB)7or
(ASCLD/LAB)7 orthose
thoseof
ofthe
theScientific
ScientificWorking
WorkingGroup
Groupfor
forthe
theAnalysis
Analysisof
ofSeized
SeizedDrugs
Drugs

(SWGDRUG),which
(SWGDRUG), whichrecommends
recommendsthe
theminimum
minimumstandards
standardsfor
forthe
theforensic
forensicexamination
examinationof
of

seized
seizeddrugs.
drugs.(Jt.
(Jt.Proposed
ProposedFinding
Finding54).
54).

The
The2002
2002NFSTC
NFSTCreport
reporturged
urgedthe
theAmherst
Amherstlab
labto
todevelop
developquality
qualityassurance
assurancesafeguards,
safeguards,

such
suchas
aswritten
writtenprotocols
protocolsfor
forthe
theanalysis
analysisof
ofsubstances,
substances,peer
peerreviews
reviewsof
ofreports,
reports,and
andaaproficiency
proficiency

testingprogram.
testing program.(Jt.
(it. Proposed
Proposed Findings
Findings 288-292).
288-292). The
The 2002
2002 NFSTC
NFSTC report
report concluded
concludedthat
that

although
althoughthe
thelack
lackof
ofthose
thosesafeguards
safeguardshad
hadnot
notproduced
produced"a
"aknowledgeable
knowledgeableeffect
effecton
onthe
theoutcome
outcome

ofchemical
of chemicalanalysis
analysisas
asof
ofyet,
yet,in
inthe
thefuture
futurereducing
reducingquality
qualitymight
mightjeopardize
jeopardizecorrect,
correct,error-free
error-free

results"
results"as
asthe
thelab's
lab'scaseloads
caseloadsincreased.
increased.(Jt.
(Jt.Proposed
ProposedFinding
Finding293).8
293).8

Until
UntilOctober
Octoberof
of2012,
2012,the
theAmherst
Amherstlab
labpractices
practicesdid
didnot
notmeasure
measureup
upto
tothe
theSWGDRUG
SWGDRUG

recommendations
recommendationsin
inseveral
severalconcerning
concerningrespects.
respects.First,
First,the
thelab
lablacked
lackedwritten
writtenprotocols
protocolsfor
fortesting
testing

procedures.Second,
procedures. Second,chemists
chemistsoccasionally
occasionallyleft
leftsamples
samplesunsealed
unsealedin
inthe
thetemporary
temporarysafe.
safe.Third,
Third,

chemistswere
chemists werenot
notrequired
requiredto
torun
run"blanks"
"blanks"between
betweeneach
eachGC/MS
GC/MStest
testin
inorder
orderto
toclean
cleanthe
thetesting
testing

equipment.Instead,
equipment. Instead,each
eachchemist
chemistdetermined
determinedwhen
whento
torun
runaablank.
blank.Chemists
Chemistsusually
usuallyran
ranblanks
blanks

after
afterevery
every55to
to10
10tests,
tests,although
althoughatattimes,
times,they
theyperformed
performedover
overaadozen
dozentests
testsbefore
beforerunning
running

blanks.
blanks.The
Thefailure
failureto
todecontaminate
decontaminatethe
theGC/MS
GC/MSafter
afterevery
everytest
testwould
wouldfrequently
frequentlyresult
resultin
in"carry
"carry

over"
over"or
orresidue
residueremaining
remainingfrom
fromthe
theprevious
previoustests,
tests,which
whichwould
wouldhave
haveto
tobe
bedistinguished
distinguishedby
bythe
the

individual
individualchemists.
chemists.(CR
(CR29
29fn.
fn.27).
27).

77
The
TheASCLD/LAB
ASCLD/LABisisaanot-for-profit
not-for-profitcorporation
corporationspecializing
specializingininthe
theaccreditation
accreditationof
ofpublic
publicand
andprivate
private
crime
crimelaboratories.
laboratories.(Exh.
(Exh.80,
80,p.p.30).
30).

Similarly,the
E8Similarly, the2003
2003Governor's
Governor'sCommission
Commissionon onCriminal
CriminalJustice
JusticeInnovation
Innovationrecommended
recommendedthat
that"all
"allforensic
forensic
drug
drugtesting
testinglaboratories
laboratoriesdemonstrate
demonstratecompliance
compliancewith
withthe
thenational
national[SWGDRUGJ
[SWGDRUG]standards
standardsthrough
throughexternal
externalaudits
audits
and
andthe
thesubcommittee
subcommitteefavored
favoredASCLD/LAB
ASCLD/LABaccreditation."
accreditation."(Joint
(JointProposed
ProposedFinding
Finding294
294&&Exh.
Exh.13,
13,p.p.43).
43).Among
Among
those
thosestandards
standardsarearework
workpractices
practicesthat
thatprevent
preventcontamination
contaminationwhich
whichcould
couldoccur
occurfrom
fromimproper
improperstorage,
storage,packaging,
packaging,
and
andsealing
sealingof ofdrug
drugsamples.
samples.

66
 Add. 24
Add.24
Add:24

The
TheAGO's
AGO'sexpert
expertcredibly
crediblytestified
testifiedatatthe
theevidentiary
evidentiaryhearing
hearingthat
thatthe
therisk
riskof
of

contamination
contaminationfrom
fromnot
notrunning
runningaablank
blankafter
aftereach
eachsample
samplewas
wasnot
notlikely
likelyto
toprejudice
prejudicedefendants
defendants

except
exceptin
incases
casesinvolving
involvingminuscule
minusculesamples.
samples.Although
Althoughthe
therisk
riskof
ofcontamination
contaminationrose
rosewith
withthe
the

more
moresamples
samplesthat
thatwere
wererun
nutafter
afteraablank,
blank,IIfind
findthat,
that,with
withthe
theexception
exceptionof
ofFarak,
Farak,other
otherchemists
chemists

atatthe
theAmherst
Amherstlab
labwould
wouldhave
havedetected
detectedthe
theneed
needto
torun
runaablank
blankand
anddid
didso
soas
asnecessary
necessarytotoensure
ensure

reliable
reliabletest
testresults.
results.IIfurther
furtherfind
findthat
thatthe
thedefendants'
defendants'expert,
expert,forensic
forensicchemistry
chemistryconsultant
consultant

Heather
HeatherHarris,
Harris,did
didnot
notprovide
provideany
anypersuasive
persuasivetestimony
testimonysupporting
supportingan
aninference
inferencethat
thatthe
therisk
riskof
of

contamination
contaminationposed
posedan
anunacceptable
unacceptablerisk
riskof
ofprejudice
prejudicetotoany
anyof
ofthe
thedefendants
defendantshere.
here.

Another
Anotherquestioned
questionedpractice
practiceatatthe
theAmherst
Amherstlab
labuntil
untilOctober
Octoberof
of2012
2012concerns
concernslab
lab

standards.
standards.Lab
Labstandards
standardsare
aredrug
drugsubstances
substancesagainst
againstwhich
whichpolice-submitted
police-submittedsuspected
suspecteddrug
drug

samples
samplesare
arecompared
comparedin
inanalysis.
analysis.There
Thereare
aretwo
twotypes
typesof
ofstandards:
standards:primary
primarystandards,
standards,which
which

labs
labspurchase
purchasefrom
frompharmaceutical
pharmaceuticalcompanies
companiesand
andbear
bearaacertificate
certificateof
ofanalysis,
analysis,and
andsecondary
secondary

standards,
standards,which
whichare
aremanufactured
manufacturedin
inthe
thelab
labusing
usingpolice-submitted
police-submitteddrug
drugsamples.
samples.

Manufacturing
Manufacturingstandards
standardsin
inthe
thelab,
lab,rather
ratherthan
thanpurchasing
purchasingthem
themfrom
frompharmaceutical
pharmaceutical

companies,
companies,was
wasaawidely
widelyaccepted
acceptedpractice
practicein
inState
Stateforensic
forensiclaboratories
laboratorieswell
wellbefore
beforeHanchett's
Hanchett's

arrival
arrivalatatthe
theAmherst
Amherstlab
labin
in1977.
1977.The
Themanufacture
manufactureand
anduse
useof
ofsecondary
secondarystandards
standardswas
wasjustified
justified

atatthe
theAmherst
Amherstlab
labuntil
untilmid-2012
mid-2012on
onseveral
severalgrounds.
grounds.Few
Fewpharmaceutical
pharmaceuticalcompanies
companies

manufactured
manufacturedstandards
standardsfor
forsome
someof
ofthe
thesubstances,
substances,such
suchas
asheroin,
heroin,in
inthe
theearly
earlyyears
yearsof
ofthe
the

Amherst
Amherstlab.
lab.Some
Somesubstances
substancescould
couldbe
beeasily
easilyand
andcost-effectively
cost-effectivelycreated
createdin
inthe
thelabs.
labs.In
Inthe
the

1970's,
1970's,the
theDrug
DrugEnforcement
EnforcementAgency
Agency(DEA)
(DEA)taught
taughtlab
labanalysts,
analysts,including
includingHanchett,
Hanchett,how
howtoto

manufacture
manufacturestandards
standardsand
andrecommended
recommendedthat
thatpractice
practiceto
tohelp
helplabs
labscut
cutcosts.
costs.ItItwas
wasnot
notunusual
unusual

for
forother
otherState
Statelabs
labsto
tomake
makeand
anduse
usesecondary
secondarystandards
standardsup
upuntil
until2012.
2012.

77
 Add. 25
Add.25
Add:25

Between
Between2008
2008and
andOctober
Octoberof
of2012,
2012,due
duetotothe
theAmherst
Amherstlab's
lab'sfinancial
financialstraits,
straits,Hanchett
Hanchett

replaceddepleted
replaced depletedprimary
primarystandards
standardsof
ofheroin,
heroin,cocaine,
cocaine,LSD
LSDand
andmethamphetamine
methamphetaminewith
withones
oneshe
he

hadmanufactured
had manufacturedin
inaccordance
accordancewith
withthe
theDEA's
DEA'sinstructions.
instructions.He
Heused
usedsmall
smallamounts
amountsof
of

substances
substancesoriginally
originallysubmitted
submittedby
bypolice
policedepartments
departmentsfor
foranalysis
analysisand
andwhich
whichhad
hadbeen
beenanalyzed
analyzed

to
tobe
beheroin
heroinor
orcocaine.
cocaine.The
Themanufacture
manufactureand
anduse
useof
ofsecondary
secondarystandards
standardsatatthe
theAmherst
Amherstlab
lab

ended
endedin
inOctober
Octoberof
of2012,
2012,pursuant
pursuantto
toaadirective
directiveof
ofthe
theMSP.
MSP.

IIfind
findthat
thatthe
thesecondary
secondarystandards
standardsHanchett
Hanchettmanufactured
manufacturedyielded
yieldedsufficiently
sufficientlyaccurate
accurate

analytical
analyticalresults.
results.IIgenerally
generallycredit
creditHanchett's
Hanchett'stestimony
testimonythat,
that,apart
apartfrom
fromFarak:
Farak:(1)
(1)analysts
analysts

usingsecondary
using secondarystandards
standardsatatthe
theAmherst
Amherstlab
labwere
wereable
abletotodetermine
determinethrough
throughtesting
testingwhen
whenthose
those

standards
standardswere
wereno
nolonger
longeraccurate
accurateor
oroperational;
operational;and
and(2)
(2)upon
upondetecting
detectingthat
thatsecondary
secondarylab
lab

standardshad
standards haddegraded
degradedto
tothe
thepoint
pointof
ofbeing
beingnon-operational,
non-operational,analysts
analyststook
tookappropriate
appropriatemeasures
measures

to
toensure
ensurereliable
reliabletest
testresults,
results,such
suchas
ascleaning
cleaningout
outthe
theequipment
equipmentand
andusing
usingdifferent
differentstandards.
standards.

(Hanchett
(Hanchett146).
146).Although
Althoughthe
theuse
useof
ofprimary
primarystandards
standardshad
hadbecome
becomethe
the"gold"
"gold"standard
standardby
by2012,
2012,

the
theuse
useof
ofsecondary
secondarystandards
standardsmanufactured
manufacturedby
byHanchett
Hanchettatatthe
thelab
labwas
wasacceptable,
acceptable,reliable,
reliable,and
and

consistentwith
consistent withthe
thelab's
lab'sgoal
goalof
ofidentifying
identifyingcontrolled
controlledsubstances.
substances.Despite
Despitethe
thefact
factthat
thatby
by2012,
2012,

the
theuse
useof
ofsecondary
secondarylab
labstandards
standardswas
wasno
nolonger
longerpermitted
permittedatatthe
theAmherst
Amherstlab,
lab,the
thedefendants
defendants

werenot
were notprejudiced
prejudicedby
bythe
theuse
useof
ofthem
thematatthe
theAmherst
Amherstlab
labby
bychemists
chemistsother
otherthan
thanFarak.
Farak.

Theemployees
The employeesatatthe
theAmherst
Amherstlab
labhad
hadfull
fullaccess
accesstotothe
thedrug
drugstandards,
standards,all
allof
ofwhich
whichwere
were

keptin
kept inaarefrigerator
refrigeratorand
andin
inaalocked
lockedcabinet
cabinetto
towhich
whichthe
theemployees
employeeshad
hadaakey.
key.Although
Although

Hanchettwas
Hanchett wasresponsible
responsiblefor
forordering,
ordering,receiving
receivingand
andinventorying
inventoryingthe
thestandards,
standards,there
therewere
wereno
no

audits
auditsof
ofthe
thestandards
standardsuntil
untilJuly
Julyof
of2012.
2012.The
Thelab
labwas
waslocked
lockedbut
butaccessible
accessible24
24hours
hoursaaday,
day,

sevendays
seven daysaaweek,
week,totoall
alllab
labemployees
employeesby
byaaswipe
swipecard
cardand
andaakey,
key,the
thelatter
latterof
ofwhich
whichrecorded
recorded

88
 Add. 26
Add.26
Add:26

no
noinformation
informationabout
aboutwho
whoentered
enteredand
andexited
exitedthe
thelab
labor
orwhen.
when.The
Thelab
labhad
hadno
nocameras
camerasor
orother
other

security
securitymonitoring
monitoringequipment.
equipment.

Police-submitted
Police-submitteddrug
druglab
labsamples
sampleswere
weregenerally
generallystored
storedin
inaavault
vaultacross
acrossthe
thehall
hallfrom
from

the
thelab.
lab.All
Alllab
labemployees
employeescould
couldopen
openthe
thevault
vaultwith
witheither
eitheraakey
keyor
oraaswipe
swipecard,
card,and
andthe
thelab
labhad
had

no
nopolicy
policyrestricting
restrictingchemists'
chemists'access
accessto
tothe
thevault.
vault.Employees
Employeesalso
alsoused
usedaasafe
safein
inthe
themiddle
middleof
of

the
thelab
labfor
forovernight
overnightstorage
storageof
ofsamples
sampleson
onwhich
whichtesting
testingwas
wasincomplete.
incomplete.The
Thesafe
safewas
wassecured
secured

with
withaalock
lockwith
withaacombination
combinationknown
knownto
toall
allof
ofthe
thelab
labemployees.
employees.

Theevidence
The evidenceroom,
room,where
wherepolice
policedelivered
delivereddrug
drugsamples
samplesfrom
fromcriminal
criminalcases,
cases,had
hadaa

computerin
computer inwhich
whichthe
thelab's
lab'sevidence
evidenceofficer,
officer,Salem,
Salem,documented
documentedthe
theweights
weightsof
ofthe
thesamples.
samples.

The
Thelab
labemployees
employeesall
allknew
knewthe
thepass
passcode
codeto
toaccess
accessthe
thecomputer,
computer,so
soany
anyemployee
employeecould
couldlog
logon
on

to
tothe
thecomputer
computerand
andalter
alterthe
theweights
weightsof
ofthe
thesamples
samplestyped
typedinto
intothe
thecomputer
computerrecord.
record.Moreover,
Moreover,

because
becauseevery
everylab
labemployee
employeehad
had24/7
24/7access
accessto
tothe
thelab,
lab,all
allthe
theworkstations,
workstations,the
thevault,
vault,the
the

computer
computerinventory
inventorysystem,
system,and
andthe
thestandards
standardskept
keptininthe
thecabinet
cabinetand
andrefrigerator,
refrigerator,chemists
chemistscould
could

assign
assignsamples
samplestotothemselves.
themselves.The
Thecomplete
completelack
lackof
ofsecurity
securityatatthe
theAmherst
Amherstlab
labwas
wasaa

fundamental
fundamentalflaw
flawwhich
whichenabled
enabledFarak
Faraktototamper
tamperwith
withdrugs
drugswithout
withoutdetection.
detection.

In
Inher
heryears
yearsof
ofemployment
employmentatatthe
theAmherst
Amherstlab,
lab,Farak
Farakreceived
receivedno
nocontinuing
continuingeducation,
education,

proficiency
proficiencytesting,
testing,or
orreal
realsupervision.
supervision.Although
AlthoughHanchett
Hanchettspent
spentmuch
muchof
ofhis
histime
timeininthe
thelab,
lab,

ratherthan
rather thanin
inhis
hisseparate
separateoffice
officeacross
acrossthe
thehall
hallfrom
fromthe
thelab,
lab,he
hetestified
testifiedthat
thathe
henever
neverreviewed
reviewed

Farak'stesting,
Farak's testing,as
asshe
shehad
hadbeen
beentrained
trainedatatthe
theHinton
Hintonlab
laband
andhe
hebelieved
believedthat
thatshe
sheseemed
seemedtotobe
be

doing
doingaagood
goodjob
jobuntil
untilthe
thelast
lasthalf
halfof
of2012.
2012.Salem's
Salem'soffice
officewas
wasalso
alsoacross
acrossthe
thehall
hallfrom
fromthe
thelab,
lab,

where
whereFarak
Farakand
andPontes
Pontesworked.
worked.The
Theextent
extentto
towhich
whichanyone
anyonebut
butPontes
Pontesworked
workedregularly
regularlyinin

99
 Add. 27
Add.27
Add:27

close proximity
close proximity to
to Farak
Farak isis unclear.'
unclear.'

Due to
Due to the
the deficiencies
deficiencies identified
identified above
above and
and others,
others, the
the Amherst
Amherst lab
lab was
was never
never accredited,
accredited,

although some
although some steps
steps were
were taken
taken in
inlate
late2012
2012toward
towardaccreditation.
accreditation.While credit testimony
WhileIIcredit testimony that
that

the practices
the practices of
of the
the Amherst
Amherst lab
lab until
until July
July of
of 2012
2012 were
were generally
generally poor
poor and
and that
that security
security gaps
gaps

throughout the
throughout the operation
operation of
of the
the lab
lab were
were highly
highly problematic
problematic with
with respect
respect to
to Farak's
Farak's conduct,
conduct, II

find in
find in all
all other
other respects
respects those
those practices
practices have
have not
not been
been shown
shown to
to have
have materially
materially prejudiced
prejudiced the
the

defendants.1°Notwithstanding
defendants.' Notwithstandingthe
theflaws
flawsininthe
theAmherst
Amherstlab,
lab,its
itsemployees,
employees,apart
apart from
from Farak,
Farak,

correctly used
correctly used accepted,
accepted, scientifically-valid
scientifically-valid practices
practices with
with the
the GC/MS
GC/MS to
to arrive
arrive at
at reliable
reliable

analyses of
analyses of suspected
suspected substances.
substances. With
With the
the exception
exception of
of Farak's
Farak's work,
work, II credit
credit the
the conclusion
conclusion of
of

the MSP's
the MSP's report
report based
based on
on its
its October
October 10,
10, 2012,
2012, quality
quality assurance
assurance audit
audit (discussed
(discussed below)
below) that
that

the Amherst
the Amherst lab
lab was
was free
free from
from any
any deficiency
deficiency in
in analytical
analytical procedure,
procedure, was
was kept
kept in
in an
an orderly
orderly

fashion, and
fashion, and that
that work
work flowed
flowed through
through the
the lab
lab smoothly.
smoothly. (Exh.
(Exh. 1).
1).

B. Farak's
B. Farak's Mental
Mental Health
Health Challenges
Challenges and
and Early
Early Use
Use of
of Controlled
Controlled Substances
Substances

Much of
Much of the
the evidence
evidence of
of Farak's
Farak's addiction
addiction and
and drug
drug tampering
tampering as
as set
set forth
forth in
in the
the Caldwell
Caldwell

Report isis derived

Report derived from
from the
the records
records of
of Farak's
Farak's mental
mental health
health treatment
treatment providers
providers and
and Farak's
Farak's

99
The Caldwell
The Caldwell Report
Report describes
describes thethe layout
layout of
of the
the Amherst
Amherst lab
lab as
as follows:
follows: "The
"The offices
offices ofof both
both Hanchett
Hanchett andand
Salem were
Salem were located
located across
across the
the hall
hall from
from the
the lab
lab and
and there
there was
was no
no way
way they
they could
could monitor
monitor thethe testing
testing (4
(4 at
at 91)."
91)." (CR
(CR
30). This
30). This isis consistent
consistent with
with Farak's
Farak's testimony
testimony that that Salem
Salem worked
worked across
across the
the hall
hall from
from her.
her. (Jt.
(Jt. Proposed
Proposed Finding
Finding
206). On
206). On the
the other
other hand,
hand, the
the Caldwell
Caldwell Report
Report states
states that
that Hanchett
Hanchett told
told the
the grand
grand jury
jury that
that he
he worked
worked alongside
alongside Farak
Farak
after she
after she transferred
transferred toto the
the Amherst
Amherst lablab in
in 2004.
2004. (CR
(CR 22).
22). At
At the
the December
December 2016 2016 hearing,
hearing, Salem
Salem likewise
likewise testified
testified
that she
that she worked
worked"side"sidebybyside"
side"Farak
Farakin inthe
thelablabfor
fornine
nineyears.
years.

I°I°Nothing
Nothing inin the
the evidence
evidence supports
supports an
an inference
inference that
that the
the physical
physical condition
condition ofof the
the lab
lab precluded
precluded accurate
accurate
analysis. There
analysis. There was
was always
always atat least
least one
one operative
operative fume
fume hood,
hood, which
which was
was sufficient,
sufficient, as
as fume
fume hoods
hoods are
are rarely
rarely needed,
needed,
only to
only to test
test highly
highly toxic
toxic reagents.
reagents. InIn the
the 5-6
5-6 years
years before
before the
the lab's
lab's closure,
closure, improvements
improvements were were made
made in
in its
its storage
storage
areas, offices,
areas, offices, benches,
benches, andand in
in other
other respects.
respects. (Hanchett
(Hanchett 121).
121).

10
10
 Add. 28
Add.28
Add:28

testimony
testimonybefore
beforeaaHampshire
HampshireCounty
CountyGrand
GrandJury
JuryininSeptember
September2015.'1
2015."

Farak
Farakwas
wasborn
borninin1978
1978and
andatatage
age16
16was
wasdiagnosed
diagnosedwith
withdepression.
depression.She
Shewas
wastreated
treated

with
withWellbutrin.
Wellbutrin.She
Sheexcelled
excelledacademically
academicallyand
andwas
wasco-valedictorian
co-valedictorianof
ofher
herhigh
highschool
schoolclass.
class.

In
Inthe
thespring
springof
of1997,
1997,as
asaafreshman
freshmaninincollege,
college,she
shehad
hadaafive
fiveday
daypsychiatric
psychiatrichospitalization.
hospitalization.

During
Duringcollege,
college,she
shetook
tookfour
fourtypes
typesof
ofmedication:
medication:Wellbutrin,
Wellbutrin,Remeron,
Remeron,Effexxor
Effexxorand
andZoloft.
Zoloft.

She
Sheperformed
performedwell
wellinincollege,
college,graduated
graduatedininthe
thespring
springof
of2000,
2000,and
andininher
herfirst
firstand
andonly
onlyyear
yearof
of

doctoral
doctoralstudies
studies(2000-2001),
(2000-2001),she
shebegan
beganregularly
regularlyusing
usingalcohol
alcoholand
andmarijuana
marijuanaand
andexperimented
experimented

with
withcocaine,
cocaine,ecstasy
ecstasy(methylenedioxymethampetamine,
(methylenedioxymethampetamine,also
alsoknown
knownas
asMDMA),
MDMA),and
andheroin.
heroin.

From
FromJanuary
Januaryof
of2002
2002 until
until May
May of
of 2003,
2003, Farak
Farak worked
worked for
for DPH
DPI-Iwhere
whereshe
sheconducted
conducted

testing
testingtotodetect
detectIIIV.
HIV.During
Duringthat
that16
16month
monthperiod,
period,she
shecontinued
continuedand
andperhaps
perhapsincreased
increasedher
her

consumption
consumptionof
ofalcohol
alcoholand
andrecreational
recreationaldrugs,
drugs,including
includingMDMA
MDMAand
andmarijuana,
marijuana,and
andshe
shefirst
first

tried
triedmethamphetamine.'2
methamphetamine.12

C.
C.Farak's
Farak'sMisconduct
Misconductat
atAmherst
AmherstLab
Lab

1.1.Farak's
Farak'sUse
Useof
ofLab
LabStandards
Standards(Beginning
(Beginningin
in2004/2005)
2004/2005)

In
InAugust
Augustof
of2004,
2004,Farak
Faraktransferred
transferredtotothe
theAmherst
Amherstlab.
lab.By
Byearly
early2005,
2005,she
shewas
wasstealing
stealing

and
andconsuming
consumingmethamphetamine
methamphetaminestandards
standardsfrom
fromthe
thelab
labevery
everymorning.
morning.Between
Between2005-2009,
2005-2009,

11
0n May
"On May 3,
3, 2016,
2016, II vacated
vacated the
the non-dissemination
non-disseminationorder
orderpreviously
previouslycovering
coveringthe
thesources
sourcescited
citedininthis
this
decision,including
decision, includingthetheCaldwell
CaldwellReportReportandandminutes
minutesfromfromFarak's
Farak'sgrand
grandjuryjurytestimony.
testimony.Farak's
Farak'stestimony
testimonybefore
beforethe
the
grandjury
grand jurywas
wasunder
underaagrant
grantofofimmunity
immunityand andwas
wasgenerally
generallycandid.
candid.1Idodonotnotcredit
creditsome
someaspects
aspectsofofher
hertestimony
testimony
whichisisnot
which notentirely
entirelyconsistent
consistentwithwithwhat
whatshe
shereported
reportedtotoherhertherapists
therapistsabout
aboutherheraddiction
addictionand
anduse
useofofpolice-
police-
submittedsamples
submitted samplesatatthe
thelab.
lab.ItItisisnow
nowknown
knownthat
thatatattimes,
times,Farak
Faraklied
liedtotoher
hertherapists
therapiststotodownplay
downplayher hersubstance
substance
abuse.There
abuse. Thereisisno
noreason
reasontotobelieve
believethat thatFarak
Farakdid
didnot
notalso
alsominimize
minimizeher hersubstance
substanceabuse
abuseininher
hergrand
grandjury
jury
testimony.1I also
testimony. also do
do not
not credit
credit her
hertestimony
testimonythat
thather
herchemical
chemicalanalysis
analysiswaswasreliable.
reliable.IIdo,
do,however,
however,IIcredit
creditother
other
aspectsofofher
aspects hertestimony,
testimony,including
includingthat thatshe
shenever
neversucceeded
succeededininforging
forginganyanyother
otherchemist's
chemist'sinitials onevidence
initialson evidencebags.
bags.
Noparty
No partyattempted
attemptedtotocall
callher
hertototestify
testifyduring
duringthe
theDecember
December2016 2016hearing.
hearing.
12
SeeExh.
'2 See Exh.6,6,pp.
pp.37-38
37-38and
and Exh.
Exh, 99 para.l4.
para.14.

11
11
 Add. 29
Add.29
Add:29

that
thatconsumption
consumptiongrew
grewtotoseveral
severaltimes
timesper
perday.
day.IIcredit
credither
hertestimony
testimonythat,
that,aside
asidefrom
fromaafew
fewdays
days

or
oraaweek
weekof
ofsobriety
sobrietyduring
duringthat
thatfour
fouryear
yearperiod,
period,she
shewas
wasunder
underthe
theinfluence
influenceof
of

methamphetamine
methamphetamine(and,
(and,atattimes,
times,other
othercontrolled
controlledsubstances)
substances)atatthe
thelab
labnearly
nearlyevery
everyday,
day,all
allday,
day,

and
andthat
thatwhen
whenshe
shedid
didnot
nottake
takemethamphetamine,
methamphetamine,she
sheexperienced
experiencedsevere
severelethargy,
lethargy,irritability,
irritability,

and
andthe
theinability
inabilitytotofocus
focusand
andbe
beproductive,
productive,totothe
thepoint
pointwhere
whereshe
shewould
wouldcall
callininsick
sickfrom
fromwork.
work.

By
Bythe
thebeginning
beginningof
of2009,
2009,Farak
Farakhad
hadstolen
stolennearly
nearlythe
thelab's
lab'sentire
entiremethamphetamine
methamphetamine

standard
standardand
andshe
shebegan
beganstealing
stealingand
andusing
usingthe
theamphetamine
amphetamineand
andphentermine
phenterminelab
labstandards.
standards.

Throughout
Throughout2009,
2009,she
sheused
usedamphetamine
amphetamineand
andphentermine,
phentermine,which
whichshe
sheclaims
claimsgave
gaveher
herincreased
increased

energy,
energy,alertness
alertnessand
andfocus.'
focus.'She
Shedenies
deniesthat
thather
herproductivity
productivityand
andaccuracy
accuracyinintesting
testingsuffered
suffered

while
whileshe
shewas
wasusing
usingthose
thosestimulants,
stimulants,but
buther
hertestimony
testimonyisisundercut
undercutby
byher
herreport
reporttotoher
hertherapist
therapist

that
thatatattimes,
times,stimulants
stimulantscaused
causedher
hertotoexperience
experiencevisual
visualdisturbances.
disturbances.

2.
2.Farak's
Farak's Use of Standards
Standards and
and Police-Submitted
Police-Submitted Samples
Samples(2009-2013)
(2009-2013)

In
InJanuary
Januaryof
of2009,
2009,Farak
Farakbegan
beganreceiving
receivingsubstance
substanceabuse
abusecounseling.
counseling.On
OnJanuary
January15,
15,

2009,
2009,she
shehad
hadher
herfirst
firstmeeting
meetingwith
withtherapist
therapistSarah
SarahHawrylak.
Hawrylak.On
OnApril
April28,
28,2009,
2009,Farak
Farak

confided
confidedtotoHawrylak
Hawrylakthat
thatshe
shehad
hadbeen
beenusing
usingillegal
illegalsubstances,
substances,primarily
primarilymethamphetamine,
methamphetamine,for
for

aalong
longperiod
periodof
oftime,
time,and
andthat
thatshe
shehad
hadbeen
beenusing
usingdrugs
drugsfrom
fromher
herState
Statedrug
druglab
labjob
jobby
bytaking
taking

portions
portionsof
ofsamples
samplesthat
thathad
hadbeen
beensubmitted
submittedfor
fortesting.
testing.(Jt.
(Jt.Proposed
ProposedFindings
Findings145-147).
145-147).By
Byatat

least
leastApril
Aprilof
of2009,
2009,Farak
Farakwas
wasusing
usingpolice-submitted
police-submittedsamples
samplesfrom
fromthe
thelab
labtotofeed
feedher
her

addiction.'
addiction."

Stimulants
1313 Stimulantsare
areoften
oftentaken
takentotoproduce
produceaasense
senseofofexhilaration,
exhilaration,enhance
enhanceself-esteem,
self-esteem,improve
improvemental
mentaland
and
physical
physicalperformance,
performance,increase
increaseactivity,
activity,reduce
reduceappetite,
appetite,extend
extendwakefulness,
wakefulness,and
and"get
"gethigh."
high."(CR
(CR9,9,n.l
n.l1).
1).

Bl As
'As explained
explainedbelow,
below,precisely
preciselywhen
whenFarak
Farakbegan
beganstealing
stealingand
andconsuming
consumingpolice-submitted
police-submittedsamples
samplesatatthe
the
Amherst
Amherstlab,
lab,the
thefull
fullpanoply
panoplyofofdrugs
drugsshe
shetook
tookand
andused,
used,and
andthe
theextent
extenttotowhich
whichshe
shewas
wasimpaired
impairedatatwork,
work,all
all
remain
remainunknown.
unknown.

12
12
 Add. 30
Add.30
Add:30

In
In2009,
2009,ininconjunction
conjunctionwith
withusing
usingamphetamine
amphetaminestandards,
standards,Farak
Farakwas
wasalso
alsousing
using

standards
standardsof
ofketamine,
ketamine,MDMA,
MDMA,MDEA,
MDEA,and
andLSD
LSD(including
(includingpolice-submitted
police-submittedsamples)
samples)and
and

cocaine
cocainewhile
whileshe
shewas
wasworking.
working.Farak
Farakclaims
claimsthat
thatinin2009,
2009,she
shedid
didnot
notuse
usethe
thecocaine
cocainestandard
standard

daily.
daily.IIcredit
creditthe
theCaldwell
CaldwellReport
Reportthat
that

"in
"inearly
early2009,
2009,Farak
Faraktook
tookfor
forher
herpersonal
personaluse
useaarelatively
relativelysmall smallamount
amountfrom
frompolice-
police-
submitted
submittedsamples--what
samples--whatsheshetermed
termed'acceptable
'acceptableloss'
loss'. .. .. .[which
[whichwas]
was]approximately
approximatelyfive
five
percent
percentofofthe
thesample
samplethat
thatwould
wouldtake
takeinto
intoaccount
accountthe
thetesting
testingandandmoisture
moistureloss
lossdue
duetoto
evaporation
evaporationininstorage."
storage."

(CR
(CR11-12).
11-12).In
Inearly
earlyJuly
Julyof
of2009,
2009,Farak
Faraktold
toldher
hertherapist
therapistthat
thatshe
shehad
hadreduced
reducedher
heralcohol
alcohol

consumption
consumptionbut
buthad
hadbeen
beenengaging
engagingdaily
dailyinin"other
"otherrisky
riskybehavior."
behavior."Farak's
Farak'streatment
treatmentrecords
records

support
supportan
aninference
inferencethat
thatshe
shewas
wassuffering
sufferingfrom
fromphysical
physicaland
andemotional
emotionalwithdrawal
withdrawalsymptoms
symptoms

on
onJuly
July23,
23,2009,
2009,but
butthat
thatshe
sherelapsed
relapsedon
onAugust
August14,
14,2009,
2009,and
andresumed
resumeddaily
dailyusage.
usage.On
OnAugust
August

25,
25,2009,
2009,Farak
Faraktold
toldher
hertherapist
therapistthat
thatshe
shewas
wasalmost
almostout
outof
ofher
herdrug
drugsupply
supplyand
andwanted
wantedtotostop
stop

using
usingdrugs.
drugs.(Jt.
(Jt.Proposed
ProposedFinding
Finding153).
153).Between
Betweenlate
lateAugust
Augustand
andSeptember
September8,8,2009,
2009,Farak
Farak

reportedly
reportedlyhad
hadsix
sixdays
daysof
ofsobriety.
sobriety.

In
Inearly
earlySeptember
Septemberof
of2009,
2009,Farak
Farakbegan
begantotouse
usethe
thelab's
lab'scocaine
cocainestandard,
standard,but
butnot
notdaily.
daily.

(Jt.
(Jt.Proposed
ProposedFindings
Findings156-158).
156-158).Farak
Farakadmitted
admittedthat
thatatatthe
theend
endof
of2009,
2009,she
shetook
tookaafew
fewgrams
grams

from
fromaa500
500grams
gramscocaine
cocainesample
samplewhich
whichhad
hadbeen
beensubmitted
submittedby
bypolice
policeininaacase
caseinvolving
involvingthe
the

United
UnitedStates
StatesPostal
PostalService,
Service,and
andshe
sheused
usedthe
thecocaine
cocaineatatthe
thelab
laband
andatathome.
home.(CR
(CR12;
12;Jt.
Jt.

Proposed
ProposedFindings
Findings162-163).
162-163).

In
Inlate
late2009,
2009,Farak
Farakreported
reportedtotoher
hertherapist
therapistaaworsening
worseningdepression.
depression.The
Thetherapist
therapist

referred
referredFarak
Faraktotoaapsychiatrist,
psychiatrist,Barry
BarryFederman,
Federman,M.D.,
M.D.,and
andasked
askedhim
himififthe
theLamictal,
Lamictal,aa

medication
medicationprescribed
prescribedtototreat
treatdepression,
depression,was
wasworking
workingproperly.
properly.Federman
Federmanmet
metwith
withFarak,
Farak,

13
13
 Add. 31
Add:31
Add.31

described her
described her mood
mood as
as "great,"
"great," and
and increased
increased her
her Lamictal
Lamictal dosage.
dosage. On
On January
January 5,
5,2010,
2010,Farak
Farak

told
toldher
hertherapist
therapist that
that she
she had
had stopped
stopped taking
taking Lamictal
Lamictal during
during the
the last
last week
week of
of December
December and
and in
in

itsplace
its placetook
tookLSD.
LSD.In
Inlate
lateJanuary,
January,2010,
2010,Farak
Farakadmitted
admittedto
toher
hertherapist
therapistthat,
that,contrary
contraryto
toher
her

priorreports,
prior reports,she
shehad
hadbeen
beenusing
usingcocaine
cocainefor
forseveral
severalweeks
weeksand
andketamine
ketamine occasionally.
occasionally.

In
In 2010,
2010, Farak
Farak performed
performed all
all of
of her
her lab
lab work
work while
while she
she was
was under
under the
the influence
influence of
of

narcotics.
narcotics. On
On February
February 23,
23, 2010,
2010, Farak
Farak expressed
expressed concern
concern to
to her
her therapist
therapist that
that her
her co-workers
co-workers

might
might know
know about
about her
her taking
taking drug
drug samples.
samples. Farak
Farak testified
testified before
before the
the grand
grand jury
jury that
that throughout
throughout

2010,
2010, she
she used
used lab
lab standards
standards heavily
heavily but
but generally
generally abstained
abstained from
from siphoning
siphoning from
from police-
police-

submitted
submitted samples,
samples, except
except LSD.
LSD. (CR
(CR 12).
12). Farak
Farak admitted
admitted to
to her
her therapist
therapist that
that in
in late
late February
February

and all
and all of
of March
March of
of 2010,
2010, she
she used
used cocaine,
cocaine, alcohol,
alcohol, and
and marijuana,
marijuana, and
and that
thatby
bylate
lateMarch,
March,she
she

was
was using
using LSD
LSD in
in addition
addition to
to cocaine
cocaine and
and alcohol.
alcohol. (Jt.
(Jt. Proposed
Proposed Findings
Findings 174-176).
174-176). On
On April
April

19,
19, 2010,
2010, Farak
Farak told
told her
her therapist
therapist that
that she
she had
had not
not taken
taken illegal
illegal substances
substances for
forthree
threeweeks
weeksin
in

early April,
early April, but
but then
then relapsed
relapsed and
and took
took cocaine,
cocaine, ketamine
ketamine and
and MDMA.
MDMA.

On May
On May 13,
13, 2010,
2010, Farak
Farak told
told aa ServiceNet
ServiceNet clinician
clinician that,
that, as
as reported
reported by
by the
the clinician,
clinician,

"Starting
"Startingin inabout
about2005,
2005,she shehas
hasaahistory
historyof
ofabusing
abusingaanumber
numberof ofdifferent
differentclasses
classesofof
drugs, including
drugs, including cocaine,
cocaine, cannabis,
cannabis, methamphetamine,
methamphetamine, and and fen
fen fen.
fen. She
She had
had aa week
week long
long
cocaine binge
cocaine binge in
in March.
Much. .. .. .She
Sheadmits
admitstotostealing
stealingdrugs
drugsfrom
fromthe
the......lab
lab........She
Shehas
has
episodes
episodes ofof spacing
spacing out
out for
for hours
hours at
at home,
home, and
and admits
admits to
to worrying
worrying about
about what
what others
othersare
are
thinking
thinking about
about her
her at,work."
at.work."

(Jt.
(Jt. Proposed
Proposed Finding
Finding 177).
177). The
The ServiceNet
ServiceNet clinician's
clinician's notes
notes also
also reveal
reveal that
that Farak
Farak reported
reported that
that

"whenabusing
"when abusingstimulants,
stimulants,she
shehas
hashad
hadperceptual
perceptualdisturbances
disturbancesin
inthe
thepast,
past,including
includingparanoia
paranoia

and auditory
and auditory hallucinations."
hallucinations." (Jt.
(Jt. Proposed
Proposed Finding
Finding 185).
185). Because
Because on
on almost
almost aa daily
daily basis
basis Farak
Farak

abused
abusednarcotics
narcoticsin
in2005
2005to
to2009
2009while
whileshe
shewas
wasworking,
working,there
there isis no
no assurance
assurance that
that she
she was
was able
able

to
to perform
perform chemical
chemical analysis
analysis accurately
accurately or
or to
to detect
detect when
when the
the equipment
equipment for
fortesting
testingdrugs
drugsneeded
needed

14
14
 Add. 32
Add.32
Add:32

adjustments
adjustmentsto
towork
workproperly.
properly.

In2011,
In 2011,Farak's
Farak'suse
useof
ofcocaine
cocaineramped
rampedup,
up,as
asshe
sheused
usedlab
labstandards,
standards,police-submitted
police-submitted

powder
powdercocaine,
cocaine,and
andshe
shebegan
beganto
tosmoke
smokerocks
rocksof
ofcrack
crackcocaine.
cocaine.The
Thelatter
latterpractice
practicequickly
quicklyled
led

to
toher
herbecoming
becomingvery
veryheavily
heavilyaddicted.
addicted.By
Bythe
thefall
fallof
of2011,
2011,she
shehad
hadexhausted
exhaustedthe
thelab
labstandards
standards

of
ofmethamphetamine,
methamphetamine,amphetamine
amphetamineand
andketamine,
ketamine,and
andthe
thelab's
lab'scocaine
cocainestandards
standardswere
were

substantially
substantiallydiminished.
diminished.At
Atthat
thattime
timeFarak
Farakused
usedcrack
crackcocaine
cocaineduring
duringwork
workhours
hoursin
inthe
thelab.
lab.

She
Shewas
wastotally
totallycontrolled
controlledby
byher
heraddiction,
addiction,which
whichgave
gaveher
herwhat
whatshe
shedescribed
describedas
as"ridiculously
"ridiculously

intense"cravings.
intense" cravings.She
Shenonetheless
nonethelesstestified
testifiedthat
thatshe
shebelieved
believedthat
thatthere
therewere
wereno
noinaccuracies
inaccuraciesin
in

her
hertesting,
testing,aabelief
beliefwhich
whichdefies
defieslogic.
logic.

In
Inearly
early2012,
2012,Farak
Farakused
useddrugs
drugsfrom
fromthe
thelab
labwhile
whileshe
shewas
wasatatwork
workand
andatathome.
home.She
She

smoked
smokedcrack
crackcocaine
cocaineduring
duringwork
workhours
hoursin
inaabathroom
bathroomand
andafter
afterwork
workhours
hoursin
inthe
thelab.
lab.On
On

January
January9,
9,2012,
2012,Farak
Farakwas
wasextremely
extremelyimpaired.
impaired.That
Thatmorning
morningshe
shesmoked
smokedcrack
crackcocaine,
cocaine,and
andatat

lunchtime,
lunchtime,she
sheconsumed
consumedaapolice-submitted
police-submittedsample
sampleof
ofLSD.
LSD.(Jt.
(Jt.Proposed
ProposedFindings
Findings203-205).
203-205).

Shelater
She laterrecalled
recalledthat
thatthe
thesensation
sensationof
ofcolors
colorsin
inthe
thewind
windleft
lefther
herunable
unableto
tofunction
functionwell
wellatatwork,
work,

to
todrive
driveher
hercar,
car,or
orto
toattend
attendtherapy.
therapy.Despite
Despiteher
hergrand
grandjury
jurytestimony
testimonythat
thatshe
shedid
didnot
notrecall
recall

running
runningany
anytests
teststhat
thatday,
day,the
therecord
recordshows
showsthat
thaton
onJanuary
January9,
9,2012,
2012,Farak
Farakendorsed
endorsedcertificates
certificates

of
ofanalysis,
analysis,including
includingin
inthe
thePenate
Penatecase,
case,and
andthat
thatshe
sheused
usedthe
theGC/MS
GC/MSthat
thatday.
day.

Farak'sattempts
Farak's attemptsatatsobriety
sobrietyfailed.
failed.By
ByApril
Aprilof
of2012,
2012,her
hertheft
theftand
andconsumption
consumptionof
of

police-submittedsamples
police-submitted samplesrapidly
rapidlyincreased.
increased.On
Onfour
fouroccasions
occasionsduring
duringthe
thelast
lasthalf
halfof
of2012,
2012,

Farak
Farakmanufactured
manufacturedcrack
crackcocaine
cocaineatatthe
thelab
labby
byremoving
removingand
andcooking
cookingcocaine
cocainewhen
whenlarge
large

quantities
quantitiesof
ofpowdered
powderedcocaine
cocainehad
hadbeen
beensubmitted.
submitted.At
Atthat
thatpoint,
point,Farak
Farakwas
wassmoking
smokingcrack
crack

cocaine
cocaineten
tento
totwelve
twelvetimes
timesaaday.
day.She
Shewould
woulddo
doso
soatatthe
thelab,
lab,atathome,
home,and
andwhile
whiledriving.
driving.In
In

15
15
 Add. 33
Add.33
Add:33

2012, Farak
2012, Farak attended
attended individual
individual and
and group
group therapy
therapy sessions
sessions while
while under
under the
the influence
influence of
of crack
crack

cocaine and
cocaine and did
did not
not disclose
disclose her
her intoxication
intoxication to
to her
her therapists
therapists or
or the
the group.
group.

Farak testified
Farak testified that
that she
she began
began taking
taking other
other chemists'
chemists' samples
samples in
in the
the summer
summer of
of 2012.
2012. (Jt.
(Jt.

Proposed Finding
Proposed Finding 226).
226). She
She took
took approximately
approximately six
six of
of Hanchett's
Hanchett's samples
samples of
of crack
crack cocaine,
cocaine,

including aa sample
including sample of
of 3.5
3.5 grams
grams submitted
submitted by
by the
the Northampton
Northampton Police
Police Department,
Department, and
and aa 24.5
24.5

gram sample
gram sample from
from the
the Pittsfield
Pittsfield Police
Police Department,
Department, and
and repackaged
repackaged them
them in
in Hanchett's
Hanchett's pre-
pre-

initialed evidence
initialed evidence bags.
bags. Farak
Farak also
also took
took 30
30 grams
grams of
of aa 73
73 gram
gram SPD
SPD submission
submission of
of cocaine
cocaine

assigned
assigned to
to Pontes,
Pontes, used
used itit to
to make
make crack
crack cocaine
cocaine at
at the
the lab
lab when
when she
she was
was not
not scheduled
scheduled to
to work,
work,

later replaced
later replaced the
the cocaine
cocaine with
with aa counterfeit
counterfeit substance,
substance, and
and put
put the
the sample
sample into
into aa bag
bag pre-
pre-

initialled by
initialled by Pontes.
Pontes.

At times,
At times, Farak
Farak removed
removed narcotics
narcotics after
after the
the police-submitted
police-submitted samples
samples had
had been
been analyzed
analyzed

so
so that
that any
any certificates
certificates originally
originally generated
generated by
by other
other chemists
chemists were
were still
still accurate,
accurate, even
even though
though aa

retesting of
retesting of those
those samples
samples would
would likely
likely yield
yield different
different results
results showing
showing counterfeit
counterfeit substances,
substances,

such as
such as baking
baking soda,
soda, soap,
soap, wax,
wax, clay,
clay, or
or water.
water. Farak
Farak frequently
frequently removed
removed from
from the
the drug
drug vault
vault

cocaine samples
cocaine samples that
that she
she had
had already
already tested,
tested, then
then she
she ingested
ingested the
the cocaine
cocaine and
and resealed
resealed the
the

evidence bags.
evidence bags. At
At other
other times,
times, Farak
Farak removed
removed portions
portions of
of samples
samples that
that had
had not
not yet
yet been
been tested
tested

and manipulated
and manipulated the
the samples
samples so
so that
that she
she would
would receive
receive them
them for
for testing
testing and
and other
other chemists
chemists would
would

not notice
not notice the
the inaccuracies
inaccuracies in
in the
the weights.
weights.

In
In late
late 2012,
2012, Farak
Farak hid
hid her
her drug
drug tampering
tampering by
by manipulating
manipulating the
the lab
lab inventory
inventory list
list on
on the
the

evidence computer.
evidence computer. She
She altered
altered the
the documented
documented weights
weights on
on the
the computer
computer and
and in
in her
her lab
lab

notebook, changed
notebook, changed the
the order
order of
of assigned
assigned samples
samples so
so she
she would
would be
be assigned
assigned the
the samples
samples she
she

preferred, and
preferred, and replaced
replaced original
original drug
drug receipts
receipts with
with ones
ones reflecting
reflecting the
the samples'
samples' weight
weight after
after her
her

16
16
 Add. 34
Add.34
Add:34

tampering. (Jt.
tampering. (Jt. Proposed
Proposed Finding
Finding 255).
255). On
On July
July 8,
8, 2012,
2012, Farak
Farak assigned
assigned herself
herself aa batch
batch of
of twenty
twenty

samples submitted
samples submitted by
by Westfield
Westfield police.
police. In
In late
late 2012,
2012, Farak
Farak took
took 100
100 grams
grams from
from aa one
one kilogram
kilogram

sample of
sample of powder
powder cocaine
cocaine submitted
submitted by
by the
the Chicopee
Chicopee Police
Police Department
Department and
and used
used itit to
to

manufacture crack
manufacture crack cocaine
cocaine at
at the
the lab.
lab. She
She also
also took
took 200
200 grams
grams of
of powder
powder cocaine
cocaine from
from aa

Holyoke case.
Holyoke case.

Farak's scheme
Farak's scheme was
was at
at times
times facilitated
facilitated by
by the
the submission
submission of
of evidence
evidence by
by SPD
SPD narcotics
narcotics

evidence officer
evidence officer Kevin
Kevin Burnham,
Burnham, who
who held
held that
that position
position from
from 1984
1984 until
until his
his retirement
retirement on
on July
July

25, 2014.
25, 2014. (Jt.
(Jt. Prop.
Prop. Finding
Finding 492-496).
492-496). On
On most
most Wednesdays,
Wednesdays, Burnham
Burnham brought
brought in
in samples
samples

which were
which were often
often unsealed.
unsealed. When
When Farak
Farak anticipated
anticipated the
the arrival
arrival of
of SPD
SPD submissions,
submissions, she
she

occasionally turned
occasionally turned down
down the
the heat
heat sealers
sealers to
to prevent
prevent aa good
good seal.
seal. (Jt.
(Jt. Proposed
Proposed Findings
Findings 492-
492-

498). Subsequently,
498). Subsequently, Farak
Farak removed
removed those
those submissions
submissions for
for her
her own
own use
use and
and resealed
resealed them
them over
over

the original
the original seal
seal mark
mark so
so her
her tampering
tampering would
would go
go unnoticed.
unnoticed. There
There isis no
no evidence
evidence that
that Burnham
Burnham

tampered with
tampered with any
any of
of the
the samples
samples of
of suspected
suspected drugs
drugs he
he submitted
submitted to
to the
the Amherst
Amherst lab.
lab.

Despite her
Despite her impairment,
impairment, Farak
Farak tried
tried to
to do
do her
her job
job well
well for
for three
three reasons:
reasons: to
to obtain
obtain

accurate, fair
accurate, fair results;
results; to
to know
know what
what the
the substances
substances were
were in
in case
case she
she wanted
wanted to
to use
use them
them herself;
herself;

and to
and to draw
draw less
less attention
attention to
to herself
herself by
by correctly
correctly performing
performing testing.
testing. In
In her
her grand
grand jury
jury testimony,
testimony,

Farak credibly
Farak credibly explained:
explained:

"I never
"I never diddid that
that [dry
[dry labbing].
labbing]. YouYou want
want the the accurate
accurate result.
result. IfIf there
there was
was aa question
question ifif
something was
something was positive
positive or or negative,
negative, you
you called
called itit negative.
negative. And,
And, likelike II said,
said, for
for my
my sake
sake
and towards
and towards that
that end,
end, yeah,
yeah, II wanted
wanted itit for
for possible
possible use.
use. II wanted
wanted to to know
know what
what itit was,
was,
but II also
but also thought
thought that
that itit would
would draw
draw less
less attention
attention ifif II also
also tested
tested everything
everything correctly."
correctly."

(Exh. 56,
(Exh. 56, pp.
pp. 173-174).
173-174).

In 2012,
In 2012, co-workers
co-workers sensed
sensed changes
changes in
in Farak.
Farak. Hanchett
Hanchett noticed
noticed in
in the
the late
late summer
summer or
or

17
17
 Add. 35
Add.35
Add:35

earlyfall
early fallthat
thatFarak's
Farak'sproductivity
productivityhad
haddropped,
dropped,that
thather
herwork
workstation
stationhad
hadbecome
becomemessy,
messy,that
that

stacks
stacksof
ofpaper
paperwere
werenot
notbeing
beingfiled
filedproperly,
properly,that
thather
herphysical
physicalappearance
appearancehad
haddeteriorated,
deteriorated,and
and

that
thatshe
shewas
wasnosey
noseyabout
aboutlarge
largesamples
samplessubmitted
submittedin
indrug
drugtrafficking
traffickingcases.
cases.(CR
(CR23).
23).In
In

September
Septemberor
orOctober
Octoberof
of2012,
2012,Hanchett
Hanchettapproached
approachedFarak
Farakto
todiscuss
discussher
herdecline
declinein
inproductivity,
productivity,

as
asher
heranalysis
analysisnumbers
numbershad
hadfallen
fallenby
byhalf.
half.Hanchett
Hanchettdid
didnot
notbelieve
believeFarak's
Farak'sexcuse,
excuse,that
thatshe
shehad
had

spent
spentaalot
lotof
oftime
timein
incourt,
court,and
andhe
heasked
askedher
herto
tofocus
focuson
ontesting.
testing.(Prosecution
(Prosecutionmemo
memoatat7,7,citing
citing

Hanchett's
Hanchett'sgrand
grandjury
jurytestimony).
testimony).Salem
Salemnoticed
noticedin
inthe
thelast
lastmonths
monthsof
of2012
2012that
thatFarak
Farakhad
hadlost
lost

weightand
weight andwas
wasmoody.
moody.(CR
(CR37).
37).Salem
Salemand
andPontes
Pontesobserved
observedin
inthose
thosemonths
monthsthat
thatFarak
Farakwas
was

leavingthe
leaving thelab
labfrequently
frequentlyduring
duringthe
theday.
day.(CR
(CR42).
42).

Nonetheless,
Nonetheless,Farak's
Farak'sco-workers
co-workerspraised
praisedher
herwork.
work.Salem,
Salem,an
anentirely
entirelycredible
crediblewitness,
witness,

described
describedFarak
Farakas
asan
anexcellent
excellentchemist
chemistwho
whowas
wasvery
veryintelligent
intelligentand
andknew
knewher
herchemistry,
chemistry,and
and

thatshe
that shewas
wasmeticulous
meticulousin
inher
hernote
notetaking
takingand
andwork."
work."(Salem
(Salem199-200).
199-200).Pontes
Pontesalso
also

characterizedFarak's
characterized Farak'slab
labnotes
notesas
asvery
verygood.
good.Hanchett
Hanchetttestified
testifiedthat
thathe
heviewed
viewedFarak
Farakas
asaa

meticulous
meticulousemployee
employeewho
whowas
wasdedicated
dedicatedto
toher
herwork.
work.(CR
(CR23).
23).Hanchett
Hanchettnever
neverwatched
watchedFarak
Farak

testaasample
test sampleand
andhad
hadtestified
testifiedthat
thathe
hehad
hadnever
neverretested
retestedany
anyof
ofher
hersamples.
samples.While
Whilethe
theAmherst
Amherst

labwas
lab wasunder
underDPH
DPHcontrol,
control,Farak
Farakwas
wasnot
notrequired
requiredto
totake
takeaaproficiency
proficiencytest
testto
toconfirm
confirmthat
thather
her

analyticalsteps
analytical stepswere
wereproper.
proper.(Hanchett
(Hanchett141,
141,150;
150;Salem
Salem200,
200,206-207).
206-207).In
Incontrast
contrastto
toanalysis
analysis

performedin
performed inthe
theHinton
Hintonlab,
lab,where
whereeach
eachsample
samplewas
wastested
testedby
byaaprimary
primarychemist
chemistand
andlater
laterby
byaa

15
15 Salem's
Salem's opinion
opinion was
was that
that Farak
Farakwas
wasananexcellent
excellentchemist
chemistbased
basedon
onSalem's
Salem'sreview
reviewof
ofFarak's
Farak'snotes.
notes.
Those
Thosenotes
noteswere
wererequired
requiredonly
onlybetween
betweenJuly
July2012
2012and
andJanuary
January18,
18,2013.
2013.According
AccordingtotoSalem,
Salem,

"[Farak]
"[Farak]was
wasvery
veryintelligent.
intelligent.She
Sheknew
knewherherchemistry.
chemistry.SheShewas
wasmeticulous
meticulousininher
hernote-taking
note-takingand
andininher
her
work.
work.Once
Oncethe
theState
Statepolice
policetook
tookususover,
over,wewestarted
starteddoing
doingtechnical
technicalreviews
reviewsand andcoming
comingupuptotosnuff
snuffwith
with
allof
all oftheir
theirextra
extrapaperwork
paperworkandandhow
howthey
theywanted
wantedus ustotohandle
handlethings
thingsand
andIIwould
wouldbe bereviewing
reviewing[Farak's]
[Farak's]
notesas
notes aswell
wellas
aseverybody
everybodyelse's
else'snotes.
notes.IIrarely
rarelyfound
foundaamistake
mistakeor
oran
anerror
errorininany
anyof
ofher
herwork."
work."

18
18
 Add. 36
Add.36
Add:36

different
differentconfirmatory
confirmatorychemist,
chemist,in
inthe
theAmherst
Amherstlab,
lab,only
onlyone
onechemist
chemistperformed
performedall
allthe
theanalysis.
analysis.

Therefore,
Therefore,the
theaccuracy
accuracyof
ofFarak's
Farak'schemical
chemicalanalysis,
analysis,cannot
cannotbe
beassumed,
assumed,much
muchless
lessconfirmed.
confirmed.

3.3.Scrutiny
Scrutinyof
ofAmherst
AmherstDrug
DrugLab
Lab(July-October
(July-Octoberof
of2012)
2012)

OnJuly
On July1,1,2012,
2012,as
asthe
theAnnie
AnnieDookhan
Dookhanscandal
scandalwas
wasunfolding,
unfolding,control
controlof
ofthe
theAmherst
Amherstlab
lab

passed
passedfrom
fromDPH
DPHto
tothe
theMSP.
MSP.The
Thediscovery
discoveryof
ofDookhan's
Dookhan'simproper
impropertesting
testingmethods
methodsatatthe
the

Hinton
Hintonlab
labled
ledto
toher
herresignation
resignationas
asan
ananalyst
analystin
inearly
early2012,
2012,her
herarrest
arrestininSeptember
Septemberof
of2012,
2012,her
her

arraignmenton
arraignment onDecember
December17,
17,2012,
2012,on
on27
27charges,
charges,and
andher
herconviction
convictionand
andsentencing
sentencingon
on

November11,
November 11,2013.
2013.In
Incontrast
contrasttotothe
theDookhan
Dookhancase,
case,there
thereisisno
noevidence
evidencethat
thatFarak
Farakengaged
engagedinin

"dry
"drylabbing"16
labbine ororthat
thatshe
sheintentionally
intentionallycontaminated
contaminated samples
samples to turn negative
negative ones
ones into
into positive
positive

ones.
ones.Whereas
WhereasDookhan's
Dookhan'smisconduct
misconductwas
wasmotivated
motivatedby
byaadesire
desireto
toincrease
increaseher
herapparent
apparent

productivityand
productivity andtotofurther
furtherwhat
whatshe
sheperceived
perceivedtotobe
bethe
themission
missionof
ofthe
theCommonwealth
Commonwealthof
ofgetting
getting

criminals
criminalsoff
offthe
thestreets
streetsrather
ratherthan
thanto
toadvance
advanceher
herown
ownindividual
individualunlawful
unlawfulscheme,
scheme,Farak's
Farak's

motive
motivewas
wassimply
simplyto
tofeed
feedher
herdrug
drugaddiction.
addiction.See
SeeCommonwealth
Commonwealthv.v.Scott,
Scott,467
467Mass.
Mass.336,
336,339
339

(2014);
(2014);Commonwealth
Commonwealthv.v.Cotto,
Cotto,471
471Mass.
Mass.97,
97,109
109(2015).
(2015).In
Inaasense,
sense,the
theDookhan
Dookhancases
casesare
are

principally
principallyevidence
evidencetampering
tamperingcases,
cases,whereas
whereasthe
theFarak
Farakcases
casesare
areprincipally
principallydrug
drugtheft
theftcases,
cases,

with
withevidence
evidencetampering
tamperingbeing
beingaacollateral
collateralconsequence.
consequence.The
Thetwo
twoscandals
scandalscoincide,
coincide,however,
however,in
in

theirpotential
their potentialimpact
impacton
onmany
manydrug
druglab
labdefendants'
defendants'convictions.
convictions.

On
OnAugust
August7,7,2012,
2012,Hanchett
Hanchetthosted
hostedaameeting
meetingin
inwhich
whichMSP's
MSP'squality
qualityassurance
assurancestaff,
staff,

including
includingSergeant
SergeantJoseph
JosephBallou,
Ballou,visited
visitedthe
theAmherst
Amherstlab.
lab.Ballou
Balloudid
didnot
notdetect
detectanything
anything

unusual
unusualor
orsuspicious
suspiciousabout
aboutFarak
Farakduring
duringtheir
theirencounter.
encounter.Hanchett
Hanchetttold
toldMSP
MSPstaff
staffthat
thatday
dayhow
how

16„—
16,1 ry
1,Drytabbing"
tabbing"isiswhen
whenaachemist
chemistgroups
groupstogether
togethermultiple
multiplesamples
samples(from
(fromvarious
variouscases)
cases)that
thatlook
lookalike,
alike,
tests
testsonly
onlyaafew
fewofofthe
thesamples,
samples,and
andreports
reportsthe
theresults
resultsasasififeach
eachsample
samplehad
hadbeen
beentested
testedindividually.
individually.
Commonwealth
Commonwealthv. v.Scott,
Scott,467
467Mass.
Mass.336,
336,339
339(2014).
(2014).

19
19
 Add. 37
Add.37
Add:37

he manufactured
he manufactured the
the lab's
lab's standards,
standards, and
and he
he was
was told
told to
to discontinue
discontinue that
that practice
practiceand
andto
toinventory
inventory

the lab
the lab standards.
standards. He
He did
did so
so and
and discovered
discovered that
that they
they were
were more
more depleted
depleted than
than he
he had
hadexpected.
expected.

He voiced
He voiced his
his concern
concern to
to Salem,
Salem, and
and said
said he
he was
was unsure
unsure whether
whether the
the depletion
depletion in
in standards
standards was
was

dueto
due tonormal
normal usage
usage or
or from
from wrongdoing.
wrongdoing. Hanchett
Hanchett told
told Pontes
Pontes and
and Farak
Farak and
and mentioned
mentioned that
that itit

looked
lookedlike
likesomebody
somebodyhad
hadbeen
beenusing
usingaalot
lotof
ofstandards.
standards.

OnOctober
On October10,
10,2012,
2012,the
theMSP
MSPinspected
inspectedand
andaudited
auditedthe
theAmherst
Amherstlab
laband
andinterviewed
interviewed

the
the chemists
chemists to
to assess
assess the
the lab
lab work
work and
and to
to move
move the
the lab
lab toward
toward accreditation.
accreditation. Farak
Farak later
latertestified
testified

that she
that she had
had smoked
smoked crack
crack cocaine
cocaine that
that morning
morning and
and again
again at
at lunchtime,
lunchtime, just
justbefore
beforeher
her11p.m.
p.m.

interview, which
interview, which lasted
lasted 15-20
15-20 minutes.
minutes. Her
Her behavior
behavior raised
raised no
no suspicions.
suspicions. (CR
(CR 19).
19).

Nothing in
Nothing in that
that process
process led
led MSP
MSP to
to shut
shut down
down the
the lab.
lab. The
The MSP
MSP issued
issued its
its report
report on
on the
the audit
audit

months later,
months later, days
days after
after Farak's
Farak's arrest,
arrest, and
and mandated
mandated changes
changes in
in lab
lab protocol,
protocol,such
suchas
asrequiring
requiring

the
theuse
useof
offorms
formsfor
fortechnical
technicaland
andtestimony
testimonyreviews,
reviews,keeping
keepingbalance
balancecalibration
calibrationlogs,
logs,and
and

implementing aa system
implementing system to
to address
address narcotic
narcotic inventory
inventory and/or
and/or weight
weight variances.
variances. (it.
(it. Prop.
Prop.Finding
Finding

453). Significantly,
453). Significantly, notwithstanding
notwithstanding the
the many
many recommended
recommended changes
changes in
in lab
lab practices,
practices,as
asnoted
noted

above,the
above, the2012
2012MSP
MSPreport
reportconcluded
concludedthat
thatthe
thelab
labwas
wasfree
freefrom
fromany
anydeficiencies
deficienciesin
inanalytical
analytical

procedure, was
procedure, was kept
kept in
in an
an orderly
orderly fashion,
fashion, and
and that
that work
work flowed
flowed through
through itit smoothly.
smoothly. (Exh.
(Exh. 1).
1).

As
As part
part of
of the
the investigation
investigation and
and prosecution
prosecution related
related to
to the
the Dookhan
Dookhan scandal,
scandal,Assistant
Assistant

Attorney
AttorneyGeneral
GeneralAnne
AnneKaczmarek
Kaczmarekmet
metbriefly
brieflywith
withFarak
Farakin
inthe
thefall
fallof
of2012
2012atatanother
anotherdrug
druglab.
lab.

Kaczmarek, like
Kaczmarek, like Ballou,
Ballou, did
did not
not detect
detect anything
anything suspicious
suspicious about
about Farak
Farak during
duringtheir
theirmeeting.
meeting.

Duringthe
During thesame
sameperiod,
period,Farak
Faraktold
toldher
hertherapists
therapiststhat
thatshe
shewas
wasnervous
nervousthat
thather
hermisconduct
misconductwould
would

be discovered.
be discovered. She
She started
started covering
covering her
her tracks
tracks more
more and,
and, likely
likely after
after Hanchett
Hanchett spoke
spoketo
toher
herabout
about

the depleted
the depleted standards,
standards, Farak
Farak ceased
ceased tampering
tampering with
with standards.
standards. As
As described
described below,
below, all
all of
of

20
20
 Add. 38
Add.38
Add:38

Farak'sstealing,
Farak's stealing,tampering
tamperingand
andcovering
coveringup
upwould
wouldend
endon
onJanuary
January18,
18,2013,
2013,when
whenher
herevidence
evidence

tamperingand
tampering andaddiction
addictionwere
werediscovered.
discovered.

Based
Basedon
onthe
thecredible
credibleevidence
evidencepresented,
presented,IIfind,
find,regarding
regardingthe
thescope
scopeand
andnature
natureof
of

Farak's
Farak's misconduct,
misconduct,that:
that:(1)
(1)from
from2004
2004until
untilJanuary
January18,
18,2013,
2013,while
whileworking
workingatatthe
theAmherst
Amherst

lab,Farak
lab, Farakwas,
was,on
onalmost
almostaadaily
dailybasis,
basis,under
underthe
theinfluence
influenceof
ofnarcotics,
narcotics,and
andatatother
othertimes
timeswas
was

suffering
sufferingthe
theeffects
effectsof
ofwithdrawal;
withdrawal;(2)
(2)those
thosenarcotics
narcoticsincluded,
included,but
butwere
werenot
notnecessarily
necessarilylimited
limited

to,
to,methamphetamine,
methamphetamine,amphetamine,
amphetamine,phentermine,
phentermine,ketamin,
ketamin,MDMA.
MDMA.MDEA,
MDEA,LSD,
LSD,and
andcocaine;
cocaine;

(3)
(3)Farak
Farakwas
wasacutely
acutelyaddicted
addictedto
tococaine
cocainefrom
fromatatleast
leastJanuary
Januaryof
of2009
2009to
toJanuary
January19,
19,2013;
2013;(4)
(4)

Farak'suse
Farak's useof
ofnarcotics
narcoticswhile
whileatatthe
thelab
labcaused
causedher,
her,atatunknown
unknowntimes,
times,to
toexperience
experience

hallucinationsand
hallucinations andother
othervisual
visualdistortions,
distortions,to
toexperience
experiencewhat
whatshe
shedescribed
describedas
as"ridiculously
"ridiculously

intensecravings,"
intense cravings,"to
tofeel
feellike
likeher
hermind
mindwas
wasracing,
racing,and
andto
totake
takefrequent
frequentbreaks
breaksfrom
fromwork
workto
touse
use

drugs;
drugs;(5)
(5)Farak's
Farak'sdrug
druguse
useimpaired
impairedher
herability
abilityto
totest
testand
andanalyze
analyzecontrolled
controlledsubstances
substancesand
andto
to

check
checkthe
theequipment
equipmentand
andinstruments
instrumentsused
usedto
toanalyze
analyzesuspected
suspecteddrugs
drugson
onoccasions
occasionswhich
whichcannot
cannot

be
beidentified;
identified;(6)
(6)by
by2009,
2009,and
andpossibly
possiblyearlier,
earlier,Farak
Farakbegan
beganto
tosteal
stealand
andconsume
consumepolice-
police-

submitteddrug
submitted drugsamples
samplesof
ofcocaine;
cocaine;(7)
(7)by
byatatleast
leastlate
late2009,
2009,and
andpossibly
possiblyearlier,
earlier,until
untilher
herarrest
arrest

inJanuary
in January2013,
2013,Farak
Farakregularly
regularlystole,
stole,tampered
tamperedwith,
with,and
andused
usedpolice-submitted
police-submittedcocaine
cocaine

samples;
samples;(8)
(8)some
someof
ofthe
thetampered
tampereddrug
drugsamples
sampleshad
hadbeen
beenassigned
assignedto
toFarak
Farakwhile
whileothers
othersin
inthe
the

last
lasthalf
halfof
of2012
2012had
hadbeen
beenassigned
assignedto
toand
andalready
alreadytested
testedby
byHanchett
Hanchettand
andPontes;
Pontes;(9)
(9)the
thedrug
drug

certificates
certificatesissued
issuedby
byHanchett
Hanchettand
andPontes
Pontesare
arereliable
reliableand
andaccurate,
accurate,despite
despiteFarak's
Farak'spossible
possible

tamperingwith
tampering withsome
someof
ofthose
thosesamples
samplesafter
afterthey
theywere
weretested;
tested;(10)
(10)Farak
Farakaltered
alteredthe
theweights
weights

recordedin
recorded inthe
thelab's
lab'scomputer
computerinventory
inventorysystem
systemof
ofsome
somesamples;
samples;and
and(11)
(11)Farak
Farakreplaced
replacedsome
some

drugs
drugswith
withcounterfeit
counterfeitsubstances.
substances.Farak's
Farak'stheft,
theft,tampering,
tampering,and
anduse
useof
ofnarcotics
narcoticsatatthe
thelab
labcreated
created

21
21
 Add. 39
Add.39
Add:39

aaproblem
problemof
ofsystemic
systemicmagnitude.
magnitude.

D.
D.Discovery
Discoveryof
ofFarak's
Farak'sMisconduct
Misconduct(January
(January18,
18,2013)
2013)

On
OnJanuary
January17,
17,2013,
2013,Sharon
SharonSalem
Salemwas
wasattempting
attemptingto
tomatch
matchdrug
druganalysis
analysiscertificates
certificates

with
withcorresponding
correspondingsamples
sampleswhen
whenshe
sherealized
realizedthat
thatshe
shewas
wasmissing
missingsamples
samplesin
intwo
twocases.
cases.She
She

determinedin
determined inthe
thetwo
twomissing
missingcases
casesthat
thatFarak
Farakhad
haddone
donethe
thetesting
testingand
andhad
hadconfirmed
confirmedthat
thatthey
they

werecocaine.
were cocaine.The
Thenext
nextmorning,
morning,January
January18,
18,Salem
Salemtold
toldHanchett
Hanchettabout
aboutthe
themissing
missingsamples.
samples.

Hanchettsearched
Hanchett searchedthe
thelab
laband
andfound
foundatatFarak's
Farak'swork
workstation
stationan
anenvelope
envelopecontaining
containingthe
thecut
cutopen
open

packagingfor
packaging forthe
thetwo
twomissing
missingsamples.
samples.The
Thesubstances
substancesin
inthe
thepackaging
packagingwere
wereretested
retestedand
and

determinednot
determined notto
tocontain
containcocaine.
cocaine.Hanchett
Hanchettalso
alsodiscovered
discoveredcounterfeit
counterfeitdrug
drugparaphernalia
paraphernalia

under
underFarak's
Farak'swork
workstation.
station.He
Henotified
notifiedthe
thelab
labdirector,
director,MSP
MSPMajor
MajorJames
JamesConnolly,
Connolly,of
ofthese
these

discoveries.Connolly
discoveries. Connollyinstructed
instructedHanchett
Hanchettto
toclose
closethe
thelab
labimmediately
immediatelyso
soaasecond
secondlab
labaudit
audit

couldcommence.
could commence.

On
Onthe
themorning
morningof
ofJanuary
January18,
18,Farak
Farakhad
hadbeen
beenatatthe
theSpringfield
SpringfieldDistrict
DistrictCourt
Courtto
totestify
testify

inaacase
in casein
inwhich
whichshe
shehad
hadissued
issuedaadrug
drugcertificate.
certificate.During
Duringthe
thecourt's
court'smidday
middayrecess,
recess,Farak
Farakwent
went

to
toher
hercar,
car,where
whereshe
sheate
atelunch
lunchand
andused
usedcrack
crackcocaine
cocainebefore
beforereturning
returningto
tocourt.
court.Just
Justbefore
before

entering
enteringthe
thecourtroom
courtroomto
totestify,
testify,two
twoMSP
MSPdetectives,
detectives,who
whohad
hadtracked
trackeddown
downFarak,
Farak,asked
askedto
to

speak
speakwith
withher.
her.She
Sheagreed,
agreed,and
andTrooper
TrooperRobin
RobinWhitney
Whitneyinterviewed
interviewedFarak
Farakin
inaaconference
conferenceroom
room

in
inthe
theDistrict
DistrictAttorney's
Attorney'soffice
officein
inthe
thecourthouse.
courthouse.The
Therecorded
recordedinterview
interviewbegan
beganatat2:07
2:07p.m.
p.m.At
At

approximately
approximately2:29
2:29p.m.,
p.m.,Whitney
Whitneyasked
askedFarak
Farakwhether
whetherthere
therewould
wouldbe
beany
anyreason
reasonthat
thataacrack
crack

pipe
pipewould
wouldbe
beunder
underher
herwork
workstation.
station.At
Atthat
thatpoint,
point,Farak
Faraksaid,
said,"I"Ithink
thinkI'm
I'mgoing
goingto
tohold
holdoff
off

talkingand
talking andtalk
talktotomy
myMOSES
MOSES[union]
[union]representative,
representative,ififthat's
that'salright."
alright" Whitney
Whitney immediately
immediately

terminatedthe
terminated theinterview.
interview.(Exh.
(Exh.5A).
5A).Farak
Farakrefused
refusedto
toconsent
consentto
toaasearch
searchof
ofher
hercar.
car.Police
Policethen
then

22
22
 Add.
Add:4040
Add.40

seized
seized her
her vehicle
vehicle and
and had
had itit towed
towed to
to the
the MSP
MSP barracks'
barracks' garage
garage in
in Northampton.
Northampton. Farak
Farakwas
was

given aa ride
given ride to
to her
her home.
home. MSP
MSP alerted
alerted the
the AGO
AGO and
and launched
launched aa coordinated
coordinated investigation
investigation into
into

Farak's suspected
Farak's suspected misconduct.
misconduct.

E.
E. Roles
Roles of
of AGO
AGO Employees
Employees in
in Farak
Farak Matter
Matter

With
With respect
respect to
to the
the Farak
Farak case
case in
in 2013,
2013, the
the AGO
AGO had
had three
three major
major tasks:
tasks: the
the investigation
investigation

of Farak's
of Farak's misconduct,
misconduct, the
the prosecution
prosecution of
of Farak,
Farak, and
and the
the disclosure
disclosure of
of evidence
evidencewhich
whichcould
couldbe
be

used
usedby
bydrug
drug lab
lab defendants
defendants whose
whose convictions
convictions were
were placed
placed in
in question
question by
by Farak's
Farak's misconduct.
misconduct.

In order
In order to
to address
address the
the drug
drug lab
labdefendants'
defendants'key
keyclaim
claimthat
thatthe
theAGO
AGOwithheld
withheldfrom
fromthem
them

exculpatory
exculpatory evidence,
evidence, itit isis useful
useful at
at this
this point
point to
to outline
outline the
the roles,
roles, relative
relativeauthority
authorityand
and

responsibilities
responsibilities of
of each
each of
of the
the AGO
AGO employees
employees involved.
involved.

In 2013,
In 2013, the
the AGO
AGO was
was led
led by
by Attorney
Attorney General
General Martha
Martha Coakley.
Coakley. The
The First
First Assistant
Assistant AG
AG

was
wasEdward
EdwardBedrosian
Bedrosianand
andthe
theDeputy
DeputyAG
AGwas
wasSheila
SheilaCalkins.
Calkins.The
TheAGO
AGOisiscomprised
comprisedof
offour
four

bureaus,
bureaus, one
one being
being the
the Criminal
Criminal Bureau
Bureau which
which was
was in
in charge
charge of
of the
the prosecutions
prosecutionsof
ofFarak
Farakand
and

Dookhan.
Dookhan. The
The Chief
Chief of
of the
the Criminal
Criminal Bureau
Bureau in
in 2013
2013 was
was John
John Verner.
Verner. Within
Within the
the Criminal
Criminal

Bureau
Bureauat
atthat
thattime
timewere
wereup
upto
to11
11divisions
divisionsand/or
and/orunits,
units,two
twoof
ofwhich
whichare
arerelevant
relevanthere.
here.The
The

first
firstisisthe
theEnterprise
Enterpriseand
andMajor
MajorCrimes
CrimesDivision,
Division,whose
whosechief
chieffor
forthe
thefirst
firstnine
nineor
orten
tenmonths
monthsof
of

2103
2103 was
was Dean
Dean Mazzone."
Mazzone." The
The Enterprise
Enterprise and
and Major
Major Crimes
Crimes Division
Division isis staffed
staffed with
with

prosecutors,
prosecutors,including
including"line
"lineprosecutor"
prosecutor"AAG
AAGAnne
AnneKaczmarek,
Kaczmarek,who
who was
was assigned
assigned to
to prosecute
prosecute

Dookhan
Dookhan and
and Farak.
Farak. The
The Enterprises
Enterprises and
and Major
Major Crimes
Crimes Division
Division was
was also
also staffed
staffed with
with MSP
MSP

Detective
DetectiveLieutenant
LieutenantRobert
RobertIrwin
Irwinand
andSergeant
SergeantJoseph
JosephBallou,
Ballou,who
whodirected
directedand/or
and/orconducted
conducted

1nOctober
17In
" Octoberof
of2013,
2013,Mazzone
Mazzonebecame
becameSenior
SeniorTrial
TrialCounsel
Counseltotothe
theCriminal
CriminalBureau,
Bureau,and
andCara
CaraKrysil
Krysil
became
becameChief
Chiefof
ofthe
theEnterprise
Enterpriseand
andMajor
MajorCrimes
CrimesDivision
Divisionof
ofthe
theCriminal
CriminalBureau.
Bureau,

23
23
 Add. 41
Add.41
Add:41

investigations and
investigations and turned
turned over
over evidence
evidence to
to the
the prosecutors
prosecutors in
in the
the Dookhan
Dookhan and
and Farak
Farak cases.
cases.

A second
A second division
division within
within the
the Criminal
Criminal Bureau
Bureau and
and pertinent
pertinent to
to this
this matter
matter isis the
the Appeals
Appeals

Division, which,
Division, which, inter
inter alia,
alia, represents
represents State
State officers
officers and
and agencies
agencies who
who are
are served
served with
with subpoenas
subpoenas

and
and summonses
summonses in
in discovery.
discovery. In
In 2013,
2013, the
the Chief
Chief of
of the
the Appeals
Appeals Division
Division was
was Randall
Randall Ravitz
Ravitzand
and

the
the Deputy
Deputy Chief
Chief was
was Suzanne
Suzanne Reardon.
Reardon. Within
Within the
the Appeals
Appeals Division,
Division, all
all of
of the
the Farak
Farak discovery
discovery

matterswere
matters wereassigned
assignedto
toaanew
newAAG
AAG,,Kris
KrisFoster,
Foster,whose
whosesupervisors
supervisorswere
were(from
(fromlower
lowerto
tohigher
higher

levelsof
levels ofseniority)
seniority)Reardon,
Reardon,Ravitz,
Ravitz,Verner,
Verner,Calkins,
Calkins,Bedrosian
Bedrosianand
andCoakley.
Coakley.

First Assistant
First Assistant AG
AG Bedrosian
Bedrosian learned
learned of
of the
the Farak
Farak investigation
investigation from
fromits
itsinception.
inception.

During the
During the initial
initial stages,
stages, Bedrosian
Bedrosian attended
attended high
high level
level meetings
meetings concerning
concerning the
the Farak
Farak matter.
matter.

(Bedrosian131-132).
(Bedrosian 131432). "Any major decisions [regarding the Farak
Farak case]
case] were
were with
with the
the consent
consent of
of

the Attorney
the Attorney General
General based
based on
onadvice
advicegiven
givento
toher,
her,probably
probablyby
byme,
me,[Verner],
[Verner],and
andeven
even

[Kaczmarek]." (Bedrosian
[Kaczmarek]." (Bedrosian 132).
132). When
When asked
asked who
who was
was calling
calling the
the shots
shots in
in the
the Farak
Farak matter,
matter,

Bedrosian named
Bedrosian named Kaczmarek,
Kaczmarek, Verner,
Verner, himself
himself and
and Calkins.
Calkins. Calkins
Calkins acknowledged
acknowledged that
thatthe
the

Farakmatter
Farak matter was
was considered
considered "a
"a big
big deal"
deal" in
in the
the AGO.
AGO.

Verner, although
Verner, although responsible
responsible for
for the
the Farak
Farak prosecution
prosecution due
due to
to his
his position
position as
as chief
chiefof
ofthe
the

Criminal
Criminal Bureau,
Bureau, was
was also
also responsible
responsible for
for supervising
supervising 110
110 individuals
individuals through
through11
11different
different

divisionsand/or
divisions and/or units
units and
and over
over 50
50 lawyers.
lawyers. Verner,
Verner, in
in his
his words,
words, did
did not
not micro-manage
micro-manage

"experienced
"experienced lawyers
lawyers on
on discovery."
discovery." (Verner
(Verner 190).1
190). Icredit
creditthat
thattestimony.
testimony.Verner
Verneralso
alsocredibly
credibly

testified that
testified that "after
"after that
that weekend
weekend [of
[of the
the search
search of
of Farak's
Farak's car],
car], II [was]
[was] not
notintimately
intimatelyinvolved
involvedin
in

theFarak
the Farakinvestigation.
investigation.I'm
I'mthe
theBureau
BureauChief,
Chief,so
soI'm
I'mgetting
gettingupdated
updatedon
onthe
thecase
caselike
likeall
allthe
theother
other

cases
cases. . . „" (Verner 130).
." (Verner 130).

24
24
 Add. 42
Add.42
Add:42

F.Search
F. SearchWarrant
Warrantfor
forFarak's
Farak'sVehicle
Vehicle

Late
Lateon
onFriday,
Friday,January
January18,
18,2013,
2013,Hampshire
HampshireCounty
CountyAssistant
AssistantDistrict
DistrictAttorney
AttorneyJeremy
Jeremy

Bucci
Buccitelephoned
telephonedMazzone
Mazzoneto
toinform
informhim
himthat
thatthere
therewas
wasaaproblem
problemwith
withthe
theAmherst
Amherstlab.
lab.

(Mazzone
(Mazzone50).
50).Over
Overthat
thatweekend
weekendof
ofJanuary
January19-20th,
19-20th,Verner,
Verner,Kaczmarek,
Kaczmarek,and
andBedrosian
Bedrosian

learned
learnedof
ofthe
theinvestigation.
investigation.(Mazzone
(Mazzone51).
51).On
Onthe
theevening
eveningof
ofJanuary
January18,
18,2013,
2013,investigators
investigators

metatatthe
met theNorthwestern
NorthwesternDistrict
DistrictAttorney's
Attorney'sOffice
Officetotoprepare
preparean
anapplication
applicationfor
foraawarrant
warranttoto

searchFarak's
search Farak'scar.
car.At
At11a.m.
a.m.on
onJanuary
January19th,
19th,that
thatapplication
applicationwas
wasgranted.
granted.ItItauthorized
authorizedaa

search
searchfor
forsubstances
substancesthat
thatcould
couldbe
beused
usedas
asdrug
drugadulterants,
adulterants,controlled
controlledsubstances,
substances,and
and

paperwork
paperworkassociated
associatedwith
withcontrolled
controlledsubstances.
substances.(Exh.
(Exh.172).
172).

As
Asnoted
notedearlier,
earlier,Farak's
Farak'scar
carhad
hadbeen
beentowed
towedto
toaagarage
garagebay
bayatatthe
theMSP
MSPbarracks
barracksinin

Northampton.
Northampton.Most
Mostof
ofthe
theother
othergarage
garagebays
baysthere
therewere
wereempty,
empty,leaving
leavingthe
thetroopers
troopersseveral
several

emptybays
empty baysin
inwhich
whichto
towork.
work.On
OnJanuary
January19,
19,2013,
2013,atat3:32
3:32a.m.,
a.m.,Detective
DetectiveLieutenant
LieutenantRobert
Robert

Irwin,
Irwin,Sergeant
SergeantJoseph
JosephBallou,
Ballou,and
andTrooper
TrooperRandy
RandyThomas
Thomasbegan
beganexecuting
executingthe
thewarrant.
warrant.All
All

three
threewere
wereMSP
MSPtroopers
troopersassigned
assignedto
tothe
theAGO.
AGO.Irwin,
Irwin,who
whoworked
workedout
outof
ofthe
theBoston
BostonAGO,
AGO,was
was

the
thesenior
seniorranking
rankingofficer
officerdirecting
directingthe
thesearch
searchof
ofFarak's
Farak'svehicle.
vehicle.Ballou
Ballouand
andThomas
Thomaswere
were

assigned
assignedto
tothe
theSpringfield
SpringfieldAGO.
AGO.Geographical
Geographicalconsiderations
considerationsled
ledto
toBallou
Ballousoon
soonbecoming
becomingthe
the

caseofficer,
case officer,tasked
taskedwith
withorganizing
organizingsearch
searchwarrants,
warrants,reviewing
reviewingseized
seizedevidence,
evidence,and
andworking
working

with
withthe
theprosecutor
prosecutortotocommunicate
communicatewhat
whathad
hadbeen
beenfound
foundand
andwhat
whatelse
elseshould
shouldbe
bedone.
done.

(Thomas
(Thomas58,
58,66).
66).The
Thecase
caseofficer
officerisisalso
alsoresponsible
responsiblefor
forturning
turningover
overreports,
reports,evidence
evidencelogs,
logs,and
and

photographs
photographsof
ofthe
thephysical
physicalevidence
evidenceto
tothe
theprosecuting
prosecutingAAG.
AAG.In
Inaddition
additionto
toIrwin,
Irwin,Ballou
Ballouand
and

Thomas,aacrime
Thomas, crimescene
sceneservices
servicesofficer
officerwas
waspresent
presentto
tophotograph
photographthe
theinterior
interiorand
andexterior
exteriorof
ofthe
the

car
carand
andthe
theevidence.
evidence.

25
25
 Add. 43
Add.43
Add:43

The
The execution
execution of
of the
the search
search warrant
warrant lasted
lasted approximately
approximately 90
90 minutes.
minutes. During
During that
that period,
period,

Irwin
Irwin communicated
communicated with
with Verner
Verner by
by telephone
telephone or
or email.
email. (Irwin
(Irwin 93-94;
93-94; Verner
Verner 124).
124). Verner,
Verner,in
in

turn,emailed
turn, emailedBedrosian
Bedrosianabout
aboutthe
thesearch
searchatat4:07
4:07a.m.
a.m.and
andagain
againatat5:38
5:38a.m.
a.m.

Execution
Execution of
of the
the search
search warrant
warrant was
was challenging.
challenging. In
In addition
addition to
to the
the early
early hour
hour and
and the
the

officers being
officers being tired
tired from
from being
being awake
awake for
for nearly
nearly 24
24 hours,
hours, Farak's
Farak's car
car was
was filthy
filthy and
and in
in complete
complete

disarray,with
disarray, with stacks
stacks of
of bags,
bags, boxes,
boxes, papers,
papers, manila
manila envelopes
envelopes marked
marked with
with lab
lab or
or case
case numbers,
numbers,

andjunk
and junkeverywhere.
everywhere.I8
'8

Irwin,Ballou,
Irwin, Ballou,and
andThomas
Thomaseach
eachsearched
searchedaadifferent
differentsection
sectionof
ofthe
thevehicle.
vehicle.As
Asthey
theycame
came

across items
across items they
they believed
believed might
might have
have evidentiary
evidentiaryvalue,
value,they
theymoved
movedthem
themto
tothe
theground
groundoutside
outside

the car
the car but
but within
within the
the garage.
garage. Irwin
Irwin and
and Ballou
Ballou then
then brought
brought the
the evidence
evidence to
to Thomas,
Thomas,the
the

evidence officer,
evidence officer, who
who noted
noted the
the evidence
evidence in
in the
the evidence
evidence log.
log.

Inside Farak's
Inside Farak's car,
car, officers
officers found
found envelopes
envelopes and
and documents
documents bearing
bearing information
information

concerning cases
concerning cases and
and substances
substances tested
tested at the Amherst lab and K-pack
IC-packbags
bagsmarked
markedwith
with

Hanchett'sinitials.°
Hanchett's initials.' They also discovered a paper with Pontes'
Pontes' initials
initials written
written repeatedly,
repeatedly,

supportingan
supporting aninference
inferencethat
thatFarak
Farakhad
hadbeen
beenpracticing
practicingwriting
writingthem
themin
inorder
orderto
tolearn
learnto
toforge
forge

them. Farak's
them. Farak's car
car contained
contained plastic
plastic bags
bags with
with assorted
assorted pills,
pills, aa white
white powdery
powdery substance
substancewhich
which

appeared to
appeared to be
be cocaine,
cocaine, and
and aa brown
brown tar-like
tar-like substance
substance which
which resembled
resembled heroin.
heroin. Detectives
Detectives

18
18
Photographsof
Photographs ofthe
thetrunk
trunkarea
areashow
showpiles
pilesof
ofboxes,
boxes,cloth
clothitems,
items,paper
paperbags,
bags,stacks
stacksof
ofcolored
coloredplastic
plasticbags,
bags,
andshoes.
and shoes.Strewn
Strewnabout
aboutthe
thetrunk
trunkwere
wereused
usedandandunused
unusedmanila
manilaenvelopes,
envelopes,somesomebearing
bearingcase
casenumbers
numbersfrom
fromthe
the
Amherstlab,
Amherst lab,and
andlarge
largered
redrolled
rolledup
uppapers.
papers.The
Thefront
frontof
ofthe
thecar
carwas
wasfilthy
filthywith
withdirt
dirtand
andclutter.
clutter.On
Onthe
thefloor
floorof
ofthe
the
driver'sseat
driver's seatwere
wereragged
raggedshoes.
shoes.The
Thecentral
centralconsole
consolehad
hadcups
cupswith
withdrinks.
drinks.TheThefront
frontpassenger
passengerseat
seatwas
wascovered
covered
withaacoat.
with coat.On
Onthe
thedashboard
dashboardandandfloor
floorwere
weremore
morepapers
papersand
andmanila
manilaenvelopes.
envelopes.TheTheback
backseat
seathad
hadonly
onlyaabroom
broom
onit,
on it,but
butthe
thefloor
floorofofthe
theback
backseat
seatwas
wasfull
fullof
ofadditional
additionalpapers,
papers,bags,
bags,aacup,
cup,leaves
leavesand
andaalarge
largewhite
whitecloth.
cloth.(Dec.
(Dec.
2016 lir&
2016 Hrg.Exh.
Exh.8).
8).

1919
K-packbags
K-pack bagswere
wereused
usedtotoseal
sealdrug
drugsamples
samplesafter
afterthey
theywere
weretested.
tested.(Prosecution
(ProsecutionMemo
Memop.p.7),
7),

26
26
 Add. 44
Add.44
Add:44

found
foundcrack
crackcocaine
cocaineweighing
weighing5.6
5.6grams
gramsand
andaaseparate
separaterock
rockof
ofcrack
crackcocaine.
cocaine.(Prosecution
(Prosecution

Memo
Memop.
p.9).
9).

Detectives
Detectivesfound
foundhundreds
hundredsof
ofpapers,
papers,most
mostofofwhich
whichwere
wereinside
insidelab
labfolders.
folders.(Ballow
(Ballou

142).Among
142). Amongthe
thepapers
paperswas
wasaa2011
2011NFL
NFLgame
gameschedule
scheduleand
andcopies
copiesof
ofnews
newsarticles
articlesprinted
printedin
in

2011and
2011 andwhich
whichreported
reportedon
onpersons
personswho
whohad
hadbeen
beeninvestigated,
investigated,charged
chargedor
orsentenced
sentencedfor
forillegal
illegal

possession
possessionor
ortheft
theftof
ofcontrolled
controlledsubstances.'
substances.'Attached
Attachedto
toone
oneof
ofthe
thearticles
articleswas
wasaahandwritten
handwritten

note
notereading,
reading,"Thank
"Thank[G]od
[G]odPm
I'm not
not aa law
law enforcement
enforcementofficer"
officer"(emphasis
(emphasisin
inoriginal).
original).

Detectives
Detectivesalso
alsoseized
seizedfrom
fromFarak's
Farak'scar
carwhat
whatisisatatthe
thecrux
cruxof
ofmost
mostof
ofthe
thedrug
druglab
lab

defendants'
defendants'motions
motionsfor
forrelief:
relief:seven
sevenpages
pagesnow
nowreferred
referredto
toas
as"mental
"mentalhealth
healthworksheets,"
worksheets,"

including:(a)
including: (a)ServiceNet
ServiceNetdiary
diarycards
cardswith
withhandwritten
handwrittennotes
notesby
byFarak,
Farak,(b)
(b)Emotion
EmotionRegulation
Regulation

worksheetswith
worksheets withFarales
Farak's handwritten
handwritten notes,
notes,(c)
(c)aaDistress
DistressTolerance
ToleranceWorksheet,
Worksheet,and
and(d)
(d)various
various

othersheets
other sheetsrelating
relatingto
toFarak's
Farak'stherapy,
therapy,including
includingaapage
pagewith
withhandwriting
handwritingand
andtitled
titled

"Homework,"
"Homework,"dated
datedNovember
November16,
16,2011.
2011.

The
TheServiceNet
ServiceNetdiary
diarycards
cardsare
areused
usedby
bytherapy
therapyclients
clientsto
todocument
documentthe
theintensity
intensityof
oftheir
their

urges
urgesto
toengage
engagein
incertain
certainbehaviors
behaviorssuch
suchas
astaking
takingdrugs
drugsand
andto
toreport
reportwhether
whetherthey
theyacted
actedon
onan
an

urge.
urge.One
Oneof
ofthe
theServiceNet
ServiceNetdiary
diarycards
cardsfound
foundin
inFarak's
Farak'scar
carhas
hasno
noname
namebut
butcovers
coversthe
theweek
weekof
of

Tuesday,December
Tuesday, December20th
20ththrough
throughMonday,
Monday,December
December26th
26thwithout
withoutreferencing
referencingaayear.
year.In
In

connectionwith
connection witheach
eachof
ofthose
thosedays,
days,Farak
Farakdescribed
describedher
heremotions
emotionsand
andwhether
whethershe
shefelt
feltand
andacted
acted

20
20
One
Onearticle
articlewas
wasdated
datedMarch
March29, 29,2011,
2011,and
andprinted
printedfrom
fromaacomputer
computeron onSeptember
September20,20,2011.
2011.ItItwas
wasaa
report
reportabout
aboutlaw
lawenforcement
enforcementofficers'
officers'illegal
illegalpossession
possessionof ofsteroids.
steroids.Another
Anotherarticle
articlewas
wasdated
datedOctober
October25,25,2011,
2011,
printed
printedfrom
fromaacomputer
computeron onOctober
October28,
28,2011,
2011,and
andwas
wasabout
aboutaapharmacist
pharmacistsentenced
sentencedtoto33years
yearsininprison
prisonfor
forstealing
stealing
oxycontin
oxycontinfrom
fromher
herworkplace.
workplace.AAthird
thirdarticle
articlewas
wasdated
datedDecember
December2,2,2011,
2011,printed
printedsix
sixdays
dayslater,
later,and
andwas
wasabout
aboutaa
San
SanFrancisco
Franciscodrug
druglab
labtechnician
technicianwho
whohadhadstolen
stolencocaine
cocainefrom
fromherherworkplace.
workplace.(Dec.
(Dec.2016
2016Hrg.
Hrg.Exhs. 5B, 5C
Exhs.5B, 5C and
arid
5D).The
5D). TheSupreme
SupremeJudicial
JudicialCourt
Courtlater
latercommented
commentedthat,that,"The[se]
"The[se]newspaper
newspaperarticles
articlescould
couldserve
serveas asaabasis
basisfor
for
concludingthat
concluding thatFarak
Farakengaged
engagedininmisconduct
misconductatatthetheAmherst
Amherstdrug
druglab
labearlier
earlierthan
thanthe
thesummer
summerof of2012."
2012."
Commonwealth
Commonwealthsr.v. Ware,
Ware,471
471Mass.
Mass.85,
85,9494n.13
n.13(2015).
(2015).

27
27
 Add. 45
Add.45
Add:45

onurges
on urgesto
touse
usedrugs.
drugs.That
Thatcard
cardbears
bearsnotations
notationsthat
thatFarak
Faraktook
tookdrugs
drugson
onmany
manyof
ofthose
thosedays.
days.

Herentry
Her entryfor
forThursday
Thursdaywas
wasthat
thatshe
she"tried
"triedto
toresist
resistusing
using@@work,
work,but
butended
endedup
upfailing.
failing.(I(Iknow
knowII

should have
should have called,
called, but
but had
had thoughts
thoughts about
about the
the last
last time
time II called."
called." For
For the
the following
following day,
day, Friday,
Friday,

she
she wrote,
wrote, "@
"@ work
work use
use w/out
w/out debating
debating doing
doing itit --my
--my thought
thought about
about itit == identity
identity issue
issue (i.e.,
(i.e.,

wavering back
wavering back and
and forth
forth about
about whether
whether II want
want to
to use)."
use)." On
On Saturday,
Saturday, December
December24th,
24th,Farak
Farak

noted that
noted that she
she was
was mad
mad because
because she
she had
had missed
missed watching
watching part
part of
of aa Patriots
Patriots football
football game."
game."

The
The other
other ServiceNet
ServiceNet diary
diary card
card has
has Farak's
Farak's first
first name
name but
but no
no dates.
dates. That
That card
card contains
contains

several
several references
references to
to Christmas
Christmas and
and to
to aa football
football game
game on
on that
that Sunday.
Sunday. The
The entries
entries indicate
indicate that
that

Farak either
Farak either drank
drank alcohol
alcohol or
or took
took drugs
drugs every
every day
day that
that week.
week. The
The entry
entry for
for that
that Friday
Friday was
was that
that

she was
she was "going
"going to
to use
use phentermine,
phentermine, but
but when
when II went
went to
to take
take itit II saw
saw how
how little
little(v.
(v.little)
little)there
thereisis

left and
left and ended
ended up
up not
not using."
using."

With the
With the mental
mental health
health worksheets
worksheets were
were two
two undated
undated Emotion
Emotion Regulation
Regulation worksheets.
worksheets. In
In

one of
one of them,
them, Farak
Farak described
describedthe
the"prompting
"promptingevent"
event"as:
as:"got
"gotgood
goodsample
sample@
@work
work&
&having
having

urgesto
urges touse
use(&
(&knowing
knowingthat
thatIIwill
willbe
bethe
theonly
onlyone
onehere
hereafter
afterlunch)."
lunch)."She
Shecontinued
continuedin
inthe
thenext
next

entry:
entry:

"I know
"I know II should
should call
call Anna
Anna [Kogan,
[Kogan, her her therapist],
therapist), but
but II don't
don't want
want to.
to. II can
can lie
lie on
on my
my
homework. I'm
homework. I'm aa bad
bad person
person for
for having
having urges.
urges. I'm
I'm aa bad
bad person
person for
for not
not wanting
wanting toto try
tryto
to
stop them.
stop them. ItIt doesn't
doesn't matter
matter ---- II won't
won't get
get caught."
caught."

Shefurther
She furtherwrote
wrotethat
thather
her"head
"headisisrunning
running100
100m/h"
m/h" and
and she
she "can't
"can't sit
sit still."
still." She
She described
described the
the

urge:
urge: "Hurry
"Hurry up
up and
and prepare
prepare fuse
fuse (my
(my mind
mind says
says to
to get
get itit out
out of
of way,
way, but
but II don't
don't think
thinkthat
thatwill
willbe
be

the end
the end of
of it).
it). Give
Give in
in and
and go
go with
with urge."
urge." The
The second
second Emotion
Emotion Regulation
Regulation worksheet
worksheet contains
contains

21
21
TheNew
The NewEngland
EnglandPatriots
Patriotsrarely
rarelyhave
havegames
gamesononSaturdays.
Saturdays.They
Theyplayed
playedaagame
gameononSaturday,
Saturday,December
December
24,2011.
24, 2011.They
Theydid
didnot
notplay
playaagame
gameononany
anySaturday
Saturdayin
inDecember
December2012
2012or
orDecember
December2010.
2010.

28
28
 Add. 46
Add.46
Add:46

notes
notesthat
thatFarak
Farakwill
will"call
"callAnna
Annato
tocommit
committo
tonot
notusing"
using"and
andthat
thatFarak
Farakhad
had"12
"12urge-ful
urge-fulsamples
samples

to
toanalyze
analyzeout
outof
ofnext
next13."
13."Another
Anotherpage
pagein
inwhat
whatappears
appearsto
tobe
beFarak's
Farak'shandwriting
handwritingreads
readsatatthe
the

top"Homework
top "Homework11-16-11."
11-16-11."On
Onthat
thatpage,
page,Farak
Farakwrote
wrotethat
thatshe
shewould
wouldlie
lieto
toher
herprescriber
prescriberin
in

order
orderto
tonot
notbe
betaken
takenoff
offone
oneof
ofher
hermedications.
medications.

The
Themental
mentalhealth
healthworksheets
worksheetswere
weresignificant
significantbecause
becausethey:
they:(1)
(1)disclosed
disclosedFarak's
Farak's

admission
admissionof
ofdrug
druguse
useand
andtheft
theftof
ofpolice-submitted
police-submittedsamples
sampleswhile
whileshe
shewas
wasworking
workingatatthe
thelab;
lab;

(2)supported
(2) supportedinferences
inferencesthat
thatFarak's
Farak'smisconduct
misconductoccurred
occurredas
asearly
earlyas
as2011;
2011;and
and(3)
(3)revealed
revealedthat
that

Farakwas
Farak wasreceiving
receivingtreatment
treatmentfor
fordrug
drugaddiction
addictionand
andthat
thather
hertreatment
treatmentproviders
providerslikely
likelywould
would

have
havemore
moreinformation
informationabout
aboutthe
thescope
scopeof
ofFarak's
Farak'sdrug
druguse
useand
andtheft
theftatatthe
thelab.
lab.

AAthorough
thoroughreview
reviewof
ofeach
eachpiece
pieceof
ofevidence
evidenceseized
seizedwas
wasnot
notfeasible
feasibleatatthe
thesearch
searchwarrant
warrant

execution
executionscene
scenedue
dueto
tothe
thecondition
conditionof
ofFarak's
Farak'scar,
car,the
thenumber
numberof
ofitems
itemsin
inthe
thecar,
car,the
theearly
early

morning
morninghour,
hour,and
andthe
thesearch
searchlocation.
location.AAcloser
closerreview
reviewof
ofthe
theevidence
evidenceisistypically
typicallyundertaken
undertaken

bythe
by thecase
caseofficer
officerfollowing
followingthe
thesearch.
search.IIfind
findthat
thaton
onJanuary
January19,
19,2013,
2013,the
thedetectives
detectivesdid
didnot
not

havethe
have theopportunity
opportunityto
toreview
reviewcarefully
carefullythe
themental
mentalhealth
healthworksheets
worksheetsand
anddid
didnot
notthen
thenrecognize
recognize

their
theirsignificance.
significance.After
Aftersearching
searchingFarak's
Farak'svehicle,
vehicle,detectives
detectivesplaced
placedthe
theevidence
evidencein
inboxes
boxesand
and

transported
transportedthe
theboxes
boxesto
toaasecure
secureevidence
evidencelocker
lockerin
inthe
theSpringfield
SpringfieldAGO.
AGO.

G.The
G. TheArrest
Arrestand
andInitial
InitialArraignment
Arraignmentof
ofFarak
Farak

Later
Lateron
onSaturday,
Saturday,January
January19,
19,2013,
2013,atat10:30
10:30p.m.,
p.m.,Farak
Farakwas
wasarrested
arrestedand
andcharged
chargedby
by

criminal
criminalcomplaint
complaintwith
withtwo
twocounts
countsof
oftampering
tamperingwith
withevidence,
evidence,possession
possessionof
ofcocaine
cocaineand
and

possession
possessionof
ofheroin.
heroin.That
Thatweekend,
weekend,Kaczmarek
Kaczmarekwas
wasassigned
assignedto
toprosecute
prosecuteFarak.
Farak.

OnMonday,
On Monday,January
January21,
21,2013,
2013,atat8:32
8:32a.m.,
a.m.,Bedrosian
Bedrosianemailed
emailedIrwin,
Irwin,saying
sayinghe
hewanted
wanted

to
tospeak
speakwith
withKaczmarek,
Kaczmarek,Calkins,
Calkins,and
andVerner
Vernerabout
aboutthe
theFarak
Farakcase.
case.(Irwin
(Irwin99-100).
99-100).On
On

29
29
 Add.
Add:4747
Add.47

Tuesday, January
Tuesday, January 22,
22, 2013,
2013, Kaczmarek
Kaczmarek appeared
appeared at
at Farak's
Farak's initial
initial arraignment
arraignmentin
inEastern
Eastern

Hampshire
Hampshire District
District Court.
Court.

H.
H. Vehicle
Vehicle Search
Search Warrant
Warrant Return
Return and
and Police
Police Report
Report

On
OnJanuary
January23,
23,2013,
2013,Trooper
TrooperRandy
RandyThomas
Thomasfiled
filedthe
thesearch
searchwarrant
warrantreturn,
return,listing
listing

numerically the
numerically the items
items found
found during
during the
the search
search of
of Farak's
Farak's vehicle.
vehicle. Item
Item one
one isis described
describedon
onthe
the

return as
return as aa manila
manila envelope
envelope with
with letters
letters and
and numbers
numbers containing
containing an
an evidence
evidence bag
bag and
and unknown
unknown

papers. Item
papers. Item two
two isis described
described as
as an
an envelope
envelope for
for Hanchett.
Hanchett. Items
Items four,
four, five
five and
and eight
eight are
are all
all

described as
described as "assorted
"assorted lab
lab paperwork."
paperwork." (Thomas
(Thomas 23).
23). Farak's
Farak'smental
mentalhealth
healthworksheets
worksheetswere
were

placed together
placed together in
in item
item four
four and
and were
were not
not identified
identified in
in the
the search
search warrant
warrant return.
return.

Thomas
Thomas explained
explained that
that the
the use
use of
of the
the label
label of
of "assorted
"assorted lab
lab paperwork"
paperwork" isis "a
"a common
common

practicewe
practice weuse
usewith
withsearch
searchwarrants
warrantswhen
whenwe
wehave
havevoluminous
voluminousdocuments,
documents,to
tobe
beable
ableto
tosecure
secure

that
thatand
andget
getaway
away from
from the
the scene,
scene, so
so that
that itit can
can be
be reviewed
reviewed more
more thoroughly
thoroughly later,"
later," and
and that
that "it
"it

looked
looked to
to us
us at
at first
first look
look itit was
was lab
lab paperwork
paperwork and
and that's
that's why
why itit was
was titled
titled as
assuch
suchand
andititwas
was

secured." (Thomas
secured." (Thomas 25).
25). When
When asked
asked by
by defense
defense counsel,
counsel, "when
"when you
you write
write down
down 'assorted
'assortedlab
lab

paperwork'
paperwork' on
on your
your search
search warrant
warrant return,
return, you
you may
may not
not have
have ever
ever seen
seen what
what was
was seized,
seized, correct?"
correct?"

to
towhich
whichThomas
Thomasreplied,
replied,"I"Iprobably
probably did
did not
not go
go through
through itit in
in detailed
detailed fashion
fashion before
before the
the warrant
warrant

return
return was
was done,
done, yes."
yes." (Thomas
(Thomas 25-26).
25-26). Thomas
Thomas acknowledged
acknowledged that
that search
search warrant
warrant returns
returns also
also

sometimescategorize
sometimes categorizeseized
seizeddocuments
documentsas
as"personal
"personalpapers,"
papers,"but
butstated
statedthat
thathe
hepersonally
personallydid
did

not
not recall
recall seeing
seeing personal
personal papers
papers in
in the
the search
search of
of the
the vehicle.
vehicle. (Thomas
(Thomas 28-29).
28-29). II credit
credit Thomas'
Thomas'

testimony
testimonythat
thathe
heidentified
identifiedthe
theitems
itemson
onthe
thesearch
searchwarrant
warrantreturn
returnas
as"assorted
"assortedlab
labpaperwork"
paperwork"

(numbered
(numberedfour,
four, five
five and
and eight)
eight) because
because he
he did
did not
not look
look carefully
carefully at
at each
each of
of the
the papers
papers and
and

because
because they
they were
were inside
inside lab
lab folders,
folders, so
so he
he assumed
assumed that
that they
they were
were assorted
assorted lab
lab paperwork.
paperwork.

30
30
 Add. 48
Add.48
Add:48

OnJanuary
On January25,
25,2013,
2013,Thomas
Thomasfiled
filedaapolice
policereport
reporton
onthe
theexecution
executionof
ofthe
thevehicle
vehiclesearch
search

warrant
warrantcertifying
certifyingthat
thatititrepresented
representedan
anaccurate
accurateand
anddetailed
detailedinventory
inventoryof
ofall
allthe
theproperty
propertytaken
taken

from
fromthe
thecar.
car.Notwithstanding
Notwithstandingthat
thatrepresentation,
representation,Thomas
Thomastestified
testifiedthat
thathe
heprobably
probablydid
didnot
notlook
look

atatthe
theevidence
evidenceseized
seizedbefore
beforefinalizing
finalizingthat
thatreport.
report.(Thomas
(Thomas30).
30).The
Thepolice
policereport,
report,like
likethe
the

search
searchwarrant
warrantreturn,
return,did
didnot
notreference
referencethe
themental
mentalhealth
healthworksheets.
worksheets.

I.I. Searches
Searchesfor
forEvidence
Evidenceat
atAmherst
AmherstLab
Labin
inLate
LateJanuary
January2013
2013

1.Search
1. Searchof
ofFarak's
Farak'sDuffle
DuffleBag
Bag

On
OnJanuary
January25,
25,2013,
2013,police
policeexecuted
executedthe
thesearch
searchof
ofthe
theduffle
dufflebag
bagfrom
fromFarak's
Farak'swork
work

station
stationand
andfound
foundsubstances
substancesthat
thatcould
couldbe
beused
usedto
todilute
diluteor
orreplace
replacecocaine:
cocaine:aabar
barof
ofsoap
soapwith
withaa

razor
razorblade,
blade,baking
bakingsoda,
soda,candle
candlewax,
wax,off-white
off-whiteflakes,
flakes,and
andoven-baked
oven-bakedclay.
clay.The
Thebag
bagalso
also

contained
containeditems
itemscommonly
commonlyused
usedin
inthe
thedrug
drugtrade,
trade,such
suchas
asplastic
plasticlab
labdishes,
dishes,aaplastic
plasticbag
bag

containing
containingaawax
waxpaper
paperfold,
fold,and
andfragments
fragmentsof
ofcopper
copperwire.
wire.

The
The duffle
dufflebag
bagalso
alsoheld
heldseveral
severallaboratory
laboratory"K-pack"
"K-pack"lab
labevidence
evidencebags,
bags,one
onewith
withthe
the

initials
initials"RP"
"RP"for
forPontes
Pontesand
andtwo
two(which
(whichhad
hadbeen
beencut
cutopen)
open)with
withthe
theinitials
initials"SF"
"SF"for
forFarak.
Farak.The
The

various
variousK-pack
K-packevidence
evidencebags
bagswere
weredated
datedbetween
betweenDecember
December16,
16,2012,
2012,to
toJanuary
January6,6,2013.
2013.This
This

evidence
evidencesupported
supportedan
aninference
inferencethat
thatin
inDecember
December2012
2012and/or
and/orJanuary
January2013,
2013,Farak
Farakhad
hadbeen
been

tamperingwith
tampering withevidence
evidencepreviously
previouslytested
testedby
byand
andassigned
assignedto
toPontes.
Pontes.As
Asmentioned
mentionedabove,
above,

Farak
Farakhad
hadtestified
testifiedthat
thatin
in2012,
2012,she
shebegan
begantaking
takingother
otherchemists'
chemists'samples,
samples,including
includingaa

submissionof
submission ofcocaine
cocaineassigned
assignedto
toand
andalready
alreadytested
testedby
byPontes.
Pontes.Farak
Faraklater
laterreplaced
replacedthe
thecocaine
cocaine

withaacounterfeit
with counterfeitsubstance
substanceand
andput
putthe
thesample
sampleinto
intoaabag
bagpre-initialled
pre-initialledby
byPontes.
Pontes.

31
31
 Add. 49
Add:49
Add.49

Inventory of
2. Inventory
2. of Drug
Drug Evidence
Evidence

On January
On January 19,
19, 2013,
2013, the
the MSP
MSP had
had conducted
conducted an
an inventory
inventory of
of all
all drug
drug evidence
evidence at
at the
the

Amherst lab
Amherst lab and
and learned
learned that
that four
four drug
drug samples
samples were
were missing.
missing. This
This was
was in
in contrast
contrast to
to the
the

inventory completed
inventory completed four
four months
months earlier
earlier which
which revealed
revealed no
no missing
missing samples.
samples. The
The discovery
discovery of
of

four missing
four missing samples
samples was
was the
the basis
basis of
of Farak's
Farak's indictments
indictments as
as discussed
discussed below.
below.

3. Search
3. Search of
of Farak's
Farak's Workstation
Workstation

On January
On January 28,
28, 2013,
2013, the
the MSP
MSP searched
searched the
the lab
lab and
and recovered
recovered aa vial
vial of
of white
white powder
powder

from the
from the top
top of
of Farak's
Farak's desk.
desk. The
The vial
vial was
was tagged
tagged as
as "Item
"Item Number
Number 56."
56." (Exh.
(Exh. 14).
14). ItIt was
was

analyzed and
analyzed and found
found to
to contain
contain acetaminophen
acetaminophen and
and oxycodone.
oxycodone. (Exh.
(Exh. 6A).
6A). Investigators
Investigators found
found aa

total of
total of 11.7
11.7 grams
grams of
of cocaine
cocaine at
at Farak's
Farak's desk.
desk. (Prosecution
(Prosecution Memo
Memo p.
p. 9).
9).

J. The
J. The First
First Wave
Wave of
of Drug
Drug Lab
Lab Defendants'
Defendants' Motions
Motions

Farak's misconduct
Farak's misconduct was
was discovered
discovered within
within aa year
year of
of the
the Dookhan
Dookhan scandal.
scandal. ItIt was
was expected
expected

that, as
that, as in
in the
the Dookhan
Dookhan cases,
cases, aa wave
wave of
of defendants
defendants whose
whose drug
drug certificates
certificates were
were signed
signed by
by Farak
Farak

would soon
would soon file
file motions
motions for
for discovery
discovery and
and post-conviction
post-conviction relief.
relief. By
By late
late January
January of
of 2013,
2013, that
that

expectation became
expectation became aa reality.
reality. Superior
Superior Court
Court Regional
Regional Administrative
Administrative Justice
Justice C.
C. Jeffrey
Jeffrey Kinder
Kinder

was specially
was specially assigned
assigned to
to handle
handle those
those motions,
motions, and
and Hampden
Hampden County
County Assistant
Assistant District
District Attorney
Attorney

Frank Flannery
Frank Flannery was
was placed
placed in
in charge
charge of
of responding
responding to
to such
such motions
motions on
on behalf
behalf of
of the
the

Commonwealth. Because
Commonwealth. Because the
the AGO
AGO was
was prosecuting
prosecuting Farak,
Farak, itit had
had aa duty
duty to
to disclose
disclose to
to district
district

attorneys' offices
attorneys' offices handling
handling the
the drug
drug lab
lab cases
cases all
all exculpatory
exculpatory evidence
evidence itit gathered
gathered in
in the
the

investigation and
investigation and prosecution
prosecution of
of Farak.
Farak. Flannery
Flannery and
and other
other ADAs
ADAs across
across Massachusetts
Massachusetts relied
relied

upon the
upon the AGO
AGO to
to fulfill
fulfill its
its responsibility
responsibility to
to provide
provide them
them with
with Farak-related
Farak-related discovery
discovery which
which

those ADAs
those ADAs in
in turn
turn were
were required
required to
to provide
provide to
to defendants
defendants potentially
potentially affected
affected by
by Farak's
Farak's

32
32
 Add. 50
Add.50
Add:50

misconduct.That
misconduct. Thatisiswhat
what the
the AGO
AGO did
did in
in the
the Dookhan
Dookhan cases
cases and
and what
what was
was expected
expected in
in the
the Farak
Farak

cases.
cases.

During the
During the December
December 2016
2016 evidentiary
evidentiary hearing
hearing before
before me,
me, Kaczmarek,
Kaczmarek, Mazzone,
Mazzone,

Calkins,
Calkins, and
and Verner
Verner all
all testified
testified that
that they
they were
were aware
aware that
that the
the drug
drug lab
lab defendants
defendants were
were entitled
entitled

to
toreceive
receive all
all exculpatory
exculpatory evidence
evidence held
held by
by the
the AGO.
AGO. Both
Both Verner
Verner and
and Kaczmarek
Kaczmarek sent
sent letters
letters to
to

district attorneys
district attorneys identifying
identifyingsome
someof
ofthe
theexculpatory
exculpatoryevidence
evidenceheld
heldby
bythe
theAGO
AGOin
inthe
the

investigation
investigation of
of Farak.
Farak. In
In his
his letters
letters dated
dated March
March 27,
27, 2013,
2013, to
to district
district attorneys,
attorneys, Verner
Vernerlisted
listed

potentially exculpatory
potentially exculpatory evidence
evidence found
found in
in the
the AGO's
AGO's Farak
Farak investigation
investigation and
and Verner
Verner recognized
recognized

in those
in those letters
letters that
that the
the AGO
AGO had
had an
an obligation
obligation to
to provide
provide such
such evidence
evidence to
to district
districtattorneys.
attorneys.

(Verner 129,
(Verner 129, Exh,
Exh, 165).
165).

WhenKaczmarek
When Kaczmarekwas
wasasked
askedwhether
whethershe
shethought
thoughtshe
shehad
hadany
anyobligation
obligationto
toturn
turnover
over

evidenceto
evidence todistrict
districtattorneys
attorneys handling
handling Farak's
Farak's cases,
cases, she
she first
first replied,
replied, "Yes.
"Yes. II suppose
suppose II had
had aa

certain obligation
certain obligation in
in the
the interest
interest of,
of, you
you know,
know, public
public interest
interest and
and this
this investigation."
investigation."

(Kaczmarek 190-191).
(Kaczmarek 190-191). When
When asked
asked ifif she
she understood
understood that
that itit was
was her
her job
job to
to give
give the
the Hampden
Hampden

ADAthe
ADA theFarak
Farakdiscovery,
discovery,she
shereplied,
replied,"I
"Idon't
don'tknow
knowififI'd
I'duse
usethe
theword
word'obligation,'
'obligation,'but
butwe
wewere
were

providing information
providing information to
to the
the DA's
DA's offices,
offices, yes."
yes." (Kaczmarek
(Kaczmarek 191).
191). When
When asked
asked who
who had
had the
the

duty
dutyto
toturn
turnover
over discovery
discovery to
to the
the drug
drug lab
lab defendants
defendants (through
(through the
the district
district attorneys),
attorneys), Kaczmarek
Kaczmarek

responded that
responded that itit was
was the
the AGO,
AGO, but
but "I
"I don't
don't think
think itit was
was my
my specific
specific obligation
obligation .. .. .. .. II don't
don'tthink
think

that
that goes
goes part
part and
and parcel
parcel with
with prosecuting
prosecuting Sonja
Sonja Farak,
Farak, but
but we
we were
were doing
doing ---- the
the Attorney
Attorney

General's Office
General's Office was,
was, and
and there
there was
was aa breakdown."
breakdown." (Kaczmarek
(Kaczmarek 192).
192).

K. Initial
K. Initial Concerns
Concerns About
About the
the Scope
Scope of
of Farak's
Farak's Misconduct
Misconduct

A major
A major question
question in
in the
the AGO
AGO from
from the
the time
time of
of the
the first
first suspicion
suspicionof
ofFarak's
Farak'sdrug
drug

33
33
 Add. 51
Add.51
Add:51

tampering was
tampering was the
the scope
scope of
of her
her misconduct
misconduct and
and how
how many
many drug
drug lab
lab convictions
convictions itit may
may have
have

undermined. The
undermined. The prosecution
prosecution initially
initially assumed
assumed that
that Farak's
Farak's drug
drug tampering
tampering was
was limited
limited to
to the
the

timeperiod
time periodof
of the
the last
last half
half of
of 2012,
2012, and
and solely
solely to
to cocaine,
cocaine, because
because police
police found
found cocaine
cocaine in
in

Farak's
Farak's car.
car. That
That assumption
assumption was
was at
at odds
odds with
with the
the evidence
evidence uncovered
uncovered even
even at
at that
that early
early

juncture. By
juncture. By late
late January
January 2013,
2013, the
the evidence
evidence recovered
recovered by
by investigators
investigators from
from Farak's
Farak'scar,
car,work
work

station,duffle
station, duffle bag
bag and
and the
the lab
lab supported
supported reasonable
reasonable inferences
inferences that:
that: (1)
(1) Farak
Farak was
was addicted
addicted to
to and
and

had stolen
had stolen from
from the
the lab
lab cocaine,
cocaine, phentermine,
phentermine, oxycodone
oxycodone and
and possibly
possibly heroin;
heroin; (2)
(2) her
her misconduct
misconduct

occurred as
occurred as early
early as
as 2011;
2011; and
and (3)
(3) she
she may
may have
have tampered
tampered with
with samples
samples assigned
assigned to
to Pontes
Pontesand
and

Hanchett, as
Hanchett, as she
she inexplicably
inexplicably had
had K-pack
K-pack bags
bags with
with their
their initials
initials on
on them.
them,

First,
First, investigators
investigators found
found in
in Farak's
Farak's car
car several
several documents
documents which
which linked
linked Farak's
Farak's drug
drug use
use

to
to 2011.
2011. These
These included
included Farak's
Farak's therapy
therapy "homework"
"homework" dated
dated November
November 16,
16, 2011,
2011, and
andher
hermental
mental

health worksheets
health worksheets which,
which, ifif considered
considered with
with prior
prior calendars
calendars and/or
and/or the
the 2011
2011 NFL
NFL schedule
schedulefound
found

in her
in her car,
car, showed
showed that
that she
she used
used drugs
drugs in
in December
December2011.
2011.

In addition
In addition to
to investigators'
investigators' discovery
discovery of
of cocaine,
cocaine, heroin,
heroin, oxycodone
oxycodone and
andphentermine
phenterminein
in

conducting searches,
conducting searches,the
theAGO
AGOhad
hadreceived
receivedinformation
informationfrom
fromprosecutors
prosecutorssignalling
signallingthat
thatFarak's
Farak's

misconduct
misconductmay
maynot
nothave
havebeen
beenlimited
limitedto
tococaine
cocainein
inthe
thefour
fourmonths
monthsbefore
beforeher
herarrest.
arrest.On
On

January
January 23,
23, 2013,
2013, Ballou
Ballou informed
informed Kaczmarek,
Kaczmarek, Verner,
Verner, and
and Irwin
Irwin that
that he
hehad
hadreceived
receivedaacall
call

fromaaHampden
from HampdenCounty
Countyprosecutor
prosecutorabout
aboutaaSpringfield
Springfielddrug
drugcase
caseinvolving
involvingtwo
twosamples
samplestested
tested

by Farak
by Farak in
in 2012.
2012. Ballou
Ballou was
was told
told that
that one
one sample
sample reportedly
reportedly had
had signs
signs of
of tampering
tampering and
and the
the

other was
other was returned
returned after
after testing
testing with
with fewer
fewer pills
pills than
than were
were originally
originally seized.
seized. Ballou
Ballou wrote,
wrote, "I'm
"I'm

inclined to
inclined togo
goseize
seizethe
theevidence
evidenceand
andtake
takestatements,
statements,but
butI'm
I'malso
alsoconcerned
concernedthat
thatthis
thismay
maybe
bethe
the

first of
first of many
many such
such calls."
calls." Kaczmarek
Kaczmarek responded,
responded,

34
34
 Add. 52
Add.52
Add:52

"I
"I think
think this
this is
is the
the tip
tip of
of the
the iceberg.
iceberg. .. .. .. [Y]our
[Y]our idea
idea of
of statements
statements and and seizing
seizing evidence
evidence is
is
good.
good. WeWe might
might alsoalso want
want toto start
start with
with Springfield
Springfield PD
PD toto see
see ifif they
they can
can start
start an
an
inventory
inventory of of their
their drug
drug evidence
evidence -- -- whether
whether FarakFarak was
was chemist
chemist or or not."
not."

Verner
Verner agreed,
agreed, "I
"I think
think we
we should
should look
look into
into it."
it." Ballou
Ballou replied
replied that
that he
he would
would call
call the
the ADA
ADA and
and

get
get more
more information,
information, and
and Irwin
Irwin wrote,
wrote, "Agree.
"Agree. Joe
Joe make
make sure
sure you
you document
document everything."
everything."

Ballou
Ballou wrote,
wrote, "I'll
"I'll get
get all
all of
of this
this in
in writing."
writing."

Ballou's
Ballou's investigation
investigation revealed
revealed that
that on
on March
March 16,
16, 2012,
2012, Springfield
Springfield narcotics
narcotics officer
officer Greg
Greg

Bigda
Bigda had
had seized
seized 51
51 pills
pills while
while executing
executing aa search
search warrant.
warrant. After
After he
he counted
counted them,
them, and
and aa second
second

officer
officer recounted
recounted them
them to
to confirm
confirm that
that there
there were
were 51
51 pills,
pills, Bigda
Bigda identified
identified them
them as
as oxycodone
oxycodone

by
by referring
referring to
to an
an online
online pill
pill identifier.
identifier. To
To his
his surprise,
surprise, Farak
Farak had
had issued
issued aa certificate
certificate stating
stating that
that

the
the pills
pills contained
contained no
no illegal
illegal drugs,
drugs, and
and when
when he
he retrieved
retrieved them,
them, there
there were
were 61
61 pills
pills rather
rather than
than

51,
51, and
and that
that they
they were
were different
different in
in color
color and
and markings
markings than
than the
the ones
ones he
he had
had seized.
seized.

When
When informed
informed of
of the
the pill
pill discrepancy,
discrepancy, Kaczmarek
Kaczmarek dismissively
dismissively replied
replied in
in an
an email
email to
to

Ballou,
Ballou, "Please
"Please don't
don't let
let this
this get
get more
more complicated
complicated than
than we
we thought.
thought. If
If she
she was
was suffering
suffering from
from

back
back injury,
injury, maybe
maybe she
she took
took the
the oxies."
oxies." (Exh.
(Exh. 231).
231). When
When asked
asked to
to explain
explain that
that reply,
reply,

Kaczmarek
Kaczmarek testified
testified in
in December
December 2016
2016 that
that she
she feared
feared that
that ifif Farak's
Farak's drug
drug tampering
tampering turned
turned out
out

to
to be
be more
more complicated
complicated than
than they
they had
had thought,
thought, "an
"an avalanche
avalanche of
of work"
work" would
would hit
hit "us."
"us."

In
In contrast
contrast to
to what
what transpired
transpired with
with respect
respect to
to Dookhan
Dookhan and
and the
the Hinton
Hinton lab,
lab, which
which were
were

the
the subject
subject of
of broad investigations, 2222 no
broad investigations, no full
full fledged
fledged investigation
investigation into
into the
the scope
scope of
of Farak's
Farak's

22
22The
The Commissioner
Commissioner of
of Public
Public Health
Health commenced
commenced aa formal
formal inquiry
inquiry in
in the
the wake
wake of
of the
the Dookhan
Dookhan scandal.
scandal. In
In
July
July of
of 2012,
2012, once
once the
the MSP
MSP tooktook control
control ofof the
the Hinton
Hinton lab,
lab, the
the officers
officers assigned
assigned there
there asked
asked the
the MSP
MSP detective
detective unit
unit
of
of the
the AGO
AGO to to launch
launch aa broader
broader investigation
investigation into
into lab
lab practices
practices and
and Dookhan.
Dookhan. In In that
that investigation,
investigation, Dookhan
Dookhan
admitted
admitted toto "dry
"dry tabbing"
labbing" for
for two
two toto three
three years,
years, contaminating
contaminating samples
samples intentionally,
intentionally, and and deliberately
deliberately violating
violating lab
lab
protocols
protocols byby removing
removing samples
samples from
from thethe evidence
evidence locker
locker without
without following
following proper
proper procedures,
procedures, as as well
well as
as post-dating
post-dating
evidence
evidence log
log book
book entries,
entries, falsifying
falsifying another
another chemist's
chemist's initials
initials on
on reports
reports intended
intended to to verify
verify the
the proper
proper functioning
functioning ofof
the
the GC/MS.
GC/MS. See See Commonwealth
Commonwealth v. v. Scott,
Scott,467
467 Mass.
Mass. atat 339-340.
339-340. InIn the
the fall
fall of
of 2012,
2012, the
the defense
defense bar
bar questioned
questioned thethe

35
35
 Add. 53
Add.53
Add:53

misconduct
misconductbegan
beganuntil
untillong
longafter
afterher
herconviction.
conviction.In
InJanuary
Januaryof
of2013,
2013,Verner
Vernerexpressed
expressedinterest
interest

ininBallou
Ballouinvestigating
investigatingthe
thescope
scopeof
ofFarak's
Farak'smisconduct.
misconduct.In
Incontrast
contrasttotoKaczmarek,
Kaczmarek,nothing
nothingininthe
the

record
recordsuggests
suggeststhat
thatVerner
Vernerwas
wasthen
thenworried
worriedthat
thataabroader
broaderinvestigation
investigationwould
wouldtrigger
triggeran
an

"avalanche
"avalancheof
ofwork"
work"for
forhis
hisoffice.
office.Verner's
Verner'sresponsibilities
responsibilitiesas
aschief
chiefof
ofthe
theCriminal
CriminalBureau
Bureau

required
requiredhim
himtotodelegate
delegatethe
theFarak
Farakprosecution
prosecutiontotoKaczmarek
Kaczmarekand
andtrust
trustthat
thatthe
theappropriate
appropriate

investigations
investigationswere
werebeing
beingconducted.
conducted.At
Atsome
somepoint
pointduring
duringthe
theprosecution
prosecutionof
ofFarak,
Farak,Verner
Verner

viewed
viewedthe
theFarak
Farakcriminal
criminalinvestigation
investigationand
andprosecution
prosecutionas
aslimited
limitedtoto"what
"whatwas
wasininfront
frontof
ofus,
us,

the
thecar,
car,things
thingsthat
thatwere
werereadily
readilyapparent"
apparent"and
andthe
the"bigger
"biggerinvestigation
investigationwas
wasgoing
goingtotobe
be[by]
[by]

somebody
somebodyelse."
else."(Verner
(Verner205).
205).Likewise,
Likewise,also
alsoatatsome
someunspecified
unspecifiedpoint,
point,Irwin
Irwintold
toldtwo
twoother
other

MSP
MSPcaptains
captainsthat
thatthe
thedirective
directivefrom
fromthe
theAGO's
AGO'sCriminal
CriminalDivision
Divisionwas
wasthat
thatthe
theinvestigation
investigationinto
into

Farak
Farakwas
wastotofocus
focuson
onFarak's
Farak'swrongdoings
wrongdoingsassociated
associatedwith
withher
herarrest.
arrest.(Irwin
(Irwin123).
123).

Verner
Vernerinformed
informedMajor
MajorJames
JamesConnolly,
Connolly,the
thehead
headof
ofMSP
MSPcrime
crimelab
labininMaynard,
Maynard,that
thatthe
the

AGO
AGOwas
wasnot
notdoing
doingaafull
fullinvestigation
investigationon
onthe
theAmherst
Amherstlab,
lab,that
thatthe
thedistrict
districtattorneys'
attorneys'offices
offices

needed
neededtheir
theirFarak
Farakdrug
drugsamples
samplestotobe
beretested
retestedatatanother
anotherlab,
lab,and
andthat
thatthe
theAGO
AGOwas
wasnot
notgoing
goingtoto

be
beinvolved
involvedwith
withthe
theresults
resultsof
ofthose
thosetests.
tests.The
Therecord
recordisissilent
silentas
astotowhether
whetherthe
theOffice
Officeof
ofthe
the

AGO's
AGO'sability
abilitytotoperform
performan animpartial
impartialinvestigation.
investigation.InInresponse,
response,ininNovember
November2012, 2012,Governor
GovernorDeval
DevalPatrick
Patrickasked
asked
the
theOIG
OIGtotoperform
performaacomprehensive
comprehensiveinvestigation
investigationinto
intothe
theoperation
operationandandmanagement
managementofofthe theHinton
Hintonlab labfrom
from2002-
2002-
2012
2012totodetermine
determineif,if,apart
apartfrom
fromDookan,
Dookan,any
anymalfeasance
malfeasancehad hadoccurred
occurredandandits
itsimpact
impacton onthe
thereliability
reliabilityofofdrug
drug
analysis.
analysis.InIn2014,
2014,the
theOIG
OIGissued
issuedaa121
121page
pagereport
reportcovering
coveringthe thefirst
first15
15months
monthsofofits
itsinvestigation,
investigation,followed
followedby byaa
supplemental
supplementalreport
reportissued
issuedininFebruary
February2016
2016concerning
concerningits itsreview
reviewofofover
over15,000
15,000drug
drugsamples
samplestested
testedatatthe
theHinton
Hinton
lab
laband
andthetheretesting
retestingofof609
609ofofthose
thosesamples.
samples.TheTheSupreme
SupremeJudicial
JudicialCourt
Courtacknowledged
acknowledgedthat that"although
"althoughthe thefull
full
extent
extenttotoDookhan's
Dookhan'smisconduct
misconductmay maynever
neverbe
beknown,
known,thetheinvestigation
investigationinto
intoher
herwrongdoing
wrongdoinghas hashad
hadananenormous
enormous
impact
impacton onthe
thecriminal
criminaljustice
justicesystem
systemininMassachusetts."
Massachusetts." Commonwealth
Commonwealthv.v.Scott,Scott,467
467Mass.
Mass.336,
336,341
341(2014).
(2014).By By
the
thespring
springofof2017,
2017,district
districtattorneys
attorneysagreed
agreedtotodrop
dropcharges
chargesagainst
againstthousands
thousandsofofdefendants,
defendants,andandaasingle
singlejustice
justiceofof
the
theSupreme
SupremeJudicial
JudicialCourt
Courtordered
orderedthe
thedismissal
dismissalofofover
over20,000
20,000cases
casesininconnection
connectionwithwiththe
theDookhan
Dookhanmatter.
matter.

36
36
 Add. 54
Add.54
Add:54

Inspector
InspectorGeneral
Generalconducted
conductedan
aninvestigation
investigationinto
intoFarak
Farakor
orthe
theAmherst
Amherstdrug
druglab.'
lab.'Kaczmarek
Kaczmarek

improperlydiscouraged
improperly discouragedsuch
suchan
aninvestigation.
investigation.In
InFebruary
Februaryof
of2013,
2013,Hampshire
HampshireCounty
CountyAssistant
Assistant

DistrictAttorney
District AttorneyJeremy
JeremyBucci
Bucciwas
wasquoted
quotedin
inaalocal
localnews
newsreport
reportas
assaying
sayingthat
thathis
hisoffice
officewas
was

waiting
waitingto
tohear
hearwhether
whetherthe
theAmherst
Amherstdrug
druglab
labwould
wouldbe
beinvestigated
investigatedby
bythe
theOIG.
OIG.On
OnFebruary
February

26,2013,
26, 2013,Kaczmarek
Kaczmareksent
sentan
anemail
emailto
tothen
thenSenior
SeniorCounsel
CounselatatOIG,
OIG,Audrey
AudreyMark,
Mark,aafriend,
friend,who
who

wasleading
was leadingthe
theinvestigation
investigationatatthe
theHinton
Hintonlab.
lab.Kaczmarek
Kaczmarekattached
attachedthe
thenews
newsreport
reportand
andwrote,
wrote,

"Audrey--whenthey
"Audrey--when theyask
askyou
youto
todo
dothis
thisaudit
audit--say
sayno.
no.Actually,
Actually,it's
it'svery
verydifferent
differentthan
than[the
[the

Hinton
Hintonlab
labin
inJamaica
JamaicaPlain].
Plain].AAprofessional
professionallab."
lab."(Kaczmarek
(Kaczmarek90).
90).Mark
Markreplied,
replied,"Am
"AmII

allowed
allowedto
tosay
sayno
no???"
???"and
andKaczmarek
Kaczmarekthen
thenwrote,
wrote,"I"Ishould
shouldhave.
have.It's
It'spretty
prettyfar."
far."

L.
L.Ballou
BallouEmailed
EmailedMental
MentalHealth
HealthWorksheets
Worksheetsto
toKaczmarek,
Kaczmarek,Verner
Vernerand
andIrwin
Irwin

Approximatelyaaweek
Approximately weekor
ortwo
twoafter
afterthe
thesearch
searchof
ofFarak's
Farak'scar,
car,Ballou,
Ballou,the
thenow
nowestablished
established

"case
"caseofficer"
officer"in
inthe
theFarak
Farakinvestigation,
investigation,started
started"going
"goingthrough
througheach
eachpiece
pieceof
ofpaper
paperand
andtr[ied]
tr[ied]to
to

review
reviewititin
inmore
moredetail."
detail."(Ballou
(Ballou145).
145).AAfew
fewdays
daysbefore
beforeFebruary
February14,
14,2013,
2013,Ballou
Ballouexamined
examined

carefullyall
carefully allthe
theevidence
evidenceseized
seizedfrom
fromFarak's
Farak'svehicle
vehicleand
andrealized
realizedthat
thatthe
themental
mentalhealth
health

worksheetsconstituted
worksheets constitutedevidence
evidenceof
ofFarak's
Farak'sadmissions
admissionsand,
and,therefore,
therefore,that
thatthey
theycarried
carried

considerable
considerableevidentiary
evidentiarysignificance.
significance.(Ballou
(Ballou12/13/2016,
12/13/2016,208-209).
208-209).As
Ashe
hewas
wasin
inthe
theprocess
process

of
ofmaking
makingthat
thatdiscovery,
discovery,he
hetelephoned
telephonedKaczmarek.
Kaczmarek.He
Hewas
wasuncertain
uncertainwhether
whetherthey
theyspoke
spokethat
that

day
dayor
orthe
thenext,
next,but
butwhen
whenthey
theydid
didspeak,
speak,he
hedescribed
describedfor
forher
herthe
themental
mentalhealth
healthworksheets.
worksheets.

Significantly,
Significantly,on
onFebruary
February14th
14thatat3:31
3:31p.m.,
p.m.,Ballou
Ballouemailed
emailedscanned
scannedcopies
copiesof
ofsome
someof
of

23
23
1n1n2016,
2016,drug
druglab
labdefendants
defendantsserved
servedaasummonssummonsupon uponformer
former010
010Senior
SeniorCounsel
CounselAudrey
AudreyMark
Marktotoappear
appear
and
andtestify
testifyduring
duringthe
theevidentiary
evidentiaryhearing
hearingononwhat
whatrole,
role,ififany,
any,the
theOIG
OIGplayed
playedininthe
theFarak
Farakinvestigation.
investigation.The
TheOIG
OIG
successfullymoved
successfully movedtotoquash
quashthat
thatsummons
summonsininreliance
relianceupon
upon945945Code
CodeMass.
Mass.Regs.
Regs.§§1.04(2)(b),
1.04(2)(b),which
whichbroadly
broadly
mandates
mandatesthat that''Complaints,
"Complaints,information
informationororreferrals
referralsreceived,
received,including
includingthe
theidentity
identityofofthe
thecomplainant
complainantororinformant
informant
orreferral
or referralsource,
source, are
are records
records of
of the
the [OIG]
[OIG] ... .... and
. andshall
shallbebekept
keptconfidential
confidentialunless
unlessdisclosure
disclosureisisdeemed
deemednecessary
necessary
ininthe
theperformance
performanceof ofthe
theduties
dutiesof
ofthe
theOffice."
Office."

37
37
 Add. 55
Add.55
Add:55

the
the mental
mental health
health worksheets
worksheets to
to Kaczmarek,
Kaczmarek, Verner
Verner and
and Irwin.
Irwin. (Exh.
(Exh. 205;
205; Irwin
Irwin 154).24 At that
154).24 At that

point,
point, the
the mental
mental health
health worksheets
worksheets became
became not
not only
only physical
physical evidence
evidence stored
stored at
at the
the Springfield
Springfield

AGO, but
AGO, but documentary
documentary copies
copies in
in the
the email
email accounts
accounts of
of Ballou,
Ballou, Kaczmarek,
Kaczmarek, Verner
Verner and
and Irwin.
Irwin.

The
The emailed
emailed copies
copies of
of the
the mental
mental health
health worksheets
worksheets then
then became
became parts
partsof
oftheir
theirfiles.
files.

Ballou did
Ballou did not
not send
send all
all of
of the
the mental
mental health
health worksheets,
worksheets, but
but sent
sent only
only those
those which
whichhe
he

believed
believedwere
were the
the most
most important
important and
and potentially
potentially inculpatory
inculpatory or
or relevant
relevant to
to the
the Farak
Farak case
case which
which

Kaczmarek needed
Kaczmarek needed to
to see.
see. (Ballou
(Ballou 12/14/16
12/14/16 19).
19). Ballou
Ballou also
also sent
sent in
in the
the same
same email
email copies
copies of
of

some of
some of the
the news
news articles
articles found
found in
in Farak's
Farak's car
car and
and printed
printed out
out in
in 2011.
2011. The
The subject
subject line
lineof
of

Ballou's
Ballou's email
email reads
reads "Farak
"Farak Admissions."
Admissions." In
In the
the body
body of
of the
the email,
email, Ballou
Ballouwrote,
wrote,"Here
"Hereare
arethe
the

forms
forms of
of the
the admissions
admissions of
of drug
drug use
use that
that II was
was talking
talking about."
about." ItIt was
was clear
clear that
that such
such evidence
evidence

constituted important
constituted important exculpatory
exculpatory evidence
evidence for
for drug
drug lab
lab defendants
defendants and
and that
that such
such evidence
evidence

supported
supportedaa finding
finding that
that the
the scope
scope of
of Farak's
Farak's misconduct
misconduct warranted
warranted further
further investigation.
investigation.

M. Prosecution
M. Prosecution Memorandum
Memorandum for for Presentation
Presentation to
to Grand
Grand Jury;
Jury; Verner's
Verner's First
First
Distribution to
Distribution to District
District Attorneys
Attorneys Regarding
Regarding Potentially
Potentially Exculpatory
Exculpatory Information
Information
(March 2013)
(March 2013)

Inlate
In lateMarch
Marchof
of2013,
2013,after
afterreviewing
reviewingthe
theevidence
evidenceagainst
againstFarak
Farakand
andin
inpreparation
preparationfor
for

the presentation
the presentation to
to the
the grand
grand jury,
jury, Kaczmarek
Kaczmarek drafted
drafted the
the prosecution
prosecution memorandum
memorandum(prosecution
(prosecution

memo) and
memo) and submitted
submitted itit to
to Mazzone
Mazzone for
for his
his review
review and
and approval.
approval. Mazzone
Mazzone was
was aware
aware that
that

Kaczmarek had
Kaczmarek had worked
worked on
on that
that document
document with
with Verner.
Verner. (Mazzone
(Mazzone 53).
53).

The prosecution
The prosecution memo
memo lists
lists among
among the
the "items
"items of
of note"
note" recovered
recovered from
from Farak's
Farak's vehicle
vehicle

24
24
Kaczmarekhad
Kaczmarek hadknown
knownabout
aboutatatleast
leastone
oneof
ofthe
themental
mentalhealth
healthworksheets
worksheetsbefore
beforeBallou
Ballousent
senther
herthe
the
afternoonemail.
afternoon email.AtAt10:44
10:44a.m.
a.m.ononFebruary
February14th,
14th,Kaczmarek
Kaczmareksentsentan
anemail
emailtotoMSP
MSPchemist
chemistNancy
NancyBrooks
Brooksasking
asking
what
whatthe
theinitials
initials"TB"
"TB"mean
meanregarding
regardingdrugs
drugsandandpossibly
possiblyaachemist's
chemist'sabbreviation.
abbreviation.Kaczmarek
Kaczmarektold toldBrooks
Brooksthat
thatshe
she
hadseen
had seenthose
thoseinitials
initialson
onsome
someof ofFarak's
Farak'snotes.
notes.One
Oneofofthe
themental
mentalhealth
healthworksheets
worksheetsisisaachart
chartininwhich
whichFarak
Farakwrote
wrote
thepros
the prosand
andcons
consofofresisting
resistingand
and"TB."
"TB."(Kaczmarek
(Kaczmarek103-105).
103-105).

38
38
 Add. 56
Add.56
Add:56

"mental
"mentalhealth
healthworksheets
worksheetsdescribing
describinghow
howFarak
Farakfeels
feelswhen
whenshe
sheuses
usesillegal
illegalsubstances
substancesand
andthe
the

temptation
temptationof
ofworking
workingwith
withurgeful
urgefulsamples."
samples."(Exh.
(Exh.163).
163).In
Inaafootnote
footnoteto
tothat
thatlist,
list,the
the

prosecution
prosecutionmemo
memostates,
states,"These
"Theseworksheets
worksheetswere
werenot
notsubmitted
submittedto
tothe
thegrand
grandjury
juryout
outof
ofan
an

abundance
abundanceof
ofcaution,
caution,in
inorder
orderto
toprotect
protectpossibly
possiblyprivileged
privilegedinformation.
information.Case
Caselaw
lawsuggests,
suggests,

however,
however,that
thatthe
thepaperwork
paperworkisisnot
notprivileged."
privileged."(Exh.
(Exh.163).
163).

Mazzonedid
Mazzone didnot
notsee
seethe
themental
mentalhealth
healthworksheets,
worksheets,but
butdiscussed
discussedthem
themwith
withKaczmarek
Kaczmarek

and
andrecognized
recognizedthat
that(1)
(1)even
evenififthey
theywere
wereHIPPA-protected,
HIPPA-protected,they
theycould
couldbe
bepresented
presentedto
tothe
thegrand
grand

jury
juryunder
underan
anexception,
exception,but
but(2)
(2)they
theywere
werenot
notrelevant
relevantor
ornecessary
necessaryto
tothe
thepresentation
presentationof
ofthe
the

crimes
crimesfor
forwhich
whichFarak
Farakwas
wascharged.
charged.(Mazzone
(Mazzone54).
54).Mazzone
Mazzonereviewed
reviewedthe
theprosecution
prosecutionmemo,
memo,

approved
approvedititon
onMarch
March27,
27,2013,
2013,and
andsent
sentititto
tohis
hissuperior,
superior,Verner,
Verner,for
forhis
hisreview
reviewand
andapproval.
approval.

(Mazzone
(Mazzone53).
53).

Vernerand
Verner andKazcmarek
Kazcmarekdiscussed
discussedthe
thepotential
potentialproblems
problemsof
ofpresenting
presentingto
tothe
thegrand
grandjury
jury

evidenceof
evidence ofFarak's
Farak'sadmissions
admissionsin
inthe
themental
mentalhealth
healthworksheets.
worksheets.(Verner
(Verner167).
167).The
Theprosecution
prosecution

memocontains
memo containsaanotation
notationby
byVerner
Vernerregarding
regardingthe
themental
mentalhealth
healthworksheets
worksheetsas
asfollows:
follows:

"Paperwork
"Paperwork not
notturned
turnedover
overto
toDA's
DA'sOffice
Officeyet."
yet."(Verner
(Verner169;
169;Mazzone
Mazzone57).
57).Verner's
Verner'snotation
notation

supports
supportsan
aninference
inferencethat
thathe
heexpected
expectedthat
thatthe
themental
mentalhealth
healthworksheets
worksheetswould
wouldbe
beturned
turnedover
overto
to

the
thedistrict
districtattorneys.
attorneys.2525

Atthat
At thattime,
time,the
theextent
extentof
ofFarak's
Farak'sdrug
drugtampering
tamperingremained
remainedan
anunanswered
unansweredquestion,
question,as
as

can
canbe
beinferred
inferredby
bythe
theconclusion
conclusionof
ofthe
theprosecution
prosecutionmemo:
memo:

2525
0nMarch
0n March27,27,2013,
2013,Verner
Verneremailed
emailedBedrosian
Bedrosianand
andCalkins
Calkinstotosay
saythat
thathe
hewanted
wantedtotomeet
meetwith
withthem
themininan
an
hourtotodiscuss
hour discussthe
theprosecution
prosecutionmemo,
memo,asasKaczmarek
Kaczmarekhoped
hopedtotoget
getindictments
indictmentsagainst
againstFarak
Farakthe
thefollowing
followingMonday.
Monday.
Calkins
Calkinsdid
didnot
notsign
signthe
theprosecution
prosecutionmemo,
memo,but
butshe
sheacknowledged
acknowledgedthatthatshe
shewas
wasthe
thelast
lastperson
persontotoreview
reviewand
andapprove
approve
of
ofit.
it.(Calkins
(Calkins141,
141,147,
147,159).
159).

39
39
 Add. 57
Add.57
Add:57

"We are
"We are also
also hoping
hoping that
that the
the defendant,
defendant, once
once indicted,
indicted, will
will detail
detail how
how long
long she
she has
has been
been
abusing drugs
abusing drugs and
and how
how many
many cases
cases are
are affected.
affected. Farak
Farak would
would expect
expect some
some consideration
consideration
in sentencing
in sentencing for
for that
that information."
information."

(Exh. 163).
(Exh. 163).

Also on
Also on March
March 27,
27, 2013,
2013, the
the same
same day
day that
that Verner
Verner noted
noted on
on the
the prosecution
prosecution memo
memo that
that

the mental
the mental health
health worksheets
worksheets had
had not
not yet
yet been
been turned
turned over
over to
to the
the district
district attorneys,
attorneys, he
he sent
sent aa letter
letter

to all
to all eleven
eleven district
district attorneys
attorneys in
in the
the Commonwealth
Commonwealth informing
informing them
them that
that in
in its
its investigation
investigation of
of

Farak, the
Farak, the AGO
AGO had
had acquired
acquired potentially
potentially exculpatory
exculpatory information
information and
and materials
materials which
which itit was
was

obligated to
obligated to provide
provide to
to the
the district
district attorneys
attorneys and
and that
that the
the AGO
AGO was
was meeting
meeting that
that obligation.
obligation.

(Verner 111).
(Verner 111). That
That letter
letter reads
reads as
as follows:
follows:

"This Office
"This Office isis investigating
investigating Sonja
Sonja Farak,
Farak, aa chemist
chemist who
who conducted
conducted analysis
analysis ofof suspected
suspected
narcotic samples
narcotic samples out out of
of the
the Amherst
Amherst drug
drug laboratory.
laboratory. Ms.
Ms. Farak
Farak isis currently
currently charged
charged in
in
Belchertown District
Belchertown District Court
Court with
with two
two counts
counts ofof tampering
tampering with
with evidence,
evidence, one one count
count of
of
possession of
possession of Class
Class A A substance,
substance, andand one
one count
count of of possession
possession of of aa Class
Class BB substance.
substance.
During our
During our investigation,
investigation, thisthis Office
Office has
has produced
produced or or otherwise
otherwise come
come intointo possession
possession ofof
information, documents
information, documents and and reports.
reports. Pursuant
Pursuant toto this
this Office's
Office's obligation
obligation to to provide
provide
potentially exculpatory
potentially exculpatory information
information to to District
District Attorneys
Attorneys asas well
well asas information
information necessary
necessary
to your
to your Offices'
Offices' determination
determination about
about how
how to
to proceed
proceed with
with cases
cases inin which
which related
related narcotics
narcotics
evidence was
evidence was tested
tested at
at the
the Amherst
Amherst laboratory,
laboratory, please
please find
find the
the below
below the the listed
listed materials:
materials: ..
IIII

(Exhs. 165
(Exhs. 165 &
& 260;
260; Verner
Verner 160-161).
160-161). The
The 16
16 items
items listed
listed in
in Verner's
Verner's letter
letter refer
refer to
to reports
reports by
by

Ballou and
Ballou and Thomas,
Thomas, transcripts
transcripts of
of interviews
interviews of
of Amherst
Amherst lab
lab chemists,
chemists, an
an evidence
evidence report
report form,
form,

evidence
evidence recovery
recovery log
log with
with photos,
photos, aa 13
13 page
page evidence
evidence log,
log, and
and other
other reports.
reports. There
There was
was no
no

reference to
reference to the
the mental
mental health
health worksheets.
worksheets. Kaczmarek
Kaczmarek also
also sent
sent district
district attorneys
attorneys aa similar
similar

communication in
communication in the
the Farak
Farak case,
case, but
but omitted
omitted the
the mental
mental health
health worksheets.
worksheets.

In late
In late March
March of
of 2013,
2013, Kaczmarek,
Kaczmarek, Mazzone,
Mazzone, Verner
Verner and
and Calkins
Calkins all
all knew
knew that
that the
the mental
mental

health worksheets
health worksheets containing
containing Farak's
Farak's drug
drug admissions
admissions would
would not
not be
be presented
presented to
to the
the grand
grand jury
jury

40
40
 Add. 58
Add.58
Add:58

and
and had
had not
not been
been turned
turned over
over to
to the
the district
district attorneys.
attorneys. Although
Although the
the AGO
AGO had
had reason
reason not
not to
to

present
present the
the evidence
evidence to
to the
the grand
grand jury,
jury, there
there was
was no
no explanation
explanation as
as to
to why
why itit had
had not
not been
been turned
turned

over
over to
to district
district attorneys
attorneys on
on March
March 27,
27, 2013.
2013.

Thus,
Thus, by
by the
the end
end of
of March
March 2013,
2013, the
the mental
mental health
health worksheets
worksheets had
had been:
been: (1)
(1) identified
identified

within
within the
the AGO
AGO as
as significant
significant and
and exculpatory;
exculpatory; (2)
(2) the
the the
the sole
sole subject
subject of
of Ballou's
Ballou's February
February 14,
14,

2013
2013 email;
email; (3)
(3) sent
sent by
by Ballou
Ballou via
via email
email to
to Kaczmarek,
Kaczmarek, Verner,
Verner, and
and Irwin,
Irwin, and
and thus
thus became
became aa

part
part of
of their
their files;
files; (4)
(4) intentionally
intentionally excluded
excluded from
from presentation
presentation to
to the
the grand
grand jury;
jury; (5)
(5) expressly
expressly

identified
identified in
in the
the prosecution
prosecution memo
memo with
with Verner's
Verner's handwritten
handwritten notation
notation that,
that, "This
"This paperwork
paperwork not
not

turned
turned over
over to
to DA's
DA's offices
offices yet";
yet"; and
and (6)
(6) not
not turned
turned over
over to
to district
district attorneys'
attorneys' offices
offices across
across the
the

Commonwealth.
Commonwealth.

N.
N. Farak's
Farak's Indictment
Indictment and
and Second
Second Arraignment
Arraignment (April
(April 2013)
2013)

On
On April
April 1,
1, 2013,
2013, aa Statewide
Statewide Grand
Grand Jury
Jury indicted
indicted Farak
Farak on
on charges
charges of
of evidence
evidence

tampering,
tampering, theft
theft of
of aa controlled
controlled substance,
substance, and
and unlawful
unlawful possession
possession of
of cocaine.
cocaine. Whereas
Whereas Farak
Farak

had
had originally
originally been
been charged
charged by
by criminal
criminal complaint
complaint with
with two
two counts
counts of
of tampering
tampering with
with evidence
evidence

and
and possession
possession of
of heroin
heroin and
and cocaine,
cocaine, her
her indictment
indictment was
was on
on four
four counts
counts of
of tampering
tampering with
with

evidence,
evidence, four
four counts
counts of
of stealing
stealing cocaine
cocaine from
from the
the lab,
lab, and
and two
two counts
counts of
of unlawful
unlawful possession
possession of
of

cocaine.
cocaine. Commonwealth
Commonwealth v.
v. Ware,
Ware, 471
471 Mass.
Mass. 85,
85, 88
88 (2015).26
(2015).26 The
The indictments
indictments were
were transferred
transferred

to
to Hampshire
Hampshire County
County Superior
Superior Court,
Court, where
where Farak
Farak was
was arraigned
arraigned on
on April
April 22,
22, 2013.
2013. Kaczmarek
Kaczmarek

appeared
appeared for
for the
the AGO
AGO and
and Attorney
Attorney Elaine
Elaine Pourinski
Pourinski appeared
appeared for
for Farak.
Farak.

26
26
At
At some
some point
point while
while Superior
Superior Court
Court proceedings
proceedings were
were underway
underway with
with respect
respect to
to these
these indictments,
indictments, four
four
additional
additional cases
cases surfaced
surfaced in
in which
which itit seemed,
seemed, based
based on
on retesting,
retesting, that
that Farak
Farak had
had stolen
stolen and
and tampered
tampered with
with police-
police-
submitted
submitted cocaine
cocaine samples
samples between
between JuneJune 15,
15, 2012,
2012, and
and October
October 10,
10, 2012.
2012. Commonwealth
Commonwealth v. v. Ware,
Ware, 471
471 Mass.
Mass. at
at
88.
88. Farak
Farak was
was not
not charged
charged with
with respect
respect to
to those
those four
four additional
additional cases.
cases. Id.
Id. at
at 88-89.
88-89.

41
41
 Add. 59
Add.59
Add:59

0. Kaczmarek
0. Kaczmarek Told
Told Pourinski
Pourinski That
That Mental
Mental Health
Health Worksheets
Worksheets Would
Would Not
Not Be
Be Given
Given to
to
Drug Lab
Drug Lab Defendants
Defendants

On April
On April 22,
22, 2013,
2013, Pourinski
Pourinski received
received from
from Kaczmarek
Kaczmarek aa certificate
certificate of
of discovery
discovery and
and

discovery materials
discovery materials on
on CDs,
CDs, including
including the
the mental
mental health
health worksheets
worksheets in
in which
which Farak
Farak admitted
admitted to
to

using drugs.
using drugs. Subsequently,
Subsequently, most
most likely
likely in
in the
the summer
summer of
of 2013,
2013, Kaczmarek
Kaczmarek informed
informed Pourinski
Pourinski at
at

the Hampshire
the Hampshire Superior
Superior Court
Court that
that the
the AGO
AGO considered
considered the
the mental
mental health
health worksheets
worksheets to
to be
be

privileged and
privileged and that
that the
the AGO
AGO was
was not
not going
going to
to turn
turn them
them over
over to
to the
the drug
drug lab
lab defendants.
defendants.

(Pourinski 21-22).27
(Pourinski 21-22).27

I find
find that
that by
by the
the summer
summer of
of 2013,
2013, Kaczmarek
Kaczmarek had
had determined
determined that
that the
the AGO
AGO was
was not
not

going to
going to give
give the
the mental
mental health
health worksheets
worksheets to
to the
the drug
drug lab
lab defendants.
defendants. Kaczmarek
Kaczmarek was
was accorded
accorded

significant deference
significant deference in
in leading
leading the
the Farak
Farak prosecution.
prosecution. She
She had
had the
the trust
trust of
of her
her superiors
superiors and
and she
she

circumscribed the
circumscribed the scope
scope of
of Ballou's
Ballou's investigation
investigation into
into Farak's
Farak's misconduct.
misconduct. As
As explained
explained below,
below,

Kaczmarek's view
Kaczmarek's view and
and statements
statements largely
largely controlled
controlled the
the AGO's
AGO's responses
responses to
to the
the drug
drug lab
lab

defendants' discovery
defendants' discovery motions
motions insofar
insofar as
as that
that discovery
discovery would
would have
have led
led to
to the
the mental
mental health
health

worksheets.
worksheets.

P. Drug
P. Drug Lab
Lab Defendants'
Defendants' Discovery
Discovery Motions
Motions And
And Scheduling
Scheduling of
of Consolidated
Consolidated
Evidentiary Hearing
Evidentiary Hearing

While Farak's
While Farak's prosecution
prosecution was
was pending,
pending, drug
drug lab
lab defendants
defendants whose
whose certificates
certificates of
of

analysis had
analysis had been
been signed
signed by
by Farak
Farak filed
filed motions
motions for
for post-conviction
post-conviction relief
relief and
and discovery.
discovery. One
One of
of

those defendants,
those defendants, Penate,
Penate, had
had not
not yet
yet been
been tried
tried and
and had
had moved
moved for
for discovery.
discovery. On
On May
May 14,
14, 2013,
2013,

Pourinski could
27Pourinski
27 could not
not recall
recall the
the exact
exact date
date ofof this
this exchange,
exchange, butbut testified
testified that
that itit occurred
occurred in
in the
the Northampton
Northampton
courthouse just
courthouse just after
after 22 p.m.
p.m. while
while waiting
waiting forfor aa conference,
conference, not not the
the plea
plea hearing.
hearing. (Pourinski
(Pourinski 36).36). The
The docket
docket sheet
sheet in
in
Farak's case,
Farak's case, HSCR13-00061,
HSCR13-00061, discloses
discloses that,
that,apart
apartfrom
fromthethearraignment
arraignmentand andplea
pleachange
changehearing,
hearing,court
courtevents
events
occurred only
occurred only on
on June
June 24,
24, 2013,
2013, for
for aa hearing
hearing on on discovery
discoverymotions,
motions,ononAugust
August26, 26,2013,
2013,for foraapre-trial
pre-trialhearing,
hearing,and
and
on December
on December23, 23,2013,
2013,ononaamotion
motionto torevoke
revokebail.
bail.

42
42
 Add. 60
Add.60
Add:60

Penate
Penate moved
moved to
to compel
compel discovery
discovery of
of items
items relating
relating to
to Farak's
Farak's arrest
arrest and
and prosecution.
prosecution. The
The

discovery
discovery was
was not
not forthcoming.
forthcoming. On
On July
July 15,
15, 2013,
2013, Penate
Penate moved
moved to
to dismiss
dismiss most
most of
of the
the

indictments
indictments against
against him
him based
based in
in part
part upon
upon the
the government's
government's noncompliance
noncompliance with
with its
its obligation
obligation

to
to turn
turn over
over evidence
evidence requested
requested by
by the
the defense.
defense. On
On July
July 22,
22, 2013,
2013, Judge
Judge Mary-Lou
Mary-Lou Rup
Rup heard
heard

that
that motion,
motion, determined
determined that
that in
in order
order to
to rule
rule upon
upon it,
it, an
an evidentiary
evidentiary hearing
hearing was
was necessary
necessary

regarding
regarding the
the scope
scope of
of Farak's
Farak's misconduct,
misconduct, and
and she
she reminded
reminded the
the Hampden
Hampden District
District Attorney's
Attorney's

office
office of
of its
its

"obligation
"obligation to
to seek
seek [evidence]
[evidence] from
from government
government agencies
agencies (including
(including the the Office
Office of
of the
the
Attorney
Attorney General)
General) and
and to
to produce
produce exculpatory
exculpatory evidence
evidence that
that may
may be be favorable
favorable to
to this
this
defendant's
defendant's case,
case, and
and not
not simply
simply turn
turn aa blind
blind eye
eye to
to what
what is
is not
not in
in its
its immediate
immediate control."
control."

At
At that
that point,
point, neither
neither the
the drug
drug lab
lab defendants,
defendants, the
the district
district attorneys,
attorneys, nor
nor Judge
Judge Rup
Rup knew
knew that
that the
the

AGO
AGO possessed
possessed the
the mental
mental health
health worksheets
worksheets but
but had
had not
not turned
turned them
them over
over to
to the
the district
district

attorneys.
attorneys.

On
On July
July 25,
25, 2013,
2013, Judge
Judge Kinder
Kinder consolidated
consolidated 16
16 unrelated
unrelated post-conviction
post-conviction Farak
Farak cases
cases

involving
involving 15
15 defendants'
defendants' for
for an
an evidentiary
evidentiary hearing
hearing to
to be
be conducted
conducted on
on September
September 9,
9, October
October 7,
7,

and
and October
October 23,
23, 2013.
2013. Judge
Judge Kinder
Kinder limited
limited the
the hearing
hearing to:
to: (1)
(1) the
the timing
timing and
and scope
scope of
of Farak's
Farak's

misconduct;
misconduct; (2)
(2) the
the timing
timing and
and scope
scope of
of the
the negative
negative findings
findings in
in the
the MSP's
MSP's October
October 2012
2012 quality
quality

assurance
assurance audit
audit of
of the
the Amherst
Amherst lab;
lab; and
and (3)
(3) how
how the
the alleged
alleged criminal
criminal conduct
conduct and
and audit
audit findings
findings

might
might have
have impacted
impacted the
the drug
drug testing
testing in
in the
the drug
drug lab
lab defendants'
defendants' cases.
cases.

Judge
Judge Kinder
Kinder designated
designated as
as lead
lead counsel
counsel for
for the
the defendants
defendants Attorneys
Attorneys Luke
Luke Ryan
Ryan and
and

28
28
The
The cases
cases consolidated
consolidated for
for purposes
purposes ofof that
that evidentiary
evidentiary hearing
hearing were
were those
those of
of Jose
Jose Garcia
Garcia (0679CR0064),
(0679CR0064),
Erick
Erick Cotto
Cotto (0779CR0770),
(0779CR0770), Jermaine
Jermaine Watt
Watt (0979CR1068
(0979CR1068 & & 0979CR1069),
0979CRI 069), Alfred
Alfred Andrews
Andrews (1079CR1060),
(1079CR1060), Rafael
Rafael
Rodriguez
Rodriguez (1079CR1181),
(1079CR1181), Emilio
Emilio Martinez
Martinez (1079CR1220),
(1079CR1220), OmarOmar Harris
Harris (1079CR1233),
(1079CR1233), Hector
Hector Vargas
Vargas
(1179CR0290),
(1179CR0290), Deon
Deon Charles
Charles (1179CR0461),
(1179CR0461), Marie
Marie Vargas
Vargas (1179CR0801),
(1179CR0801), William
William Guzman
Guzman (1279CR00055),
(1279CR00055),
Jorge
Jorge Diaz
Diaz (1279CR0365),
(1279CR0365), Kathleen
Kathleen Carter
Carter (1079CR0115),
(1079CR0115), JoseJose Torres
Torres (1079CR0554),
(1079CR0554), and and Nathan
Nathan Berube
Berube
(1179CR0355).
(1179CR0355).

43
43
 Add. 61
Add.61
Add:61

Jared
Jared Olanoff.
Olanoff. The
The Commonwealth
Commonwealth and
and Penate,
Penate, then
then in
in pre-trial
pre-trial proceedings,
proceedings, agreed
agreed that
that the
the

evidence
evidence to
to be
be taken
taken in
in the
the consolidated
consolidated evidentiary
evidentiary hearing
hearing would
would be
be used
used to
to resolve
resolve Penate's
Penate's

motion
motion to
to dismiss,
dismiss, upon
upon which
which Judge
Judge Kinder
Kinder conducted
conducted an
an additional
additional hearing
hearing on
on October
October 2,
2,

2013.
2013.

Q.
Q. Drug
Drug Lab
Lab Discovery
Discovery (August
(August through
through October
October 2013)
2013)

In
In August
August through
through October
October of
of 2013,
2013, the
the drug
drug lab
lab defendants
defendants sought
sought discovery
discovery through
through

multiple
multiple avenues,
avenues, including:
including: (1)
(1) subpoenas
subpoenas duces
duces tecum
tecum served
served on
on Ballou
Ballou (in
(in Penate
Penate and
and Watt
Watt

cases);
cases); (2)
(2) aa subpoena
subpoena duces
duces tecum
tecum served
served on
on Kaczmarek
Kaczmarek (in
(in the
the Penate
Penate case);
case); (3)
(3) aa motion
motion by
by

Penate
Penate and
and Rodriguez
Rodriguez to
to inspect
inspect the
the evidence
evidence seized
seized from
from Farak's
Farak's car;
car; (4)
(4) aa motion
motion by
by Penate
Penate to
to

compel
compel the
the AGO
AGO to
to produce,
produce, inter
inter alia,
alia, inter
inter and
and intra-office
intra-office correspondence
correspondence relating
relating to
to the
the

scope
scope of
of Farak's
Farak's misconduct;
misconduct; and
and (5)
(5) Rodriguez's
Rodriguez's motion
motion for
for discovery
discovery of
of evidence
evidence that
that aa third
third

party
party had
had knowledge
knowledge of
of Farak's
Farak's alleged
alleged malfeasance
malfeasance prior
prior to
to her
her arrest.'
arrest.'

1.
1. Subpoenas
Subpoenas Duces
Duces Tecum
Tecum to
to Ballou
Ballou

On
On August
August 22,
22, 2013,
2013, Ballou
Ballou and
and Kaczmarek
Kaczmarek received
received subpoenas
subpoenas duces
duces tecum
tecum in
in the
the

Penate
Penate case.
case. The
The subpoenas
subpoenas commanded
commanded the
the production
production of
of "Copies
"Copies of
of any
any and
and all
all inter-office
inter-office

correspondence
correspondence pertaining
pertaining to
to the
the scope
scope of
of evidence
evidence tampering
tampering and/or
and/or deficiencies
deficiencies at
at the
the Amherst
Amherst

Drug
Drug Laboratory
Laboratory from
from January
January 18,
18, 2013,
2013, to
to the
the present."
present." (Exhs.
(Exhs. 198,
198, 199).
199).

In
In late
late August
August of
of 2013,
2013, Ballou
Ballou also
also received
received aa subpoena
subpoena in
in the
the Watt
Watt case
case (0979CR1068)
(0979CR1068)

summonsing
summonsing him
him to
to appear
appear and
and testify
testify at
at the
the evidentiary
evidentiary hearing
hearing beginning
beginning on
on September
September 9th,
9th,

29
29
Although
Although Rodriguez
Rodriguez isis deceased
deceased and
and the
the Commonwealth
Commonwealth no no longer
longer opposes
opposes the
the dismissal
dismissal of
of the
the Watt
Watt
case,
case, at
at issue
issue isis whether
whether the
the AGO's
AGO's response
response toto discovery
discovery requests
requests in
in 2013
2013 were
were part
part of
of aa pattern
pattern of
of conduct
conduct toto shield
shield
the
the mental
mental health
health worksheets
worksheets from
from thethe drug
drug lab
lab defendants.
defendants. Therefore,
Therefore, thethe discovery
discovery proceedings
proceedings inin the
the Rodriguez
Rodriguez
and
and Watt
Watt cases
cases areare pertinent.
pertinent.

44
44
 Add. 62
Add.62
Add:62

and
and to
to bring
bring with
with him
him "all
"all documents
documents and
and photographs
photographs pertaining
pertaining to
to the
the investigation
investigation of
of Sonja
Sonja J.J.

Farak
Farak and
and the
the Amherst
Amherst Drug
Drug Laboratory."
Laboratory." (Exh.
(Exh. 183).
183). That
That subpoena
subpoena had
had the
the force
force of
of aa court
court

order
order to
to Ballou
Ballou to
to bring
bring to
to court
court on
on September
September 9th
9th all
all documents
documents pertaining
pertaining to
to the
the Farak
Farak

investigation.
investigation. Among
Among the
the documents
documents responsive
responsive to
to the
the subpoenas
subpoenas to
to Ballou
Ballou and
and Kaczmarek
Kaczmarek were
were

copies
copies of
of the
the mental
mental health
health worksheets
worksheets as
as scanned
scanned and
and sent
sent by
by Ballou
Ballou in
in his
his email
email dated
dated February
February

14,
14, 2013,
2013, which
which email
email and
and attachments
attachments became
became aa part
part of
of Ballou's
Ballou's and
and Kaczmarek's
Kaczmarek's files.
files.

Verner
Verner and
and Ravitz,
Ravitz, with
with agreement
agreement by
by Reardon,
Reardon, assigned
assigned AAG
AAG Kris
Kris Foster
Foster the
the job
job of
of

preparing
preparing and
and filing
filing motions
motions to
to quash
quash the
the subpoenas
subpoenas and
and arguing
arguing motions
motions before
before Judge
Judge Kinder
Kinder on
on

September
September 9,
9, 2013.
2013. (Ravitz
(Ravitz 13;
13; Foster
Foster 13-14;
13-14; Reardon
Reardon 211).
211). Foster
Foster had
had just
just begun
begun her
her

employment
employment with
with the
the AGO
AGO in
in July
July of
of 2013
2013 after
after working
working as
as an
an ADA
ADA for
for several
several years.'
years.' In
In late
late

August
August 2013,
2013, Ravitz
Ravitz met
met with
with Foster
Foster to
to go
go through
through the
the steps
steps of
of preparing
preparing motions
motions to
to quash.
quash.

Ravitz
Ravitz does
does not
not recall
recall telling
telling Foster
Foster to
to review
review the
the files.
files. (Ravitz
(Ravitz 50-51).
50-51).

The
The fundamental
fundamental first
first step
step in
in preparing
preparing aa motion
motion to
to quash,
quash, after
after reading
reading the
the subpoena,
subpoena, is
is

to
to examine
examine the
the materials
materials sought.
sought. Foster
Foster should
should have
have collected
collected the
the files
files from
from Ballou
Ballou and
and

Kaczmarek,
Kaczmarek, reviewed
reviewed their
their contents,
contents, and
and either
either asked
asked Ballou
Ballou and
and Kaczmarek
Kaczmarek to
to find
find responsive
responsive

documents
documents in
in their
their emails
emails or
or she
she ought
ought to
to have
have asked
asked the
the IT
IT department
department to
to check
check electronically
electronically

stored
stored information
information (ESI)
(ESI) to
to see
see what
what evidence
evidence responsive
responsive to
to the
the subpoenas
subpoenas existed.
existed. (Reardon
(Reardon

177).
177). Had
Had Foster
Foster reviewed
reviewed either
either of
of their
their files
files or
or the
the physical
physical evidence
evidence or
or had
had she
she arranged
arranged for
for

IT
IT to
to check
check Ballou's
Ballou's and
and Kaczmarek's
Kaczmarek's ESI,
ESI, Foster
Foster would
would have
have seen
seen the
the mental
mental health
health worksheets.
worksheets.

(a)
(a) AGO
AGO Communications
Communications Regarding
Regarding Ballou
Ballot' Subpoenas
Subpoenas

The Ballou
The Ballou subpoenas
subpoenas prompted
prompted aa flurry
flurry of
of emails
emails and
and meetings
meetings in
in the
the AGO
AGO before
before and
and

30
30
Foster
Foster left
left the
the AGO
AGO in
in February
February of
of 2015.
2015.

45
45
 Add. 63
Add.63
Add:63

after
after the
the September
September 9th
9th hearing.
hearing. On
On Tuesday,
Tuesday, September
September 3,
3, 2013,
2013, at
at 8:42
8:42 a.m.,
a.m., Kaczmarek
Kaczmarek

emailed Ravitz
emailed Ravitz and
and Reardon,
Reardon, and
and copied
copied Verner,
Verner, informing
informing them
them that,
that, "This
"This is
is the
the subpoena
subpoena we
we

were
were expecting."
expecting." Minutes
Minutes later,
later, Kaczmarek
Kaczmarek continued,
continued,

"[I
"[I am
am told]
told] that
that the
the judge
judge wants
wants to
to come
come to
to the
the bottom
bottom of
of the
the issues
issues mentioned
mentioned below,
below,
making itit unlikely
making unlikely hehe will
will allow
allow aa motion
motion to
to quash.
quash. As
As long
long as
as the
the judge
judge has
has set
set up
up the
the
scope
scope of
of the
the motion,
motion, and
and II am
am confident
confident that
that Ballou
Ballou will
will be
be pretty
pretty unhelpful
unhelpful in
in what
what the
the
judge
judge is
is trying
trying to
to do,
do, do
do we
we just
just let
let Ballou
Ballou go?"
go?"

An
An hour
hour later,
later, Ravitz
Ravitz emailed
emailed Irwin,
Irwin, Mazzone,
Mazzone, Reardon,
Reardon, and
and Meghan
Meghan Scafati,
Scafati, Verner's
Verner's

administrative
administrative assistant,
assistant, to
to set
set up
up aa meeting
meeting regarding
regarding the
the subpoena
subpoena to
to Ballou.
Ballou. Ravitz
Ravitz wrote,
wrote,

"One
"One thing
thing we
we can
can talk
talk about
about is
is that
that sometimes,
sometimes, even
even ifif we
we can't
can't quash
quash the
the subpoena,
subpoena, we
we will
will get
get

its
its scope
scope limited,
limited, so
so as
as to
to preclude
preclude certain
certain types
types of
of questions."
questions." (Irwin
(Irwin 131).
131).

(b)
(b) Foster
Foster Was
Was Told
Told That
That She
She Did
Did Not
Not Need
Need to
to See
See Ballou
Ballou File
File

On September
On September 3,
3, 2013,
2013, Foster
Foster met
met with
with her
her superiors
superiors regarding
regarding the
the Ballou
Ballou subpoena.
subpoena.

(Foster
(Foster 43-44).
43-44). This
This was
was the
the first
first in
in aa series
series of
of five
five to
to fifteen
fifteen minute
minute meetings
meetings in
in Verner's
Verner's office
office

about the
about the Farak
Farak discovery.
discovery. When
When asked
asked about
about that
that meeting,
meeting, Foster
Foster testified,
testified,

"I don't
"I don't remember
remember much
much more more other
other than
than being
being told
told II didn't
didn't need
need toto see
see the
the file,
file, that
that
there
there was
was nothing
nothing in
in it.
it. This
This was
was before
before the
the September
September 9th 9th hearing,
hearing, but
but II don't
don't remember
remember
what
what the
the date
date was.
was. [I
[I remember]
remember] beingbeing told
told that
that everything
everything had had been
been turned
turned over,
over, there's
there's
no
no need
need to
to see
see the
the trial
trial file.
file. It
It was
was an
an ongoing
ongoing prosecution
prosecution so so II should
should just
just go
go with
with that."
that."

(Foster
(Foster 87).
87). Foster
Foster took
took this
this to
to mean
mean that
that she
she should
should "take
"take them
them for
for their
their word
word that
that everything
everything

had
had been
been turned
turned over.
over. They
They were
were my
my superiors,
superiors, so
so that's
that's what
what II did."
did." (Foster
(Foster 87-88).
87-88). Although
Although

Foster did
Foster did not
not say
say that
that Kaczmarek
Kaczmarek attended
attended that
that meeting,
meeting, Foster
Foster testified
testified that
that at
at some
some point,
point,

"Kaczmarek told
"Kaczmarek told me
me that
that those
those documents,
documents, she
she didn't
didn't want
want turned
turned over,
over, she
she didn't
didn't want
want produced,
produced,

they'd already
they'd already --everything
--everything had
had been
been produced."
produced." (Foster
(Foster 16).
16). Kaczmarek
Kaczmarek testified
testified that
that when
when

Ballou
Ballou received
received his
his subpoena
subpoena duces
duces tecum,
tecum, "at
"at that
that time
time II don't
don't know
know ifif II even
even realized
realized that
that those
those

46
46
 Add. 64
Add.64
Add:64

worksheets
worksheets hadn't
hadn't been
been turned
turned over."
over." (Kaczmarek
(Kaczmarek 182-183).
182-183). She
She contradicted
contradicted herself,
herself, however,
however,

as
as she
she also
also testified
testified that
that she
she would
would not
not have
have told
told Foster
Foster in
in September
September 2013
2013 that
that everything
everything in
in her
her

file
file had
had already
already been
been disclosed
disclosed because
because "I
"I think
think that
that II knew
knew the
the mental
mental health
health records
records hadn't
hadn't been
been

disclosed
disclosed up
up until
until that
that point."
point." (Kaczmarek
(Kaczmarek 133).
133). II find
find that
that Kaczmarek
Kaczmarek intentionally
intentionally gave
gave

Foster,
Foster, Reardon,
Reardon, at
at least
least one
one ADA,
ADA, and
and likely
likely her
her supervisors,
supervisors, the
the misimpression
misimpression that
that everything
everything

in
in Ballou's
Ballou'sfile
filehad
hadbeen
beenturned
turnedover
overtotothe
theDistrict
DistrictAttorneys'
Attorneys'Offices
Offices31 'Kaczmarek
Kaczmarek was
was

accorded
accorded and
and exerted
exerted significant
significant control
control over
over the
the Farak
Farak matters,
matters, including
including discovery,
discovery, the
the scope
scope of
of

the
the AGO's
AGO's investigation,
investigation, and
and the
the prosecution
prosecution of
of Farak.
Farak.

Foster
Foster never
never reviewed
reviewed the
the evidence
evidence sought
sought under
under any
any of
of the
the subpoenas
subpoenas or
or discovery
discovery

motions
motions in
in the
the Farak
Farak matter.
matter. There
There is
is no
no merit
merit to
to her
her excuse
excuse that
that she
she made
made no
no independent
independent

decisions
decisions about
about this
this case
case because
because the
the AGO
AGO protocol
protocol gave
gave line
line AAGs
AAGs like
like herself
herself very
very little
little

discretion.
discretion. (Foster
(Foster 91-92).
91-92). Foster
Foster chose
chose to
to follow
follow instructions
instructions and
and information
information received
received from
from

Kaczmarek
Kaczmarek while
while ignoring
ignoring established
established protocol,
protocol, common
common sense,
sense, and,
and, as
as explained
explained below,
below,

subsequent
subsequent unambiguous
unambiguous directives
directives from
from her
her superior,
superior, Reardon,
Reardon, and
and more
more importantly
importantly court
court

orders
orders from
from Judge
Judge Kinder.
Kinder.

(c)
(c) Foster's
Foster's Preparation
Preparation of
of Motions
Motions to
to Quash
Quash

31
31
0n
On October
October 2,
2, 2013,
2013, Berkshire
Berkshire ADA
ADA John
John Bosse
Bosse opposed
opposed drug
drug lab
lab defendants'
defendants' discovery
discovery requests
requests on
on the
the
grounds
grounds that
that Kaczmarek
Kaczmarek hadhad told
told him
him that
that the
the AGO
AGO hadhad provided
provided the
the Berkshire
Berkshire District
District Attorney's
Attorney's Office
Office all
all relevant
relevant
discovery
discovery from
from the
the Farak
Farak investigation.
investigation. Bosse
Bosse told
told defense
defense counsel:
counsel:

"On
"On September
September 4, 4, 2013,
2013, AAG
AAG Anne
Anne Kaczmarek
Kaczmarek informed
informed me me that
that all
all relevant
relevant discovery
discovery from
from the
the Farak
Farak
prosecution
prosecution has has been
been provided
provided to
to the
the Berkshire
Berkshire District
District Attorney's
Attorney's Office.
Office. Thus,
Thus, thethe Commonwealth
Commonwealth would would
object
object to to the
the additional
additional discovery
discovery inquiries
inquiries on
on the
the grounds
grounds that
that the
the AAG
AAG has has released
released all
all relevant
relevant discovery
discovery
in
in the
the Farak
Farak prosecution."
prosecution."

(Exh.
(Exh. 179).
179). II find
find that
that Kaczmarek
Kaczmarek made
made those
those misrepresentations
misrepresentations to
to ADA
ADA Bosse
Bosse just
just as
as she
she had
had made
made them
them to
to Foster
Foster
and
and Reardon.
Reardon.

47
47
 Add. 65
Add.65
Add:65

From September
From September 3rd
3rd to
to 6th,
6th, 2013,
2013, Foster
Foster prepared
prepared the
the motion
motion to
to quash
quash the
the Ballou
Ballou

subpoena in
subpoena in the
the Watt
Watt case.
case. To
To guide
guide her,
her, Ravitz
Ravitz gave
gave Foster
Foster aa sample
sample motion
motion which
which sought
sought

relief from
relief from the
the obligation
obligation to
to produce
produce information
information concerning
concerning the
the psychological
psychological treatment
treatment of
of

individuals. Foster
individuals. Foster incorporated
incorporated that
that language
language in
in the
the final,
final, filed
filed version
version of
of the
the motion
motion to
to quash.
quash.

In another
In another case,
case, Foster
Foster copied
copied the
the same
same language
language in
in aa draft
draft but
but Ravitz
Ravitz instructed
instructed her
her to
to delete
delete itit

because itit was

because was irrelevant
irrelevant and
and to
to tailor
tailor her
her arguments
arguments to
to the
the types
types of
of information
information claimed
claimed to
to be
be

protected. (Foster
protected. (Foster 50-51).
50-51).

Foster's draft
Foster's draft motion
motion to
to quash
quash Watt's
Watt's subpoena
subpoena to
to Ballou
Ballou argued
argued that
that the
the documents
documents and
and

information sought
information sought were
were privileged
privileged because
because there
there was
was an
an ongoing
ongoing investigation
investigation and/or
and/or because
because

the
the documents
documents were
were protected
protected work
work product.
product. Alternatively,
Alternatively, the
the motion
motion drafted
drafted by
by Foster
Foster sought
sought aa

protective order
protective order to
to restrict
restrict the
the scope
scope of
of the
the subpoena
subpoena by
by not
not requiring
requiring the
the AGO
AGO to
to produce
produce seven
seven

types of
types of information,
information, including
including "emails
"emails responsive
responsive to
to the
the subpoena,
subpoena, but
but not
not already
already contained
contained in
in

the case
the case file
file specifically
specifically listed
listed therein"
therein" and
and "information
"information concerning
concerning the
the health
health or
or medical
medical or
or

psychological treatment
psychological treatment of
of individuals."
individuals." Foster
Foster later
later used
used this
this exact
exact language
language in
in drafts
drafts approved
approved

by Ravitz
by Ravitz in
in several
several memoranda
memoranda aimed
aimed at
at limiting
limiting discovery
discovery in
in the
the Penate
Penate case.'
case.' This
This wording
wording

and these
and these grounds
grounds were
were not
not inadvertent
inadvertent but
but deliberately
deliberately intended
intended to
to relieve
relieve the
the AGO
AGO from
from having
having

to produce
to produce the
the mental
mental health
health worksheets.
worksheets.

Foster had
Foster had no
no reasonable
reasonable basis
basis to
to believe
believe that
that any
any of
of these
these arguments
arguments had
had merit.
merit. She
She had
had

not seen
not seen the
the evidence
evidence and
and was
was therefore
therefore unable
unable to
to determine
determine what
what itit was
was and
and whether
whether the
the drug
drug

lab defendants
lab defendants already
already had
had obtained
obtained what
what they
they were
were requesting.
requesting. The
The second
second basis,
basis, that
that the
the

32
Thosewritings
'2Those writingsasked
askedthe
thecourt
courtto
toquash
quashsummonses
summonseson
onBallou
Ballouand
andKaczmarek
Kaczmarek (two
(two each)
each) and
and sought
sought
clarification of
clarification of Judge
Judge Kinder's
Kinder's October
October 2,
2, 2013,
2013, order.
order.

48
48
 Add. 66
Add.66
Add:66

documents
documents were
were privileged,
privileged, was
was questioned
questioned even
even by
by Kaczmarek
Kaczmarek in
in the
the prosecution
prosecution memo,
memo, and
and in
in

any event
any event could
could not
not have
have been
been evaluated
evaluated by
by Foster
Foster without
without her
her having
having seen
seen the
the evidence.
evidence.

Equally untenable
Equally untenable was
was Foster's
Foster's third
third argument
argument for
for quashing
quashing the
the subpoena.
subpoena. When
When pressed
pressed to
to

explain during
explain during the
the December
December 2016
2016 evidentiary
evidentiary hearing
hearing why
why an
an ongoing
ongoing investigation
investigation constituted
constituted

grounds for
grounds for quashing
quashing the
the subpoena,
subpoena, Foster's
Foster's illogical
illogical response
response had
had nothing
nothing to
to do
do with
with any
any

investigation, but
investigation, but instead
instead was
was that
that Kaczmarek
Kaczmarek did
did not
not want
want the
the documents
documents to
to be
be produced
produced and
and

that
that they
they had
had already
already been
been turned
turned over.
over. (Foster
(Foster 16).
16).

On
On September
September 5th,
5th, Foster
Foster asked
asked Reardon
Reardon to
to review
review her
her draft
draft motion
motion to
to quash.
quash. Reardon
Reardon

testified
testified that
that she
she learned
learned from
from reading
reading that
that draft
draft that
that the
the AGO
AGO possessed
possessed psychological
psychological or
or

medical
medical documents
documents which
which itit sought
sought to
to shield
shield from
from discovery
discovery by
by claiming
claiming that
that they
they were
were protected
protected

by
by aa privilege
privilege against
against disclosing
disclosing information
information related
related to
to psychological
psychological or
or medical
medical treatment.
treatment.

Reardon never
Reardon never saw
saw the
the mental
mental health
health work
work sheets.
sheets. (Reardon
(Reardon 175-176).
175-176). II find
find Reardon
Reardon credible
credible

and
and credit
credit her
her testimony.
testimony.

Reardon
Reardon returned
returned Foster's
Foster's draft
draft with
with instructions
instructions that
that she
she review
review the
the Ballou
Ballou file
file pertinent
pertinent

to
to the
the Farak
Farak matter
matter and
and obtain
obtain more
more information
information about
about what
what had
had been
been turned
turned over
over already
already to
to the
the

drug
drug lab
lab defendants.
defendants. Where
Where the
the draft
draft represented
represented that
that nearly
nearly all
all of
of the
the documents
documents responsive
responsive to
to

the subpoena
the subpoena would
would constitute
constitute CORI,
CORI, Reardon
Reardon asked
asked Foster
Foster ifif that
that were
were true.
true. Reardon
Reardon noted
noted that
that

she
she would
would be
be more
more comfortable
comfortable knowing
knowing what
what documents
documents were
were at
at issue
issue and
and what
what had
had been
been

turned over
turned over before
before raising
raising the
the CORI
CORI privilege.
privilege. Reardon
Reardon urged
urged Foster
Foster to
to confirm
confirm the
the accuracy
accuracy and
and

truth
truth of
of her
her representations
representations about
about the
the contents
contents of
of the
the documents
documents at
at issue.
issue. (Foster
(Foster 49).
49). When
When

Reardon
Reardon asked
asked Foster
Foster ifif she
she had
had reviewed
reviewed the
the Ballou
Ballou files,
files, Foster
Foster falsely
falsely responded
responded that
that she
she had
had

done
done so.
so. (Reardon
(Reardon 178,
178, 210).
210).

49
49
 Add. 67
Add.67
Add:67

(d) Evidentiary
(d) Evidentiary Hearing
Hearing on
on September
September 9,
9, 2013
2013

At the
At the September
September 9th
9th hearing,
hearing, Judge
Judge Kinder
Kinder denied
denied the
the AGO's
AGO's motion
motion to
to quash
quash the
the

Ballou subpoena
Ballou subpoena in
in the
the Watt
Watt case
case insofar
insofar as
as itit related
related to
to Ballou's
Ballou's testimony
testimony at
at the
the evidentiary
evidentiary

hearing. Judge
hearing. Judge Kinder
Kinder then
then heard
heard Foster's
Foster's request
request for
for aa protective
protective order
order that
that the
the AGO
AGO not
not be
be

required to
required to produce
produce all
all of
of Ballou's
Ballou's file,
file, which,
which, stunningly,
stunningly, neither
neither Ballou
Ballou nor
nor Foster
Foster had
had brought
brought

to the
to the hearing.
hearing.

Judge Kinder:
Judge Kinder: "My
"My first
first question
question is,is, have
have you
you actually
actually personally
personally reviewed
reviewed the the file
file to
to determine
determine
that there
that there are
are categories
categories of of documents
documents inin the
the file
file that
that fit
fit the
the description
description of of those
those
that you
that you wish
wish toto be
be protected?"
protected?"

Foster:
Foster: "I have
"I have been
been talking
talking with
with AAG
AAG Kaczmarek
Kaczmarek who who has
has been
been doing
doing the
the investigation
investigation
for the
for the Attorney
Attorney General's
General's Office.
Office. She
She has
has indicated
indicated that
that several
several documents,
documents,
emails, correspondence,
emails, correspondence, would
would be
be protected
protected under
under work
work product
product mostly."
mostly."

Judge Kinder:
Judge Kinder: "But
"But you
you don't
don't know,
know, having
having never
never even
even looked
looked at
at the
the file,
file, what
what those
those documents
documents
are?"
are?"

Foster:
Foster: "I ---- correct"
"I correct."

Judge Kinder:
Judge Kinder: "There
"There are
are seven
seven subcategories,
subcategories, documents
documents you
you wish
wish to
to have
have protected.
protected. .. .. .. ""

.. • •

Judge Kinder:
Judge Kinder: "First
"First of
of all,
all, can
can II ask
ask you
you whether
whether or
or not
not the
the file
file isis present?"
present?"

Foster:
Foster: "I don't
"I don't believe
believe itit is."
is."

Judge Kinder:
Judge Kinder: "It
"Ithas
hasbeen
beensubpoenaed.
subpoenaed.So Sothere
thereisisaacourt
courtorder
orderthat
thatitit be
be present
present herehere today.
today. II
haven't yet
haven't yet ruled
ruled onon it.
it. My
My advice
advice to to you
you isis to
to get
get that
that file
file here.
here. What
What I'm
I'm going
going
to do
to do with
with respect
respect to to your
your request
request for for aa protective
protective orderorder isis ask
ask you
you toto submit
submit toto me
me
copies of
copies of all
all of
of these
these documents
documents that that you
you believe
believe fit fit into
into one
one of
of these
these categories
categories
that should
that should be be protected.
protected. II will
will review
review itit in in camera,
camera, and and make
make aa determination,
determination,
after hearing
after hearing from
from you,
you, both,
both, all,
all, ifif necessary,
necessary, whether
whether or or not
not itit needs
needs toto be
be
protected further.
protected further. But
But II must
must say
say II amam aa little
little bit
bit disturbed
disturbed that that aa court
court order
order for
for
the production
the production of of aa file
file has
has not
not been
been produced
produced absent
absent aa determination
determination by by me
me as
as to
to
whether itit should
whether should or or should
should not
not bebe produced."
produced."

50
50
 Add. 68
Add.68
Add:68

(Exh.
(Exh.80
809/9/13
9/9/13hrg.
hrg.pp
pp15-
15-19).
19).

Ballou
Balloutook
tookthe
thestand
standduring
duringthe
theSeptember
September9th
9thhearing
hearingand
andwas
wasquestioned
questionedby
byRyan.
Ryan.

Ryan:
Ryan: "Have
"Haveyou
youhad
hadany
anyrole
roleto
toplay
playin
indeciding
decidingwhat
whatdocumentation
documentationisisprovided
providedtotothe
the
defendants
defendantsin
inthis
thiscase?"
case?"

Ballou:
Ballou: "No,I've
"No, I've--everything
--everythingin
inmy
mycase
casefile
filehas
hasbeen
beenturned
turnedover."
over."

Ryan:
Ryan: "And
"Andtotoyour
yourknowledge,
knowledge,[has]
[has]everything
everythingininMs.
Ms.Kaczmarek's
Kaczmarek'scase
casefile
filebeen
been
turned
turnedover?"
over?"

Judge
JudgeKinder:
Kinder:"You're
"You'reasking
askingthis
thiswitness
witnesswhether
whethersomething
somethingin
inMs.
Ms.Kaczmarek's
Kaczmarek'scase
casefile
filehas
has
been
beenturned
turnedover?"
over?"

Atty.
Atty.Ryan:
Ryan:"I'm
"I'mjust
justtrying
tryingto
tofind
findout
outwhat
whatwe wehave
haveand
anddon't
don'thave.
have.And
Andififhe
heknows
knowsthat
that
she's
she'smaintaining
maintainingaafile
filethat
thatreflects
reflectsthe
theinvestigation
investigationthat
thathe
hejust
justreferenced
referencedby
by
MajorConnolly."
Major Connolly."

Judge
JudgeKinder:
Kinder:"If,
"If,for
forsome
somereason
reasonyou
youknow
knowthe
theanswer
answerto
tothat
thatquestion,
question,you
youmay
mayanswer
answerit."
it."

Ballou:
Ballou: "I"Ibelieve
believeeverything
everythingpertaining
pertainingto
tothe
theFarak
Farakinvestigation
investigationhas
hasbeen
beenturned
turnedover.
over.II
amnot
am notaware
awareof
ofanything
anythingelse."
else."

(Exh.
(Exh.80,
80,Trans.
Trans.of
ofHrg.
Hrg.9/9/13,
9/9/13,150-151).
150-151).

During
Duringthe
theDecember
December2016
2016evidentiary
evidentiaryhearing,
hearing,Ballou
Ballouwas
wasasked
askedabout
abouthis
his2013
2013

testimony
testimonythat
thateverything
everythingin
inhis
hisfile
filehad
hadbeen
beenturned
turnedover.
over.In
In2016,
2016,Ballou
Ballousaid
saidthat
thatwhat
whathe
he

meant
meantwas
wasthat
thathe
hehad
hadturned
turnedover
overeverything
everythingin
inhis
hiscase
casefile
fileto
toKaczmarek.
Kaczmarek.(Ballou
(Ballou167,
167,202).
202).II

credit
creditBallou's
Ballou'stestimony
testimonyin
inthis
thisregard.
regard.

After
Afterthe
thelast
lastwitness
witnesshad
hadtestified
testifiedon
onSeptember
September9th,
9th,Foster
Fosterasked
askedJudge
JudgeKinder
Kinderabout
abouthis
his

earlierorder
earlier orderthat
thatshe
sheproduce
producedocuments
documentsfor
forhis
hisinincamera
camerareview.
review.

JudgeKinder:
Judge Kinder:"And
"AndI'm
I'massuming,
assuming,Ms.
Ms.Foster,
Foster,I'm
I'mgoing
goingto
togive
giveyou
youaadeadline
deadlinetotocomply
complywith
with
whatever
whateverother
otherdiscovery
discoveryobligations
obligationsyou
youhave.
have.You
Youhad
hadreferred
referredspecifically
specificallytoto
something
somethingthat
thatyou
youwanted
wantedadditional
additionaltime
timefor.
for.What
Whatwas
wasthat?"
that?"

Foster:
Foster: "You
"Youhad
hadmentioned
mentionedthat
thatyou
youwanted
wantedtotosee
seeall
alldocuments
documentsthat
thatthe
theAttorney
Attorney

51
51
 Add. 69
Add.69
Add:69

General
General believed
believed would
would be
be confidential
confidential or
or privileged
privileged and
and youyou would
would review
review them
them
in camera. And
in camera. And II was
was just
just wondering
wondering the
the scope
scope ofof that,
that, ifif that's
that's --"
--"

Judge
Judge Kinder:
Kinder: "Well,
"Well, obviously,
obviously, II don't
don't want
want to
to see
see what's
what's already
already been
been turned
turned over.
over. ""

Foster:
Foster: "Correct."
"Correct."

Judge
Judge Kinder:
Kinder: "And
"And II don't
don't want
want to
to see
see anything
anything that
that you've
you've agreed
agreed should
should be
be turned
turned over."
over."

Foster:
Foster: "But
"But as
as to
to those
those documents
documents that
that you
you believe
believe are
are somehow
somehow privileged
privileged oror otherwise
otherwise
not
not discoverable,
discoverable, and
and II understand
understand many
many ofof them
them you
you are
are saying
saying you
you don't
don't have,
have, so
so
II had
had assumed,
assumed, based
based onon what
what you
you told
told me
me earlier,
earlier, that
that we
we were
were talking
talking about
about aa
fairly
fairly narrow
narrow universe
universe ofof documents
documents where
where you
you had
had --
-- you
you on
on behalf
behalf of
of the
the
Commonwealth,
Commonwealth, and and the
the Attorney
Attorney General
General had
had anan objection
objection toto turning
turning over
over those
those
documents."
documents."

Foster:
Foster: "It's
"It's --
-- that's
that's correct.
correct. It's
It's just
just language
language of
of the
the subpoena
subpoena was
was for
for all
all documents
documents and
and
photographs
photographs for for the
the whole
whole investigation,
investigation, so
so II was
was wondering
wondering since
since the
the subpoena
subpoena
was
was for
for Sergeant
Sergeant Ballou,
Ballou, thethe documents
documents hehe has
has oror the
the documents
documents the
the Attorney
Attorney
General's
General's Office
Office has?"
has?"

Judge
Judge Kinder:
Kinder: "The
"The subpoena
subpoena duces
duces tecum,
tecum, as
as II understood
understood it,
it, went
went to
to Sergeant
Sergeant Ballou
Ballou and
and that
that
was
was the
the subpoena
subpoena that
that you
you sought
sought toto quash."
quash."

Foster:
Foster: "Correct."
"Correct."

Judge
Judge Kinder:
Kinder: "So
"So that's
that's what
what we
we are
are talking
talking about."
about."

(Exh. 80
(Exh. 80 &
& Foster
Foster 244).
244).

(e)
(e) AGO's
AGO's Follow-Up
Follow-Up To
To Judge
Judge Kinder's
Kinder's Order
Order for
for In
In Camera
Camera Review
Review

On
On September
September 10,
10, 2013,
2013, at
at 9:43
9:43 a.m.,
a.m., Foster
Foster emailed
emailed Verner,
Verner, Kaczmarek,
Kaczmarek, Mazzone,
Mazzone,

Ravitz
Ravitz and
and Reardon
Reardon to
to report
report on
on the
the prior
prior day's
day's hearing.
hearing.

"So
"So at
at yesterday's
yesterday's hearing,
hearing, my
my motion
motion to to quash
quash was
was flat
flat out
out rejected
rejected .. .. .. .. Judge
Judge Kinder
Kinder
has
has given
given usus until
until September
September 18 18 to
to go
go through
through Sergeant
Sergeant Ballou's
Ballou's file
file and
and anything
anything in
in itit we
we
think
think is
is privileged
privileged [and]
[and] shouldn't
shouldn't be be disclosed.
disclosed. We
We havehave to
to give
give itit to
to Judge
Judge Kinder
Kinder to
to
review
review inin camera.
camera. Sergeant
Sergeant Ballou
Ballou only
only testified
testified to
to what
what was
was in
in the
the grand
grand jury,
jury, what
what he he
found
found inin Farak's
Farak's car,
car, work
work station,
station, etc.
etc. Judge
Judge Kinder
Kinder diddid not
not allow
allow anyany kind
kind ofof
questioning
questioning anywhere
anywhere near
near anything
anything privileged."
privileged."

52
52
 Add. 70
Add.70
Add:70

(Exh 20,
(Exh 20, Reardon
Reardon 179-180).
179-180).

Three minutes
Three minutes after
after Foster
Foster sent
sent that
that email,
email, Verner
Verner wrote
wrote to
to the
the group
group and
and asked
asked

Kaczmarek,
Kaczmarek, "Can
"Can you
you get
get aa sense
sense from
from [Ballou]
[Ballou] what
what is
is in
in his
his file,
file, emails,
emails, etc.?"
etc.?" Kaczmarek
Kaczmarek

replied, "[Ballou]
replied, "[Ballou] has
has all
all reports
reports and
and reports
reports generated
generated in
in the
the case,
case, .. .. .. copies
copies of
of the
the paperwork
paperwork

seized from
seized from her
her car
car regarding
regarding news
news articles
articles and
and her
her mental
mental health
health worksheets."
worksheets."

Verner
Verner asked
asked Foster
Foster in
in an
an email
email chain
chain on
on September
September 10,
10, 2013,
2013, "did
"did the
the judge
judge say
say his
his file
file

or
or did
did he
he indicate
indicate [that
[that Ballou]
Ballou] had
had to
to search
search his
his emails,
emails, etc.?"
etc.?" Both
Both of
of Verner's
Verner's questions
questions in
in this
this

thread --
thread -- one
one to
to Kaczmarek
Kaczmarek and
and the
the other
other to
to Foster--specifically
Foster--specifically asked
asked about
about Ballou's
Ballou's emails.
emails, At
At

that
that point,
point, the
the mental
mental health
health worksheets
worksheets were
were both
both within
within Ballou's
Ballou's emails
emails and
and in
in his
his file,
file, as
as the
the

file included
file included Ballou's
Ballou's scanned
scanned and
and emailed
emailed copies
copies of
of the
the mental
mental health
health worksheets.
worksheets.

At
At some
some point
point between
between September
September 10th
10th and
and September
September 16th,
16th, one
one or
or more
more meetings
meetings were
were

held
held in
in Verner's
Verner's office
office to
to discuss
discuss the
the September
September 9th
9th hearing
hearing and
and Judge
Judge Kinder's
Kinder's order
order to
to produce
produce

all
all purportedly
purportedly privileged
privileged documents
documents sought
sought pursuant
pursuant to
to the
the Ballou
Ballou subpoena.
subpoena. At
At the
the first
first

meeting
meeting after
after the
the September
September 9th
9th hearing
hearing were
were Verner,
Verner, Ravitz,
Ravitz, Mazzone,
Mazzone, Kaczmarek
Kaczmarek and
and

Reardon. (Reardon
Reardon. (Reardon 212).
212). Reardon
Reardon did
did not
not name
name Foster
Foster as
as an
an attendee.
attendee. Reardon
Reardon testified
testified that
that in
in

that
that meeting,
meeting,

"I believe
"I believe we
we were
were asking
asking [Kaczmarek]
[Kaczmarek] about
about what
what was
was inin Sergeant
Sergeant Ballou's
Ballou's file,
file, and
and
whether she
whether she knew
knew what
what had
had already
already been
been turned
turned over
over from
from that
that file.
file. And
And II believe
believe mymy
memory is
memory is that
that [Kaczmarek]
[Kaczmarek] thought
thought that
that everything
everything in
in his
his file,
file, II think,
think, had
had been
been turned
turned
over."
over."

(Reardon 213).
(Reardon 213). During
During that
that meeting,
meeting, Kazcmarek
Kazcmarek deliberately
deliberately misled
misled Verner,
Verner, Ravitz,
Ravitz, Mazzone,
Mazzone,

and
and Reardon
Reardon into
into believing
believing that
that everything
everything in
in Ballou's
Ballou's file,
file, including
including the
the mental
mental health
health

worksheets,
worksheets, had
had been
been turned
turned over
over to
to Flannery.
Flannery. According
According to
to Reardon,
Reardon, itit was
was discussed
discussed at
at that
that

53
53
 Add. 71
Add.71
Add:71

meeting
meeting or
or at
at aa subsequent
subsequent meeting
meeting that
that the
the response
response to
to be
be given
given to
to Judge
Judge Kinder
Kinder would
would be
be the
the

sentence,
sentence, or
or something
something close
close to
to it,
it, that,
that, "After
"After reviewing
reviewing Sergeant
Sergeant Ballou's
Ballou's file,
file, every
every document
document

in
in his
his possession
possession has
has already
already been
been disclosed."
disclosed." (Reardon
(Reardon 213).
213).

On
On September
September 16,
16, 2013,
2013, Foster
Foster responded
responded to
to Judge
Judge Kinder
Kinder with
with aa letter
letter which
which reads
reads as
as

follows:
follows:

"Dear
"Dear Judge
Judge Kinder:
Kinder:
On
On September
September 9, 9, 2013,
2013, pursuant
pursuant to to aa subpoena
subpoena issued
issued byby defense
defense counsel,
counsel, you
you
ordered
ordered the
the Attorney
Attorney General's
General's Office
Office toto produce
produce allall documents
documents in in Sergeant
Sergeant Joseph
Joseph
Ballou's
Ballou's possession
possession that
that the
the Attorney
Attorney General's
General's Office
Office believes
believes toto be
be privileged
privileged byby
September
September 18,18, 2013,
2013, toto be
be reviewed
reviewed by by Your
Your Honor
Honor in in camera.
camera. After
After reviewing
reviewing Sergeant
Sergeant
Ballou's
Ballou's file,
file, every
every document
document in in his
his possession
possession has has been
been disclosed.
disclosed. This
This includes
includes grand
grand
jury
jury minutes
minutes andand exhibits,
exhibits, and
and police
police reports.
reports. Therefore,
Therefore, there
there is
is nothing
nothing for
for the
the Attorney
Attorney
General's
General's Office
Office to
to produce
produce forfor your
your review
review on on September
September 18, 18, 2013.
2013.
Please
Please dodo not
not hesitate
hesitate to
to contact
contact me
me should
should your
your [sic]
[sic] require
require anything
anything further.
further.
Sincerely,
Sincerely,
Kris
Kris C.
C. Foster
Foster
Assistant
Assistant Attorney
Attorney General"
General"

(Exh.
(Exh. 193).
193). At
At the
the December
December 2016
2016 hearing,
hearing, Foster
Foster conceded
conceded that
that the
the wording
wording of
of this
this letter
letter was
was

intentionally
intentionally vague.
vague. (Foster
(Foster 94).
94). She
She testified
testified that
that the
the letter
letter "doesn't
"doesn't say
say II reviewed
reviewed the
the file.
file. ItIt

says,
says,'after
'after reviewing.'
reviewing.' (Emphasis
(Emphasis added).
added). Incredulously,
Incredulously, Foster
Foster testified
testified that
that she
she did
did not
not want
want to
to

misrepresent
misrepresent that
that she
she had
had personally
personally reviewed
reviewed the
the file
file and
and she
she had
had no
no idea
idea who
who had
had reviewed
reviewed it.
it.

(Foster
(Foster 20,
20, 92.
92. 94).
94). This
This letter
letter was
was intended
intended to,
to, and
and did,
did, give
give Judge
Judge Kinder
Kinder the
the false
false impression
impression

that
that Foster
Foster had
had personally
personally reviewed
reviewed Ballou's
Ballou's file.
file. Foster
Foster testified
testified that
that she
she wrote
wrote this
this letter
letter

because,
because, in
in part,
part, "Kaczmarek,
"Kaczmarek, in
in an
an email
email said
said that
that she
she believed
believed everything
everything had
had been
been turned
turned

over."
over." (Foster
(Foster 20)."
20)." The
The docket
docket sheet
sheet in
in the
the Watt
Watt case
case shows
shows that
that after
after Judge
Judge Kinder
Kinder received
received

Foster's
Foster's letter
letter dated
dated September
September 16,
16, 2013,
2013, no
no further
further action
action was
was taken
taken as
as to
to the
the protective
protective order.
order.

33
33
The record contains no email by Kaczmarek representing
'The representing that
that she
she believed
believed that
that everything
everything had
had been
been
turned over.
turned over.

54
54
 Add.
Add:7272
Add.72

During
During the
the October
October 2,
2, 2013,
2013, hearing
hearing in
in the
the Penate
Penate case,
case, Judge
Judge Kinder
Kinder asked
asked Foster
Fosterfollow
follow

up questions
up questions about
about that
that her
her September
September 16th
16thletter.
letter.

Judge
JudgeKinder:
Kinder:"For
"Forexample,
example,you youhave
havefiled
filed----Ms.
Ms.Foster,
Foster,ififyou
youcould
couldstand,
stand,please
please----aamotion
motion
to
to quash
quash the
the subpoena
subpoena issued
issued toto Sergeant
Sergeant Ballou,
Ballou, which
which appears
appears to to be
beidentical
identicalto
to
the
the one
one you
you previously
previously filed
filed expressing
expressing concern
concern about
about the
the contents
contents of of Mr.
Mr. Ballou's
Ballou's
file, only
file, only to
to disclose
disclose to
to me
me that
that you
you hadn't
hadn't reviewed
reviewed the the file;
file; and
and then
then when
when II
asked
asked you
you to
to submit
submit to
to me
me those
those parts
parts of
of the
the file
file that
that you
you were
were objecting
objecting toto
producing,
producing, II received
received aa letter
letter from
from you
you saying
saying that,
that, in
in fact,
fact, the
the entire
entire file
file had
had
already
alreadybeen
beenproduced."
produced."

Foster:
Foster: "It
"It has,
has, Your
Your Honor.
Honor. II mostly
mostly filed
filed this
this motion
motion toto quash
quash because
because there
there isis this
this
outstanding
outstanding subpoena
subpoena for
for Sergeant
Sergeant Ballou
Ballou to
to testify."
testify."

Judge
Judge Kinder:
Kinder: "Do
"Do you
you agree
agree that
that the
the motion
motion isis identical
identical to
to the
the one
one you
you filed
filed in
in the
the other
other case?"
case?"

Foster:
Foster: "I believe
"I believeititis,
is,yes."
yes."

Judge Kinder:
Judge Kinder: "And
"And you,
you, therefore
therefore agree
agree that
that all
all of
of the
the contents
contents of
of Mr.
Mr. Ballou's
Ballou's file
file have
have already
already
been
been turned
turned over?"
over?"

Foster:
Foster: "They
"They have,
have, Your
Your Honor."
Honor."

(Trx.
(Trx. Hrg.
Hrg. 10/2/13
10/2/13 pp 8).
8).

2.
2. Penate
Penate and
and Rodriguez
Rodriguez Motions
Motions to
to Inspect
Inspect Evidence
Evidence

In late
In late August
August 2013,
2013, Ryan
Ryan asked
asked Foster
Foster ifif he
he could
could inspect
inspect the
the evidence
evidence seized
seizedin
inthe
the

Farak
Farak investigation.
investigation. Foster
Foster consulted
consulted Kaczmarek,
Kaczmarek, who
who shot
shot down
down the
the idea.
idea. On
On August
August 30,
30,

Foster replied
Foster replied to
to Ryan
Ryan that
that "because
"because of
of the
the ongoing
ongoing investigation,
investigation, II cannot
cannot give
give you
you access
accessto
tothe
the

mainevidence
main evidenceroom."
room."

On September
On September 3,
3, 2013,
2013, Ballou
Ballou emailed
emailed Irwin
Irwin and
and Kaczmarek
Kaczmarek that
that ADA
ADA Flannery
Flannery wanted
wanted

Ballou to
Ballou to schedule
schedule aa day
day that
that week
week for
for Ryan
Ryan to
to review
review the
the Farak
Farak evidence
evidence before
before the
the September
September

9th hearing.
9th hearing. (Irwin
(Irwin 132).
132). Flannery
Flannery had
had agreed
agreed to
to arrange
arrange for
for Ryan
Ryan to
to view
view the
the evidence
evidenceseized
seized

55
55
 Add. 73
Add.73
Add:73

from
from Farak's
Farak's vehicle.
vehicle. Kaczmarek
Kaczmarek responded,
responded, "No.
"No. This
This is
is still
still an
an open
open criminal
criminal case.
case. II do
do not
not

want
want defense
defense attorneys
attorneys going
going through
through evidence
evidence on
on aa fishing
fishing expedition."
expedition." (Irwin
(Irwin 133).
133). Irwin
Irwin

replied,
replied, "Agreed."
"Agreed."

At
At the
the end
end of
of the
the hearing
hearing on
on September
September 9th,
9th, Ryan
Ryan asked
asked Judge
Judge Kinder
Kinder for
for an
an order
order

granting
granting him
him access
access to
to the
the evidence
evidence seized
seized from
from Farak's
Farak's car.
car. Ryan
Ryan informed
informed Judge
Judge Kinder
Kinder that
that

Flannery
Flannery had
had attempted
attempted to
to facilitate
facilitate such
such an
an inspection
inspection but
but the
the AGO
AGO opposed
opposed it.
it. Judge
Judge Kinder
Kinder

instructed
instructed Ryan
Ryan and
and the
the AGO
AGO to
to work
work something
something out
out and
and that
that ifif that
that were
were unsuccessful,
unsuccessful, Ryan
Ryan

could
could file
file aa motion.
motion.

On
On September
September 11,
11, Ryan
Ryan emailed
emailed Foster
Foster asking
asking ifif there
there had
had been
been any
any decision
decision as
as to
to

whether
whether he
he would
would be
be permitted
permitted to
to view
view the
the evidence
evidence seized
seized from
from Farak's
Farak's car.
car. (Exh.
(Exh. 211,
211, Foster
Foster

66).
66). Foster
Foster responded
responded by
by asking
asking whether
whether Ryan
Ryan wanted
wanted to
to view
view evidence
evidence seized
seized from
from Farak's
Farak's car
car

or
or to
to have
have access
access to
to the
the evidence
evidence locker.
locker. (Foster
(Foster 66).
66). Ryan
Ryan replied
replied on
on September
September 12th
12th that
that he
he

wanted
wanted to
to inspect
inspect the
the evidence
evidence seized
seized from
from the
the car
car and
and from
from Farak's
Farak's drawer
drawer and
and the
the white
white bucket
bucket

at
at the
the lab.
lab. (Foster
(Foster 67).
67). When
When no
no response
response came,
came, on
on September
September 16,
16, 2013,
2013, Ryan
Ryan emailed
emailed Foster
Foster

again
again to
to ask
ask ifif the
the AGO
AGO had
had determined
determined what
what its
its position
position would
would be
be with
with respect
respect to
to his
his request
request to
to

see
see the
the evidence.
evidence. Foster
Foster forwarded
forwarded Ryan's
Ryan's email
email to
to Kaczmarek
Kaczmarek for
for her
her response
response with
with the
the

comment,
comment, "Thoughts?"
"Thoughts?" Kaczmarek
Kaczmarek replied,
replied, "No.
"No. Why
Why is
is that
that evidence
evidence relevant
relevant to
to his
his case?
case? II

really
really don't
don't like
like him."
him." (Exh.
(Exh. 215).
215). Kaczmarek
Kaczmarek had
had already
already determined
determined that
that the
the mental
mental health
health

worksheets
worksheets would
would not
not be
be turned
turned over
over to
to the
the drug
drug lab
lab defendants.
defendants. On
On September
September 17,
17, Foster
Foster

responded
responded to
to Ryan,
Ryan, "Our
"Our position
position is
is that
that viewing
viewing the
the seized
seized evidence
evidence is
is irrelevant
irrelevant to
to any
any case
case

other
other than
than Farak's."
Farak's." (Foster
(Foster 67;
67; Exh.
Exh. 214).
214).

Ryan
Ryan then
then filed
filed aa written
written motion
motion to
to inspect
inspect physical
physical evidence.
evidence. Judge
Judge Kinder
Kinder heard
heard itit on
on

56
56
 Add. 74
Add.74
Add:74

October2,
October 2,2013,
2013,and
andasked
askedFoster,
Foster,"As
"Asaapractical
practicalmatter,
matter,ififMr.
Mr.Ryan
Ryanwere
wereto
toshow
showup
upwith
withhis
his

investigatorand
investigator andsimply
simplysay,
say,IIwould
wouldlike
likean
anopportunity
opportunityto
tophysically
physicallyview,
view,without
withoutphysically
physically

handling
handlingthe
theexhibits,
exhibits,what
whatisisthe
theprejudice
prejudiceto
tothe
theCommonwealth?"
Commonwealth?"Foster
Fosteranswered,
answered,

"I think
"I think the
the problem
problemisisthat
thatthis
thisisisjust
justirrelevant
irrelevantevidence.
evidence.IIthink
thinkthe
theprejudice
prejudicewould
wouldbe
be
the
thefact
factthat
thatevery
everysingle
singledefendant
defendantwho whohas hasever
everhad
hadan
anAmherst
Amherstcase
casewill
willall
allof
ofaasudden
sudden
be
beasking
askingfor
foraccess
accessto
tothe
thelab
lab[sic]
[sic]to tolook
lookat,
at,essentially
essentiallyirrelevant
irrelevantevidence."
evidence."

That
Thatassertion,
assertion,which
whichoriginated
originatedwith
withKaczmarek,
Kaczmarek,was
waspatently
patentlyfalse.
false.Kaczmarek
Kaczmarekknew
knewthat
thatthe
the

mental
mentalhealth
healthworksheets
worksheetswere
wererelevant
relevantto
tothe
thePenate
Penatecase.
case.As
Asearly
earlyas
asFebruary
February14,
14,2013,
2013,some
some

seven
sevenmonths
monthsearlier,
earlier,Ballou
Ballouhad
hadalerted
alertedKaczmarek
Kaczmarekto
toFarak's
Farak's"admissions"
"admissions"contained
containedin
inthe
the

mentalhealth
mental healthworksheets.
worksheets.Foster
Fosterhad
hadnot
notseen
seenthe
theevidence
evidenceand
andtherefore
thereforehad
hadno
nobasis
basisupon
upon

whichto
which totell
tellJudge
JudgeKinder
Kinderthat
thatititwas
wasirrelevant.
irrelevant.At
Atthat
thatpoint,
point,Foster
Fosterand
andKaczmarek
Kaczmarekpiled
piled

misrepresentation
misrepresentationupon
uponmisrepresentation
misrepresentationto
toshield
shieldthe
themental
mentalhealth
healthworksheets
worksheetsfrom
fromdisclosure
disclosure

tothe
to thedrug
druglab
labdefendants.
defendants.

On
OnOctober
October2,
2,2013,
2013,Judge
JudgeKinder
Kinderdenied
deniedthe
themotion
motionto
toinspect
inspecton
onthe
themargin,
margin,writing
writing

"I'mnot
"I'm notpersuaded
persuadedthat
thatRule
Rule17(a)(2)
17(a)(2)permits
permitsaathird
thirdparty
partyto
toinspect
inspectevidence
evidenceheld
heldin
inaa
pending criminal case, particularly under the circumstances of this case where
pending criminal case, particularly under the circumstances of this case where thethe
physical
physicalevidence
evidencehas
hasbeen
beendescribed
describedin
indetail
detailfor
forthe
thedefendant
defendantand
andphotographs
photographsofofthat
that
evidence
evidencehave
havebeen
beenprovided."
provided."

(Exh.217).
(Exh. 217).Judge
JudgeKinder's
Kinder'sruling
rulingwas
wasbased
basedin
inpart
parton
onBallou's
Ballou'stestimony
testimonyon
onSeptember
September9,
9,2013,
2013,

as set
as set out
outabove,
above,which
whichleft
leftthe
theimpression
impressionthat
thatthe
thephotographs
photographstaken
takenduring
duringthe
theexecution
executionof
ofthe
the

warrant
warrantto
tosearch
searchFarak's
Farak'scar
carhad
haddocumented
documentedall
allof
ofthe
theevidence.
evidence.None
Noneof
ofthose
those71
71photographs
photographs

included
includedimages
imagesof
ofthe
themental
mentalhealth
healthworksheets
worksheetsor
orof
ofhundreds
hundredsof
ofother
otherpapers
papersreceived
receivedfrom
from

Farak's
Farak'scar.
car.Further,
Further,the
theevidence
evidencehad
hadnot
notbeen
been"described
"describedin
indetail
detailfor
forthe
thedefendant."
defendant."In
Infact,
fact,itit

hadbeen
had beenhidden
hiddenfrom
fromthe
thedefendant
defendantand
andJudge
JudgeKinder.
Kinder.

57
57
 Add. 75
Add.75
Add:75

3. Penate's
3. Penate's Motion
Motion to
to Compel
Compel

On September
On September 6,
6, 2013,
2013, Penate
Penate moved
moved pursuant
pursuant to
to Mass.
Mass. R.
R. Crim.
Crim. P.
P. 17(a)(2)
17(a)(2) for
for the
the

AGO to
AGO to produce
produce 11
11 categories
categories of
of documentary
documentary evidence
evidence in
in connection
connection with
with Penate's
Penate's motion
motion to
to

dismiss or,
dismiss or, alternatively,
alternatively, for
for Penate's
Penate's use
use in
in his
his then
then upcoming
upcoming trial.
trial. The
The AGO opposed, inter
AGO opposed, inter•

alia, the
alia, the motion
motion insofar
insofar as
as itit sought
sought "copies
"copies of
of all
all inter
inter and
and intra-office
intra-office correspondence
correspondence from
from

1/18/13 to
1/18/13 to present
present pertaining
pertaining to
to the
the scope
scope of
of evidence
evidence tampering
tampering and/or
and/or deficiencies
deficiencies at
at the
the

Amherst drug
Amherst drug lab."
lab."

Ravitz assigned
Ravitz assigned Foster
Foster the
the job
job of
of drafting
drafting the
the opposition
opposition and
and arguing
arguing itit at
at the
the October
October 2nd
2nd

hearing. (Ravitz
hearing. (Ravitz 10,
10, 13).
13). On
On September
September 18,
18, 2013,
2013, Ravitz
Ravitz reviewed
reviewed and
and made
made written
written comments
comments

on Foster's
on Foster's draft
draft opposition.
opposition. (Ravitz
(Ravitz 11).
11). One
One of
of the
the grounds
grounds asserted
asserted in
in itit was
was that
that the
the

correspondence sought
correspondence sought was
was protected
protected by
by the
the work
work product
product doctrine.
doctrine. Neither
Neither Foster
Foster nor
nor Ravitz
Ravitz

ever examined
ever examined the
the AGO's
AGO's correspondence
correspondence to
to determine
determine whether
whether any
any of
of itit was,
was, in
in fact,
fact, work
work

product. Ravitz
product. Ravitz claims
claims that
that he
he thought
thought that
that Foster
Foster would
would have
have done
done that
that review.
review. (Ravitz
(Ravitz 24).
24).

At the
At the October
October 2,
2, 2013,
2013, hearing,
hearing, Judge
Judge Kinder
Kinder asked
asked Foster
Foster about
about the
the opposition.
opposition.

Foster:
Foster: "I think
"I think that
that aa lot
lot of
of what
what isis going
going to,
to, almost
almost all
all of
of that
that isis going
going to
to be
be work
work
product preparation."
product preparation."

Judge Kinder:
Judge Kinder: "Let
"Let meme ask
ask you
you the
the same
same question
question that
that II asked
asked with
with respect
respect toto Mr.
Mr. Ballou's
Ballou's
file. Are
file. Are you
you saying
saying that
that because
because you've
you've actually
actually looked
looked at
at itit or
or are
are you
you
just guessing?
just guessing? " "

Foster:
Foster: "I
"I haven't,
haven't, Your
Your Honor.
Honor. The
The office
office has
has not
not compiled
compiled every
every email
email that
that
mentions the
mentions the word
word 'Farak'
'Farak' in
in itit from
from this
this time
time period
period that
that he's
he's requesting."
requesting."

Judge Kinder:
Judge Kinder: "All
"All right.
right. Have
Have you
you looked
looked at
at any
any of
of the
the correspondence
correspondence oror other
other
documents that
documents that would
would arguably
arguably qualify
qualify in
in these
these paragraphs?"
paragraphs?"

Foster:
Foster: "I have
"I have talked
talked to
to Assistant
Assistant Attorney
Attorney General
General Anne
Anne Kaczmarek
Kaczmarek andand she
she
says the correspondence, which would pretty much all be in email
says the correspondence, which would pretty much all be in email form,form,

58
58
 Add. 76
Add.76
Add:76

would be
would be work
work product,
product, or
or part
part of
of the
the ongoing
ongoing investigation."
investigation."

Judge
Judge Kinder:
Kinder: "And
"And other
other than
than talking
talking to
to Ms.
Ms. Kaczmarek,
Kaczmarek, have
have you
you actually
actually looked
looked at
at
any of
any of the
the emails?"
emails?"

Foster:
Foster: "I have
"I have not,
not, Your
Your Honor.
Honor. II know
know the
the office
office has
has not
not gathered
gathered them
them in
in one
one
database."
database."

Judge Kinder
Judge Kinder next
next asked
asked ifif anybody
anybody had
had even
even looked
looked at
at the
the correspondence,
correspondence, to
to which
which

Foster replied,
Foster replied, "Not
"Not that
that II know
know of."
of."

Judge Kinder:
Judge Kinder: "So
"So you
you agree
agree that
that that
that kind
kind of
of information
information would
would be
be exculpatory
exculpatory ifif itit
existed, but
existed, but you
you don't
don't believe
believe anybody
anybody has
has even
even looked
looked to
to determine
determine
whether itit exists?"
whether exists?"

Foster:
Foster: "I know
"I know the
the lead
lead investigators
investigators and and the
the prosecutor,
prosecutor, they
they would
would naturally
naturally be
be
the people
the people who
who wrotewrote the the most
most correspondence
correspondence on on this
this and
and they
they have
have said
said
that nothing
that nothing inin itit isis outside,
outside, really,
really, what
what has
has already
already been
been disclosed
disclosed other
other
than work
than work product."
product."

Judge Kinder:
Judge Kinder: "Let
"Let meme just
just say
say in
in the
the future,
future, itit would
would be
be helpful
helpful for
for me,
me, in
in attempting
attempting to to
resolve these
resolve these matters
matters and
and deciding
deciding them,
them, ifif you
you actually
actually looked
looked at at the
the
information you
information you were
were talking
talking about
about rather
rather than
than making
making bold
bold
pronouncements about
pronouncements about them
them being
being privileged
privileged oror the
the content
content ofof them."
them."

Foster then
Foster then told
told Judge
Judge Kinder
Kinder that
that Kaczmarek
Kaczmarek and
and Ballou
Ballou had
had assured
assured her
her that
that "there's
"there's no
no

smoking gun."
smoking gun." (Exh.
(Exh. 216,
216, 10/2/13,
10/2/13, Foster
Foster 36).
36).

On October
On October 2,
2, 2013,
2013, Judge
Judge Kinder
Kinder allowed
allowed Penate's
Penate's motion
motion to
to compel
compel the
the production
production of
of

the correspondence
the correspondence sought.
sought. The
The AGO
AGO responded
responded with
with aa 27
27 page
page motion
motion captioned
captioned as
as one
one for
for

clarification, but
clarification, but essentially
essentially requesting
requesting Judge
Judge Kinder
Kinder to
to reconsider
reconsider his
his order
order on
on the
the grounds
grounds that
that

Penate had
Penate had not
not shown
shown entitlement
entitlement under
under Mass.
Mass. R.
R. Crim.
Crim. P.
P. 17(a)(2)
17(a)(2) to
to privileged
privileged materials.
materials. The
The

motion asked
motion asked Judge
Judge Kinder
Kinder to
to "clarify"
"clarify" his
his order
order as
as follows:
follows: that
that correspondence
correspondence does
does not
not

include work
include work product
product which
which isis privileged,
privileged, or
or confidential
confidential investigative
investigative information,
information, material
material

related to
related to an
an ongoing
ongoing prosecution,
prosecution, or
or information
information that
that should
should be
be obtained
obtained directly
directly from
from the
the

59
59
 Add. 77
Add.77
Add:77

district
district attorney's
attorney's office.
office.

Foster
Foster drafted
drafted the
the motion
motion for
for clarification
clarification and
and Ravitz
Ravitz added
added aa footnote
footnote asserting,
asserting, "It
"It is
is

appropriate
appropriate for
for this
this Court
Court to
to accept
accept the
the AGO's
AGO's representation
representation as
as to
to the
the existence
existence of
of work
work product
product

within
within its
its materials."
materials." (Ravitz
(Ravitz 12/15/16,
12/15/16, 23).
23). On
On October
October 23,
23, 2013,
2013, Judge
Judge Kinder
Kinder issued
issued an
an order
order

relieving
relieving the
the AGO
AGO of
of the
the obligation
obligation to
to produce
produce the
the internal
internal correspondence
correspondence sought.
sought. (Exh.
(Exh. 188).
188).

4.
4. Rodriguez'
Rodriguez' Motion
Motion to
to Compel
Compel Production
Production of
of Evidence
Evidence Suggesting
Suggesting That
That aa Third
Third
Party
Party Knew
Knew ofof Farak's
Farak's Malfeasance
Malfeasance Prior
Prior to
to Her
Her Arrest
Arrest

In
In late
late August
August 2013,
2013, Rodriguez
Rodriguez moved
moved for
for post-conviction
post-conviction discovery
discovery under
under Mass.
Mass. R.
R.

Crim.
Crim. P.
P. 30(c)(4)
30(c)(4) asking
asking the
the AGO
AGO to
to produce,
produce, among
among other
other things,
things, "any
"any and
and all
all evidence
evidence

suggesting
suggesting that
that aa third
third party
party may
may have
have been
been aware
aware of
of Farak's
Farak's evidence
evidence tampering
tampering at
at the
the Amherst
Amherst

Drug
Drug Laboratory
Laboratory prior
prior to
to Farak's
Farak's arrest
arrest in
in January
January 2013."
2013." Without
Without having
having reviewed
reviewed any
any

documents
documents related
related to
to Farak,
Farak, Foster
Foster prepared
prepared and
and filed
filed the
the opposition
opposition on
on September
September 6,
6, 2013,
2013,

asserting
asserting that:
that:

"The
"The AGO
AGO hashas turned
turned over
over all
all grand
grand jury
jury minutes,
minutes, exhibits
exhibits andand police
police reports
reports in
in its
its
possession
possession to
to the
the District
District Attorney's
Attorney's Office.
Office. Based
Based onon these
these records
records to
to which
which the
the
defendant
defendant has
has access,
access, there
there is
is no
no reason
reason to
to believe
believe that
that aa third-party
third-party had
had knowledge
knowledge of of
Farak's
Farak's alleged
alleged malfeasance
malfeasance prior
prior to
to her
her arrest."
arrest."

(Foster
(Foster 40;
40; Exh.
Exh. 212).
212).

That
That assertion
assertion did
did not
not squarely
squarely or
or honestly
honestly address
address the
the request
request for
for documents
documents suggesting
suggesting

that
that aa third
third party
party had
had knowledge
knowledge of
of Farak's
Farak's malfeasance.
malfeasance. The
The mental
mental health
health worksheets
worksheets were
were

responsive
responsive to
to Rodriguez's
Rodriguez's discovery
discovery motion
motion and,
and, ifif produced,
produced, would
would have
have disclosed
disclosed that
that Farak's
Farak's

mental
mental health
health care
care providers
providers knew
knew of
of her
her drug
drug tampering
tampering and
and that
that Farak
Farak was
was stealing
stealing and
and using
using

drugs
drugs at
at work
work as
as early
early as
as 2011.
2011. On
On September
September 12,
12, 2013,
2013, Judge
Judge Kinder
Kinder denied
denied Rodriguez's
Rodriguez's

motion
motion insofar
insofar as
as itit sought
sought evidence
evidence of
of third-party
third-party knowledge
knowledge of
of Farak's
Farak's misconduct.
misconduct. Again,
Again,

60
60
 Add. 78
Add.78
Add:78

Judge
Judge Kinder
Kinder was
was relying
relying upon
upon misrepresentations.
misrepresentations. When
When Foster
Foster was
was asked
asked in
in the
the December
December

2016
2016hearing
hearingwhether
whetherKaczmarek's
Kaczmarek'sreference
referenceto
tothe
themental
mentalhealth
health worksheets
worksheets in
in her
her September
September

10th
10th email
email to
to Foster
Foster and
and others
others might
might be
be evidence
evidence of
of third-party
third-party knowledge,
knowledge, Foster
Foster replied,
replied,"No,
"No,

because
because II was
was told
told everything
everything that
that needed
needed to
to be
be turned
turned over
over was
was turned
turned over."
over." (Foster
(Foster75-76).
75-76).

5. Judge
5. Judge Kinder's
Kinder's Conclusions
Conclusions About
About the
the Scope
Scope of
of Farak's
Farak's Misconduct
Misconduct

Theevidentiary
The evidentiary hearing
hearing before
before Judge
Judge Kinder
Kinder concluded
concluded on
on October
October 23,
23, 2013,
2013, without
without the
the

disclosure of
disclosure of the
the mental
mental health
health worksheets.
worksheets. On
On November
November 4,
4, 2013,
2013, Judge
Judge Kinder
Kinder found,
found,

understandably,
understandably, on
on the
the basis
basis of
of the
the misrepresentations
misrepresentations made
made by
by Foster
Foster and
and the
thelimited
limitedevidence
evidence

before
beforehim,
him,that
thatFarak's
Farak'smisconduct
misconductbegan
beganin
inJuly
July2012.
2012.He
Hethen
thendenied
deniedthe
themotions
motionsfor
forpost-
post-

conviction relief
conviction relief for
for those
those who
who pled
pled guilty
guilty before
before the
the summer
summer of
of 2012.
2012. In
In the
the Penate
Penatecase,
case,then
then

still
stillin
inits
its pre-trial
pre-trial phase,
phase, Judge
Judge Kinder
Kinder denied
denied the
the motion
motion to
to dismiss.
dismiss.

R. Discussion
R. Discussion of
of aa Proffer
Proffer

On September
On September 10,
10, 2013,
2013, Kaczmarek
Kaczmarek emailed
emailed Pourinski
Pourinski that
that "we
"we could
could be
be finding
findingthese
these

cases
cases for
for years.
years. Will
Will you
you think
think about
about doing
doing aa proffer
proffer to
to determine
determine the
the scope
scope of
ofSonja's
Sonja'salleged
alleged

misconduct?"34
misconduct?"' Pourinski replied that Farak would do a proffer
proffer if
if she
she were
were given
given immunity
immunity from
from

possible
possible additional
additional State
State and
and Federal
Federal charges
charges and
and get
get probation.
probation. Kaczmarek
Kaczmarek responded
responded that
that she
she

would
would have
have to
to speak
speak with
with someone
someone else.
else. Pourinski
Pourinski understood
understood that
that Kaczmarek
Kaczmarek could
could not
not make
make

that
that decision
decisionfor
forthe
theAGO
AGOby
byherself.
herself (Pourinski 30). Kaczmarek
Kaczmarek communicated
communicated Farak's
Farak's proffer
proffer

terms
terms to
to Verner.
Verner. The
The proposed
proposed proffer
proffer was
was not
not approved.
approved. On
On November
November 6,
6, 2013,
2013, Kaczmarek
Kaczmarek

emailedVerner
emailed Vernerto
toinform
informhim
himthat,
that,"The
"Thegym
gymteacher
teacher[referring
[referringto
toPourinski]
Pourinski] called
called and
and wants
wants aa

34
34
Bedrosian
Bedrosianexplained
explainedthat
thataaproffer
profferisis"where
"whereaacriminal
criminaldefendant
defendantand/or
and/orsuspect
suspectwould
wouldcome
comein into
togive
give
information
informationon
onaasubject matterunder
subjectmatter under terms
terms atatwhich
whichthe
theinformation
informationthey
theyused
usedcouldn't
couldn'tbe
beused
usedagainst
againstthem."
them."
(Bedrosian98).
(Bedrosian 98).

61
61
 Add. 79
Add:79
Add.79

recommendation
recommendation for
for Farak
Farak since
since we're
we're no
no longer
longer willing
willing to
to proffer."
proffer." (Verner
(Verner 135).
135).

S.
S. Farak's
Farak's Conviction
Conviction (January
(January 2014)
2014)

On
On January
January 6,
6, 2014,
2014, Farak
Farak pled
pled guilty
guilty to
to four
four counts
counts of
of evidence
evidence tampering
tampering (G.
(G. L.
L. c.
c. 268,
268,

§§ 13E),
13E), four
four counts
counts of
of larceny
larceny of
of controlled
controlled substances
substances from
from aa dispensary
dispensary (G.
(G. L.
L. c.
c. 94C,
94C, §§ 37),
37),

and
and two
two counts
counts of
of unlawful
unlawful possession
possession of
of aa Class
Class B
B substance
substance (G.
(G. L.
L. c.
c. 94C,
94C, §§ 34).
34).

T.
T. Ryan
Ryan Finds
Finds the
the Mental
Mental Health
Health Worksheets
Worksheets (October
(October 30,
30, 2014)
2014)

With Farak's
With Farak's conviction,
conviction, the
the AGO
AGO could
could no
no longer
longer claim
claim that
that the
the Farak
Farak matter
matter was
was under
under

investigation
investigation to
to justify
justify shielding
shielding evidence
evidence from
from the
the drug
drug lab
lab defendants,
defendants, who
who resumed
resumed their
their quest
quest

for
for Farak
Farak investigatory
investigatory materials.
materials. In
In March
March of
of 2014,
2014, one
one of
of the
the drug
drug lab
lab defendants,
defendants, Vega,
Vega,

moved
moved to
to inspect
inspect the
the physical
physical evidence
evidence seized
seized in
in the
the Farak
Farak investigation.
investigation. The
The AGO
AGO did
did not
not

assent. On
assent. On June
June 23,
23, 2014,
2014, Ryan,
Ryan, representing
representing another
another drug
drug lab
lab defendant,
defendant, Wayne
Wayne Burston,
Burston,

emailed
emailed Foster
Foster aa request
request to
to inspect
inspect the
the Farak
Farak evidence.
evidence. Foster
Foster forwarded
forwarded the
the email
email to
to

Kaczmarek,
Kaczmarek, Ravitz
Ravitz and
and Reardon,
Reardon, inviting
inviting their
their input.
input. There
There was
was no
no response.
response. On
On July
July 21,
21, 2014,
2014,

Burston
Burston moved
moved for
for an
an order
order allowing
allowing Ryan
Ryan to
to inspect
inspect the
the evidence
evidence seized
seized from
from Farak's
Farak's car.
car. That
That

was
was also
also Kaczmarek's
Kaczmarek's last
last day
day working
working at
at the
the AGO.
AGO. On
On July
July 31,
31, 2014,
2014, Ryan's
Ryan's motion
motion to
to inspect
inspect

was allowed.
was allowed. Ryan
Ryan made
made arrangements
arrangements for
for the
the inspection
inspection with
with AAG
AAG Patrick
Patrick Devlin.
Devlin. On
On October
October

30, 2014,
30, 2014, five
five days
days short
short of
of the
the one-year
one-year anniversary
anniversary of
of Judge
Judge Kinder's
Kinder's decision
decision founded
founded on
on the
the

deception
deception and
and misrepresentations
misrepresentations of
of the
the AGO,
AGO, Ryan
Ryan conducted
conducted the
the inspection,
inspection, reviewing
reviewing three
three

boxes of
boxes of evidence,
evidence, and
and found
found aa number
number of
of documents
documents which
which had
had not
not been
been previously
previously disclosed.
disclosed.

Among
Among them
them were
were the
the mental
mental health
health worksheets.
worksheets.

The
The next
next day,
day, November
November 1,
1, 2014,
2014, Ryan
Ryan sent
sent aa 10
10 page
page letter
letter to
to Devlin
Devlin captioned
captioned "Newly
"Newly

Discovered
Discovered Evidence."
Evidence." In
In that
that letter,
letter, Ryan
Ryan transcribed
transcribed the
the mental
mental health
health worksheets
worksheets and
and

62
62
 Add. 80
Add.80
Add:80

explained
explained that
that he
he reviewed
reviewed past
past calendars
calendars to
to determine
determine that
that the
the undated
undated mental
mental health
health worksheet
worksheet

must
must have
have been
been completed
completed by
by Farak
Farak in
in 2011,
2011, and
and therefore
therefore that
that Farak
Farak took
took drugs
drugs on
on December
December 22
22

and
and 23,
23, 2011.
2011. (Exh.
(Exh. 166).
166). Ryan
Ryan pointed
pointed out
out that
that Judge
Judge Kinder
Kinder had
had determined
determined that
that there
there was
was no
no

evidence
evidence of
of misconduct
misconduct by
by Farak
Farak prior
prior to
to July
July of
of 2012,
2012, yet,
yet, in
in these
these records,
records, itit appears
appears clear
clear that
that

Farak
Farak was
was being
being treated
treated for
for an
an "addiction,"
"addiction," that
that she
she was
was working
working on
on "homework
"homework [on]
[on] November
November

16,
16, 2011,"
2011," and
and that
that aa reasonable
reasonable inference
inference from
from aa close
close review
review of
of the
the records
records would
would be
be that
that the
the

documents
documents memorialize
memorialize actions
actions which
which show
show that
that Farak
Farak took
took drugs
drugs from
from the
the Amherst
Amherst lab
lab on
on

December
December 22,
22, 23,
23, and
and 26th
26th of
of 2011,
2011, some
some six
six months
months before
before the
the date
date Judge
Judge Kinder
Kinder found
found any
any

evidence
evidence that
that she
she had
had engaged
engaged in
in criminal
criminal behavior.
behavior. Attorney
Attorney Ryan
Ryan correctly
correctly noted
noted that
that "It
"It

would
would be
be difficult
difficult to
to overstate
overstate the
the significance
significance of
of these
these documents."
documents." (Exh.
(Exh. 166).
166).

Ryan
Ryan asked
asked Devlin
Devlin to
to assent
assent to
to an
an emergency
emergency motion
motion to
to amend
amend aa protective
protective order
order which
which

Ryan
Ryan intended
intended to
to file
file so
so Ryan
Ryan could
could reveal
reveal the
the newly
newly discovered
discovered documents
documents to
to other
other counsel
counsel for
for

the
the drug
drug lab
lab defendants.
defendants. Ryan
Ryan also
also asked
asked for
for permission
permission to
to provide
provide copies
copies of
of the
the mental
mental health
health

worksheets
worksheets to
to every
every defendant
defendant who
who had
had moved
moved for
for post-conviction
post-conviction relief
relief based
based on
on Farak's
Farak's

misconduct.
misconduct.

On
On November
November 5th,
5th, Foster
Foster emailed
emailed Devlin
Devlin to
to ask
ask him
him for
for aa copy
copy of
of the
the mental
mental health
health

worksheets.
worksheets. She
She wrote,
wrote, "I'd
"I'd like
like to
to see
see them,
them, and
and I'm
I'm sure
sure whatever
whatever judge
judge we're
we're in
in front
front of
of will
will

want
want aa copy,
copy, too."
too." After
After some
some discussion
discussion between
between Verner,
Verner, Ravitz,
Ravitz, and
and others,
others, by
by letter
letter dated
dated

November
November 13,
13, 2014,
2014, the
the AGO
AGO sent
sent aa letter
letter in
in Verner's
Verner's name
name notifying
notifying district
district attorneys
attorneys that,
that,

pursuant
pursuant to
to aa court
court order
order allowing
allowing aa motion
motion to
to inspect
inspect physical
physical evidence,
evidence, the
the AGO
AGO was
was sending
sending

them
them 289
289 pages
pages of
of documentary
documentary evidence
evidence not
not previously
previously turned
turned over.
over. Among
Among those
those papers
papers were
were

the
the mental
mental health
health worksheets.
worksheets.

63
63
 Add. 81
Add.81
Add:81

U. Cotto Mandate
U. Cotto Mandate for
for Investigation
Investigation Into
Into Scope
Scope of
of Farak's
Farak's Misconduct
Misconduct

By
By 2015,
2015, some
some of
of the
the defendants
defendants appeals'
appeals' from
from Judge
Judge Kinder's
Kinder's denial
denial of
of post-conviction
post-conviction

motions
motions reached
reached the
the Supreme
Supreme Judicial
Judicial Court.
Court. On
On April
April 8,
8, 2015,
2015, the
the Supreme
Supreme Judicial
Judicial Court
Court

pointed
pointed out
out in
in two
two separate
separate decisions
decisions that
that the
the Commonwealth
Commonwealth had
had not
not conducted
conducted aa thorough
thorough

investigation
investigation of
of the
the Amherst
Amherst drug
drug lab
lab and
and Farak's
Farak's misconduct.
misconduct. In
In Commonwealth
Commonwealth v. Cotto, 471
v. Cotto, 471

Mass.
Mass. 97
97 (2015),
(2015), the
the court
court described
described the
the Commonwealth's
Commonwealth's investigation
investigation into
into the
the timing
timing and
and

scope
scope of
of Farak's
Farak's misconduct
misconduct as
as "cursory
"cursory at
at best"
best" and
and emphasized
emphasized that
that

"It
"It is
is imperative
imperative that
that the
the Commonwealth
Commonwealth thoroughly
thoroughly investigate
investigate the
the timing
timing and
and scope
scope of
of
Farak's
Farak's misconduct
misconduct at at the
the Amherst
Amherst drug
drug lab
lab in
in order
order to to remove
remove the
the cloud
cloud that
that has
has been
been
cast
cast over
over the
the integrity
integrity ofof the
the work
work performed
performed at at that
that facility,
facility, which
which has
has serious
serious
implications
implications forfor the
the entire
entire criminal
criminal justice
justice system."
system."

Id.
Id at
at 115.
115.

"Clearly,
"Clearly, the
the scope
scope of
of Farak's
Farak's misconduct
misconduct was
was wider
wider than
than the
the ten
ten charges
charges to
to which
which she
she
pleaded
pleaded guilty,
guilty, given
given that
that at
at least
least four
four additional
additional cases
cases have
have surfaced
surfaced in
in which
which itit appears
appears
that
that she
she tampered
tampered with
with evidence,
evidence, butbut with
with respect
respect to
to which
which nono charges
charges were
were filed."
filed."

Id.
Id. at
at 111,
111, 114. Likewise,
Likewise, in
in Commonwealth
Commonwealth v.
v. Ware,
Ware, 471
471 Mass.
Mass. 85,
85, 96
96 (2015),
(2015), the
the court
court noted:
noted:.

"As
"As far
far as
as can
can bebe gleaned
gleaned from
from thethe record,
record, thethe Commonwealth
Commonwealth never never conducted
conducted aa
thorough
thorough investigation
investigation of of the
the Amherst
Amherst drugdrug lab.
lab. The
The State
State police
police spent
spent aa few
few days
days
looking
looking for
for missing
missing evidence,
evidence, searching
searching Farak's
Farak's vehicle,
vehicle, interviewing
interviewing colleagues,
colleagues, and
and
searching
searching aa tote
tote bag
bag that
that had
had been
been seized
seized fromfrom Farak's
Farak's work
work station.
station. The
The inquiry
inquiry appeared
appeared
to
to end
end there,
there, until
until itit came
came to to light
light several
several months
months later
later that
that Farak
Farak might
might have
have tampered
tampered
with
with evidence
evidence in in four
four other
other cases.
cases. Drug
Drug samples
samples were
were tested
tested in
in those
those additional
additional cases
cases and
and
the results indicated that at least some of the cocaine had been replaced
the results indicated that at least some of the cocaine had been replaced with a counterfeit with a counterfeit
substance.
substance. ItIt is
is apparent
apparent thatthat the
the Commonwealth
Commonwealth clearly clearly had
had information
information suggesting
suggesting that
that
Farak
Farak had
had engaged
engaged in in misconduct
misconduct at at the
the Amherst
Amherst drug
drug lab,
lab, but
but the
the magnitude
magnitude andand
implications
implications of of the
the problem
problem havehave not
not been
been ascertained."
ascertained."

The
The court
court left
left no
no doubt
doubt that
that the
the Commonwealth
Commonwealth had
had aa duty
duty to
to "thoroughly
"thoroughly investigate
investigate the
the

timing
timing and
and scope
scope of
of Farak's
Farak's misconduct
misconduct at
at the
the Amherst
Amherst drug
drug lab."
lab." See
See Cotto,
Cotto, supra
supra at
at 115.
115. "The
"The

Commonwealth's
Commonwealth's obligation
obligation to
to conduct
conduct an
an investigation
investigation is
is premised
premised on
on aa prosecutor's
prosecutor's duty
duty to
to

64
64
 Add. 82
Add.82
Add:82

learn of
learn of and
and disclose
disclose to
to aa defendant
defendant any
any exculpatory
exculpatory evidence
evidence that
that isis held
held by
by agents
agents of
of the
the

Id.at
team." Id.
prosecution team."
prosecution at 112,
112, quoting
quoting Commonwealth
Commonwealth v.
v. Ware,
Ware, 471
471 Mass.
Mass. at
at 95
95 (internal
(internal

quotations omitted).
quotations omitted).

In response
In response to the AGO
Cotto, the
to Cotto, AGO directed
directed AAG
AAG Thomas
Thomas Caldwell
Caldwell to
to investigate
investigate the
the timing
timing

and scope
and scope of
of Farak's
Farak's misconduct
misconduct and
and the
the deficiencies
deficiencies in
in the
the operation
operation of
of the
the Amherst
Amherst lab.
lab. During
During

that investigation,
that investigation, the
the AGO
AGO convened
convened two
two grand
grand juries
juries and
and called
called as
as witnesses
witnesses Farak,
Farak, Hanchett,
Hanchett,

Salem, Pontes,
Salem, Pontes, Brooks,
Brooks, and
and Dookhan.
Dookhan. On
On April
April 1,
1, 2016,
2016, Caldwell
Caldwell filed
filed his
his 54
54 page
page report
report (the
(the

Caldwell Report).
Caldwell Report).

With respect
With respect to
to flaws
flaws in
in the
the operation
operation of
of the
the lab,
lab, the
the Caldwell
Caldwell Report
Report covered
covered several
several

issues
issues described
described above:
above: the
the lack
lack of
of security,
security, the
the unacceptable
unacceptable use
use of
of secondary
secondary standards,
standards, the
the lack
lack

of accreditation,
of accreditation, the
the lack
lack of
of oversight,
oversight, and
and the
the inadequate
inadequate cleaning
cleaning of
of the
the GC/MS.
GC/MS.

The evidence
The evidence set
set forth
forth in
in the
the Caldwell
Caldwell Report
Report regarding
regarding Farak's
Farak's misconduct
misconduct isis almost
almost

entirely credited,
entirely credited, apart
apart from
from minor
minor inconsistencies,
inconsistencies, and
and itit isis incorporated
incorporated into
into these
these findings
findings

without the
without the need
need for
for repetition
repetition here.
here. ItIt presents
presents an
an organized
organized and
and troubling
troubling chronological
chronological

account, mostly
account, mostly from
from Farak,
Farak, of
of her
her addiction,
addiction, theft
theft of
of lab
lab standards,
standards, theft
theft of
of police-submitted
police-submitted

samples assigned
samples assigned to
to her
her and
and some
some to
to others,
others, and
and her
her manipulation
manipulation of
of the
the lab's
lab's computer
computer inventory
inventory

Additionally, the
35Additionally,
35 the Caldwell
Caldwell Report
Report questioned
questionedthe theAmherst
Amherstlab labpractice
practiceof ofvisually
visuallyclassifying
classifyingClass
ClassEE
substances rather
substances rather than
than performing
performing chemical
chemical testing.
testing. Chemists
Chemists identifying
identifying Class
Class EE substances
substances underunder G.
G. L.
L. c.c. 94C,
94C, §§
32, usually
32, usually did
did soso without
without actual
actual chemical
chemical testing,
testing, but
but visually,
visually, inin reliance
reliance upon
upon the
the colors
colors and
and markings
markings of of the
the pills
pills
and comparing
and comparingthem themto toreference
referencematerials.
materials.OnlyOnlyififthe
thepolice-submitted
police-submittedpills pillsbore
boreno noidentifying
identifyingfeatures
featureswouldwould
chemistsconduct
chemists conductaachemical
chemicalanalysis
analysisby byrunning
runningaaportion
portionof ofthe
thesamples
samplesthrough
throughthethe GC/MS
GC/MS and and then
then compare
compare the the
results to
results to reference
reference materials
materials to
to try
try to
to identify
identify the
the pills.
pills. (CR
(CR 49).
49). Occasionally,
Occasionally, chemists
chemists would
would categorize
categorize aa pillpill as
as aa
ClassEEdrug
Class drugbased
basedupon
uponconversations
conversationswith withother
otherchemists
chemistsor orbased
baseduponuponaabelief
belief that
that the
the pill
pill may
may have
have been,
been, or or
was, aa prescribed
was, prescribed drug drug under
under G.
G. L.
L. c.c. 94C,
94C, §§ 31(1)(d).
31(1)(d). Because
Because there
there are
are approximately
approximately 10,000 10,000 Class
Class EE drugs
drugs in in
existence,ititwould
existence, wouldbe beimpossible
impossibleto tolist
listall
allof
ofthem
themcovered
coveredby bythe
thestatute,
statute,and
andvisual
visualidentifications
identificationswerewereeasier,
easier,
necessary as
necessary as aa practical
practical matter,
matter, and
and ultimately
ultimately authorized.
authorized. (CR
(CR 32).
32). Nothing
Nothing in in the
the record
record supports
supports an an inference
inference thatthat
in these
in these cases
cases currently
currently before
before me,
me, any
any defendant
defendant has
has been
been prejudiced
prejudiced by by the
the visual
visual classification
classification practice.
practice.

65
65
 Add. 83
Add.83
Add:83

system,
system, all then unbeknownst to her co-workers."
co-workers.'

III.
III. Ultimate
Ultimate Findings
Findings of
of Fact
Fact

Most
Most salient
salient among
among the
the types
types of
of government
government misconduct
misconduct alleged
alleged in
in these
these cases
cases are:
are: (1)
(1)

Farak's
Farak's drug
drug theft
theft and
and evidence
evidence tampering
tampering and
and being
being under
under the
the influence
influence of
of drugs
drugs (or
(or withdrawal)
withdrawal)

while at
while at work
work during
during her
her entire
entire period
period of
of employment
employment at
at the
the Amherst
Amherst lab;
lab; (2)
(2) the
the AGO's
AGO's

withholding of
withholding of exculpatory
exculpatory evidence;
evidence; and
and (3)
(3) the
the AGO's
AGO's failure
failure to
to investigate
investigate adequately
adequately in
in 2013
2013

the scope
the scope of
of Farak's
Farak's misconduct.
misconduct. Other
Other claims
claims of
of misconduct
misconduct by
by government
government actors,
actors, including
including

Burnham, and
Burnham, and failings,
failings, such
such as
as the
the deficiencies
deficiencies in
in operating
operating the
the Amherst
Amherst lab,
lab, have
have not
not been
been

shown
shown by
by themselves
themselves to
to merit
merit post-conviction
post-conviction relief
relief for
for the
the reasons
reasons explained
explained above.
above.

A. Farak's
A. Farak's Egregious
Egregious Government
Government Misconduct.
Misconduct.

The
The Commonwealth
Commonwealth has
has conceded
conceded that
that Farak
Farak committed
committed egregious
egregious government
government

misconduct
misconduct in
in all
all cases
cases in
in which
which she
she signed
signed drug
drug lab
lab certificates
certificates at
at the
the Amherst
Amherst lab.
lab. That
That

concession
concession is
is appropriate,
appropriate, in
in light
light of
of evidence
evidence that
that Farak
Farak was
was under
under the
the influence
influence of
of drugs
drugs for
for

most days
most days while
while she
she was
was working
working at
at the
the lab,
lab, suffering
suffering the
the effects
effects of
of withdrawal
withdrawal on
on other
other days,
days,

and tampered
and tampered with
with many
many police-submitted
police-submitted drug
drug samples.
samples. ..

Farak
Farak tampered
tampered with
with some
some samples
samples assigned
assigned to
to and
and already
already tested
tested by
by Hanchett
Hanchett and
and

Pontes, and
Pontes, and then
then repackaged
repackaged them
them using
using their
their pre-initialed
pre-initialed evidence
evidence bags.
bags. The
The original
original testing
testing by
by

Hanchett and
Hanchett and Pontes
Pontes is
is not
not cast
cast into
into doubt
doubt by
by Farak's
Farak's subsequent
subsequent theft
theft and
and tampering.
tampering. II credit
credit

Farak's
Farak's testimony
testimony that
that although
although she
she tried
tried to
to learn
learn to
to forge
forge other
other chemists'
chemists' initials,
initials, she
she never
never

actually did
actually did so.
so. IIfind
findthat
thatthe
theaccuracy
accuracyof
ofdrug
druganalysis
analysiscertificates
certificates signed
signed by
by chemists
chemists other
other than
than

36
36
Some
Some of of the
the defendants
defendants taketake issue
issue with
with the
the investigation's
investigation's failure
failure to
to ascertain
ascertain the
the extent
extent to
to which
which Farak
Farak
compromised the
compromised the integrity
integrity of
of the
the lab's
lab's computer
computer inventory
inventory system
system and
and failure.
failure. In Cotto, the
In Cotto, the court
court mandated
mandated anan
expeditious investigation.
expeditious investigation. II commend
commend what what Caldwell
Caldwell hashas accomplished
accomplished in in aa reasonable
reasonable period.
period.

66
66
 Add. 84
Add.84
Add:84

Farak
Farak isisnot
notin
inquestion
questionand
andthat
thateven
evenififFarak
Farakstole
stolefrom
fromthose
thosesamples
samplesand
andreplaced
replacedthem
themwith
with

counterfeitsubstances,
counterfeit substances,the
thetest
testresults
resultswould
wouldnot
nothave
haveexposed
exposedthose
thosedefendants
defendantsto
togreater
greater

criminalliability,
criminal liability,but
butrather
ratherto
toless
lesscriminal
criminalliability.
liability.

B.Withholding
B. Withholdingof
ofExculpatory
ExculpatoryEvidence
Evidenceas
asEgregious
EgregiousGovernment
GovernmentMisconduct
Misconduct

Thedefendants'
The defendants'more
morecontroversial
controversialallegation
allegationisisthat
thatthe
theAGO
AGOcommitted
committedegregious
egregious

governmental
governmentalmisconduct
misconductby
bywithholding
withholdingfrom
fromthem
themexculpatory
exculpatoryevidence
evidenceabout
aboutthe
thescope
scopeof
of

Farak'smisconduct.
Farak's misconduct.The
Themental
mentalhealth
healthworksheets
worksheetsfound
foundin
inFarak's
Farak'scar
carwere
wereamong
amongthe
theevidence
evidence

to
towhich
whichthe
thedrug
druglab
labdefendants
defendantswere
wereconstitutionally
constitutionallyentitled.
entitled.

AAdefendant
defendanthas
hasan
an"unquestioned
"unquestionedright,
right,under
underthe
theSixth
SixthAmendment
Amendmentto
tothe
theUnited
UnitedStates
States

Constitution
Constitutionand
andart.
art.12
12of
ofthe
theMassachusetts
MassachusettsDeclaration
Declarationof
ofrights,
rights,to
toobtain
obtainrelevant
relevantevidence
evidence

thatbears
that bearson
onthe
thequestion
questionof
ofhis
hisguilt
guiltor
orinnocence
innocenceor
orwhich
whichotherwise
otherwisewill
willhelp
helphis
hisdefense."
defense."

Commonwealthv.v.Mitchell,
Commonwealth Mitchell,444
444Mass.
Mass.786,
786,795
795(2005).
(2005).Due
Dueprocess
processrequires
requiresthat
thatthe
the

government
governmentdisclose
discloseto
tocriminal
criminaldefendants
defendantsfavorable
favorableevidence
evidencein
inits
itspossession
possessionthat
thatcould
could

materiallyaid
materially aidthe
thedefense
defenseagainst
againstpending
pendingcharges.
charges.See
SeeCommonwealth
Commonwealthv.v.Laguer, 448Mass.
Laguer,448 Mass.

585,
585,593
593(2007);
(2007); Commonwealth
Commonwealthv.v.Bresilla,
Bresilla,470
470Mass.
Mass.422,
422,431
431(2015)
(2015)("[T]he
("[T]hesuppression
suppressionby
by

the
theprosecution
prosecutionof
ofevidence
evidencefavorable
favorableto
toan
anaccused
accusedupon
uponrequest
requestviolates
violatesdue
dueprocess
processwhere
wherethe
the

evidence
evidenceisismaterial
materialeither
eitherto
toguilt
guiltor
orto
topunishment,
punishment,irrespective
irrespectiveof
ofthe
thegood
goodfaith
faithor
orbad
badfaith
faithof
of

the
theprosecution").
prosecution").

Theprosecution's
The prosecution'sduty
dutyof
ofdisclosure
disclosureextends
extendsto
to"information
"informationin
inpossession
possessionof
ofaaperson
person

who
whohas
hasparticipated
participatedin
inthe
theinvestigation
investigationor
orevaluation
evaluationof
ofthe
thecase
caseand
andhas
hasreported
reportedto
tothe
the

prosecutor's
prosecutor'soffice
officeconcerning
concerningthe
thecase."
case."See
SeeCommonwealth
Commonwealthv.v.Martin,
Martin,427
427Mass.
Mass.816,
816,824
824

(1998).
(1998)."Such
"Suchaaperson
personisissufficiently
sufficientlysubject
subjectto
tothe
theprosecutor's
prosecutor'scontrol
controlthat
thatthe
theduty
dutyto
todisclose
disclose

67
67
 Add. 85
Add.85
Add:85

applies to
applies to information
information in
in that
that person's possession." Id.
person's possession." Id. See Commonwealth v.
See Commonwealth Smith, 90
v. Smith, 90 Mass.
Mass.

App.
App. Ct.
Ct. 261,
261, 268
268 (2016)
(2016) (where
(where prosecutors
prosecutors from
from two
two counties
counties and
and police
police communicated
communicated with
with

each
each other
other regarding
regarding their
their various
various investigations
investigations involving
involving defendant,
defendant, exculpatory
exculpatory information
information

communicated among
communicated among them
them should
should have
have been
been disclosed
disclosed to
to defendant).
defendant).

The
The AGO
AGO offers
offers patently
patently baseless
baseless defenses
defenses for
for its
its withholding
withholding of
of exculpatory
exculpatory evidence.
evidence.

Most
Most recently
recently and
and surprisingly,
surprisingly, in
in 2017,
2017, the
the AGO
AGO denies
denies having
having had
had any
any legal
legal obligation
obligation to
to turn
turn

over
over the
the mental
mental health
health worksheets
worksheets to
to district
district attorneys
attorneys because
because the
the AGO
AGO had
had not
not prosecuted
prosecuted the
the

drug lab
drug lab defendants.
defendants. That
That position
position is
is at
at odds
odds with
with the
the fundamental
fundamental principles
principles of
of fairness.
fairness. "[T]he
"[T]he

duties
duties of
of aa prosecutor
prosecutor to
to administer
administer justice
justice fairly,
fairly, and
and particularly
particularly concerning
concerning requested
requested or
or

obviously
obviously exculpatory
exculpatory evidence,
evidence, go
go beyond
beyond winning
winning convictions." Commonwealth v.
convictions." Commonwealth v. Ware, 471
Ware, 471

Mass.
Mass. at
at 95,
95, quoting
quoting Commonwealth
Commonwealth v.
v. Tucceri,
Tucceri, 412
412 Mass.
Mass. 401,
401, 408
408 (1992).
(1992).

The
The AGO's
AGO's latest
latest argument
argument also
also contradicts
contradicts (1)
(1) testimony
testimony by
by Kazcmarek,
Kazcmarek, Calkins,
Calkins, Verner
Verner

and
and Mazzone
Mazzone acknowledging
acknowledging that
that duty;
duty; (3)
(3) letters
letters sent
sent by
by Verner
Verner and
and Kaczmarek
Kaczmarek to
to district
district

attorneys
attorneys with
with discovery
discovery gathered
gathered in
in the
the Farak
Farak matter;
matter; (3)
(3) the
the purpose
purpose of
of Judge
Judge Kinder's
Kinder's

evidentiary hearing
evidentiary hearing and
and discovery
discovery orders
orders in
in 2013;
2013; and
and (4)
(4) the
the subpoenas
subpoenas duces
duces tecum
tecum served
served by
by

the defendants
the defendants upon
upon Ballou
Ballou and
and carrying
carrying the
the force
force of
of aa court
court order
order to
to produce
produce materials
materials which
which

included
included the
the mental
mental health
health worksheets.
worksheets.

Equally
Equally groundless
groundless are
are the
the AGO's
AGO's assertions
assertions that
that itit had
had aa good
good faith
faith basis
basis for
for believing
believing

that
that the
the mental
mental health
health worksheets
worksheets were
were privileged.
privileged. Were
Were that
that true,
true, the
the AGO
AGO should
should have
have given
given

them
them to
to Judge
Judge Kinder,
Kinder, as
as ordered,
ordered, in
in September
September 2013
2013 for
for his
his in
in camera
camera review
review and
and determination
determination

of
of what
what should
should have
have been
been disclosed
disclosed to
to the
the defendants.
defendants. Instead,
Instead, the
the AGO
AGO deceived
deceived Judge
Judge Kinder
Kinder

into
into believing
believing that
that there
there were
were no
no privileged
privileged documents
documents for
for him
him to
to review
review on
on the
the ruse
ruse that
that the
the

68
68
 Add. 86
Add.86
Add:86

AGO
AGO had
had turned
turned over
over all
all of
of the
the documents.
documents. Foster's
Foster's letter
letter essentially
essentially violated
violated Judge
Judge Kinder's
Kinder's

order.
order. See
See Commonwealth
Commonwealth v.
v. Washington
Washington W,
W, 462
462 Mass.
Mass. 204,
204, 214
214 (2012)
(2012) ("no
("no party
party is
is entitled
entitled to
to

disregard
disregard aa court
court order
order on
on its
its contention
contention that
that the
the order
order is
is no
no longer
longer necessary,
necessary, especially
especially where,
where,

as
as here,
here, the
the judge
judge rejected
rejected the
the contention").
contention"). The
The AGO's
AGO's contention
contention that
that itit had
had aa good
good faith
faith basis
basis

for
for believing
believing that
that the
the mental
mental health
health records
records were
were privileged
privileged is
is further
further belied
belied by
by Kaczmarek's
Kaczmarek's

notation in
notation in her
her prosecution
prosecution memo
memo that
that case
case law
law suggested
suggested that
that the
the mental
mental health
health worksheets
worksheets were
were

not privileged.
not privileged. Finally,
Finally, the
the AGO
AGO has
has never
never pointed
pointed to
to any
any case
case law
law or
or other
other authority
authority supporting
supporting

an
an argument
argument that
that the
the mental
mental health
health worksheets
worksheets were
were privileged.
privileged.

Despite
Despite the
the drug
drug lab
lab defendants'
defendants' diligent
diligent discovery
discovery efforts,
efforts, Kaczmarek
Kaczmarek and
and Foster
Foster

managed
managed to
to withhold
withhold the
the mental
mental health
health worksheets
worksheets through
through deception.
deception. They
They tampered
tampered with
with the
the

fair administration
fair administration of
of justice
justice by
by deceiving
deceiving Judge
Judge Kinder
Kinder and
and engaging
engaging in
in aa pattern
pattern calculated
calculated to
to

interfere
interfere with
with the
the court's
court's ability
ability impartially
impartially to
to adjudicate
adjudicate discovery
discovery in
in the
the drug
drug lab
lab cases
cases and
and to
to

learn
learn the
the scope
scope of
of Farak's
Farak's misconduct.
misconduct. Kaczmarek's
Kaczmarek's and
and Foster's
Foster's misconduct
misconduct improperly
improperly

influenced and
influenced and distorted
distorted Judge
Judge Kinder's
Kinder's fact
fact finding
finding and
and legal
legal conclusions
conclusions and
and itit unfairly
unfairly

hampered
hampered the
the defendants'
defendants' presentation
presentation of
of defenses.
defenses. Their
Their conduct
conduct constitutes
constitutes aa fraud
fraud upon
upon the
the

court. See
court. See Rockdale
Rockdale Management
Management Co.,
Co., Inc.
Inc. v.
v. Shawmut
Shawmut Bank,
Bank, NA.,
NA., 418
418 Mass.
Mass. 596,
596, 598
598 (1994).
(1994).

Moreover, the
Moreover, the misrepresentations
misrepresentations did
did not
not stop
stop in
in 2013.
2013. II do
do not
not credit
credit Kaczmarek's
Kaczmarek's 2016
2016

testimony, relied
testimony, relied upon
upon by
by the
the AGO,
AGO, feigning
feigning that
that she
she forgot
forgot about
about the
the mental
mental health
health worksheets
worksheets

and
and erroneously
erroneously assumed
assumed that
that they
they had
had been
been turned
turned over.
over. The
The mental
mental health
health worksheets
worksheets were
were the
the

subject of
subject of repeated
repeated communications
communications to
to which
which Kaczmarek
Kaczmarek was
was aa party
party in
in 2013
2013 and
and were
were the
the chief
chief

reason
reason that
that she
she sought
sought to
to block
block the
the defendants'
defendants' discovery.
discovery. Kaczmarek
Kaczmarek knew
knew that
that the
the mental
mental

health
health worksheets
worksheets were
were exculpatory
exculpatory admissions
admissions by
by Farak,
Farak, that
that the
the drug
drug lab
lab defendants
defendants were
were

69
69
 Add. 87
Add.87
Add:87

entitled to
entitled to them,
them, that
that the
the AGO
AGO had
had not
not turned
turned them
them over
over to
to the
the drug
drug lab
lab defendants,
defendants, and
and that
that itit

had
hadno
nointention
intentionofofdoing
doingso.37
so.'

At every
At every opportunity,
opportunity, Kaczmarek
Kaczmarek and
and Foster
Foster foreclosed
foreclosed the
the defendants'
defendants' access
accessto
tothe
the

mental health
mental health worksheets.
worksheets. Compounding
Compounding Kaczmarek's
Kaczmarek's misconduct
misconduct and
and Foster's
Foster's

misrepresentations
misrepresentations was
was Foster's
Foster's inexcusable
inexcusable failure
failure to
to undertake
undertake any
any review
review of
of the
the discovery
discovery

despiteunequivocal
despite unequivocaldirectives
directivesto
todo
doso
soby
byJudge
JudgeKinder
Kinderand
andby
byReardon.
Reardon.Foster's
Foster'sdenial
denialin
in

December
December2016
2016of
ofhaving
havingmade
madeany
anymistakes
mistakesunderscores
underscoresher
herlack
lackof
ofaamoral
moralcompass.
compass.As
As

attorneys, officers
attorneys, officers of
of the
the court,
court, and
and agents
agents of
of the
the Commonwealth
Commonwealth of
of Massachusetts,
Massachusetts, Kaczmarek's
Kaczmarek's

andFoster's
and Foster'sconduct
conductisisreprehensible
reprehensibleand
andmagnified
magnifiedby
bythe
thefact
factthat
thatititwas
wasnot
notlimited
limitedto
toan
an

isolated incident,
isolated incident, but
but aa series
series of
of calculated
calculated misrepresentations.
misrepresentations. The
The ramifications
ramifications from
fromtheir
their

misconduct are
misconduct are nothing
nothing short
short of
of systemic.
systemic. Had
Had the
the AGO
AGO made
made timely
timely disclosures
disclosures of
of the
the mental
mental

healthworksheets,
health worksheets,many
manyof
ofthe
thedefendants
defendantsbefore
beforeme
menow,
now,as
asexplained
explainedbelow,
below,would
wouldhave
have

obtained
obtained discovery
discovery to
to support
support their
their claims
claims for
for relief
relief and
and would
would not
not have
have spent
spent as
as much
much time
time

incarcerated.
incarcerated.

C.The
C. TheFailure
Failureto
toConduct
Conductan
anAdequate
AdequateInvestigation
Investigationin
in2013
2013into
intoFarak's
Farak'sMisconduct
Misconduct

The defendants
The defendants assert
assert as
as an
an additional
additional type
typeof
ofegregious
egregiousgovernment
governmentmisconduct,the
misconduct,the

AGO's failure
AGO's failure in
in 2013
2013 to
to conduct
conduct an
an adequate
adequate investigation
investigation into
into the
the scope
scope of
of Farak's
Farak's drug
drug theft
theft

37
37
Thosecommunications
Those communicationsoccurred
occurredinin2013
2013atatleast
leaston
onJanuary
January2323(Verner's
(Verner'semail
emailto toKaczmarek
Kaczmarekand andothers),
others),
February14
February 14(Ballou's
(Ballou'semail
emailtotoKaczmarek
Kaczmarekand andVerner
Vernerregarding
regardingFarak's
Farak'sadmissions),
admissions),MarchMarch27 27(the
(theprosecution
prosecution
memo
memowithwithKaczmarek's
Kaczmarek'sfootnote
footnoteon
onprivileges
privilegesand
andVerner's
Verner'snotation
notationthat
thatthe
themental
mentalhealth
healthworksheets
worksheetshad hadnot
notyet
yet
been
beenturned
turnedover
overtotothe
thedefendants,
defendants,and
andcontemporaneous
contemporaneousconversations
conversationsin inthe
theAGO
AGOthatthatthe
themental
mentalhealth
health
worksheets
worksheetsneed
neednot
notbe
bepresented
presentedto
tothe
thegrand
grandjury),
jury),the
thesummer
summerof of2013
2013(when
(whenKaczmarek
Kaczmarektold toldPourinski
Pourinskithat
thatthe
the
AGOwould
AGO wouldnot
notgive
givethe
themental
mentalhealth
healthworksheets
worksheetsto tothe
thedrug
druglab
labdefendants),
defendants),andandSeptember
September10 10(when
(whenKaczmarek
Kaczmarek
emailed
emailedVerner,
Verner,Foster,
Foster,Reardon,
Reardon,and
andothers
othersthat
thatthe
themental
mentalhealth
healthworksheets
worksheetswerewereininBallou's
Ballou'sfile,
file,and
andin
inmeetings
meetings
that
thatmonth
monthininVerner's
Verner'soffice).
office).Kaczmarek's
Kaczmarek'sdisregard
disregardforforher
herduty
dutyasasan
anofficer
officerofofthe
thecourt
courtand
andfor
forthe
thedefendants'
defendants'
right
rightto
topotentially
potentiallyexculpatory
exculpatoryevidence
evidencewas
wasfurther
furtheraggravated
aggravatedby byher
heremail
emailencouraging
encouragingOIG 01GSenior
SeniorCounsel
Counsel
AudreyMark
Audrey Marktotodecline
declineanyanyrequest
requestto
toinvestigate
investigatethe
theAmherst
Amherstlab.
lab.

70
70
 Add. 88
Add.88
Add:88

and tampering.
and tampering. In
In 2015,
2015, the
the Supreme
Supreme Judicial
Judicial Court
Court emphasized
emphasized in
in two
two decisions
decisions that
that the
the

Commonwealth had
Commonwealth had aa duty
duty to
to conduct
conduct aa thorough
thorough investigation
investigation into
into the
the timing
timing and
and scope
scope of
of

Farak's misconduct
Farak's misconduct at
at the
the Amherst
Amherst lab
lab "in
"in order
order to
to remove
remove the
the cloud
cloud that
that has
has been
been cast
cast over
over the
the

integrity of
integrity of the
the work
work performed
performed at
at that
that facility,
facility, which
which has
has serious
serious implications
implications for
for the
the entire
entire

criminal justice
criminal justice system."
system." Commonwealth
Commonwealth v.
v. Cotto, 471 Mass.
Cotto, 471 Mass. at
at 112.
112.

"The Commonwealth's
"The Commonwealth's obligation obligation to
to conduct
conduct an an investigation
investigation is is premised
premised on on aa
prosecutor's duty
prosecutor's duty to to learn
learn of
of and
and disclose
disclose to
to aa defendant
defendant anyany exculpatory
exculpatory evidence
evidence thatthat is
is
held by agents of the prosecution team, who include chemists working in State drug
held by agents of the prosecution team, who include chemists working in State drug
laboratories. .. .. .. ItIt is
laboratories. is incumbent
incumbent upon
upon the
the Commonwealth
Commonwealth to to perform
perform thisthis duty
duty inin aa timely
timely
fashion. The
fashion. The burden
burden of of ascertaining
ascertaining whether
whether Farak's
Farak's misconduct
misconduct at at the
the Amherst
Amherst drugdrug lab
lab
has created
has created aa problem
problem of of systemic
systemic proportions
proportions is is not
not one
one that
that should
should be be shouldered
shouldered by by
defendants in
defendants in drug
drug cases."cases."

Id.
Id.

"When personnel
"When personnel atat the
the Amherst
Amherst drug
drug lab
lab notified
notified the
the State
State police
police in
in January,
January, 2013,
2013, that
that
Farak may
Farak may have
have compromised
compromised the the evidence
evidence inin two
two drug
drug cases,
cases, the
the Commonwealth
Commonwealth had had aa
duty to
duty to conduct
conduct aa thorough
thorough investigation
investigation to
to determine
determine the
the nature
nature and
and extent
extent of
of her
her
misconduct, and
misconduct, and its
its effect
effect both
both on
on pending
pending cases
cases and
and on
on cases
cases in
in which
which defendant
defendant already
already
had been
had been convicted
convicted ofof crimes
crimes involving
involving controlled
controlled substances
substances that
that Farak
Farak had
had analyzed."'
analyzed."'

Commonwealth v.
Commonwealth v. Ware,
Ware, 471
471 Mass.
Mass. at
at 95.
95. The
The prosecutor's
prosecutor's duty
duty to
to disclose
disclose known,
known, favorable
favorable

evidence rising
evidence rising to
to aa material
material level
level of
of importance
importance has
has been
been recognized
recognized as
as encompassing
encompassing the
the duty
duty

to investigate.
to investigate. See
See Kyles
Kyles v.
v. Whitley,
Whitley, 514
514 U.S.
U.S. 419,
419, 437
437 (1995)
(1995) (prosecutorial
(prosecutorial discretion
discretion in
in

determining materiality
determining materiality of
of potentially
potentially exculpatory
exculpatory evidence
evidence imposes
imposes responsibility
responsibility "to
"to gauge
gauge the
the

likely net
likely net effect
effect of
of all
all such
such evidence
evidence and
and make
make disclosure
disclosure when
when the
the point
point of
of 'reasonable
'reasonable

probability' is
probability' is reached.
reached. This
This in
in turn
turn means
means that
that the
the individual
individual prosecutor
prosecutor has
has aa duty
duty to
to learn
learn of
of

any favorable
any favorable evidence
evidence known
known to
to the
the others
others acting
acting on
on the
the government's
government's behalf
behalf in
in the
the case,
case,

including the
including the police").
police").

There is
There is no
no evidence
evidence that
that aa comprehensive,
comprehensive, adequate,
adequate, or
or even
even reasonable
reasonable investigation
investigation by
by

71
71
 Add. 89
Add.89
Add:89

any
any office
office or
or agent
agent of
of the
the Commonwealth
Commonwealth had
had been
been attempted,
attempted, concluded,
concluded, or
or disclosed
disclosed prior
prior to
to

issuance
issuance of
of the
the Caldwell
Caldwell Report.
Report.

IV.
IV. Legal
Legal Standards
Standards

Pending
Pending are
are (1)
(1) motions
motions to
to dismiss
dismiss indictments
indictments with
with prejudice
prejudice by
by Aponte,
Aponte, Brown,
Brown, Cotto,
Cotto,

Harris,
Harris, Liguori,
Liguori, Penate,
Penate, Richardson,
Richardson, Vega,
Vega, and
and Ware;
Ware; and
and (2)
(2) motions
motions for
for relief
relief under
under Mass.
Mass. R.
R.

Crim.
Crim. P.
P. 30(b)
30(b) by
by Aponte,
Aponte, Brown,
Brown, Cotto,
Cotto, Liguori,
Liguori, Richardson,
Richardson, Vega
Vega and
and Ware.
Ware. As
As explained
explained

below,
below, in
in some
some of
of these
these cases,
cases, dismissal
dismissal of
of indictments
indictments with
with prejudice
prejudice is
is warranted.
warranted. This
This court
court is
is

aware
aware that
that such
such aa drastic
drastic remedy
remedy isis rare
rare and
and that
that our
our appellate
appellate courts
courts have
have to
to date
date only
only allowed
allowed

dismissal
dismissal of
of indictments
indictments with
with prejudice
prejudice in
in exceptional
exceptional cases
cases and
and where
where aa defendant
defendant has
has suffered
suffered

irreparable
irreparable harm.
harm. Resolution
Resolution of
of the
the factual
factual and
and legal
legal matters
matters here
here has
has required
required protracted
protracted

proceedings
proceedings concerning
concerning investigations,
investigations, discovery,
discovery, evidence,
evidence, and
and oral
oral and
and written
written arguments
arguments on
on aa

wide
wide range
range of
of issues.
issues. These
These findings
findings and
and legal
legal conclusions
conclusions may
may impact
impact aa large
large number
number of
of other
other

cases
cases in
in which
which substances
substances were
were analyzed
analyzed at
at the
the Amherst
Amherst lab.
lab. In
In these
these circumstances,
circumstances, and
and in
in the
the

event
event that
that an
an appellate
appellate court
court should
should disagree
disagree with
with some
some of
of these
these conclusions
conclusions and
and determine
determine that
that

the
the drastic
drastic remedy
remedy of
of dismissal
dismissal isis inappropriate,
inappropriate, II also
also consider,
consider, alternatively,
alternatively, the
the defendants'
defendants'

motions
motions for
for aa new
new trial
trial or
or to
to withdraw
withdraw guilty
guilty pleas
pleas under
under Mass.
Mass. R.
R. Crim.
Crim. P.
P. 30(b).
30(b). Consequently,
Consequently,

what
what follows
follows are
are the
the legal
legal standards
standards for
for each
each type
type of
of relief
relief sought,
sought, then
then the
the analysis
analysis under
under the
the

alternative
alternative principles.
principles.

A.
A. Legal
Legal Standard
Standard for
for Motions
Motions to
to Dismiss
Dismiss Indictments
Indictments With
With Prejudice
Prejudice

ItIt follows
follows from
from the
the findings
findings above
above that
that the
the sole
sole possible
possible basis
basis for
for granting
granting any
any of
of the
the

defendants'
defendants' motions
motions to
to dismiss
dismiss is
is the
the AGO's
AGO's misconduct
misconduct in
in withholding
withholding exculpatory
exculpatory evidence.
evidence.

At
At issue
issue with
with respect
respect to
to those
those motions
motions is
is whether
whether and
and in
in which
which cases
cases the
the AGO's
AGO's misconduct
misconduct

72
72
 Add. 90
Add.90
Add:90

constitutes
constitutes the
the type
type and
and degree
degree of
of egregious
egregious government
government misconduct
misconduct which
which warrants
warrants dismissal
dismissal of
of

indictments
indictments with
with prejudice.
prejudice.

"Two
"Two parallel
parallel principles
principles govern
govern the the resolution
resolution of of cases
cases involving
involving prosecutorial
prosecutorial
misconduct
misconduct where
where dismissal
dismissal is is contemplated
contemplated .. .. .. .. [Under
[Under thethe first,
first, where]
where] the
the prosecutor
prosecutor
fails
fails to
to disclose
disclose evidence
evidence the
the defendant
defendant is is entitled
entitled toto receive
receive and
and the
the defendant
defendant is is
prejudiced
prejudiced by by the
the failure
failure to
to disclose,
disclose, aa motion
motion to to dismiss
dismiss should
should notnot be
be allowed
allowed absent
absent aa
showing
showing of of irremediable
irremediable harm
harm to to the
the defendant's
defendant's opportunity
opportunity to to obtain
obtain aa fair
fair trial
trial .. .. .. ..
Under
Under thethe alternative
alternative principle,
principle, prosecutorial
prosecutorial misconduct
misconduct that that is
is egregious,
egregious, deliberate,
deliberate, and and
intentional,
intentional, oror that
that results
results in
in aa violation
violation ofof constitutional
constitutional rights
rights may
may give
give rise
rise to
to
presumptive
presumptive prejudice.
prejudice. In
In such
such instances
instances prophylactic
prophylactic considerations
considerations may may assume
assume
paramount
paramount importance
importance and and the
the 'drastic
'drastic remedy'
remedy' of of dismissal
dismissal ofof charges
charges may
may become
become an an
appropriate remedy."
appropriate remedy."

Commonwealth
Commonwealth v.
v. Cronk,
Cronk, 396
396 Mass.
Mass. 194,
194, 198-199
198-199 (1985)
(1985) (internal
(internal citations
citations omitted).
omitted). See
See also
also

Bridgeman v.
Bridgeman v. District
District Attorney
Attorney for
for Suffolk
Suffolk District,
District, 476
476 Mass.
Mass. 298,
298, 316-317
316-317 (2017).
(2017). Where
Where the
the

claimed
claimed misconduct
misconduct is
is prosecutorial
prosecutorial failure
failure to
to comply
comply with
with discovery
discovery orders
orders in
in aa timely
timely manner,
manner,

the
the judge's
judge's dismissal
dismissal of
of criminal
criminal charges
charges must
must rest
rest either
either on
on "findings
"findings that
that the
the delayed
delayed disclosure
disclosure

was
was due
due to
to deliberate
deliberate and
and egregious
egregious action
action by
by the
the prosecutor
prosecutor or
or unintentional
unintentional conduct
conduct resulting
resulting in
in

irremediable
irremediable harm
harm to
to the
the defendant."
defendant." Commonwealth
Commonwealth v.
v. Cronk,
Cronk, 396
396 Mass.
Mass. at
at 199.
199. See
See also
also

Commonwealth
Commonwealth v.
v. Viverito,
Viverito, 422
422 Mass.
Mass. 228,
228, 230
230 (1996)
(1996) (dismissal
(dismissal of
of criminal
criminal charges
charges with
with

prejudice
prejudice is
is appropriate
appropriate where
where government
government misconduct
misconduct has
has been
been egregious
egregious or
or where
where defendant
defendant

has
has shown
shown that
that misconduct
misconduct was
was prejudicial,
prejudicial, that
that itit created
created aa substantial
substantial threat
threat of
of prejudice,
prejudice, or
or that
that

itit caused
caused irremediable
irremediable harm
harm to
to defendant's
defendant's opportunity
opportunity to
to obtain
obtain aa fair
fair trial).
trial).

"There
"There is
is no
no question
question that
that aa judge
judge may
may inin his
his discretion
discretion order
order discovery
discovery ofof information
information
necessary
necessary to
to the
the defense
defense of
of aa criminal
criminal case
case .. .. .. and
and that,
that, on on failure
failure of
of the
the Commonwealth
Commonwealth
to
to comply
comply with
with aa lawful
lawful discovery
discovery order,
order, the
the judge
judge may
may impose
impose appropriate
appropriate sanctions,
sanctions,
which
which may
may include
include dismissal
dismissal of of the
the criminal
criminal charge
charge .. .. .. ."
."

Commonwealth v.
Commonwealth v. Douzanis,
Douzanis, 384
384 Mass.
Mass. 434,
434, 436
436 (1981).
(1981). See
See also
also Commonwealth
Commonwealth v.
v. Lam
Lam Hue
Hue

To,
To, 391
391 Mass.
Mass. 301,
301, 313
313 (1984)
(1984) (court
(court can
can dismiss
dismiss indictments
indictments when
when the
the Commonwealth
Commonwealth fails
fails to
to

73
73
 Add. 91
Add.91
Add:91

comply with
comply with aa lawful
lawful discovery
discovery order).
order).

"Where prosecutorial
"Where prosecutorial misconduct
misconduct constitutes
constitutes aa deliberate
deliberate andand intentional
intentional undermining
undermining ofof
constitutional rights
constitutional rights or
or where
where the
the prejudicial
prejudicial effect
effect of
of the
the misconduct
misconduct cannot
cannot be
be remedied
remedied
by granting
by granting aa new
new trial,
trial, the
the drastic
drastic remedy
remedy of
of dismissal
dismissal of of charges
charges may
may be
be appropriate."
appropriate."

Commonwealth v.
Commonwealth v. Light,
Light, 394
394 Mass.
Mass. 112,
112, 114
114 (1985).
(1985). Although
Although rare,
rare, dismissal
dismissal of
of charges
charges isis

appropriate where
appropriate where "the
"the prosecutor's
prosecutor's conduct
conduct isis .. .. .. so
so egregious
egregious that
that dismissal
dismissal isis warranted
warranted to
to

deter similar
deter similar future
future misconduct."
misconduct." Commonwealth
Commonwealth v.
v. Texeira,
Texeira, 76
76 Mass.
Mass. App.
App. Ct.
Ct. 101,
101, 108
108 (2010),
(2010),

quoting Commonwealth
quoting Commonwealth v.
v. Merry,
Merry, 453
453 Mass.
Mass. 653,
653, 666
666 (2009).
(2009). Where
Where the
the egregious
egregious government
government

misconduct has
misconduct has resulted
resulted in
in the
the denial
denial of
of aa defendant's
defendant's fundamental
fundamental constitutional
constitutional right,
right, courts
courts

need not
need not "indulge
"indulge in
in nice
nice calculations
calculations as
as to
to the
the amount
amount of
of prejudice
prejudice arising
arising from
from its
its denial."
denial." See
See

Commonwealth v.
Commonwealth v. Manning,
Manning, 373
373 Mass.
Mass. 438,
438, 443
443 (1977).
(1977).

"Prophylactic considerations
"Prophylactic considerations assume
assume paramount
paramount importance
importance in in fashioning
fashioning aa remedy
remedy for
for
deliberate and
deliberate and intentional
intentional violations
violations of
of constitutional
constitutional rights.
rights. Such
Such deliberate
deliberate undermining
undermining
of constitutional
of constitutional rights
rights must
must not
not be
be countenanced."
countenanced."

Id., 373
Id., 373 Mass.
Mass. at
at 444.
444.

A parallel
A parallel principle
principle isis that
that the
the court
court has
has broad
broad discretion
discretion to
to fashion
fashion aa judicial
judicial response
response

warranted by
warranted by fraud
fraud on
on the
the court.
court. See
See Rockdale
Rockdale Management
Management Co.,
Co,, Inc. v. Shawmut
Shawn2utBank,
Bank, NA
NA.,,

418 Mass.
418 Mass. at
at 598.
598. "Fraud
"Fraud on
on the
the court
court occurs
occurs where
where aa party
party tampers
tampers with
with the
the fair
fair administration
administration

of justice
of justice by
by deceiving
deceiving the
the institutions
institutions set
set up
up to
to protect
protect and
and safeguard
safeguard the
the public,
public, or
or otherwise
otherwise

abusing or
abusing or undermining
undermining the
the integrity
integrity of
of the
the judicial
judicial process."
process." Id.
Id.(internal
(internal quotations
quotations omitted).
omitted).

Fraud on
Fraud on the
the court
court occurs
occurs where
where

"'it can
"'it can be
be demonstrated,
demonstrated, clearly
clearly and
and convincingly,
convincingly, that
that aa party
party has
has sentiently
sentiently setset in
in
motion some
motion some unconscionable
unconscionable scheme
scheme calculated
calculated to
to interfere
interfere with
with the
the judicial
judicial system's
system's
ability impartially
ability impartially to
to adjudicate
adjudicate aa matter
matter by
by improperly
improperly influencing
influencing thethe trier
trier or
or unfairly
unfairly
hampering the
hampering the presentation
presentationofofthe
theopposing
opposingparty's
party'sclaim
claimor ordefense."
defense."

74
74
 Add. 92
Add.92
Add:92

Rockdale Management
Rockdale Management Co.,
Co., Inc.
Inc. v.
v. Shawmut
Shawmut Bank, 418 Mass.
NA, 418
Bank, NA, Mass. at
at 598,
598, quoting
quoting Aoude
Aoude v.
v.

Mobil Oil
Mobil 892 F.2d
Corp., 892
Oil Corp., F.2d 1115,
1115, 1118
1118 (1st
(1st Cir.
Cir. 1989).
1989). Dismissal
Dismissal of
of an
an entire
entire action
action may
may be
be

warranted on
warranted on aa finding
finding of
of fraud
fraud on
on the
the court.
court. See Rockdale Management
See Rockdale Management Co.,
Co., Inc.
Inc. v.
v. Shawmut
Shawmut

Bank, NA,
Bank, NA, 418
418 Mass.
Mass. at Commissioner of
598; Commissioner
at 598; of Probation
Probation v.
v. Adams,
Adams, 65
65 Mass.
Mass. App.
App. Ct.
Ct. 725,
725, 729-
729-

730 (2006).
730 (2006).

Where the
Where the misconduct
misconduct does
does not
not justify
justify dismissal
dismissal based
based on
on prophylactic
prophylactic considerations,
considerations,

defendants seeking
defendants seeking dismissal
dismissal with
with prejudice
prejudice must
must show
show that
that the
the government
government misconduct
misconduct caused
caused

them irremediable
them irremediable harm
harm in
in obtaining
obtaining aa fair
fair trial.
trial. See
See Commonwealth
Commonwealth v.
v. Cronk, 396 Mass.
Crank, 396 Mass. at
at 198-
198-

199. In
199. In determining
determining whether
whether aa prosecutorial
prosecutorial delay
delay in
in disclosing
disclosing exculpatory
exculpatory evidence
evidence isis so
so

prejudicial so
prejudicial so as
as to
to order
order dismissal,
dismissal,

"'it isis the

"'it the consequences
consequences ofof the
the delay
delay that
that matter,
matter, not
not the
the likely
likely impact
impact of
of the
the nondisclosed
nondisclosed
evidence, and
evidence, and we
we ask
ask whether
whether thethe prosecution's
prosecution's disclosure
disclosure waswas sufficiently
sufficiently timely
timely to
to
allow the
allow the defendant
defendant 'to
'to make
make effective
effective use
use of
of the
the evidence
evidence in in preparing
preparing and
and presenting
presenting his
his
case."
case."

Commonwealth v.
Commonwealth v. Lam
Lam Hue
Hue To,
To,391
391 Mass.
Mass. at
at 309
309 (where
(where prosecutor
prosecutor failed
failed to
to disclose
disclose material
material

exculpatory evidence
exculpatory evidence to
to defense
defense counsel
counsel until
until several
several days
days before
before trial,
trial, in
in violation
violation of
of parties'
parties'

discovery agreement
discovery agreement which
which had
had force
force of
of court
court order,
order, court
court remanded
remanded matter
matter for
for trial
trial judge
judge to
to

determine whether
determine whether defendant
defendant suffered
suffered irremediable
irremediable harm
harm or
or could
could possibly
possibly have
have aa fair
fair trial),
trial),

quoting Commonwealth
quoting Commonwealth v.
v. Wilson,
Wilson, 381
381 Mass.
Mass. 90,
90, 114
114 (1980).
(1980).

Where the
Where the government's
government's delayed
delayed disclosure
disclosure of
of exculpatory
exculpatory evidence
evidence occurred
occurred while
while or
or

after defendants
after defendants had
had served
served sentences
sentences of
of incarceration,
incarceration, itit cannot
cannot be
be said
said that
that the
the disclosure
disclosure did
did

not cause
not cause irremediable
irremediable harm
harm or
or that
that itit was
was sufficiently
sufficiently timely
timely to
to allow
allow the
the defendant
defendant to
to make
make

effective use
effective use of
of the
the evidence
evidence in
in preparing
preparing and
and presenting
presenting his
his case.
case. See
See Commonwealth
Commonwealth v.
v. Lam
Lam

75
75
 Add. 93
Add.93
Add:93

Hue To, 391

Hue To, 391 Mass.
Mass. at
at 309.
309. The
The prejudicial
prejudicial effect
effect of
of spending
spending more
more time
time incarcerated
incarcerated due
due to
to

prosecutorial
prosecutorial withholding
withholding of
of exculpatory
exculpatory evidence
evidence cannot
cannot be
be cured
cured by
by aa new
new trial.
trial. See
See

Commonwealth
Commonwealth v.
v. Light,
Light, 394
394 Mass.
Mass. at
at 114.
114. Contrast
Contrast Commonwealth
Commonwealth v. Cronk, 396
v. Cronk, 396 Mass.
Mass. at
at 201
201

(dismissal
(dismissal not
not appropriate
appropriate where
where prosecutor's
prosecutor's noncompliance
noncompliance with
with discovery
discovery orders
orders was
was

unintentional
unintentional and
and where
where compliance
compliance occurred
occurred before
before trial
trial date
date had
had been
been scheduled);
scheduled);

Commonwealth
Commonwealth v.
v. Baldwin,
Baldwin, 385
385 Mass.
Mass. 165,
165, 172-176
172-176 (1982)
(1982) (disclosure
(disclosure of
of evidence
evidence during
during trial
trial

did
did not
not prejudice
prejudice defendant).
defendant). "The
"The opportunity
opportunity eventually
eventually to
to present
present [a
[a claim
claim based
based on
on the
the

exculpatory
exculpatory evidence]
evidence] would
would not
not cure
cure the
the loss
loss of
of the
the earlier
earlier opportunity
opportunity to
to present
present it."
it."

Commonwealth
Commonwealth v.
v. Washington
Washington W.,
W., 462
462 Mass.
Mass. at
at 217
217 (where
(where prosecutor
prosecutor deliberately
deliberately and
and

repeatedly
repeatedly violated
violated court
court orders
orders to
to disclose
disclose relevant
relevant exculpatory
exculpatory evidence
evidence during
during discovery,
discovery, judge
judge

was
was warranted
warranted in
in dismissing
dismissing with
with prejudice
prejudice indictments
indictments against
against juvenile;
juvenile; renewed
renewed prosecution
prosecution

would
would have
have caused
caused juvenile
juvenile anxiety
anxiety and
and uncertainty
uncertainty and
and passage
passage of
of time
time would
would result
result in
in serving
serving

time
time in
in prison
prison rather
rather than
than in
in juvenile
juvenile facility).
facility).

Courts
Courts must
must tailor
tailor remedies
remedies for
for prosecutorial
prosecutorial misconduct
misconduct to
to the
the injury
injury suffered
suffered and
and

balance
balance the
the defendants'
defendants' rights
rights against
against the
the need
need to
to preserve
preserve society's
society's interest
interest in
in the
the administration
administration

of
of justice.
justice. See
See Commonwealth
Commonwealth v.
v. Cronk,
Cronk, 396
396 Mass.
Mass. at
at 199.
199. "Absent
"Absent egregious
egregious misconduct
misconduct or
or at
at

least
least aa serious
serious threat
threat of
of prejudice,
prejudice, the
the remedy
remedy of
of dismissal
dismissal infringes
infringes too
too severely
severely on
on the
the public
public

interest
interest in
in bringing
bringing guilty
guilty persons
persons to
to justice."
justice." Commonwealth
Commonwealth v.
v. Cinelli,
Cinelli, 389
389 Mass.
Mass. 197,
197, 210
210

(1983)
(1983) (dismissal
(dismissal of
of charges
charges improper
improper where
where misconduct
misconduct occurred
occurred once
once during
during post-arraignment
post-arraignment

interview
interview and
and lacked
lacked high
high degree
degree of
of deliberateness;
deliberateness; detectives
detectives who
who did
did not
not try
try to
to locate
locate

defendant's
defendant's lawyer
lawyer after
after defendant
defendant asked
asked where
where his
his lawyer
lawyer was
was and
and suggested
suggested that
that his
his lawyer
lawyer be
be

present).
present). Compare
Compare Commonwealth
Commonwealth v.
v. Manning,
Manning, 373
373 Mass.
Mass. at
at 443-444
443-444 (dismissal
(dismissal proper
proper where
where

76
76
 Add. 94
Add.94
Add:94

governmentagents
government agentsdeliberately
deliberatelyattacked
attackeddefendant's
defendant'srelationship
relationshipwith
withhis
hiscounsel
counselby
bytwice
twice

disparagingdefense
disparaging defenseattorney
attorneyand
andattempting
attemptingto
tocoerce
coercedefendant
defendantinto
intoabandoning
abandoninghis
hisdefense;
defense;

rightto
right toassistance
assistanceof
ofcounsel
counselisistoo
toofundamental
fundamentaland
andabsolute
absoluteto
toweigh
weighprejudice
prejudicefrom
fromsuch
such

egregiousmisconduct;
egregious misconduct;court
courtconcluded
concludedthat
thataastronger
strongerdeterrent
deterrentagainst
againstthis
thismisconduct
misconductwas
was

necessary).Contrast
necessary). Contrast Commonwealth
Commonwealthv.v.Light, 394Mass.
Light,394 Mass.atat114-115
114-115(absent
(absentevidence
evidencethat
thatpolice
police

knewthat
knew thatdefendant
defendantwas
wasentitled
entitledto
toexculpatory
exculpatorytest
testresults,
results,"there
"therewas
wasno
noindication
indicationthat
thatthe
the

conductwas
conduct wasintentional,"
intentional,"so
sodefendant
defendantwas
wasentitled
entitledto
tonew
newtrial,
trial,not
notdismissal).
dismissal).

Thenature
The natureand
andscope
scopeof
ofgovernmental
govertunentalmisconduct
misconductby
byKaczmarek
Kaczmarekand
andFoster
Fosterin
in

withholdingevidence
withholding evidencewas
wassevere.
severe.ItItcontinued
continuedfor
foraaprolonged
prolongedperiod,
period,in
inviolation
violationof
ofmany
manydrug
drug

labdefendants'
lab defendants'constitutional
constitutionalrights.
rights.ItItwas
wasperpetrated
perpetratedin
inpart
partthrough
throughintentional
intentional

misrepresentationsto
misrepresentations tothe
thecourt
courtand
andwas
waspursued
pursuedto
toconceal
concealthe
theextent
extentof
ofunderlying
underlyingmisconduct
misconduct

byanother
by anothergovernment
governmentactor,
actor,Farak.
Farak.In
Inthese
theserare
rarecircumstances,
circumstances,atatleast
leastwith
withrespect
respectto
toselected
selected

druglab
drug labdefendants,
defendants,the
thedeliberate
deliberatemisconduct
misconductwas
wasso
soegregious
egregiousthat
thatpresumptive
presumptiveprejudice
prejudice

arises,so
arises, sothat
thatdismissal
dismissalwith
withprejudice
prejudiceisisthe
theappropriate
appropriateprophylactic
prophylacticremedy
remedyto
todeter
detersimilar
similar

futuremisconduct.
future misconduct.See
SeeCommonwealth
Commonwealthv.v.Cronk,
Cronk,396
396Mass.
Mass.atat198-199; Commonwealthv.v.
198-199;Commonwealth

Manning,373
Manning, 373Mass.
Mass.atat444;
444;Commonwealth
Commonwealthv.v.Texeira,
Texeira,76
76Mass.
Mass.App.
App.Ct.
Ct.atat108.
108.

Thedrug
The druglab
labdefendants
defendantswho
whoare
aremost
mostclearly
clearlyentitled
entitledto
todismissal
dismissalof
ofindictments
indictmentswith
with

prejudiceare
prejudice arethose
thosewho
whomeet
meetall
allthree
threeof
ofthe
thefollowing
followingrequirements:
requirements:(1)
(1)Farak
Faraksigned
signedtheir
theirdrug
drug

certificates;(2)
certificates; (2)they
theymoved
movedunsuccessfully
unsuccessfullyfor
forpost-conviction
post-convictionrelief
reliefand/or
and/ordiscovery
discoverybetween
between

January19,
January 19,2013,
2013,and
andNovember
November1,
1,2014;
2014;and
and(3)
(3)their
theirmotions
motionswere
weredenied
deniedon
onthe
thebasis
basisof
ofthe
the

contaminatedevidentiary
contaminated evidentiaryrecord
recordestablished
establishedbefore
beforeJudge
JudgeKinder.
Kinder.With
Withrespect
respectto
tothose
those

defendants,dismissal
defendants, dismissalwith
withprejudice
prejudiceisisthe
theappropriate
appropriateremedy
remedyon
onsome
someor
orall
allof
ofthree
three

77
77
 Add. 95
Add.95
Add:95

independent
independent grounds:
grounds: (1)
(1) the
the government
government misconduct
misconduct was
was so
so egregious
egregious that
that itit created
created

presumptive
presumptive prejudice
prejudice and
and justifies
justifies dismissal
dismissal for
for prophylactic
prophylactic reasons;
reasons; (2)
(2) the
the misconduct
misconduct

constituted
constituted aa fraud
fraud on
on the
the court;
court; and
and (3)
(3) the
the misconduct
misconduct caused
caused these
these defendants
defendants irreparable
irreparable

harm.
harm.

At
At the
the other
other end
end of
of the
the spectrum
spectrum are
are defendants
defendants not
not entitled
entitled to
to dismissal
dismissal of
of indictments
indictments

with
with prejudice
prejudice because
because the
the egregious
egregious government
government misconduct
misconduct had
had no
no material
material connection
connection with
with

them.
them. Those
Those are
are the
the defendants
defendants (1)
(1) whose
whose drug
drug analysis
analysis certificates
certificates were
were not
not signed
signed by
by Farak;
Farak;

(2)
(2) who
who did
did not
not move
move for
for discovery
discovery or
or relief
relief between
between January
January 18,
18, 2013,
2013, and
and November
November 1,
1, 2014;
2014;

or
or (3)
(3) who
who were
were granted
granted post-conviction
post-conviction relief
relief on
on the
the basis
basis of
of the
the evidentiary
evidentiary record
record in
in 2013.
2013.

B.
B. Legal
Legal Standard
Standard for
for Motions
Motions Under
Under Mass.
Mass. R.
R. Crim.
Crim. P.
P. 30(b)38
30(b)38

Both
Both aa motion
motion for
for aa new
new trial
trial and
and aa motion
motion to
to withdraw
withdraw aa guilty
guilty plea,
plea, which
which is
is treated
treated as
as aa

motion
motion for
for new
new trial,
trial, are
are governed
governed by
by Mass.
Mass. R.
R. Crim.
Crim. P.
P. 30(b).
30(b). Rule
Rule 30(b)
30(b) authorizes
authorizes judges
judges to
to

grant
grant aa motion
motion for
for aa new
new trial
trial any
any time
time itit appears
appears that
that justice
justice may
may not
not have
have been
been done.
done. See
See

Commonwealth
Commonwealth v.
v. Furr,
Furr, 454
454 Mass.
Mass. 101,
101, 106
106 (2009).
(2009). A
A motion
motion for
for new
new trial
trial is
is committed
committed to
to the
the

judge's
judge's sound
sound discretion.
discretion. See
See Commonwealth
Commonwealth v.
v. Resende,
Resende, 475
475 Mass.
Mass. 1,
1, 12
12 (2016).
(2016).

In
In these
these drug
drug lab
lab cases,
cases, the
the analysis
analysis of
of aa defendant's
defendant's motion
motion pursuant
pursuant to
to Rule
Rule 30(b)
30(b) based
based

upon
upon alleged
alleged egregious
egregious government
government misconduct
misconduct follows
follows aa two
two prong
prong framework,
framework, see
see

Commonwealth
Commonwealth v. Resende, 475
v. Resende, 475 Mass.
Mass. at
at 15,
15, but
but varies
varies slightly
slightly depending
depending on
on whether
whether the
the

38
38
The
The Commonwealth
Commonwealth has has agreed
agreed that
that in
in Farak
Farak cases
cases inin which
which convictions
convictions are are set
set aside
aside but
but remain
remain subject
subject
to
to prosecution,
prosecution, the
the Commonwealth
Commonwealth will will only
only prosecute
prosecute the
the indictments
indictments whichwhich had
had culminated
culminated in in aa conviction,
conviction, andand
that
that on
on aa second
second proceeding
proceeding culminating
culminating inin aa conviction
conviction (by
(by trial
trial or
or guilty
guilty plea),
plea), the
the Commonwealth
Commonwealth will will not
not seek
seek aa
sentence
sentence more
more severe
severe than
than what
what the
the court
court originally
originally imposed.
imposed. See SeeCommonwealth
Commonwealth v. Bridgman, 471
v. Bridgeman, 471 Mass.
Mass. 465,
465,
468
468 (2015)
(2015) (holding
(holdingthatthat"a
"adefendant
defendantwho
whohas hasbeen
beengranted
grantedaanew newtrial
trialbased
basedon onDookhan's
Dookhan'smisconduct
misconduct. . ... cannot
cannot
be
be charged
charged with
with aa more
more serious
serious offense
offense than
than that
that of
of which
which hehe or
or she
she iniitially
iniitially was
was convicted
convicted under
under thethe terms
terms of
of aa plea
plea
agreement
agreement and,
and, ifif convicted
convicted again,
again, cannot
cannot bebe given
given aa more
more severe
severe sentence
sentence thanthan that
that which
which originally
originally waswas imposed").
imposed").

78
78
 Add. 96
Add.96
Add:96

conviction
convictionarose
aroseout
outof
ofaaguilty
guiltyplea
pleaor
oraatrial.
trial.AAdefendant
defendantmoving
movingtotowithdraw
withdrawaaguilty
guiltyplea
plea

must
mustshow
showthat
that(1)
(1)egregiously
egregiouslyimpermissible
impermissiblemisconduct
misconductby
byaagovernment
governmentagent
agentantedated
antedatedthe
the

entry
entryof
ofhis
hisor
orher
herplea,
plea,and
and(2)
(2)the
themisconduct
misconductoccurred
occurredininthe
thedefendant's
defendant'scase,
case,see
see

Commonwealth
Commonwealthv.v.Cotto,
Cotto,471
471Mass.
Mass.atat116,
116,or
orthat
thatititinfluenced
influencedhis
hisor
orher
herdecision
decisiontotoplead
plead

guilty
guiltyor
orwas
wasmaterial
materialtotothat
thatchoice, seeCommonwealth
choice,see Commonwealthv.v.Francis,
Francis,474
474Mass.
Mass.816,
816,821
821(2016).
(2016).

AAsuccessful
successfulshowing
showingon
onboth
bothprongs
prongsisisneeded
neededtotosucceed
succeedon
onaamotion
motiontotowithdraw
withdrawaaguilty
guiltyplea.
plea.

See
SeeCommonwealth
Commonwealthv.v.Resende,
Resende,475
475Mass.
Mass.atat3-4.
3-4.

In Scott, the
Commonwealthv.v.Scott,
InCommonwealth thecourt
courtannounced
announcedaasari
sarigeneris
generisevidentiary
evidentiaryrule
ruleapplicable
applicable

totoRule
Rule30(b)
30(b)motions
motionsininthe
theDookhan
Dookhancases:
cases:

"[I]n
"[I]ncases
casesininwhich
whichaadefendant
defendantseeks
seekstotovacate
vacateaaguilty
guiltyplea
plea. .. .. .as
asaaresult
resultofofthe
the
revelation
revelationof
ofDookhan's
Dookhan'smisconduct,
misconduct,and
andwhere
wherethe
thedefendant
defendantproffers
proffersaadrug drugcertificate
certificate
from
fromthe
thedefendant's
defendant's case
case signed
signed by
by Dookhan,
Dookhan, . . the
. thedefendant
defendantisisentitled
entitledtotoaaconclusive
conclusive
presumption
presumptionthatthategregious
egregiousgovernment
governmentmisconduct
misconductoccurred
occurredininthe thedefendant's
defendant'scase."
case."

467
467Mass.
Mass.336,
336,347,
347,352
352(2014).
(2014).That
Thatpresumption
presumptionhas
hasbeen
beenextended
extendedtotodefendants
defendantswho
whowere
were

convicted
convictedafter
afteraatrial
trialatatwhich
whichDookhan's
Dookhan'scertificates
certificatesof
ofanalysis
analysiswere
wereininevidence.
evidence.See
See

Commonwealth
Commonwealthv.v.Francis,
Francis,474
474Mass.
Mass.atat817.
817.

The
TheCommonwealth
Commonwealthhas
hasconceded
concededand
andstipulated
stipulatedthat
thatwhere
whereFarak
Faraksigned
signeddrug
drug

certificates
certificatessetting
settingforth
forththe
theweight
weightand
andidentity
identityof
ofthe
thesubstances
substances(consistent
(consistentwith
withthe
thebasis
basisof
ofthe
the

conviction)
conviction)and
andwhere
wherethe
thecertificates
certificateswere
wereadmitted
admittedatattrial,
trial,ififthe
theconviction
convictionfollowed
followedaatrial,
trial,

Farak's
Farak'sconduct
conductconstitutes
constitutesegregious
egregiousgovernmental
governmentalmisconduct
misconductand
andtherefore
thereforethat
thataaconclusive
conclusive

presumption
presumptionapplies
appliesthat
thatFarak's
Farak'smisconduct
misconductoccurred
occurredininthe
thedefendants'
defendants'cases,
cases,that
thatititwas
was

egregious
egregiousmisconduct,
misconduct,and
andthat
thatititisisattributable
attributabletotothe
theCommonwealth.
Commonwealth.Cf.
Cf.Commonwealth
Commonwealthv.v.

Scott,
Scott,467
467Mass.
Mass.atat352.
352.No
Nopresumption
presumptionof
ofegregious
egregiousgovernment
governmentmisconduct
misconductarises,
arises,however,
however,

79
79
 Add. 97
Add.97
Add:97

simply
simply because
because Farak
Farak worked
worked at
at the
the Amherst
Amherst lab
lab at
at the
the same
same time
time the
the drugs
drugs of
of that
that defendant
defendant

were
were tested.
tested. See
See Commonwealth
Commonwealth v. Gardner, 467
v. Gardner, 467 Mass.
Mass. 363,
363, 369
369 (2014).39
(2014).39

The
The Commonwealth
Commonwealth stipulates
stipulates that
that Farak's
Farak's egregious
egregious government
government misconduct
misconduct occurred
occurred

during
during the
theentire
entireperiod
periodininwhich
whichshe
sheworked
workedatatthe
theAmherst
Amherstlab.4°
lab.'Therefore,
Therefore, where
where the
the

conclusive
conclusive presumption
presumption applies,
applies, the
the defendants
defendants need
need only
only prove
prove the
the second
second prong
prong of
of the
the Ferrara-
Ferrara-

Scott
Scott test.
test. See
See Commonwealth
Commonwealth v.
v. Resende,
Resende, 475
475 Mass.
Mass. at
at 3.
3.

In
In the
the second
second prong,
prong, the
the defendants
defendants must
must particularize
particularize Farak's
Farak's misconduct
misconduct to
to their
their

decisions
decisions to
to plead
plead guilty
guilty by
by demonstrating
demonstrating aa reasonable
reasonable probability
probability that
that they
they would
would not
not have
have pled
pled

guilty
guilty had
had they
they known
known of
of the
the misconduct.
misconduct. See
See Cotto,
Cotto, 471
471 Mass.
Mass. at
at 116.
116. The
The judge
judge must
must

determine
determine whether,
whether, in
in the
the totality
totality of
of the
the circumstances,
circumstances, the
the defendants
defendants can
can demonstrate
demonstrate aa

reasonable
reasonable probability
probability that
that had
had they
they known
known of
of the
the misconduct,
misconduct, they
they would
would not
not have
have admitted
admitted to
to

sufficient
sufficient facts
facts and
and would
would have
have insisted
insisted on
on taking
taking their
their chances
chances at
at trial. See Commonwealth
trial. See Commonwealth v.
v.

Scott,
Scott, 467
467 Mass.
Mass. at
at 357.
357.

Because
Because each
each defendant's
defendant's decision
decision to
to plead
plead guilty
guilty is
is an
an individualized
individualized one,
one, the
the relevant
relevant

factors
factors to
to be
be taken
taken into
into account
account vary
vary from
from case
case to
to case.
case. See
See Commonwealth
Commonwealth v.
v. Resende,
Resende, 475
475

39
39
Insofar
Insofar as as the
the defendants
defendants claim
claim entitlement
entitlement to
to Rule
Rule 30(b)
30(b) relief
relief on
on the
the grounds
grounds that
that the
the laboratory
laboratory testing
testing
procedures
procedures were were defective,
defective, nono conclusive
conclusive presumption
presumption ofof egregious
egregious government
government misconduct
misconduct has has been
been recognized
recognized asas
available
available to to them.
them. Cf.Cf. Commonwealth
Commonwealth v. Scott, 467
v. Scott, 467 Mass.
Mass. at
at 354
354 (presumption
(presumption of of government
government misconduct
misconduct "shall
"shall not
not
apply
apply inin aa trial
trial in
in which
which thethe defendant
defendant seeks
seeks to
to impeach
impeach the
the testing
testing process
process utilized
utilized at
at [the
[the lab],
lab], including
including those
those new
new
trials
trials conducted
conducted following
following thethe grant
grant of
of aa defendant's
defendant's motion
motion to to withdraw
withdraw aa guilty
guilty plea
plea pursuant
pursuant to to our
our holding
holding in
in this
this
case").
case").
40
40
0n
0n August 24, 2016, the district attorneys for all of the districts in the Commonwealth
Commonwealth filed filed in
in these
these drug
drug
lab
lab cases
cases the
the Commonwealth's
Commonwealths Statement of Finding of "Egregious "Egregious Governmental
Governmental Conduct"'
Conduct"' informing
informing thethe court
court that
that
"where
"wherethere thereisisaacertificate
certificateofofdrug
druganalysis
analysissigned
signedbyby. .. .Farak
Farakas
as'Assistant
'Assistant Analyst,'
Analyst,' the Commonwealth will will not
not
contest
contest aa finding
finding byby the
the Court
Court of
of 'egregious
'egregious governmental
governmental conduct'
conduct' on
on Farak's
Farak's part
part inin the
the performance
performance of of her
her duties
duties
while
while at at the
the Department
Department of of Public
Public Health
Health Amherst
Amherst Laboratory,
Laboratory, pursuant
pursuant to
to the
the first
first part
part of
of the
the two-prong
two-prong analysis
analysis set
set
out
out in
in the
the case
case of
of Commonwealth
Commonwealth v. Scott, 467
v. Scott, 467 Mass.
Mass. 336
336 (2014)."
(2014)." The
The Commonwealth
Commonwealth has has since
since clarified
clarified that
that by
by
"egregious
"egregious governmental
governmental conduct,"
conduct," thethe Commonwealth
Commonwealth refers refers to
to Farak's
Farak's misconduct,
misconduct, and and that
that the
the stipulation
stipulation also
also
covers
covers the the period
period between
between July
July 2012
2012 and and January
January 18,
18, 2013,
2013, whenwhen the
the Amherst
Amherst lab lab was
was under
under the
the control
control ofof the
the MSP.
MSP.

80
80
 Add. 98
Add.98
Add:98

Mass. at
Mass. at 16-17.
16-17. "[T]he
"[T]he full
full context
context of
of the
the defendant's
defendant's decision
decision to
to enter
enter aa plea
plea agreement
agreement will
will

dictate
dictate the
the assessment
assessment of
of his
his claim
claim that
that knowledge
knowledge of
of [the
[the chemist's]
chemist's] misconduct
misconduct would
would have
have

influenced
influenced the
the defendant's
defendant's decision
decision to
to plead guilty." Commonwealth
plead guilty." Commonwealth v.
v. Scott,
Scott, 467
467 Mass.
Mass. at
at 357.
357.

Factors
Factors which
which may
may be
be relevant
relevant to
to aa defendant's
defendant's showing
showing under
under the
the second
second prong
prong are:
are: (1)
(1) whether
whether

evidence
evidence of
of government
government misconduct
misconduct could
could have
have detracted
detracted from
from the
the factual
factual basis
basis used
used to
to support
support

the
the guilty
guilty plea,
plea, (2)
(2) whether
whether the
the evidence
evidence could
could have
have been
been used
used to
to impeach
impeach aa witness
witness whose
whose

credibility
credibility may
may have
have been
been outcome-determinative,
outcome-determinative, (3)
(3) whether
whether the
the evidence
evidence was
was cumulative
cumulative of
of

other
other evidence
evidence already
already in
in the
the defendant's
defendant's possession,
possession, (4)
(4) whether
whether the
the evidence
evidence would
would have
have

influenced
influenced counsel's
counsel's recommendation
recommendation as
as to
to whether
whether to
to accept
accept aa particular
particular plea
plea offer,
offer, (5)
(5) whether
whether

the
the value
value of
of the
the evidence
evidence was
was outweighed
outweighed by
by the
the benefits
benefits of
of entering
entering into
into the
the plea
plea agreement,
agreement, (6)
(6)

whether
whether the
the defendant
defendant was
was indicted
indicted on
on additional
additional charges,
charges, (7)
(7) whether
whether the
the defendant
defendant had
had aa

substantial
substantial ground
ground of
of defense
defense that
that would
would have
have been
been pursued
pursued at
at trial,
trial, and
and (8)
(8) whether
whether other
other special
special

circumstances,
circumstances, such
such as
as collateral
collateral immigration
immigration consequences
consequences arising
arising from
from conviction
conviction of
of aa

particular
particular crime,
crime, were
were present.
present. Commonwealth
Commonwealth v.
v. Resende,
Resende, 475
475 Mass.
Mass. at
at 16-17,
16-17, and
and cases
cases cited.
cited.

An
An additional
additional possible
possible relevant
relevant factor
factor in
in some
some cases
cases is
is whether
whether the
the drug-related
drug-related charges
charges were
were aa

minor
minor component
component of
of an
an over-all
over-all plea
plea agreement.
agreement. See
See Commonwealth
Commonwealth v.
v. Scott,
Scott, 467
467 Mass.
Mass. at
at 357.
357.

The
The reasonable
reasonable probability
probability test
test must
must be
be based
based on
on actual
actual facts
facts and
and circumstances
circumstances surrounding
surrounding the
the

defendant's
defendant's decision
decision at
at the
the time
time of
of the
the guilty
guilty plea
plea in
in light
light of
of the
the one
one hypothetical
hypothetical question
question of
of what
what

the
the defendant
defendant reasonably
reasonably may
may have
have done
done had
had he
he or
or she
she known
known of
of the
the misconduct.
misconduct. See
See id.
id,

In
In this
this analysis,
analysis, the
the

"motion
"motion judge
judge may
may consider
consider such
such relevant
relevant facts
facts as
as the
the circumstances
circumstances of
of the
the defendant's
defendant's
arrest
arrest and
and whether
whether the
the Commonwealth
Commonwealth possessed
possessed other
other circumstantial
circumstantial evidence
evidence tending
tending to
to
support
support the
the charge
charge of
of drug
drug possession,
possession, along
along with
with the
the generous
generous terms
terms of
of the
the sentence
sentence

81
81
 Add. 99
Add.99
Add:99

reduction he
reduction he received."
received."

Commonwealth v.
Commonwealth 467 Mass.
Scott,467
v. Scott, Mass. at
at 357.
357. Significant
Significant circumstantial
circumstantial evidence
evidence suggesting
suggesting that
that

the substances
the substances are,
are, in
in fact,
fact, the
the suspected
suspected illegal
illegal drugs,
drugs, include
include (1)
(1) controlled
controlled purchases
purchases from
from aa

defendant; (2)
defendant; (2) results
results of
of field
field testing;
testing; (3)
(3) police
police finding
finding in
in aa defendant's
defendant's home
home supplies,
supplies, tools,
tools, and
and

instruments for
instruments for cooking,
cooking, processing,
processing, and
and packaging
packaging drugs;
drugs; (4)
(4) the
the defendant
defendant pointing
pointing out
out drugs
drugs to
to

police; and
police; and (5)
(5) the
the availability
availability of
of an
an experienced
experienced narcotics
narcotics detective
detective to
to testify,
testify, based
based on
on his
his or
or her
her

training and
training and experience,
experience, that
that the
the substances
substances at
at issue
issue were
were the
the drugs.
drugs. See
See Commonwealth
Commonwealth v.
v.

Antone, 90
Antone, 90 Mass.
Mass. App.
App. Ct.
Ct. 810,
810, 817
817 (2017).
(2017).

In some
In some of
of the
the cases
cases before
before me,
me, the
the Commonwealth
Commonwealth has
has presented
presented evidence
evidence that
that the
the

substances originally
substances originally tested
tested by
by Farak
Farak were
were retested
retested and
and that
that the
the results
results were
were consistent
consistent with
with

Farak's analysis.
Farak's analysis. Evidence
Evidence of
of retesting
retesting isis relevant
relevant in
in Rule
Rule 30(b)
30(b) analysis
analysis ifif itit was
was available
available to
to the
the

defendant before
defendant before his
his or
or her
her conviction.
conviction.

"[I]n assessing
"[I]n assessing thethe likelihood
likelihood of of whether
whether the the defendant
defendant would
would have
have tendered
tendered aa guilty
guilty plea,
plea,
aa judge
judge may
may not
not consider
consider anyany assertion
assertion by by the
the Commonwealth
Commonwealth that that itit would
would have
have offered
offered
to retest the substances at issue in the defendant's case if the defendant
to retest the substances at issue in the defendant's case if the defendant had known of had known of
Dookhan's misconduct.
Dookhan's misconduct. The The reasonable
reasonable probability
probability analysis
analysis must
must be
be based
based on
on the
the actual
actual
facts and circumstances surrounding the defendant's decision at the
facts and circumstances surrounding the defendant's decision at the time of the guilty plea time of the guilty plea
in light
in light of
of the
the one
one hypothetical
hypothetical question
question of of what
what the
the defendant
defendant reasonably
reasonably may may have
have done
done
ifif he
he had
had known
known of of Dookhan's
Dookhan's misconduct.
misconduct. To To permit
permit further
further hypothetical
hypothetical arguments
arguments toto
factor into
factor into the
the analysis,
analysis, such
such asas the
the results
results of
of any
any retesting
retesting the
the Commonwealth
Commonwealth might might
have offered
have offered toto undertake,
undertake, would
would require
require aa court
court to
to heap
heap inference
inference upon
upon inference
inference and
and
will bring
will bring the
the inquiry
inquiry under
under this
this prong
prong tootoo far
far afield
afield of
of the
the facts
facts and
and circumstances
circumstances
actually known
actually known to to the
the defendant
defendant at at the
the time
time ofof his
his guilty
guilty plea."
plea."

See Commonwealth
See Commonwealth v.
v. Scott,
Scott, 467
467 Mass.
Mass. at
at 357-358.
357-358.

On the
On the other
other hand,
hand, where
where at
at trial,
trial, the
the evidence
evidence of
of retesting
retesting was
was presented
presented to
to the
the jury
jury and
and

the chemist
the chemist who
who performed
performed the
the retesting
retesting testified,
testified, the
the defense
defense focus
focus shifts
shifts from
from the
the original
original

chemist's misconduct
chemist's misconduct to
to the
the sufficiency
sufficiency of
of the
the evidence
evidence that
that the
the substances
substances were
were what
what the
the

82
82
 Add. 100
Add.100
Add:100

Commonwealth
Commonwealth alleges.
alleges. Cf.
Cf. Commonwealth
Commonwealth v.
v. Curry,
Curry, 88
88 Mass.
Mass. App.
App. Ct.
Ct. 61,
61, 63-64
63-64 (2015)
(2015)

(where
(where drug
drug samples
samples were
were subject
subject to
to testing
testing by
by aa chemist
chemist other
other than
than Dookhan,
Dookhan, and
and jury
jury heard
heard

evidence
evidence of
of that
that testing,
testing, the
the jury
jury were
were entitled
entitled to
to rely
rely on
on other
other chemist's
chemist's testimony
testimony and
and to
to find
find

that
that defendant
defendant possessed
possessed illegal
illegal drugs
drugs when
when he
he was
was arrested);
arrested); Commonwealth
Commonwealth v.
v. Pack,
Pack, 90
90 Mass.
Mass.

App.
App. Ct.
Ct. 1122,
1122, *2
*2 (2016)
(2016) (Rule
(Rule 1:28
1:28 decision)
decision) (where
(where Commonwealth
Commonwealth had
had substances
substances retested
retested

and
and defendant
defendant had
had opportunity
opportunity to
to discredit
discredit drug
drug evidence
evidence at
at trial,
trial, knowing
knowing of
of Dookhan's
Dookhan's

involvement
involvement in
in his
his case
case at
at the
the time
time of
of his
his trial,
trial, "the
"the testimony
testimony and
and physical
physical evidence
evidence presented
presented by
by

the
the chemist
chemist at
at trial
trial was
was sufficient
sufficient to
to allow
allow aa jury
jury to
to find
find the
the defendant
defendant possessed
possessed heroin
heroin and
and

cocaine"
cocaine" and
and there
there was
was no
no error
error in
in denial
denial of
of defendant's
defendant's motion
motion for
for required
required findings
findings of
of not
not

guilty);
guilty); Commonwealth
Commonwealth v.
v. Martin,
Martin, 91
91 Mass.
Mass. App.
App. Ct.
Ct. 1121,
1121, *2
*2 (2017)
(2017) (Rule
(Rule 1:28
1:28 decision)
decision) (in
(in

Dookhan
Dookhan drug
drug lab
lab case,
case, at
at defendant's
defendant's trial,
trial, chemist
chemist testified
testified that
that she
she retested
retested substances
substances and
and

confirmed
confirmed their
their identity
identity as
as heroin;
heroin; court
court affirmed
affirmed conviction,
conviction, concluding
concluding that
that retesting
retesting evidence
evidence

was
was sufficient
sufficient to
to prove
prove that
that substance
substance was
was heroin).
heroin).

V.
V. Conclusions
Conclusions of
of Law
Law

A.
A. Erick
Erick Cotto
Cotto

1.
1. Factual
Factual and
and Procedural
Procedural Background
Background

On
On June
June 14,
14, 2007,
2007, aa grand
grand jury
jury indicted
indicted Cotto
Cotto on
on charges
charges of
of trafficking
trafficking in
in cocaine
cocaine (28-
(28-

100
100 grams)
grains) (count
(count 1),
1), and
and unlawful
unlawful possession
possession of
of ammunition
ammunition without
without aa firearms
firearms identification
identification

card,
card, aa subsequent
subsequent offense
offense (count
(count 2).
2). The
The evidence
evidence supporting
supporting the
the cocaine
cocaine trafficking
trafficking charge
charge was
was

that
that when
when police
police arrested
arrested Cotto,
Cotto, he
he had
had eight
eight packages
packages of
of what
what appeared
appeared to
to be
be cocaine
cocaine packaged
packaged

for
for street
street level
level distribution,
distribution, and
and Cotto
Cotto told
told police
police that
that he
he had
had additional
additional drugs
drugs in
in his
his apartment.
apartment.

Police
Police subsequently
subsequently searched
searched the
the apartment
apartment and
and found
found more
more apparent
apparent drugs,
drugs, packaging
packaging materials,
materials,

83
83
 Add. 101
Add.101
Add:101

scales
scales and
and ammunition.
ammunition. Farak
Farak had
had tested
tested the
the substances
substances in
in Cotto's
Cotto's case
case and
and had
had signed
signed the
the

certificates
certificates of
of drug
drug analysis
analysis the
the week
week before
before Cotto's
Cotto's indictment.
indictment.

Inexchange
In exchange for
for aa guilty
guilty plea,
plea, the
the Commonwealth
Commonwealth agreed
agreed to
to reduce
reduce the
the trafficking
trafficking charge
charge

from
frombetween
between28-100
28-100grams
gramsto
tobetween
between14-28
14-28grams
gramsand
andititwaived
waivedthe
thesubsequent
subsequent offender
offender

enhancement
enhancement portion
portion of
of the
the ammunition
ammunition charge.
charge. Whereas
Whereas Cotto
Cotto could
could have
have been
been sentenced
sentencedto
toup
up

to
to 20
20 years
years without
without that
that agreement,
agreement, according
according to
to the
the Commonwealth,
Commonwealth, the
the agreed-upon
agreed-upon plea
plea called
called

for
for concurrent
concurrent sentences
sentences and
and resulted
resulted in
in committed
committed time
time of
of five
five years.
years. On
On April
April 13,
13,2009,
2009,

pursuant
pursuant to
to that
that plea
plea agreement,
agreement, Cotto
Cotto pled
pled guilty
guilty to
to trafficking
trafficking in
in cocaine
cocaine (14-28
(14-28 grams)
grams) and
and

unlawful possession
unlawful possession of
of ammunition,
ammunition, and
and he
he was
was sentenced
sentenced by
by the
the court
court (Page,
(Page, J.)
J.) to
to five
five years
yearsin
in

State prison
State prison on
on the
the trafficking
trafficking charge,
charge, and
and on
on the
the ammunition
ammunition charge
charge to
to one
one year
yearin
inaahouse
houseof
of

correction
correction to
to run
run concurrently
concurrently with
with the
the sentence
sentence on
on the
the trafficking
traffickingcount.
count.

On
OnApril
April25,
25,2013,
2013,shortly
shortlyafter
afterFarak's
Farak'sarraignment,
arraignment,Cotto
Cottomoved
movedto
towithdraw
withdrawhis
hisguilty
guilty

plea, asserting
plea, asserting that
that Farak's
Farak's criminal
criminal conduct
conduct was
was newly
newly discovered
discovered evidence
evidencewhich
whichwould
wouldhave
have

been
been material
material to
to his
his decision
decision to
to plead
plead guilty,
guilty, and
and that
that his
his guilty
guilty plea
plea without
without knowledge
knowledge of
ofher
her

misconduct was
misconduct was unknowing
unknowing and
and involuntary.
involuntary. In
In September
September and
and October
October of
of 2013,
2013, Cotto
Cotto

participated in
participated in the
the consolidated
consolidated evidentiary
evidentiary hearing,
hearing, after
after which
which Judge
Judge Kinder
Kinderdenied
deniedCotto's
Cotto's

motion
motion to
to withdraw
withdraw his
his guilty
guilty pleas,
pleas, concluding
concluding that
that Farak's
Farak's cocaine
cocaine tampering
tampering did
did not
notoccur
occur

before
before July
July of
of 2012.
2012. That
That conclusion
conclusion ---- later
later shown
shown to
to be
be faulty
faulty ---- was
was the
the direct
direct result
resultof
of

Kaczmarek's and
Kaczmarek's and Foster's
Foster's intentional
intentional withholding
withholding of
of exculpatory
exculpatory evidence
evidence from
fromthe
thedrug
druglab
lab

defendants
defendants and
and from
from Judge
Judge Kinder.
Kinder.

Cotto
Cotto appealed.
appealed. On
On May
May 11,
11, 2015,
2015, the
the court
court vacated
vacated the
the order
order denying
denying Cotto's
Cotto's motion
motion to
to

withdraw
withdraw his
his guilty
guilty plea
plea and
and remanded
remanded the
the matter
matter for
for further
further proceedings,
proceedings, including
includingaamore
morethan
than

84
84
 Add. 102
Add.102
Add:102

cursoryinvestigation
cursory investigationinto
intothe
thescope
scopeand
andnature
natureof
ofFarak's
Farak'smisconduct.
misconduct.See Commonwealthv.v.
See Commonwealth

Cotto,
Cotto,471
471 Mass.
Mass. at
at 115.
115. The
The Supreme
Supreme Judicial
Judicial Court
Court noted
noted that
that the
the Cotto
Cotto case
case was
was problematic
problematic

because the
because the defendant's
defendant's drug
drug samples
samples had
had been
been destroyed.
destroyed. See id. at
See id. at 115
115& n.9 ("According
&n.9 ("According to
to

the
the Commonwealth,
Commonwealth, the
the drugs
drugs seized
seized from
from [Cotto]
[Cotto] have
have been
been destroyed").
destroyed"). In
In an
an about-face,
about-face, the
the

Commonwealth has
Commonwealth has recently
recently filed
filed aa certificate
certificate of
of drug
drug analysis
analysis representing
representing that
that the
the Cotto
Cotto

substances had
substances had somehow
somehow been
been retested
retested on
on January
January 20,
20, 2017.
2017. The
The Commonwealth
Commonwealth does
does not
not

addressthis
address thissignificant
significantdiscrepancy
discrepancyin
inthe
therecord.
record.

2. Cotto's
2. Cotto's Motion
Motion to
to Dismiss
Dismiss

Prophylactic considerations
Prophylactic considerations persuade
persuade me
me that
that the
the intentional
intentional withholding
withholding of
of exculpatory
exculpatory

evidence
evidence by
by Kaczmarek
Kaczmarek and
and Foster
Foster constituted
constituted egregious
egregious government
government misconduct
misconduct warranting
warranting

dismissal with
dismissal with prejudice
prejudice of
of Cotto's
Cotto's indictment
indictment for
for cocaine
cocaine trafficking.
trafficking. See
See Commonwealth
Commonwealthv.v.

Light,
Light, 394
394 Mass.
Mass. at
at 114;
114; Commonwealth
Commonwealth v.v. Texeira,
Texeira, 76
76 Mass.
Mass. App.
App. Ct.
Ct. at
at 108.
108. In
In contrast,
contrast, the
the

indictment for
indictment for unlawful
unlawful possession
possession of
of ammunition
ammunition without
without aa firearms
firearms identification
identificationcard
cardisis

completely unrelated
completely unrelated to
to any
any misconduct
misconduct in
in these
these cases
cases and
and there
there isis no
no basis
basis for
forallowing
allowingrelief
reliefon
on

that
that charge.
charge.

Cotto
Cotto was
was presumptively
presumptively prejudiced
prejudiced by
by Kaczmarek's
Kaczmarek's and
and Foster's
Foster's egregious
egregiousmisconduct.
misconduct.

Heparticipated
He participated in
in the
the discovery
discovery proceedings
proceedings in
in 2013
2013 while
while Kaczmarek
Kaczmarek and
and Foster
Foster deliberately
deliberately

useddeceptive
used deceptivetactics
tacticsto
toshield
shieldthe
themental
mentalhealth
healthworksheets
worksheets from
from disclosure,
disclosure, all
all in
in violation
violation of
of

the defendants'
the defendants' constitutional
constitutional rights
rights and
and aa court
court order.
order. See
See Commonwealth
Commonwealthv.v.Cronk,
Cronk, 396
396Mass.
Mass.

at 198-199.
at 198-199. The
The same
same prophylactic
prophylactic considerations
considerations apply
apply to
to deter
deter future
future intentional
intentional withholding
withholding

ofexculpatory
of exculpatoryevidence,
evidence,because
becauseFoster
Fostercommitted
committedaafraud
fraudupon
uponthe
thecourt
courtin
inher
herletter
letterto
toJudge
Judge

Kinder
Kinderkeep
keephim
himfrom
fromreviewing
reviewingthe
theAGO's
AGO'sdocuments.
documents.See
See Commit-
Commit-of
ofProbation
Probationv.v.Adams,
Adams,65
65

85
85
 Add. 103
Add.103
Add:103

Mass. App.
Mass. App. Ct.
Ct. at
at 729-730.
729-730.

Independentlyof
Independently ofthe
theneed
needto
toallow
allowCotto's
Cotto'smotion
motionto
todismiss
dismissto
todeter
deterfuture
futuremisconduct,
misconduct,II

conclude that
conclude that Kaczmarek's
Kaczmarek's and
and Foster's
Foster's misconduct
misconduct caused
caused Cotto
Cotto irreparable
irreparableharm.
harm.Had
HadFarak's
Farak's

mentalhealth
mental healthworksheets
worksheetsbeen
beendisclosed
disclosedin
in2013
2013as
asthey
theyshould
shouldhave
havebeen,
been,further
furtherdiscovery
discoveryinto
into

her treatment
her treatment records
records would
would have
have revealed
revealed much
much earlier
earlier that
that Farak's
Farak's substance
substanceabuse
abusewent
wentback
back

to at
to at least
least 2004
2004 and
and that
that her
her theft
theft of
of police-submitted
police-submitted samples
samples started
started long
long before
before 2012.
2012. Based
Based

on
onthese
theserevelations,
revelations, prosecutors
prosecutors have
have assented
assented to
to new
new trial
trial motions
motions for
for some
some defendants
defendants with
with

time served
time served agreements.
agreements. ItIt isis quite
quite likely
likely that
that Cotto
Cotto would
would have
have benefitted
benefitted from
from aa similar
similar

agreement and
agreement and thereby
thereby would
would have
have avoided
avoided serving
serving seven
seven more
more months
months in
in prison.
prison.Because
BecauseCotto
Cotto

cannot
cannot get
get back
back the
the time
time he
he served
served in
in prison,
prison, the
the prejudice
prejudice to
to him
him isis irremediable.
irremediable. Cf.
Cf.

Commonwealth v.v. Washington

Commonwealth Washington W.,
W., 462
462 Mass.
Mass. at
at 217.
217. Accordingly,
Accordingly, Cotto's
Cotto's motion
motion to
to dismiss
dismissisis

allowed with
allowed with prejudice
prejudice as
as to
tothe
thecocaine
cocainetrafficking
traffickingcharge,
charge,but
butnot
notthe
theammunition
ammunitioncharge.
charge.

3.
3. Cotto's
Cotto's Motion
Motion to
to Withdraw
Withdraw His
His Guilty
Guilty Plea
Plea

Cotto
Cotto also
also moves,
moves, alternatively,
alternatively, should
should dismissal
dismissal ultimately
ultimately not
not be
be allowed,
allowed, to
to withdraw
withdraw

his
hisguilty
guiltyplea
pleapursuant
pursuantto
toMass.
Mass.R.
R.Crim.
Crim.P.
P.30(b),
30(b),claiming
claimingthat
thathe
he did
did not
not knowingly
knowingly or
or

voluntarily tender
voluntarily tender aa guilty
guilty plea
plea because
because he
he was
was unaware
unaware of
of Farak's
Farak's egregious
egregious misconduct.
misconduct.

Because
BecauseFarak
Faraksigned
signedCotto's
Cotto'sdrug
druganalysis
analysiscertificate
certificateand
andthe
therecord
recordshows
showsthat
thatFarak
Farakwas
was

impaired
impaired by
by drugs
drugs or
or withdrawal
withdrawal throughout
throughout her
her tenure
tenure at
at the
the Amherst
Amherst lab,
lab, the
the Commonwealth
Commonwealth

agrees
agrees that
that Cotto
Cotto has
has satisfied
satisfied the
the first
first prong
prong of
of the
the two
two part
part test,
test, and
and therefore
therefore to
to obtain
obtain aa new
new

trial,
trial,Cotto
Cottomust
mustparticularize
particularizeFarak's
Farak'smisconduct
misconductto
tohis
hisdecision
decisionto
toplead
pleadguilty
guiltyby
bydemonstrating
demonstrating

aareasonable
reasonableprobability
probabilitythat
thathe
hewould
wouldnot
nothave
haveadmitted
admittedto
tosufficient
sufficientfacts
factsand
andpled
pledguilty
guiltyhad
hadhe
he

known of
known of Farak's
Farak's misconduct,
misconduct, and
and instead
instead would
would have
have taken
takenhis
hischances
chancesatattrial.
trial.See
See

86
86
 Add. 104
Add.104
Add:104

Commonwealth
Commonwealth v.
v. Cotto,
Cotto, 471
471 Mass.
Mass. at
at 116;
116; Commonwealth
Commonwealth v. Scott, 467
v. Scott, 467 Mass.
Mass. at
at 357-358.
357-358.

There
There was
was strong
strong circumstantial
circumstantial evidence
evidence that
that the
the substances
substances seized
seized in
in his
his case
case were
were

cocaine:
cocaine: (1)
(1) after
after police
police found
found on
on Cotto
Cotto eight
eight packages
packages of
of what
what appeared
appeared to
to be
be cocaine
cocaine prepared
prepared

for
for street
street level
level distribution,
distribution, Cotto
Cotto told
told police
police that
that he
he had
had additional
additional drugs
drugs in
in his
his apartment,
apartment, and
and

(2)
(2) in
in Cotto's
Cotto's apartment,
apartment, police
police not
not only
only found
found more
more suspected
suspected drugs
drugs as
as Cotto
Cotto told
told them
them they
they

would
would find
find there,
there, but
but they
they also
also found
found drug
drug trafficking
trafficking paraphernalia
paraphernalia and
and ammunition.
ammunition. See
See

Commonwealth
Commonwealth v.
v. Scott,
Scott, 467
467 Mass.
Mass. at
at 357
357 (motion
(motion judge
judge may
may consider
consider as
as circumstantial
circumstantial

evidence
evidence of
of identity
identity of
of substance
substance circumstances
circumstances of
of defendant's
defendant's arrest
arrest and
and whether
whether

Commonwealth
Commonwealth possessed
possessed other
other circumstantial
circumstantial evidence
evidence tending
tending to
to support
support charge
charge of
of drug
drug

possession,
possession, along
along with
with generous
generous terms
terms of
of sentence
sentence reduction).
reduction). Cf.
Cf. Commonwealth
Commonwealth v.
v. Antone,
',Intone, 90
90

Mass.
Mass. App.
App. Ct.
Ct. at
at 817
817 (judge
(judge may
may consider
consider as
as circumstantial
circumstantial evidence
evidence suggesting
suggesting that
that substances
substances

are
are suspected
suspected drugs
drugs aa defendant's
defendant's pointing
pointing out
out drugs
drugs to
to police).
police). This
This is
is not,
not, however,
however, aa case
case in
in

which
which there
there is
is circumstantial
circumstantial evidence
evidence of
of the
the identity
identity of
of the
the substances
substances by
by field
field testing
testing or
or

controlled
controlled buys.
buys. See
See Commonwealth
Commonwealth v.
v. Resende,
Resende, 475
475 Mass.
Mass. at
at 16-17
16-17 (evidence
(evidence against
against defendant
defendant

was
was strong,
strong, consisting
consisting of
of field
field test
test results
results and
and five
five controlled
controlled buys).
buys).

A
A second
second factor
factor weighing
weighing against
against Cotto
Cotto is
is that
that he
he received
received aa lighter
lighter sentence
sentence under
under the
the

plea
plea agreement
agreement than
than he
he would
would have
have faced
faced at
at trial.
trial. The
The five
five year
year sentence
sentence of
of committed
committed time
time

under
under the
the plea
plea agreement
agreement was
was quite
quite favorable
favorable for
for aa conviction
conviction of
of trafficking
trafficking in
in 14-28
14-28 grams
grams of
of

cocaine.
cocaine. See
See Commonwealth
Commonwealth v.
v. Scott,
Scott, 467
467 Mass.
Mass. at
at 357.
357.

On
On the
the other
other hand,
hand, Attorney
Attorney Jennifer
Jennifer Johnson,
Johnson, who
who represented
represented Cotto
Cotto at
at the
the time
time of
of his
his

plea,
plea, has
has credibly
credibly stated
stated in
in an
an affidavit
affidavit that
that she
she would
would not
not have
have advised
advised Cotto
Cotto to
to have
have pled
pled guilty
guilty

under
under the
the terms
terms of
of the
the plea
plea agreement
agreement he
he tendered
tendered had
had she
she known
known of
of Farak's
Farak's misconduct.
misconduct.

87
87
 Add. 105
Add.105
Add:105

Instead,
Instead,she
shestates,
states,she
shewould
wouldhave
haveadvised
advisedCotto
Cottoto
tohave
havenegotiated
negotiatedfor
foraabetter
betterplea
pleadeal
dealand,
and,

failingthat,
failing that,to
togo
goto
totrial.
trial.

ItItisisan
anextremely
extremelyclose
closequestion
questionwhether,
whether,in
inall
allof
ofthese
thesecircumstances,
circumstances,Cotto
Cottohas
has

demonstrated
demonstratedaareasonable
reasonableprobability
probabilitythat
thathe
hewould
wouldnot
nothave
haveadmitted
admittedto
tosufficient
sufficientfacts
factsand
and

pled
pledguilty
guiltyunder
underthe
theterms
termsthen
thenoffered
offeredto
tohim
himhad
hadhe
heknown
knownof
ofFarak's
Farak'smisconduct.
misconduct.Absent
Absent

reliable
reliablechemical
chemicalanalysis
analysisconfirming
confirmingthe
theidentity
identityof
ofthe
thesubstances
substancesin
inCotto's
Cotto'scase,
case,the
the

circumstantial
circumstantialevidence
evidenceisisstrong
strongbut
butnot
notquite
quitestrong
strongenough.
enough.The
Thedamning
damningevidence
evidenceof
ofCotto
Cotto

telling
tellingpolice
policethat
thathe
hehad
hadmore
moredrugs
drugsin
inhis
hisapartment,
apartment,and
andpolice
policefinding
findingthose
thosesubstances
substancesand
and

drug
drugdistribution
distributionparaphernalia,
paraphernalia,are
arecounterbalanced
counterbalancedby
bythe
thecredible
credibleaffidavit
affidavitof
ofAttorney
Attorney

Johnsonstating
Johnson statingthat
thatshe
shewould
wouldhave
haveadvised
advisedCotto
Cottoto
toreject
rejectthe
theplea
pleaagreement
agreementwhich
whichhe
heentered
entered

had
hadthey
theyknown
knownof
ofFarak's
Farak'smisconduct.
misconduct.With
Withsuch
suchknowledge,
knowledge,Cotto
Cottowould
wouldhave
havebeen
beenable
ableto
to

reachaamore
reach morefavorable
favorableplea
pleaagreement.
agreement.Consequently,
Consequently,in
inconsideration
considerationof
ofthe
thefull
fullcontext
contextof
of

Cotta's
Cotto'sdecision
decisiontototender
tenderguilty
guiltypleas,
pleas,IIfind
findthat
thatCotto
Cottohas
hasmet
methis
hisburden
burdenof
ofdemonstrating
demonstratingaa

reasonableprobability
reasonable probabilitythat
thathe
hewould
wouldnot
nothave
haveadmitted
admittedto
tosufficient
sufficientfacts
factsand
andpled
pledguilty
guiltyunder
under

the
theterms
termsthen
thenoffered
offeredto
tohim
himhad
hadhe
heknown
knownof
ofFarak's
Farak'smisconduct.
misconduct. Commonwealth
Commonwealthv.v.Cotto,
Cotto,471
471

Mass.
Mass.atat116.
116.Therefore,
Therefore,his
hismotion
motionunder
underRule
Rule30(b)
30(b)isisallowed.
allowed.See
SeeCommonwealth
Commonwealthv.v.Scott,
Scott,

467Mass.
467 Mass.atat357-358.
357-358.

B.
B.Omar
OmarHarris
Harris

1.
1.Factual
Factualand
andProcedural
ProceduralBackground
Background

On
OnNovember
November18,
18,2010,
2010,Harris
Harriswas
wasindicted
indictedby
byaagrand
grandjury
juryon
oncharges
chargesof
oftrafficking
traffickingin
in

cocaine(14
cocaine (14to
to28
28grams)
grams)as
asan
anhabitual
habitualoffender,
offender,in
inviolation
violationof
ofG.
G.L.
L.c.c.94C,
94C,§§32E(b)(1)
32E(b)(1)(count
(count

1);and
1); andviolating
violatingaacontrolled
controlledsubstance
substancelaw
lawin
inaaschool
schoolor
orpark
parkzone,
zone,as
asan
anhabitual
habitualoffender,
offender,in
in

88
88
 Add. 106
Add.106
Add:106

violation
violationof
ofG.
G.L.
L.c.c.94C,
94C,§§32J
32J(count
(count2).
2).Two
Twodays
daysearlier,
earlier,on
onNovember
November16,
16,2010,
2010,Farak
Farakhad
had

analyzedthe
analyzed theseized
seizedsubstance
substanceand
andcertified
certifiedthat
thatitittested
testedpositive
positivefor
forcocaine.41 Harris and
cocaine.4' Harris and the
the

Commonwealth
Commonwealth reached
reached aa plea
plea agreement
agreement in
in which
which the
the Commonwealth
Commonwealth dropped
dropped the
the habitual
habitual

offender and
offender and school
school zone
zone charges.
charges. On
On September
September 21,
21, 2011,
2011, Harris
Harris pled
pled guilty
guilty to
to the
the trafficking
trafficking

charge and
charge and was
was sentenced
sentenced to
to State
State prison
prison for
for ten
ten to
to twelve
twelveyears.
years.

Shortlyafter
Shortly after news
news of
of Farak's
Farak's misconduct
misconduct broke,
broke, on
on February
February 15,
15, 2013,
2013, Harris
Harris moved
moved to
to

withdrawhis
withdraw hisguilty
guiltyplea
pleaand
andmoved
moved for
for discovery.
discovery. On
On April
April 24,
24, 2013,
2013, he
he moved
moved to
to stay
stay the
the

execution of
execution of his
his sentence
sentence pending
pending resolution
resolution of
of his
his motion
motion to
to withdraw
withdraw his
his guilty
guilty plea.
plea. On
On May
May

17,
17, 2013,
2013, the
the court
court (Page,
(Page, J.)
J.) allowed
allowed that
that motion.
motion. On
On July
July 12,
12, 2013,
2013, Harris
Harris moved
movedto
tovacate
vacatehis
his

guiltyplea
guilty pleaand
andfor
formore
morediscovery.
discovery.His
Hiscase
casewas
wasconsolidated
consolidatedwith
withother
otherdrug
druglab
labcases
casesbefore
before

Judge Kinder
Judge Kinder for
for purposes
purposes of
of the
the fall
fall 2013
2013 evidentiary
evidentiary hearing
hearing into
into the
the nature
nature and
and scope
scope of
of

Farak's misconduct.
Farak's misconduct. The
The Commonwealth
Commonwealth opposed
opposed Harris's
Harris's motion
motion for
for post-conviction
post-convictionrelief
reliefand
and

on
onNovember
November12,
12,2013,
2013,Judge
JudgeKinder
Kinderdenied
deniedHarris's
Harris'smotion
motionto
towithdraw
withdraw his
his guilty
guilty plea
plea based
based

on the
on the limited
limited record
record before
before him.
him. Judge
Judge Kinder
Kinder allowed
allowed Harris
Harris to
to suspend
suspend the
the expiration
expiration of
of his
his

stay
stay until
until January
January 2,
2, 2014,
2014, at
at which
which point
point Judge
Judge Kinder
Kinder ordered
ordered Harris
Harris to
to return
return to
to prison
prison to
to serve
serve

the balance
the balance of
of his
his sentence.
sentence.

Following
Following Attorney
Attorney Ryan's
Ryan's discovery
discovery of
of the
the mental
mental health
health worksheets,
worksheets, on
onFebruary
February2,
2,

2015,
2015, Harris
Harris filed
filed successful
successful motions
motions for
for post-conviction
post-conviction discovery.
discovery. In
In July
July 2015,
2015, Harris
Harris moved
moved

for
for reconsideration
reconsideration of
of Judge
Judge Kinder's
Kinder's denial
denial of
of his
his motion
motion to
to withdraw
withdraw his
his guilty
guilty plea
plea and
andagain
again

41
41
The
Thedrug
druglab
labcertificate
certificatefiled
filedby
bythe
theCommonwealth
Commonwealthin inHarris's
Harris'scase
caseshows
showsthat
thatone
oneplastic
plasticbag
bagof
ofwhite
white
chunkswas
chunks wassubmitted
submittedto tothe
thelab
labon
onOctober
October6,6,2010.
2010.Farak
Faraksigned
signedthe
thedrug
drugcertificate
certificateon
onNovember
November16, 16,2010,
2010,
certifying
certifyingthat
thatthe
thewhite
whitechunks
chunkswere
werefound
foundtotocontain
containcocaine
cocaineand
andhad
hadaanet
netweight
weightof of20.71
20.71grams.
grams.Retesting
Retestingon
onthe
the
substanceoccurred
substance occurredinin2015
2015and
andconfirmed
confirmedthat
thatthe
thesubstance
substancecontained
containedcocaine
cocainebut
butstated
statedthat
thatthe
thenet
netweight
weighthad
had
droppedto
dropped to17.03
17.03grams.
grams.

89
89
 Add. 107
Add.107
Add:107

moved to
moved to stay
stay his
his sentence.
sentence. The
The stay
stay was
was allowed.
allowed. In
In 2017,
2017, the
the Commonwealth
Commonwealth withdrew
withdrew its
its

opposition to
opposition to Harris's
Harris's motion
motion to
to withdraw
withdraw his
his guilty
guilty plea.
plea. What
What remains
remains isis Harris's
Harris's motion
motion to
to

dismiss.
dismiss.

2. Harris's
2. Harris's Motion
Motion to
to Dismiss
Dismiss

This account
This account leaves
leaves no
no doubt
doubt that
that Harris
Harris isis entitled
entitled to
to dismissal
dismissal of
of his
his indictments
indictments with
with

prejudice as
prejudice as aa prophylactic
prophylactic measure,
measure, to
to dissuade
dissuade the
the AGO
AGO from
from withholding
withholding exculpatory
exculpatory

evidence in
evidence in other
other cases.
cases. Farak's
Farak's egregious
egregious government
government misconduct
misconduct had
had aa particularly
particularly strong
strong link
link

to Harris's
to Harris's case.
case. At
At the
the time
time she
she tested
tested the
the substances
substances in
in Harris's
Harris's case,
case, Farak
Farak was
was stealing
stealing and
and

using police-submitted
using police-submitted samples
samples of
of cocaine.
cocaine. Had
Had the
the AGO
AGO not
not deliberately
deliberately withheld
withheld the
the mental
mental

health worksheets,
health worksheets, Harris
Harris would
would have
have advanced
advanced aa meritorious
meritorious argument
argument in
in 2013
2013 that
that Farak's
Farak's

misconduct tainted
misconduct tainted his
his conviction.
conviction. Dismissing
Dismissing Harris's
Harris's indictments
indictments with
with prejudice
prejudice will
will send
send aa

strong reminder
strong reminder that
that prosecutors
prosecutors must
must disclose
disclose potentially
potentially exculpatory
exculpatory evidence.
evidence. See
See

Commonwealth v.
Commonwealth v. Light,
Light, 394
394 Mass.
Mass. at
at 114;
114; Commonwealth
Commonwealth v.
v. Texeira,
Texeira, 76
76 Mass.
Mass. App.
App. Ct.
Ct. at
at 108.
108.

Because Foster's
Because Foster's egregious
egregious misconduct
misconduct was
was effected
effected in
in part
part by
by intentionally
intentionally deceiving
deceiving

Judge Kinder
Judge Kinder into
into believing
believing that
that the
the AGO
AGO had
had no
no privileged
privileged documents
documents for
for his
his in
in camera
camera review,
review,

she committed
she committed aa fraud
fraud upon
upon the
the court,
court, which
which supplies
supplies another
another justification
justification for
for resorting
resorting to
to the
the

drastic sanction
drastic sanction of
of dismissal
dismissal with
with prejudice.
prejudice. See
See Commissioner
Commissioner of
of Probation
Probation v.
v. Adams,
Adams, 65
65 Mass.
Mass.

App. Ct.
App. Ct. at
at 729-730.
729-730.

The dismissal
The dismissal of
of indictments
indictments isis also
also appropriate
appropriate here
here because
because Harris
Harris was
was irremediably
irremediably

prejudiced as
prejudiced as aa result
result of
of the
the egregious
egregious government
government misconduct.
misconduct. By
By intentionally
intentionally withholding
withholding

exculpatory evidence
exculpatory evidence from
from Harris,
Harris, Kaczmarek
Kaczmarek and
and Foster
Foster denied
denied him
him the
the opportunity
opportunity to
to present
present aa

full and
full and fair
fair argument
argument to
to Judge
Judge Kinder
Kinder in
in 2013
2013 as
as to
to why
why he
he was
was entitled
entitled to
to post-conviction
post-conviction

90
90
 Add. 108
Add.108
Add:108

relief. Harris
relief. Harris was
was further
further prejudiced
prejudiced by
by having
having to
to return
return to
to prison
prisonto
toserve
serveaalong
longsentence
sentencein
in

January2014,
January 2014,after
after having
having an
an opportunity
opportunity to
to rebuild
rebuild his
his life
life and
and relationships.
relationships. The
The AGO's
AGO's

argument that
argument that Harris
Harris isis none
none the
the worse
worse off
off for
for spending
spending more
more time
time in
in prison
prison due
due to
to misconduct
misconduct

by Kaczmarek
by Kaczmarek and
and Foster
Foster isis baseless.
baseless. See
SeeCommonwealth
Commonwealthv.v.Washington
WashingtonW.,
W,462
462Mass.
Mass.at
at217.
217.

C.
C. Rolando
Rolando Penate
Penate

1.
1. Factual
Factual and
and Procedural
Procedural Background
Background

On
OnFebruary
February1,
1,2012,
2012,aagrand
grandjury
juryindicted
indictedPenate
Penateon
oncharges
chargesof
ofpossession
possessionof
ofClass
ClassAA

and Class
and Class BB substances
substances (heroin
(heroin and
and cocaine)
cocaine) with
with the
the intent
intent to
to distribute
distribute as
as aa second
second offender
offender

(counts11and
(counts and 3);
3); three
three counts
counts of
of distributing
distributing aa Class
Class A
A substance
substance (heroin)
(heroin) as
as aa second
second offender
offender

(counts5,
(counts 5,77and
and9);
9);five
fiveschool
schoolzone
zoneviolations
violations(counts
(counts2,
2,4,
4, 6,
6,88and
and10);
10);possession
possessionof
ofaafirearm
firearm

without aa valid
without valid firearms
firearms identification
identification card
card (count
(count 11);
11); possession
possession of
of ammunition
ammunition without
without aa valid
valid

firearms identification
firearms identification card
card (count
(count 12);
12); and
and possession
possession of
of aa firearm
firearm during
during the
the commission
commission of
ofaa

felony(count
felony (count13).
13).

The suspected
The suspected heroin
heroin in
in Penate's
Penate's case
case had
had been
been submitted
submitted to
to the
the Amherst
Amherst lab
lab in
in two
two

batches.The
batches. Thefirst
firstbatch
batchwas
wassubmitted
submittedOctober
October25,
25,2011,
2011,was
wasanalyzed
analyzedby
byFarak
Farakon
onDecember
December

22, 2011,
22, 2011, and
and was
was certified
certified as
as heroin.
heroin. The
The second
second batch
batch (which
(which was
was the
the basis
basis of
of Penate's
Penate's

conviction) was
conviction) was delivered
delivered to
to the
the Amherst
Amherst lab
lab on
on November
November 16,
16, 2011,
2011, was
was analyzed
analyzedby
byFarak
Farakon
on

January 9,
January 9, 2012,
2012, and
and was
was certified
certified as
as heroin.
heroin. Both
Both batches
batches were
were retested
retested on
on August
August8,
8,2013,
2013,by
by

chemistWilliam
chemist WilliamHebard,
Hebard,and
andagain
againdetermined
determinedto
tobe
beheroin.
heroin.

WhilePenate's
While Penate'scase
casewas
wasstill
stillin
inthe
thepre-trial
pre-trialphase,
phase,he
helearned
learnedof
ofFarak's
Farak'sindictment
indictmentand
and

promptly sought
promptly sought discovery.
discovery. On
On May
May 14,
14, 2013,
2013, Penate
Penate filed
filed aa motion
motion to
to compel
compel discovery.
discovery. On
On

July 15,
July 15, 2013,
2013, he
he moved
moved to
to dismiss
dismiss counts
counts one
one through
through ten
ten and
and thirteen,
thirteen, arguing
arguing in
in part
part that
that the
the

91
91
 Add. 109
Add.109
Add:109

prosecution had
prosecution had failed
failed to
to turn
turn over
over evidence
evidence obtained
obtained during
during the
the Farak
Farak investigation.
investigation. Thereafter
Thereafter

and through
and through the
the fall
fall of
of 2013,
2013, Penate
Penate filed
filed additional
additional discovery
discovery motions
motions and
and aa motion
motion to
to dismiss
dismiss

the indictments,
the indictments, as
as detailed
detailed above.
above. None
None met
met with
with success.
success. After
After Judge
Judge Kinder's
Kinder's extensive
extensive

evidentiary hearing
evidentiary hearing in
in the
the fall
fall of
of 2013,
2013, on
on November
November 4,
4, 2013,
2013, Judge
Judge Kinder
Kinder denied
denied Penate's
Penate's

motion to
motion to dismiss
dismiss on
on the
the grounds
grounds that
that Farak's
Farak's misconduct
misconduct began
began in
in July
July of
of 2012,
2012, which
which was
was six
six

months after
months after Farak
Farak tested
tested the
the substances
substances in
in Penate's
Penate's case.
case. Judge
Judge Kinder
Kinder reasoned
reasoned that
that although
although

"there was
"there was powerful
powerful evidence
evidence thatthat Farak
Farak was
was stealing
stealing cocaine
cocaine and
and replacing
replacing itit with
with other
other
substances, .. .. .. there
substances, there isis insufficient
insufficient evidence
evidence before
before me
me that
that she
she tampered
tampered with
with thethe
samples in
samples in Penate's
Penate's case case or or even
even that
that she
she was
was engaged
engaged in
in misconduct
misconduct inin November
November 2011 2011
and January
and January of
of 2012,
2012, when
when thethe samples
samples inin this
this case
case were
were tested."
tested."

Penate proceeded
Penate proceeded to
to trial,
trial, where
where aa central
central tenet
tenet of
of his
his defense
defense was
was Farak's
Farak's misconduct.
misconduct.

The trial
The trial judge,
judge, Page,
Page, J.,
J., allowed
allowed the
the prosecutor's
prosecutor's motion
motion in
in liinine
limine barring
barring Penate
Penate from
from

relitigating issues
relitigating issues previously
previously ruled
ruled upon,
upon, such
such as
as Judge
Judge Kinder's
Kinder's finding
finding that
that Farak's
Farak's misconduct
misconduct

occurred as
occurred as early
early as
as July
July of
of 2012.
2012. The
The parties
parties stipulated
stipulated at
at trial
trial that
that the
the jury
jury would
would be
be told
told that
that

Farak would
Farak would not
not testify
testify in
in Penate's
Penate's trial,
trial, that
that no
no testimony
testimony would
would be
be offered
offered concerning
concerning the
the

results of
results of any
any testing
testing she
she may
may have
have performed,
performed, that
that Farak's
Farak's evidence
evidence tampering
tampering occurred
occurred as
as early
early

as July
as July of
of 2012,
2012, and
and that
that the
the substances
substances in
in Penate's
Penate's case
case were
were tested
tested by
by Farak
Farak in
in December
December of
of

2011 and
2011 and January
January of
of 2012.
2012.

At trial,
At trial, Penate's
Penate's defense
defense attorney,
attorney, Ryan,
Ryan, was
was not
not allowed
allowed to
to elicit
elicit testimony
testimony from
from

Springfield narcotics
Springfield narcotics officer
officer Greg
Greg Bigda
Bigda who
who had
had complained
complained of
of possible
possible tampering
tampering by
by Farak
Farak in
in

May of
May of 2012
2012 in
in an
an unrelated
unrelated case.
case. Ryan
Ryan was
was also
also prohibited
prohibited at
at trial
trial from
from questioning
questioning Pontes
Pontes

regarding the
regarding the unsecured
unsecured nature
nature of
of the
the Amherst
Amherst lab.
lab. Ryan
Ryan referred
referred to
to Farak's
Farak's misconduct
misconduct in
in the
the

closing argument.
closing argument. On
On December
December 13,
13, 2013,
2013, Penate
Penate was
was convicted
convicted by
by the
the jury
jury of
of aa single
single count
count of
of

92
92
 Add. 110
Add.110
Add:110

distributing heroin
distributing heroin on
on November
November 15,
15, 2011,
2011, in
in aa sale
sale to
to an
an undercover
undercover police
police officer.
officer.Penate
Penatepled
pled

guilty to
guilty to the
the subsequent
subsequent offender
offender portion
portion of
of count
count 55 and
and was
was sentenced
sentenced by
byJudge
JudgePage
Pageto
toserve
serve55

to
to 77 years
years in
in State
State prison.
prison. He
He filed
filed aa motion
motion for
for new
new trial
trial but
but the
the Commonwealth
Commonwealth has
has withdrawn
withdrawn

its
itsopposition
opposition to
to that
that motion.
motion.

2.
2. Penate's
Penate's Motion
Motion to
to Dismiss
Dismiss

The record
The record compels
compels the
the dismissal
dismissal of
of Penate's
Penate's conviction
conviction for
for distributing
distributing heroin.
heroin.

Kaczmarek's
Kaczmarek'sand
andFoster's
Foster'sdeliberate
deliberatewithholding
withholdingof
ofexculpatory
exculpatoryevidence
evidencewas
wasparticularly
particularly

egregious
egregious in
in the
the Penate
Penate case.
case. In
In 2013
2013 and
and much
much of
of 2014,
2014, Ryan
Ryan employed
employed every
every appropriate
appropriateand
and

available
availablelegal
legalmechanism
mechanismto
tochallenge
challengewhat
whathe
heaptly
aptlysensed
sensedwas
wasthe
theAGO's
AGO'sstonewalling.
stonewalling.His
His

requests and
requests and motions
motions for
for discovery
discovery in
in the
the drug
drug lab
lab cases
cases earned
earned him
him the
theire
ireof
ofKaczmarek.
Kaczmarek.

Ultimately,
Ultimately,Ryan's
Ryan'sefforts
effortsproved
provedcrucial
crucialfor
forthe
thedisclosure
disclosureof
ofthe
themental
mentalhealth
healthworksheets.
worksheets.

Kaczmarek's and
Kaczmarek's and Foster's
Foster's misconduct
misconduct was
was so
so egregious
egregious in
in the
the Penate
Penate case
case that
that itit creates
creates

presumptive
presumptive prejudice
prejudice and
and qualifies
qualifies as
as aa fraud
fraud upon
upon the
the court.
court. See Commonwealth v.v. Manning,
See Commonwealth Manning,

373
373 Mass.
Mass. at
at 443-434; Commit. of
443-434;Commit. of Probation Adams,65
Probation v.v. Adams, 65 Mass.
Mass. App.
App. Ct.
Ct. at
at 729-730.
729-730. Dismissal
Dismissal

isis eminently
eminently appropriate
appropriate in
in this
this case
case to
to deter
deter further
further misconduct
misconduct of
of this
this unprecedented
unprecedentedscope
scopeand
and

nature. See
nature. See Commonwealth
Commonwealth v.v. Light,
Light, 394
394 Mass.
Mass. at 114;Commonwealth
at 114; Commonwealth v.v. Texeira,
Texeira,76
76 Mass.
Mass.

App.Ct.
App. Ct.atat108.
108.

Furthermore,Penate
Furthermore, Penatewas
wasirremediably
irremediablyprejudiced
prejudicedby
bythe
thefailure
failureto
todisclose
disclosethe
the

exculpatory evidence
exculpatory evidence of
of Farak's
Farak's misconduct,
misconduct, including
including her
her severe
severe impairment
impairmentfrom
fromLSD
LSDon
on

January
January 9,
9, 2012,
2012, the
the day
day she
she analyzed
analyzed substances
substances in
in this
this case.
case. See
See Commonwealth
Commonwealth v.v. Cronk,
Cronk,396
396

Mass.
Mass. at
at 198-199.
198-199. Kaczmarek's
Kaczmarek's and
and Foster's
Foster's withholding
withholding of
of itit deprived
deprived Penate
Penate of
of aa key,
key,

meritorious
meritoriousdefense.
defense.That
Thatconstitutional
constitutionaldeprivation
deprivationresulted
resultedin
inPenate
Penateserving
servingaalonger
longerprison
prison

93
93
 Add. 111
Add.111
Add:111

sentence than
sentence than he
he would
would have
have otherwise.
otherwise. The
The egregious
egregious misconduct
misconduct by
by Kaczmarek
Kaczmarek and
and Foster,
Foster,

therefore, caused
therefore, caused Penate
Penate irremediable
irremediable harm
harm which
which supplies
supplies aa third
third and
and independent
independent ground
groundfor
for

allowing Penate's
allowing Penate's motion
motion to
to dismiss
dismiss the
the indictments
indictments with
with prejudice.
prejudice.See
See Commonwealth
Commonwealth v.v. Lam
Lam

Hue
HueTo,
To, 391
391Mass.
Mass.atat309.
309.

D.
D. Fiore
Fiore Liguori
Liguori

1. Factual
1. Factual and
and Procedural
Procedural Background
Background

On
On June
June 28,
28, 2012,
2012, Liguori
Liguori was
was indicted
indicted on
on ten
ten charges:
charges:unlawful
unlawfuldistribution
distributionof
ofaaClass
ClassBB

substance, oxycodone
substance, oxycodone (counts
(counts 11 and
and 3);
3); unlawful
unlawful distribution
distribution of
of aa Class
Class BB substance,
substance,

oxymorphone (count
oxymorphone (count 2),
2), unlawful
unlawful possession
possession of
of aa Class
Class BB substance,
substance, oxycodone,
oxycodone, with
with intent
intent to
to

distribute(count
distribute (count4);
4);unlawful
unlawfulpossession
possessionof
ofaaClass
ClassBBsubstance,
substance,oxymorphone,
oxymorphone, with
with intent
intent to
to

distribute (count
distribute (count 5);
5); unlawful
unlawful possession
possession of
of aa Class
Class EE substance,
substance, zolpidem,
zolpidem, with
withintent
intentto
to

distribute(count
distribute (count 6);
6); unlawful
unlawful possession
possession of
of aa Class
Class EE substance,
substance, carisoprodol,
carisoprodol, with
with intent
intent to
to

distribute(count
distribute (count7);
7);unlawful
unlawfulpossession
possessionof
ofaaClass
ClassEEsubstance,
substance,tramadol
tramadol(count
(count8);
8);unlawful
unlawful

possession
possession of
of aa Class
Class EE substance,
substance, suboxone
suboxone (count
(count 9);
9); and
and unlawful
unlawful possession
possession of
of ammunition
ammunition

without an
without an identification
identification card,
card, as
as an
an armed
armed career
career criminal
criminal (count
(count 10).
10). The
The substances
substances in
in

Liquori's
Liquori's case
casewere
wereanalyzed
analyzedby
byFarak
Farakon
onJune
June22,
22,2012,
2012,and
andtheir
theirclassifications
classificationswere
wereconfirmed
confirmed

after being
after being retested
retested by
by another
another analyst
analyst on
on June
June 7,
7,2013.
2013.

OnMay
On May8,
8,2013,
2013, the
the non-drug
non-drug charge,
charge, count
count 10,
10, was
was tried
tried before
before Judge
Judge Ford,
Ford, who
who

allowed Liquori's
allowed Liquori's motion
motion for
for aa required
required finding
finding of
of not
not guilty.
guilty. The
The Commonwealth
Commonwealth entered
entered aa

nolle prosequi
nolle prosequi on
on counts
counts 66 and
and 77 prior
prior to
to trial
trial on
on the
the remaining
remaining counts.
counts. Several
Several months
monthsbefore
before

trial, on
trial, on July
July 8,
8, 2013,
2013, Liguori
Liguori moved
moved to
to dismiss
dismiss his
his indictments
indictments due
due to
to Farak's
Farak's egregious
egregious

government
government misconduct.
misconduct. On
On October
October30,
30,2013,
2013,Judge
JudgeKinder
Kinderdenied
deniedthat
thatmotion
motionafter
after

94
94
 Add. 112
Add.112
Add:112

concluding
concluding that
that Farak's
Farak's misconduct
misconduct commenced
commenced in
in July
July of
of 2012,
2012, was
was limited
limited to
to cocaine,
cocaine, and
and did
did

not
not involve
involve prescription
prescription medications.
medications.

From
From September
September 99 through
through September
September 16,
16, 2014,
2014, Liguori
Liguori was
was tried
tried by
by aa jury
jury before
before Rup,
Rup,

J.J. The
The jury
jury heard
heard testimony
testimony regarding
regarding Farak's
Farak's misconduct
misconduct which
which in
in 2012
2012 amounted
amounted to
to cocaine
cocaine

use,
use, tampering
tampering with
with cocaine,
cocaine, being
being high
high at
at work
work all
all the
the time,
time, but
but not
not ingesting
ingesting or
or tampering
tampering with
with

the
the substances
substances at
at issue
issue in
in this
this case.
case. The
The jury
jury also
also heard
heard testimony
testimony by
by MSP
MSP chemist
chemist Lisa
Lisa Yelle
Yelle

that
that the
the drugs
drugs at
at issue
issue had
had been
been retested
retested on
on June
June 7,
7, 2013,
2013, and
and that
that the
the retesting
retesting confirmed
confirmed the
the

results
results of
of Farak's
Farak's analysis.
analysis. Ballou
Ballou testified
testified on
on cross-examination
cross-examination by
by the
the prosecutor
prosecutor that
that

investigators
investigators never
never found
found oxycodone
oxycodone in
in Farak's
Farak's car
car or
or workstation.
workstation. On
On September
September 12,
12, 2014,
2014,

Liguori
Liguori was
was found
found guilty
guilty on
on six
six drug
drug charges,
charges, counts
counts 1,
1, 3-5,
3-5, and
and 88 (relating
(relating to
to oxycodone,
oxycodone,

oxymorphone,
oxymorphone, and
and tramadol).
tramadol). He
He was
was sentenced
sentenced to
to serve
serve 22 1/2
1/2 years
years in
in aa house
house of
of correction
correction on
on

count
count 1,
1, the
the same
same on
on count
count 3,
3, to
to run
run concurrently
concurrently with
with the
the sentence
sentence on
on count
count 1;
1; and
and on
on counts
counts 4,
4,

5,
5, and
and 8,
8, he
he was
was placed
placed on
on probation
probation for
for 22 years
years from
from and
and after
after the
the sentence
sentence on
on count
count 1.
1.

Weeks
Weeks after
after Liquori's
Liquori's conviction,
conviction, Ryan
Ryan discovered
discovered the
the mental
mental health
health worksheets
worksheets and
and

other
other evidence
evidence gathered
gathered in
in the
the AGO's
AGO's limited
limited investigation
investigation of
of Farak
Farak and
and the
the Amherst
Amherst lab.
lab. Ryan's
Ryan's

discovery
discovery led
led to
to drug
drug lab
lab defendants
defendants learning
learning that:
that: (1)
(1) in
in January
January of
of 2013,
2013, investigators
investigators had
had found
found

and
and inventoried
inventoried oxycodone
oxycodone at
at Farak's
Farak's workstation,
workstation, in
in contrast
contrast to
to Ballou's
Ballou's testimony;
testimony; and
and (2)
(2)

Farak
Farak had
had aa longstanding
longstanding addiction
addiction to
to and
and history
history of
of stealing
stealing prescription
prescription pills
pills from
from the
the lab.
lab.

Liguori
Liguori appealed
appealed from
from his
his conviction.
conviction. On
On August
August 7,
7, 2015,
2015, the
the Appeals
Appeals Court
Court ruled
ruled that
that

Liguori
Liguori be
be given
given leave
leave to
to file,
file, and
and that
that this
this court
court should
should consider,
consider, aa motion
motion for
for new
new trial.
trial. Liguori
Liguori

filed
filed his
his motion
motion for
for new
new trial
trial and
and aa motion
motion to
to dismiss
dismiss the
the indictments
indictments with
with prejudice.
prejudice.

95
95
 Add. 113
Add.113
Add:113

2.
2. Liquori's
Liquori'sMotion
Motionto
toDismiss
Dismiss

Liguoriisisentitled
Liguori entitledto
todismissal
dismissalof
ofhis
hisindictments
indictmentswith
withprejudice.
prejudice.Although
AlthoughLiguori
Liguoriwas
was

notamong
not amongthe
thedefendants
defendantsbefore
beforeJudge
JudgeKinder
Kinderin
inthe
theevidentiary
evidentiaryhearing
hearingin
inthe
thefall
fallof
of2013,
2013,the
the

same
sameevidentiary
evidentiaryrecord
recordwas
wasthe
thebasis
basisfor
forJudge
JudgeKinder's
Kinder'sdenial
denialof
ofLiquori's
Liquori'smotion
motionto
todismiss
dismisson
on

October
October30,
30,2013.
2013.Had
HadKaczmarek
Kaczmarekand
andFoster
Fosternot
notwithheld
withheldthe
theexculpatory
exculpatoryevidence,
evidence,Judge
Judge

Kinder
Kinderand
andthe
thedrug
druglab
labdefendants,
defendants,including
includingLiguori,
Liguori,would
wouldhave
haverealized
realizedin
in2013
2013that
thatFarak
Farak

also
alsohad
hadtampered
tamperedwith
withprescription
prescriptionpills
pillsand
andthat
thatmisconduct
misconductbegan
beganbefore
beforeJuly
Julyof
of2012.
2012.As
As

discussed
discussedrepeatedly
repeatedlyabove,
above,this
thisdeliberate
deliberateegregious
egregiousmisconduct
misconductprofoundly
profoundlyharms
harmsthe
the

administrationof
administration ofjustice,
justice,constitutes
constitutesaafraud
fraudupon
uponthe
thecourt,
court,and
andcalls
callsfor
forthe
thedrastic
drasticremedy
remedyof
of

dismissal
dismissal with
withprejudice
prejudiceof
ofall
allof
ofthe
thecharges
chargesagainst
againstLiguori.
Liguori.See
See Commonwealth
Commonwealthv.v.Merry,
Merry,453
453

Mass.
Mass.atat666;
666;Commonwealth
Commonwealthv.v.Douzanis, 384Mass.
Douzanis,384 Mass.atat436;
436;Commonwealth
Commonwealthv.v.Manning,
Manning,373
373

Mass.atat443;
Mass. 443; Commir
Comm'r of
of Probation
Probation v.v.Adams,
Adams,65
65Mass.
Mass.App.
App.Ct. 729-730.
Ct.atat729-730.

3.
3. Liquori's
Liquori'sMotion
Motionfor
foraaNew
NewTrial
Trial

Motions
Motionsfor
fornew
newtrial
trialare
areonly
onlyto
tobe
begranted
grantedwhere
whereititappears
appearsthat
thatjustice
justicemay
maynot
nothave
have

beendone.
been done. Commonwealth
Commonwealthv.v.Furr,
Furr,454
454Mass.
Mass.atat106.
106.In
Indrug
druglab
labcases
caseschallenging
challengingconvictions
convictions

based
basedon
onaajury
juryverdict,
verdict,the
theFerrara-Scott
Ferrara-Scotttwo-pronged
two-prongedtest
testisisclarified
clarifiedin
in Commonwealth
Commonwealthv.v.

Francis, 474
Francis, 474Mass.
Mass.816,
816,823-823
823-823(2016).
(2016).In Francis,the
InFrancis, thecourt
courtreasoned
reasonedthat
thatwhere
whereDookhan
Dookhan

signed
signedthe
thedrug
drugcertificate
certificatein
inaadefendant's
defendant'scase
caseand
andthe
thedefendant
defendantwas
wasfound
foundguilty
guiltyatattrial
trialand
and

later
laterlearned
learnedof
ofDookhan's
Dookhan'smisconduct,
misconduct,that
thatdefendant
defendantisisentitled
entitledto
toaaconclusive
conclusivepresumption
presumptionof
of

egregious
egregiousgovernment
governmentmisconduct.
misconduct. Id.
Id.at
at824.
824.The
Theanalysis
analysisthen
thenproceeds
proceedsto
tothe
thesecond
secondprong,
prong,

in
inwhich
whichthe
thedefendant
defendant"is
"isentitled
entitledto
toaanew
newtrial
trialififhe
heor
orshe
shecan
canshow
showprejudice
prejudiceresulting
resultingfrom
from

theadmission
the admissionof
ofthat
thatevidence."
evidence." Id.
Id.atat824.
824.

96
96
 Add. 114
Add.114
Add:114

The
The parties
parties first
first dispute
dispute whether
whether Liguori
Liguori is
is entitled
entitled to
to the
the conclusive
conclusive presumption
presumption of
of

egregious
egregious government
government misconduct
misconduct because
because at
at his
his trial,
trial, itit was
was disclosed
disclosed that
that Farak
Farak had
had engaged
engaged in
in

some
some misconduct,
misconduct, but
but not
not misconduct
misconduct which
which extended
extended to
to the
the pills
pills at
at issue
issue in
in Liquori's
Liquori's case.
case. See
See

Commonwealth
Commonwealth v.
v. Curry,
Curry, 88
88 Mass.
Mass. App.
App. Ct.
Ct. at
at 63-64
63-64 (presumption
(presumption of
of chemist's
chemist's egregious
egregious

government
government misconduct
misconduct applies
applies only
only where
where misconduct
misconduct unknown
unknown to
to defendant
defendant at
at trial
trial or
or before
before

pleading
pleading guilty).
guilty). That
That debate
debate need
need not
not be
be resolved
resolved here,
here, because
because even
even ifif Liguori
Liguori were
were accorded
accorded

the
the presumption,
presumption, he
he would
would nonetheless
nonetheless be
be unable
unable to
to meet
meet his
his burden
burden on
on the
the second
second prong
prong by
by

showing
showing that
that he
he was
was prejudiced
prejudiced by
by the
the evidence
evidence at
at trial
trial that
that Farak
Farak had
had issued
issued the
the original
original drug
drug

certificates.
certificates. See
See Commonweatth
Commonweatth v.
v. Francis,
Francis, 474
474 Mass.
Mass. at
at 824.
824. That
That is
is because
because the
the

Commonwealth
Commonwealth did
did not
not rely
rely on
on Farak's
Farak's drug
drug certificates
certificates to
to prove
prove the
the identity
identity of
of the
the substances.
substances.

Instead,
Instead, the
the jury
jury were
were presented
presented credible
credible evidence
evidence that
that the
the substances
substances in
in Liquori's
Liquori's case
case were
were

retested
retested by
by another
another chemist.
chemist. The
The jury
jury were
were entitled
entitled to
to credit
credit that
that retesting
retesting evidence
evidence and
and rely
rely upon
upon

itit as
as proof
proof of
of the
the identity
identity of
of those
those substances
substances and
and as
as strong
strong proof
proof that
that Liguori
Liguori committed
committed the
the

crimes
crimes for
for which
which he
he was
was convicted.
convicted.

My
My finding
finding that
that Liguori
Liguori was
was not
not prejudiced
prejudiced at
at his
his trial
trial stands
stands regardless
regardless of
of whether
whether the
the

standard
standard or
or type
type of
of prejudice
prejudice Liguori
Liguori must
must show
show to
to meet
meet his
his burden
burden on
on the
the second
second prong
prong of
of the
the

Ferrara-Scott
Ferrara-Scott test
test isis that
that advocated
advocated by
by Liguori
Liguori or
or the
the standard
standard urged
urged by
by the
the Commonwealth.
Commonwealth.

Liguori
Liguori argues
argues that
that he
he is
is entitled
entitled to
to aa new
new trial
trial and
and can
can prove
prove sufficient
sufficient prejudice
prejudice unless
unless itit is
is

shown
shown that
that the
the erroneously
erroneously admitted
admitted evidence
evidence "did
"did not
not influence
influence the
the jury,
jury, or
or had
had but
but very
very slight
slight

effect." See
effect." See Commonwealth
Commonwealth v.
v. Francis,
Francis, 474
474 Mass.
Mass. at
at 827.
827. In
In Francis,
Francis, the
the erroneously
erroneously admitted
admitted

evidence
evidence was
was aa drug
drug certificate
certificate issued
issued by
by Dookhan,
Dookhan, during
during aa trial
trial in
in which
which the
the defendant
defendant knew
knew

nothing
nothing about
about her
her misconduct.
misconduct. In
In contrast,
contrast, in
in Liquori's
Liquori's trial,
trial, the
the Commonwealth's
Commonwealth's evidence
evidence of
of

97
97
 Add. 115
Add.115
Add:115

the
the identity
identity of
of the
the substances
substances did
did not
not rest
rest upon
upon aa drug
drug certificate
certificate issued
issued by
by Farak,
Farak,but
butrather
ratherupon
upon

retesting evidence,
retesting evidence, because
because itit was
was then
then known
known that
that Farak
Farak was
was being
being prosecuted
prosecutedfor
fordrug
drugtheft
theftand
and

tamperingatatthe
tampering thelab.
lab.IIfind,
find,therefore,
therefore,that
thatany
anyevidence
evidencepresented
presentedto
tothe
thejury
juryconcerning
concerningdrug
drug

analysis
analysisperformed
performedin
inthis
thiscase
caseby
byFarak
Farakdid
didnot
notinfluence
influencethe
thejury,
jury,or
orhad
hadbut
butvery
veryslight
slighteffect.
effect.

The
The fact
fact that
that Liquori's
Liquori's jury
jury did
did not
not know
know that
that Farak
Farak tampered
tampered with
with oxycodone
oxycodone and
and other
other

prescription
prescription pills
pills does
does not
not alter
alter this
this conclusion.
conclusion. Even
Even Ballou's
Ballou's inaccurate
inaccurate testimony
testimony that
that

investigators
investigators did
did not
not find
find oxycodone
oxycodone in
in searching
searching her
her workstation
workstation cannot
cannot be
be said
said to
to have
have

influenced
influencedthe
thejury
juryin
inlight
lightof
ofthe
thestrong
strongevidence
evidencethat
thatthe
thesubstances
substancesseized
seizedwere
werethe
theillegal
illegal

narcotics
narcotics as
as suspected.
suspected.

ItItfollows
followsthat
thatLiguori
Liguoricannot
cannotsatisfy
satisfyhis
hisburden
burdenunder
underthe
theCommonwealth's
Commonwealth'stest
testfor
for

prejudice. The
prejudice. The Commonwealth
Commonwealth asserts
asserts that
that the
the applicable
applicable prejudice
prejudice standard
standard isis aa higher
higher one
one for
for

new
new trial
trial motions
motions based
based on
on newly
newly discovered
discovered evidence:
evidence: the
the newly
newly discovered
discovered evidence
evidence of
ofFarak's
Farak's

misconduct
misconduct must
must be
be material
material and
and credible,
credible, must
must not
not be
be cumulative
cumulative of
of other
other evidence
evidenceadmitted
admittedatat

trial, and
trial, and itit must
must be
be shown
shown that
that itit probably
probably would
would have
have been
been aa real
realfactor
factorin
inthe
thejury's
jury's

See Commonwealth
deliberations. See
deliberations. Commonwealth v.v. Grace,
Grace,397
397 Mass.
Mass. 303,
303, 305-306
305-306 (1986);'
(1986);' Commonwealth
Commonwealth

v.v. Gaston,
Gaston, 86
86 Mass.
Mass. App.
App. Ct.
Ct. 568,
568, 573
573 (2014)
(2014) (in
(in either
either common
common law
law claim
claim of
of newly
newly discovered
discovered

evidenceor
evidence orconstitutional
constitutionalclaim
claimof
ofprosecutorial
prosecutorialnondisclosure,
nondisclosure,defendant
defendantmust
mustdemonstrate
demonstratethat
that

42 "A
42,, • defendant seeking a new trial on the ground ground of
of newly
newly discovered
discovered evidence
evidence must
must establish
establish both
boththat
thatthe
the
evidenceisisnewly
evidence newlydiscovered
discoveredand andthat
thatititcasts
castsreal
realdoubt
doubton onthe
thejustice
justiceof
ofthe
theconviction
conviction........The
Theevidence
evidencesaid
saidtotobebe
new
newnot
notonly
onlymustmustbebematerial
materialandandcredible
credible......but
butalso
alsomust
mustcarry
carryaameasure
measureof ofstrength
strengthininsupport
supportofofthe
the
defendant's
defendant'sposition
position........Thus
Thusnewly
newlydiscovered
discoveredevidence
evidencethat
thatisiscumulative
cumulativeof ofevidence
evidenceadmitted
admittedatattrial
trialtends
tendstoto
carryless
carry lessweight
weightthan
thannewnewevidence
evidencethat
thatisisdifferent
differentin
inkind
kind........Moreover,
Moreover,the thejudge
judgemust
mustfind
findthat
thatthere
thereisisaa
substantialrisk
substantial riskthat
thatthe
thejuryjurywould
wouldhavehavereached
reacheda adifferent
differentconclusion
conclusionhad hadthethe evidence
evidence been
been admitted
admitted at at trial....
trial. ...
The
Thestrength
strengthof ofthe
thecase
caseagainst
againstaacriminal
criminaldefendant,
defendant,therefore,
therefore,may mayweaken
weakenthe theeffect
effectof
ofthe
theevidence
evidencewhich
whichisis
admittedly
admittedly newly
newly discovered
discovered .. .. .. The
. Themotion
motionjudge
judgedecides
decidesnotnotwhether
whetherthe theverdict
verdictwould
wouldhave
havebeen
beendifferent,
different,but
but
rather
ratherwhether
whetherthe thenew
newevidence
evidencewould
wouldprobably
probablyhave
havebeen
beenaareal
realfactor
factorininthe
thejury's
jury'sdeliberations."
deliberations."

Commonwealth
Commonwealthv. Grace,397
v.Grace, 397Mass.
Mass.303,
303,305-306
305-306(1986)
(1986)(internal
(internalcitations
citationsomitted).
omitted).

98
98
 Add. 116
Add.116
Add:116

there isis substantial

there substantial risk
risk that
that jury
jury would
would have
have reached
reached aa different
different conclusion
conclusion had
had evidence
evidence been
been

admitted at
admitted at trial).
trial).

Although the
Although the newly
newly discovered
discovered evidence
evidence of
of Farak's
Farak's misconduct
misconduct extending
extending to
to oxycodone
oxycodone

and other
and other pills
pills isis credible
credible and
and material
material to
to Liquori's
Liquori's case,
case, and
and itit isis not
not merely
merely cumulative
cumulative of
of the
the

evidence admitted
evidence admitted in
in Liquori's
Liquori's trial,
trial, itit isis outweighed
outweighed in
in this
this case
case by
by the
the far
far more
more relevant
relevant

evidence of
evidence of retesting.
retesting. That
That retesting
retesting evidence,
evidence, as
as noted
noted above,
above, reasonably
reasonably permitted
permitted aa jury
jury to
to

find that
find that the
the substances
substances in
in Liquori's
Liquori's case
case were
were what
what they
they were
were tested
tested positive
positive as
as being
being and
and that
that

they strongly
they strongly supported
supported Liquori's
Liquori's convictions.
convictions. Therefore,
Therefore, the
the newly
newly discovered
discovered evidence
evidence that
that

Farak's misconduct
Farak's misconduct extended
extended to
to pills
pills would
would not
not have
have significantly
significantly aided
aided Liquori's
Liquori's defense
defense and
and

would not
would not have
have been
been aa real
real factor
factor in
in the
the jury's
jury's deliberations.
deliberations. See
See Commonwealth
Commonwealth v. 397
Grace, 397
v. Grace,

Mass. at
Mass. at 305-306;
305-306; Commonwealth
Commonwealth v.
v. Gaston,
Gaston, 86
86 Mass.
Mass. App.
App. Ct.
Ct. at
at 573.
573. Because
Because the
the newly
newly

discovered evidence
discovered evidence does
does not
not cast
cast real
real doubt
doubt on
on the
the justice
justice of
of the
the conviction,
conviction, Liquori's
Liquori's motion
motion for
for

new trial
new trial isis denied.
denied. See
See Commonwealth
Commonwealth v.
v. Grace,
Grace, 397
397 Mass.
Mass. at
at 306.
306.

E. Lizardo
E. Lizardo Lee
Lee Vega
Vega

1. Factual
1. Factual and
and Procedural
Procedural Background
Background

On February
On February 10,
10, 2009,
2009, Vega
Vega was
was indicted
indicted on
on two
two counts
counts of
of possession
possession with
with intent
intent to
to

distribute aa Class
distribute Class A
A substance
substance (heroin),
(heroin), subsequent
subsequent offense
offense (counts
(counts 11 and
and 2),
2), in
in aa school
school zone
zone

(count 3);
(count 3); and
and possession
possession with
with intent
intent to
to distribute
distribute cocaine,
cocaine, subsequent
subsequent offense
offense (count
(count 4),
4), in
in aa

school zone
school zone (count
(count 5).
5). The
The factual
factual basis
basis for
for these
these indictments
indictments has
has not
not been
been presented
presented by
by either
either

Vega or
Vega or the
the Commonwealth.
Commonwealth.

The substances
The substances involved
involved in
in this
this case
case were
were submitted
submitted to
to the
the Amherst
Amherst lab
lab on
on January
January 29,
29,

99
99
 Add. 117
Add:117
Add.117

2009,
2009, and
and were
were analyzed
analyzed by
by Farak,
Farak, who
who issued
issued the
the certificates
certificates of
of analysis
analysis on
on March
March 16,
16, 2009.43
2009.4'

On January
On January 28,
28, 2010,
2010, Vega
Vega pled
pled guilty
guilty to
to lesser
lesser included
included offenses
offenses in
in count
count 11 (possession
(possession of
of

heroin with
heroin with intent
intent to
to distribute),
distribute), count
count 22 (distribution
(distribution of
of heroin),
heroin), and
and count
count 44 (possession
(possession of
of

cocaine with
cocaine with intent
intent to
to distribute),
distribute), and
and aa week
week later,
later, the
the Commonwealth
Commonwealth nolle
nolle prossed
prossed counts
counts 33

and 5.
and 5. Vega
Vega was
was sentenced
sentenced on
on count
count 11 to
to aa house
house of
of correction
correction for
for 22 1/2
1/2 years,
years, with
with 130
130 days
days

direct (time
direct (time served)
served) and
and the
the balance
balance suspended
suspended with
with two
two years
years of
of probation;
probation; on
on count
count 2,
2, the
the same
same

sentence was
sentence was imposed
imposed as
as on
on count
count 1,
1, to
to be
be served
served concurrently;
concurrently; on
on count
count 4,
4, Vega
Vega was
was sentenced
sentenced

to 22 years
to years of
of probation
probation from
from and
and after
after the
the sentence
sentenceon
oncount .44
count11.44

In March
In March 2014,
2014, Vega
Vega filed
filed motions:
motions: (1)
(1) to
to conduct
conduct post-conviction
post-conviction discovery,
discovery, which
which

Judge Kinder
Judge Kinder denied
denied on
on March
March 14,
14, 2014;
2014; (2)
(2) to
to inspect
inspect physical
physical evidence
evidence seized
seized in
in the
the Farak
Farak

investigation, which
investigation, which Vega
Vega withdrew
withdrew in
in open
open court
court on
on August
August 12,
12, 2014,
2014, because
because by
by that
that time,
time, the
the

AGO had
AGO had agreed
agreed to
to allow
allow Ryan
Ryan to
to inspect
inspect the
the physical
physical evidence;
evidence; and
and (3)
(3) to
to compel
compel discovery,
discovery,

which was
which was allowed
allowed in
in part
part and
and denied
denied in
in part
part by
by Judge
Judge Kinder
Kinder on
on August
August 12,
12, 2014.
2014. Vega
Vega has
has

moved to
moved to dismiss
dismiss his
his indictments
indictments on
on account
account of
of the
the AGO's
AGO's egregious
egregious government
government misconduct
misconduct

and he
and he alternatively
alternatively moves
moves to
to withdraw
withdraw his
his guilty
guilty plea.
plea. The
The Commonwealth
Commonwealth has
has not
not presented
presented

any analysis
any analysis of
of retesting
retesting in
in Vega's
Vega's case,
case, despite
despite representing
representing many
many months
months ago
ago that
that the
the

substances in
substances in Vega's
Vega's case
case had
had been
been submitted
submitted for
for retesting.
retesting.

43
43
The
The Commonwealth
Commonwealthhas hasproduced
producedthree
threedrug
druglab
labcertificates,
certificates,all
allissued
issuedby byFarak
Farakon onMarch
March16,
16,2009,
2009,and
and
certifying
certifyingthat
thatitems
itemsfrom
fromtwo
twoof
ofthe
thesubmissions
submissionswere
wereheroin
heroinand
andthat
thatthe
thesubstance
substancein inthe
thethird
thirdsubmission
submissionwas
was
cocaine.
cocaine. One
One submission
submission consisted
consisted of
of 99 bags
bags of
of heroin
heroin and
and the
the other
other consisted
consisted ofof 33 bags
bags of
of heroin.
heroin.
44
44
Vega
Vegawould
wouldhave
havebeen
beenincarcerated
incarceratedfor
forapproximately
approximately44months
monthshad
hadhe
hecomplied
compliedwith
withthe
theconditions
conditionsof of
probation. On
probation. On August
August 22,
22, 2012,
2012, Vega
Vega was
was found
found to
to be
be in
in violation
violation of
of conditions
conditions of
of probation
probation and
and ordered
ordered to
to serve
serve
the
the balance
balance of
of his
his original
original suspended
suspended sentence
sentenceononcounts
counts11andand2.2.On
Oncount
count4,
4,he
hewas
wassentenced
sentencedto
toprison
prisonfor
fornot
not
more
morethan
than33Years
Yearsandandnot
notless
lessthan
than221/2
1/2years
yearsconcurrent
concurrentwithwith1179CR001024.
1179CR001024.

100
100
 Add. 118
Add.118
Add:118

Vega'sMotion
2.2. Vega's Motionto
toDismiss
Dismiss

Muchof
Much ofthe
thelegal
legalanalysis
analysisapplied
appliedininthe
thecases
casesjust
justdiscussed
discussedpertains
pertainstotoVega.
Vega.Although
Although

Vegawas
Vega wasnot
notamong
amongthe
thedefendants
defendantsseeking
seekingdiscovery
discoveryininthe
theconsolidated
consolidatedevidentiary
evidentiaryhearing
hearing

beforeJudge
before JudgeKinder
Kinderinin2013,
2013,he
hefalls
fallswithin
withinthe
thegroup
groupofofdefendants
defendantswho,
who,during
duringthe
theperiod
periodofof

January19,
January 19,2013,
2013,totoNovember
November1,1,2014,
2014,filed
filedatatleast
leastone
oneunsuccessful
unsuccessfulmotion
motionfor
fordiscovery
discoverytoto

ascertainthe
ascertain thescope
scopeof
ofFarak's
Farak'smisconduct.
misconduct.Kazmarek's
Kazmarek'sand
andFoster's
Foster'sdeliberate
deliberatewithholding
withholdingof
of

exculpatoryevidence
exculpatory evidenceled
ledJudge
JudgeKinder
Kindertotodeny
denyVega's
Vega'smotion
motionfor
forpost-conviction
post-convictiondiscovery
discoveryon
on

March14,
March 14,2014
2014(#57).
(#57).In
Inthese
thesecircumstances,
circumstances,and
andbecause
becausethe
themisconduct
misconductwas
wasintentional
intentionaland
and

egregious,presumptive
egregious, presumptiveprejudice
prejudicearises
arisesand
andimposition
impositionofofthe
theextreme
extremesanction
sanctionofofdismissal
dismissalwith
with

prejudiceisisappropriate
prejudice appropriatetotodeter
detersuch
suchmisconduct
misconductininthe
thefuture.
future.See
SeeBridgman
Bridgmanv.v.District
DistrictAtty.
Atty.

forSuffolk
for Si ffolkDistrict,
District,476
476Mass.
Mass.atat316-317;
316-317; Commonwealth
Commonwealthv.v.Cronk,
Cronk,396
396Mass.
Mass.atat199.
199.

Foster'sdeliberately
Foster's deliberatelymisleading
misleadingletter
letterdated
datedOctober
October16,
16,2013,
2013,materially
materiallyaided
aidedthe
the

withholdingof
withholding ofthe
themental
mentalhealth
healthworksheets.
worksheets.Through
Throughthat
thatletter,
letter,Foster
Fostercommitted
committedaafraud
fraudupon
upon

thecourt
the courtand
andviolated
violatedaalawful
lawfuldiscovery
discoveryorder,
order,thereby
therebysupplying
supplyingaafurther
furtherbasis
basisfor
fordismissing
dismissing

Vega'sindictments
Vega's indictmentswith
withprejudice.
prejudice.See
SeeRockdale
RockdaleMgmt.
Mgmt.Co.,
Co.,Inc.
Inc.v.v.Shawmut
ShawmutBank,
Bank,NA.,
NA.,418
418

Mass.atat598;
Mass. 598;Commonwealth
Commonwealthv.v.Douzanis,
Douzanis,384
384Mass.
Mass.atat313.
313. IIneed
neednot
notand
anddo
donot
notreach
reachthe
the

questionof
question ofwhether
whetherVega
Vegawas
wasirreparably
irreparablyharmed
harmedby
byKaczmarek's
Kaczmarek'sand
andFoster's
Foster'smisconduct.
misconduct.

3.3. Vega's
Vega'sMotion
Motionto
toWithdraw
WithdrawGuilty
GuiltyPleas
Pleas

Vegahas
Vega hasnot
notfiled
filedaaseparate
separatemotion
motionpursuant
pursuanttotoMass.
Mass.R.
R.Crim.
Crim.P.P.30(b),
30(b),but
butininhis
his

motiontotodismiss,
motion dismiss,he
heasks
askstotowithdraw
withdrawhis
hisguilty
guiltyplea
pleaas
asan
analternative
alternativeremedy
remedyand
andasserts
assertsthat
that

justicewas
justice wasnot
notdone
doneininhis
hisconviction.
conviction.The
TheCommonwealth
Commonwealthhas
hasnot
notsubmitted
submittedininwriting
writingany
any

argumentsor
arguments orevidence
evidenceininopposition
oppositiontotoVega's
Vega'smotion
motiontotowithdraw
withdrawhis
hisguilty
guiltyplea.
plea.

101
101
 Add. 119
Add.119
Add:119

On
On this
this sparse
sparse record, any Ferrara-Scott
record, any Ferrara-Scott analysis
analysis does
does not
not get
get far.
far. The
The record
record establishes
establishes

that
that Farak
Farak committed
committed egregiously
egregiously impermissible
impermissible conduct,
conduct, that
that she
she signed
signed Vega's
Vega's drug
drug analysis
analysis

certificates,
certificates, and
and that
that Farak's
Farak's misconduct
misconduct antedated
antedated the
the entry
entry of
of Vega's
Vega's plea.
plea. With
With that
that conclusive
conclusive

presumption
presumption of
of egregious
egregious government
government misconduct,
misconduct, the
the analysis
analysis turns
turns to
to the
the second
second prong
prong of
of the
the

Ferrara-Scott
Ferrara-Scott test
test in
in which
which Vega
Vega must
must demonstrate
demonstrate aa reasonable
reasonable probability
probability that
that he
he would
would not
not

have
have pleaded
pleaded guilty
guilty had
had he
he known
known of
of Farak's
Farak's misconduct.
misconduct. See
See Commonwealth
Commonwealth v. Cotto, 471
v. Cotto, 471

Mass.
Mass. at
at 106.
106. Vega
Vega has
has done
done nothing
nothing by
by way
way of
of argument
argument or
or citing
citing evidence
evidence to
to attempt
attempt to
to meet
meet

that
that burden.
burden. He
He has
has presented
presented no
no information
information about
about the
the circumstances
circumstances and
and factors
factors attending
attending his
his

decision
decision to
to plead
plead guilty.
guilty. This
This court
court cannot
cannot grant
grant Rule
Rule 30(b)
30(b) on
on speculation
speculation as
as to
to whether
whether there
there is
is

aa reasonable
reasonable probability
probability that
that Vega
Vega would
would not
not have
have pled
pled guilty
guilty and
and would
would not
not have
have accepted
accepted the
the

plea
plea agreement
agreement offered
offered to
to him
him had
had he
he known
known of
of Farak's
Farak's misconduct.
misconduct. Accordingly,
Accordingly, Vega's
Vega's motion
motion

for
for alternative
alternative relief
relief under
under Rule
Rule 30(b)
30(b) is
is denied.
denied.

F.
F. Bryant
Bryant Ware
Ware

Ware
Ware has
has before
before me
me three
three cases,
cases, based
based upon
upon indictments
indictments issued
issued in
in 2007,
2007, 2009,
2009, and
and 2010.
2010.

In
In each,
each, he
he has
has moved
moved to
to dismiss
dismiss the
the indictments
indictments and
and to
to withdraw
withdraw his
his guilty
guilty pleas
pleas in
in what
what he
he

calls
calls motions
motions to
to vacate.
vacate. The
The procedural
procedural backgrounds
backgrounds for
for these
these three
three cases
cases are
are intertwined.
intertwined.

1.
1. Factual
Factual and
and Procedural
Procedural Background
Background

On
On August
August 29,
29, 2007,
2007, Ware
Ware was
was indicted
indicted on
on charges
charges of
of possession
possession of
of cocaine
cocaine with
with intent
intent

to
to distribute
distribute (count
(count 1),
1), possession
possession of
of marijuana,
marijuana, aa Class
Class D
D controlled
controlled substance
substance (count
(count 2),
2),

violation
violation of
of the
the controlled
controlled substances
substances laws
laws in
in proximity
proximity to
to aa school
school (count
(count 3),
3), possession
possession of
of aa

firearm
firearm without
without aa firearm
firearm identification
identification card
card (count
(count 4),
4), and
and conspiracy
conspiracy to
to violate
violate the
the drug
drug laws
laws

(count
(count 5).
5). These
These indictments
indictments arose
arose out
out of
of aa police
police investigation
investigation into
into suspected
suspected drug
drug activity
activity at
at

102
102
 Add. 120
Add.120
Add:120

Ware's
Ware'sSpringfield
Springfieldresidence,
residence,which
whichpolice
policehad
hadaawarrant
warrantto
tosearch.
search.Police
Policearrested
arrestedWare
Wareas
ashe
he

drove
droveaway
awayfrom
fromthe
the residence,
residence, searched
searched him
him and
aridfound
foundapproximately
approximately$1,300
$1,300in
incash
cashon
onhim.
him.

Police
Policethen
thensearched
searchedhis
hisresidence,
residence,where
wherethey
theyfound,
found,according
accordingto
tothe
thepolice
policereport,
report,11
11rocks
rocksof
of

cocaine,
cocaine,11bag
bagof
ofcocaine
cocainepowder,
powder,33bags
bagsof
ofmarijuana,
marijuana,scales,
scales,drug
drugpackaging
packagingmaterial,
material,and
and

ammunition.'Ware
ammunition.' Warerepresents
representsthat
thatthe
thecertificate
certificateof
ofdrug
druganalysis
analysisfor
forhis
his2007
2007isislost.
lost.

On
OnMay
May21,
21,2008,
2008,Ware
Warepleaded
pleadedguilty
guiltyto
tocounts
counts1,
1,22and
and4.
4.With
Withrespect
respectto
tocount
count1,
1,he
he

was
wassentenced
sentencedto
to221/2
1/2years
yearsin
inaahouse
houseof
ofcorrection,
correction,with
withone
oneyear
yearto
toserve
serveand
andthe
thebalance
balance

suspended
suspendedwith
withprobation
probationfor
fortwo
twoyears.
years.With
Withrespect
respectto
tocounts
counts22and
and4,
4,Ware
Warewas
wassentenced
sentencedto
to

six
sixmonths
monthsin
inaahouse
houseof
ofcorrection,
correction,to
tobe
beserved
servedconcurrently
concurrentlywith
withthe
thecommitted
committedsentence
sentenceon
on

count1.
count 1.

Ware's
Ware's2009
2009case,
case,docketed
docketedas
as0979CR01072,
0979CR01072,arose
arosefrom
froman
anincident
incidenton
onJuly
July31,
31,2009,
2009,in
in

which
whichWare
Waresold
soldtwo
twosmall
smalloff-white
off-whiterock
rocksubstances
substancesto
toan
anundercover
undercoverpolice
policeofficer
officerfor
for$20
$20

after
afterthe
theofficer
officerasked
askedfor
foraa"twenty,"
"twenty,"aacommon
commonstreet
streetterm
termused
usedto
todescribe
describe$20
$20of
ofcrack
crack

cocaine.On
cocaine. OnSeptember
September14,
14,2009,
2009,Farak
Farakissued
issuedaadrug
drugcertificate
certificatestating
statingthat
thatthe
thesubstance
substancewas
was

cocaine.Recent
cocaine. Recentretesting
retestingby
byanother
anotheranalyst
analystconfirmed
confirmedthat
thatresult.46
result.'On
OnNovember
November25,
25,2009,
2009,aa

grandjury
grand juryindicted
indictedWare
Wareon
onaasingle
singlecount
countof
ofdistributing
distributingcocaine
cocaineas
asaasubsequent
subsequentoffense.
offense.Ware
Ware

was
wasalso
alsocharged
chargedwith
withaaviolation
violationof
ofthe
theprobation
probationconditions
conditionsimposed
imposedon
onhim
himwhen
whenhe
hepleaded
pleaded

guiltyto
guilty tothe
the2007
2007charges.
charges.

45
45
The
Thepolice
policereport
reportrefers
referstotopolice
policerecovering
recoveringammunition
ammunitionfrom fromWare's
Waresresidence,
residence,but
butdoes
doesnot
notmention
mentionaa
firearm,
firearm,although
althoughWare
Warepled
pledguilty
guiltytotothe
thecharge
chargeofofpossession
possessionofofaafirearm
firearmwithout
withoutaafirearm
firearmidentification
identificationcard.
card.
(Commonwealth'sAppendix,
(Commonwealth's Appendix,hereinafter
hereinafterreferred
referredtotoas
asCA,
CA,atatpp.
pp.182-183)
182-183)
46
46The
Thecertificate
certificatefor
fornarcotics
narcoticsevidence
evidenceassigned
assignedlab
labnumber
numberA09-03096
A09-03096describes
describesthe
thesubmission
submissionas
asone
one
plastic
plasticbag
bagwith
withwhite
whitechunks
chunkswith
withaanet
netweight
weightofof.13
.13grams
gramswhich
whichFarak
Farakcertified
certifiedas
ascocaine.
cocaine.The
Theretesting
retesting
certificatewas
certificate wasissued
issuedon
onJanuary
January20,
20,2017,
2017,and
anddescribed
describedthe
thesubstance
substanceininbag
bagA09-03096
A09-03096asasone
oneyellow
yellowrock
rocklike
like
powder
powderweighing
weighing.11
.11grams
gramsof
ofmaterial
material"found
"foundtotocontain
containcocaine."
cocaine."

103
103
 Add. 121
Add.121
Add:121

Only four
Only four weeks
weeks after
after the
the 2009
2009 indictment
indictment was
was issued,
issued, Ware
Ware had
had another
another run-in
run-in with
with

police,
police, leading
leading to
to his
his 2010
2010 case,
case, 1079CR00253.
1079CR00253. On
On December
December 22,
22, 2009,
2009, Springfield
Springfield police
police

attempted to
attempted to stop
stop Ware's
Ware's vehicle
vehicle and
and execute
execute an
an arrest
arrest warrant.
warrant. Ware
Ware responded
responded by
by ramming
ramming his
his

vehicle into
vehicle into three
three police
police cruisers
cruisers while
while trying
trying to
to flee
flee the
the scene.
scene. Police
Police stopped
stopped and
and searched
searched

Ware's vehicle,
Ware's vehicle, where
where they
they found
found eight
eight bags
bags of
of aa powdery
powdery substance
substance that
that appeared
appeared to
to be
be heroin
heroin

and was
and was labeled
labeled "Dynasty."
"Dynasty." On
On February
February 5,
5, 2010,
2010, Farak
Farak analyzed
analyzed the
the seized
seized substance
substance and
and

certified itit to
certified to be
be heroin.
heroin. No
No retesting
retesting results
results have
have been
been submitted
submitted to
to date
date on
on that
that substance.
substance. On
On

March 9,
March 9, 2010,
2010, in
in connection
connection with
with the
the December
December 22,
22, 2009,
2009, events,
events, Ware
Ware was
was indicted
indicted for
for

possession of
possession of heroin
heroin with
with intent
intent to
to distribute
distribute as
as aa subsequent
subsequent offense
offense (count
(count 1),
1), aa violation
violation of
of the
the

controlled substances
controlled substances laws
laws in
in proximity
proximity to
to aa school
school or
or park
park (count
(count 2),
2), five
five counts
counts of
of assault
assault and
and

battery by
battery by means
means of
of aa dangerous
dangerous weapon,
weapon, aa vehicle
vehicle (counts
(counts 33 through
through 7),
7), and
and resisting
resisting arrest
arrest

(count 8).
(count 8).

On February
On February 4,
4, 2011,
2011, Ware
Ware pled
pled guilty
guilty to
to (1)
(1) the
the 2009
2009 charge,
charge, (2)
(2) count
count 11 and
and counts
counts 33

through 88 in
through in the
the 2010
2010 case,
case, and
and (3)
(3) the
the violation
violation of
of probation
probation charge
charge arising
arising out
out of
of the
the 2007
2007

conviction. He
conviction. He was
was sentenced
sentenced to
to serve
serve concurrent
concurrent terms
terms of
of five
five to
to seven
seven years
years in
in State
State prison
prison and
and

probation.'
probation.'

With respect
47With
47 respect to
to the
the 2009
2009 conviction,
conviction, Ware
Ware was
was sentenced
sentenced to to State
State prison
prison forfor aa term
term ofof 55 to
to 77 years.
years. On
On
count 1 of
count 1 of the the2010
2010charges,
charges,WareWarewaswassentenced
sentencedtotoaaterm
termof offive
fivetotoseven
sevenyears
years in
in the
the State
State prison,
prison, to to run
run
concurrentlywith
concurrently withhis
hissentence
sentenceon onthe
the2009
2009charge.
charge.With
Withrespect
respectto tothe
the2010
2010 charges,
charges, on on count
count 2, 2, the
the Commonwealth
Commonwealth
filed aa nolle
filed nolle prosequi;
prosequi; on
on count
count 3,3, Ware
Ware was
was sentenced
sentenced toto 18
18 months
months of of probation,
probation, toto bebe served
served fromfrom and
and after
after his
his
sentence on
sentence oncount
count1;1;on
oncounts
counts44through
through8,8,Ware
Warewas
wassentenced
sentencedto to1818months
monthsof ofprobation,
probation,to tobebeserved
served
concurrently with
concurrently withhis
hissentence
sentenceof ofprobation
probationon
oncount
count3.3.AsAstotothe
theprobation
probationviolation,
violation,WareWarewas wascommitted
committedto toaa
house of
house of correction
correction for
for an
an 18
18 month
month suspended
suspended portion
portion of
of his
his sentence
sentence onon the
the 2007
2007 charges,
charges, to to run
run concurrently
concurrently with
with
hisState
his Stateprison
prisonsentence
sentence onon the
the 2009
2009 charge.
charge.

104
104
 Add. 122
Add.122
Add:122

OnAugust
On August12,
12,2013,
2013,Ware
Warefiled
filedaamotion
motionfor
fornew
newtrial
trialin
inhis
his2009
2009case
case(#28)."
(#28)."

On
On February
February 14,
14, 2014,
2014, Ware
Ware filed
filed aa motion
motion for
for post-conviction
post-conviction discovery
discovery with
withrespect
respectto
to

his
his 2007,
2007, 2009,
2009, and
and 2010
2010 cases.
cases. In
In that
that motion,
motion, he
he sought
sought orders
orders that:
that: (1)
(1) all
all drug
drug evidence
evidence

maintained
maintained by
by the
the SPD
SPD in
in criminal
criminal cases
cases during
during Farak's
Farak's tenure
tenure be
be visually
visually inspected
inspectedto
todetect
detect

signs
signs of
of tampering,
tampering, and
and (2)
(2) testing
testing occur
occur on
on 100
100 randomly
randomly selected
selected drug
drug submissions
submissions from
fromthat
that

evidence. Ware
evidence. Ware argued
argued that
that there
there was
was no
no reason
reason to
to believe
believe that
that the
the full
full extent
extent of
of Farak's
Farak's

misconduct had
misconduct had been
been ascertained.
ascertained. On
On March
March12,
12,2014,
2014,Judge
JudgeKinder
Kinderdenied
deniedthat
thatmotion
motionin
inall
all

three cases
three cases on
on the
the grounds,
grounds, inter alia,that
inter alia, that there
there was
was no
no evidence
evidence that
that Farak's
Farak's misconduct
misconduct

occurredatatthe
occurred thetime
timeWare
Warepled
pledguilty
guiltyon
onFebruary
February4,
4,2011.
2011.Judge
JudgeKinder
Kinderfurther
furtherreasoned
reasonedthat
that

Farak's misconduct
Farak's misconduct would
would not
not have
have been
been material
material to
to Ware's
Ware's decision
decision to
to plead
plead guilty,
guilty, given
giventhe
the

strength of
strength of the
the Commonwealth's
Commonwealth's cases
cases and
and the
the significant
significant benefit
benefit Ware
Ware had
had received
receivedfrom
fromthe
the

plea agreements.
plea agreements. Ware
Ware appealed.
appealed. In
In 2015,
2015, the
the Supreme
Supreme Judicial
Judicial Court
Court affirmed
affirmed Judge
Judge Kinder's
Kinder's

denialof
denial ofWare's
Ware'smotion
motionfor
forpost-conviction
post-convictiondiscovery
discoverybut
butremanded
remandedthe
thematter
matterto
tothe
theSuperior
Superior

Court to
Court to afford
afford Ware
Ware an
an opportunity
opportunity to
to file
file aa new
new motion
motion limited
limited to
to seeking
seekingthe
theretesting
retestingof
ofthe
the

substances
substances in
in his
his 2009
2009 case.
case. See
See Commonwealth Ware,471
Commonwealth v.v. Ware, 471 Mass.
Mass. at
at 96.
96. That
That retesting
retesting

occurredand
occurred andconfirmed
confirmedthat
thatthe
thesubstances
substanceswere
werecocaine,
cocaine,as
asoriginally
originallydetermined
determinedby
byFarak
Farak

In the
In the same
same decision,
decision, the
the Supreme
Supreme Judicial
Judicial Court
Court emphasized
emphasized the
the inadequacy
inadequacy of
of the
the investigation
investigation

intoFarak's
into Farak'smisconduct
misconductand
andthe
theprosecutor's
prosecutor'sduty
dutyto
toinvestigate
investigatethoroughly
thoroughlyand
anddisclose
discloseto
tothe
the

defendantsexculpatory
defendants exculpatoryevidence
evidenceheld
heldby
byagents
agentsof
ofthe
theprosecution
prosecutionteam.
team.See
Seeid.
id. at
at 95.
95. That
That

prompted investigations
prompted investigations by
by AAG
AAG Caldwell
Caldwell and
and others,
others, as
as set
set forth
forth above.
above.

48
48The
Thedocket
docketdoes
doesnot
notshow
showthat
thatany
anyaction
actionor
orhearings
hearingshave
haveoccurred
occurredon
onthat
thatmotion.
motion.Consequently,
Consequently,that
that
motionisisdeemed
motion deemedwaived.
waived.In
Inany
anyevent,
event,he
hehas
hassince
sincefiled
filedseveral
severalother
othermotions
motionsfor
forpost-conviction
post-convictionrelief
reliefunder
under
Mass.R.
Mass. R.Crim.
Crim.P.
P.30(b).
30(b).

105
105
 Add. 123
Add.123
Add:123

On
OnJune
June1,1,2015,
2015,Ware
Waremoved
movedtotovacate
vacatehis
hisconvictions
convictions(to
(towithdraw
withdrawhis
hisguilty
guiltypleas)
pleas)and
and

totodismiss
dismisshis
hisindictments
indictments(#48)
(#48)and
andthe
thefinding
findingthat
thathe
hehad
hadviolated
violatedprobation
probationterms
termsimposed
imposedinin

connection
connectionwith
withhis
his2007
2007case.
case.He
Hefiled
filedtwo
twoadditional
additionalmotions
motionstotovacate
vacateon
onSeptember
September22,
22,2016
2016

(#77)
(#77)and
andon
onNovember
November16,
16,2016
2016(#82).
(#82).

2.2.Ware's
Ware's2007
2007Indictments
Indictments

(a)
(a)Ware's
Ware'sMotion
Motionto
toDismiss
Dismiss2007
2007Indictments
Indictments

As
Asexplained
explainedabove,
above,the
thedrug
druglab
labdefendants
defendantswho
whoare
areentitled
entitledtotodismissal
dismissalof
oftheir
their

indictments
indictmentsbecause
becauseof
ofthe
theAGO's
AGO'segregious
egregiousgovernment
governmentmisconduct
misconductininwithholding
withholdingexculpatory
exculpatory

evidence
evidenceare
arethose:
those:(1)
(1)whose
whosedrug
druglab
labcertificates
certificateswere
weresigned
signedby
byFarak;
Farak;(2)
(2)who
whomoved
moved

unsuccessfully
unsuccessfullyfor
forpost-conviction
post-convictionrelief
reliefand/or
and/ordiscovery
discoveryduring
duringthe
theperiod
periodof
ofJanuary
January19,
19,2013,
2013,

and
andNovember
November1,1,2014;
2014;and
and(3)
(3)whose
whosemotions
motionsfor
forrelief
reliefand/or
and/ordiscovery
discoverywere
weredenied
deniedon
onthe
the

basis
basisof
ofthe
theevidentiary
evidentiaryrecord
recordestablished
establishedbefore
beforeJudge
JudgeKinder.
Kinder.With
Withrespect
respecttotohis
his2007
2007case,
case,

Ware
Waremeets
meetsthe
thetest
teston
onthe
thesecond
secondand
andthird
thirdfactors.
factors.

As
Astotothe
thefirst
firstfactor,
factor,ititisisnot
notknown
knownwhether
whetherFarak
Faraktested
testedthe
thesubstances
substancesininthis
thiscase
case

because,
because,according
accordingtotoWare,
Ware,the
thedrug
druganalysis
analysiscertificates
certificateshave
havebeen
beenlost.
lost.He
Hedoes
doesnot
notseek
seektoto

blame
blameor
orshift
shiftthe
theburden
burdenof
ofproducing
producingthe
thecertificates
certificatestotothe
theCommonwealth.
Commonwealth.Instead,
Instead,he
he

assumes
assumesthat
thataachemist
chemistother
otherthan
thanFarak
Farakanalyzed
analyzedthe
thesubstances
substancesininhis
his2007
2007case.
case.Ware's
Ware's

generalized
generalizedargument
argumentappears
appearstotobe
bethat
thatthe
theAGO
AGOcommitted
committedegregious
egregiousmisconduct
misconductby
byfailing
failingtoto

investigate
investigatethe
thescope
scopeof
ofFarak's
Farak'smisconduct
misconductand
andthat
thatFarak's
Farak'smisconduct
misconductoccurred
occurredwhen
whenthe
the

substances
substancesininhis
hiscase
casewere
weretested.
tested.

Kaczmarek's
Kaczmarek'sand
andFoster's
Foster'segregious
egregiousmisconduct
misconductinin2013
2013and
and2014
2014did
didimpact
impactWare's
Ware'scase
case

totothe
theextent
extentthat
thatJudge
JudgeKinder
Kinderdenied
deniedWare's
Ware'smotion
motionfor
forpost-conviction
post-convictiondiscovery
discoveryininearly
early2014
2014

106
106
 Add. 124
Add.124
Add:124

as
as aa result
result of
of the
the failure
failure to
to disclose
disclose exculpatory
exculpatory evidence.
evidence. But
But absent
absent proof
proof that
that Farak
Farak analyzed
analyzed

the substances
the substances in
in his
his 2007
2007 case,
case, Ware
Ware cannot
cannot show
show --
-- and
and does
does not
not argue
argue --
-- that
that any
any of
of the
the

discovery
discovery sought
sought would
would have
have aided
aided him
him or
or that
that he
he was
was impacted
impacted in
in any
any way
way by
by the
the misconduct.
misconduct.

The
The disconnect
disconnect between
between Ware's
Ware's 2007
2007 case
case and
and any
any government
government misconduct
misconduct renders
renders his
his motion
motion to
to

dismiss groundless.
dismiss groundless. Cf.
Cf. Commonwealth
Commonwealth v.
v. Cronk,
Cronk, 396
396 Mass.
Mass. at
at 199
199 (remedies
(remedies for
for prosecutorial
prosecutorial

misconduct
misconduct must
must be
be tailored
tailored to
to the
the injury
injury suffered
suffered and
and balance
balance defendants'
defendants' rights
rights against
against need
need to
to

preserve society's
preserve society's interest
interest in
in administration
administration of
of justice).
justice).

(b)
(b) Ware's
Ware's Motions
Motions for
for Relief
Relief Under
Under Mass.
Mass. R.
R. Crim.
Crim. P.
P. 30(b)
30(b) in
in 2007
2007 Case
Case

A
A defendant
defendant moving
moving to
to withdraw
withdraw aa guilty
guilty plea
plea must
must show
show that
that (1)
(1) egregiously
egregiously

impermissible misconduct
impermissible misconduct by
by aa government
government agent
agent antedated
antedated the
the entry
entry of
of his
his or
or her
her plea,
plea, and
and (2)
(2)

the
the misconduct
misconduct occurred
occurred in
in the
the defendant's
defendant's case,
case, see
see Commonwealth
Commonwealth v.
v. Cotto,
Cotto, 471
471 Mass.
Mass. at
at 116,
116,

or
or that
that itit influenced
influenced his
his or
or her
her decision
decision to
to plead
plead guilty
guilty or
or was
was material
material to
to that
that choice,
choice, see
see

Commonwealth v.
Commonwealth v. Francis,
Francis, 474
474 Mass.
Mass. at
at 821.
821.

Although
Although Ware
Ware moves
moves for
for Rule
Rule 30(b)
30(b) relief
relief in
in his
his 2007
2007 case,
case, he
he offers
offers no
no specific
specific

supporting argument,
supporting argument, in
in contrast
contrast to
to his
his 2009
2009 and
and 2010
2010 cases.
cases. Because
Because he
he has
has not
not presented
presented

evidence
evidence that
that Farak
Farak signed
signed his
his drug
drug certificate
certificate and
and he
he does
does not
not assert
assert that
that its
its loss
loss is
is attributable
attributable to
to

the Commonwealth,
the Commonwealth, he
he cannot
cannot claim
claim that
that he
he is
is entitled
entitled to
to the
the conclusive
conclusive presumption
presumption of
of

egregious government
egregious government misconduct
misconduct in
in satisfaction
satisfaction of
of the
the first
first prong
prong of
of the
the Ferrara-Scott
Ferrara-Scott test.
test. See
See

Commonwealth v.
Commonwealth v. Gardner,
Gardner, 467
467 Mass.
Mass. at
at 369.
369. Most
Most importantly,
importantly, he
he cannot
cannot show
show that
that Farak's
Farak's

misconduct
misconduct occurred
occurred in
in his
his case.
case. See
See Commonwealth
Commonwealth v.
v. Cotto,
Cotto, 471
471 Mass.
Mass. at
at 116.
116.

3. Ware's
3. Ware's 2009
2009 and
and 2010
2010 Cases
Cases

(a) Ware's
(a) Ware's Motion
Motion to
to Dismiss
Dismiss 2009
2009 and
and 2010
2010 Cases
Cases

107
107
 Add. 125
Add.125
Add:125

The
The 2009
2009 indictment
indictment must
must be
be dismissed
dismissed with
with prejudice.
prejudice. Ware
Ware falls
falls squarely
squarely within
within the
the

category of
category of defendants
defendants directly
directly victimized
victimized by
by Kaczmarek's
Kaczmarek's and
and Foster's
Foster's intentional
intentional withholding
withholding

of
ofexculpatory
exculpatory evidence.
evidence. Ware
Ware sought
sought post-conviction
post-conviction relief
relief in
in his
his motion
motion for
for new
new trial
trial filed
filed on
on

August
August12,
12,2013,
2013,and,
and,due
dueto
tothe
theegregious
egregious government
government misconduct
misconduct by
by those
those two
two AAGs,
AAGs, Ware
Ware

failed
failed in
in his
his motion
motion for
for post-conviction
post-conviction discovery
discovery filed
filed on
on February
February 14,
14, 2014,
2014, to
to determine
determine the
the

scope
scope of
of Farak's
Farak's misconduct.
misconduct.

As for
As for the
the 2010
2010 case,
case, the
the one
one drug-related
drug-related charge
charge upon
upon which
which Ware
Ware was
was convicted,
convicted,count
count

1,possession
1, possessionof
ofheroin
heroinwith
withintent
intentto
todistribute
distributeas
asaasubsequent
subsequent offender,
offender, should
should also
also be
be

dismissed with
dismissed with prejudice.
prejudice. In
In early
early 2014,
2014, the
the Commonwealth
Commonwealth opposed
opposed Ware's
Ware's motion
motion for
for post-
post-

conviction discovery
conviction discovery to
to learn
learn the
thescope
scopeof
ofFarak's
Farak'smisconduct
misconductand
andthe
theAGO
AGOcontinued
continuedto
toblock
block

Ware's efforts
Ware's efforts while
while concealing
concealing the
the mental
mental health
health worksheets
worksheets to
to which
which Ware
Ware and
and other
other drug
drug lab
lab

defendantswere
defendants wereentitled.
entitled.The
Theintentional
intentionalmisrepresentations
misrepresentationsby
byKaczmarek
Kaczmarekand
andFoster
Fosterrequire
require

the
the drastic
drastic remedy
remedy of
of dismissal
dismissal with
with prejudice
prejudice as
as to
to count
count 1.
1. See
See Commonwealth
Commonwealthv.v.Cronk,
Cronk,396
396

Mass. at
Mass. at 199;
199; Commonwealth
Commonwealth v.v. Manning,
Manning,373
373Mass.
Mass.atat443-444.
443-444.

On the
On the other
other hand,
hand, Kaczmarek's
Kaczmarek's and
and Foster's
Foster's egregious
egregiousmisconduct
misconducthas
hasno
nobearing
bearingon
onthe
the

non-drug convictions
non-drug convictions in
in Ware's
Ware's 2010
2010 case,
case, counts
counts 33 through
through 8,
8, for
for assault
assault and
and battery
battery with
with aa

dangerous
dangerous weapon
weapon and
and one
one count
count of
of resisting
resisting arrest.
arrest. Therefore,
Therefore, Ware's
Ware's motion
motion to
to dismiss
dismiss those
those

non-drug indictments
non-drug indictments isis denied.
denied. See
See Commonwealth
Commonwealth v.v. Cinelli,
Cinelli,389
389Mass.
Mass.atat210.
210.

(b) Ware's
(b) Ware's Motions
Motions Under
Under Mass.
Mass. R.
R. Crim.
Crim. P.
P. 30(b)
30(b) in
in 2009
2009 and
and 2010
2010 Cases
Cases

The Commonwealth
The Commonwealth concedes
concedes that
that in
in Ware's
Ware's 2009
2009and
and2010
2010cases,
cases,he
heisisentitled
entitledto
toaa

conclusivepresumption
conclusive presumptionof
ofegregious
egregiousgovernment
governmentmisconduct
misconductbecause
becauseFarak
Faraksigned
signedthe
thepertinent
pertinent

drug
drug lab
lab certificates.
certificates. Therefore,
Therefore, pursuant
pursuant to
to the
the Ferrara-Scott
Ferrara-Scott framework,
framework, Ware
Ware can
can withdraw
withdraw

108
108
 Add. 126
Add.126
Add:126

his
his guilty
guilty pleas
pleas ifif he
he can
can demonstrate
demonstrate aa reasonable
reasonable probability
probability that
that he
he would
would not
not have
have pled
pled guilty
guilty

and
and would
would have
have taken
taken his
his chances
chances at
at trial
trial had
had he
he known
known of
of Farak's
Farak's misconduct.
misconduct. See
See

Commonwealth
Commonwealth v.
v. Scott,
Scott, 467
467 Mass.
Mass. at
at 354-355,
354-355, 358.
358.

With respect
With respect to
to the
the 2009
2009 case,
case, without
without Farak's
Farak's certificate,
certificate, the
the Commonwealth
Commonwealth had
hadonly
only

circumstantial evidence
circumstantial evidence that
that the
the substance
substance purchased
purchased by
by the
the undercover
undercover officer
officerwas
was$20
$20of
ofcrack
crack

cocaine. There
cocaine. There appears
appears to
to have
have been
been no
no field
field testing.
testing. The
The Commonwealth
Commonwealth does
does not
not point
point to
to

other
other evidence
evidence such
such as
as an
an opinion
opinion by
by aa seasoned
seasoned narcotics
narcoticsinvestigator
investigatorthat,
that,based
basedon
onhis
hisor
orher
her

experience,the
experience, thesubstances
substancessold
soldappeared
appearedto
tobe
becrack
crackcocaine.
cocaine.

More
Moreimportantly,
importantly,Ware
Warewas
wassentenced
sentencedon
onthe
the2009
2009charge
chargeto
toState
Stateprison
prisonfor
foraaterm
termof
of55

to 77 years
to years for
for distribution
distribution of
of cocaine
cocaine as
as aa subsequent
subsequent offense.
offense. The
The plea
plea agreement
agreement did
did not
not

significantly
significantly reduce
reduce Ware's
Ware's sentencing
sentencing exposure
exposure on
on that
that charge.
charge. II find
find that,
that, in
in these
these

circumstances,
circumstances,knowledge
knowledgeof
ofFarak's
Farak'smisconduct
misconductwould
wouldhave
havepersuaded
persuadedWare's
Ware'sdefense
defensecounsel
counsel

to have
to have rejected
rejected the
the plea
plea offer
offer and
and either
either to
to have
have sought
sought aa better
better plea
plea agreement,
agreement, which
which would
would

likely
likelyhave
havebeen
beenforthcoming,
forthcoming,or
orto
tohave
havetaken
takenhis
hischances
chancesat
attrial.
trial.See
See Commonwealth
Commonwealth v.v.

Resende, 475
Resende, 475 Mass.
Mass. at
at 16-17.
16-17. Ware
Ware has
has met
met his
his burden
burden on
on the
the second
second prong
prong of
of the
the Ferrara-Scott
Ferrara-Scott

test
testof
ofdemonstrating
demonstratingaareasonable
reasonableprobability
probabilitythat
thathe
hewould
wouldnot
nothave
havepled
pledguilty
guiltyand
andwould
wouldhave
have

taken
taken his
his chances
chances at
at trial
trial had
had he
he known
known of
of Farak's
Farak's misconduct.
misconduct. See
See Commonwealth
Commonwealth v.v. Scott,
Scott, 467
467

Mass. at
Mass. at 354-355,
354-355, 358.
358. Accordingly,
Accordingly, should
should an
an appellate
appellate court
court reverse
reverse the
the order
order dismissing
dismissing

Ware's2009
Ware's 2009case,
case,Ware
Warewould
wouldbe
beallowed
allowedto
towithdraw
withdrawhis
hisguilty
guiltyplea.
plea.

Ware's
Ware's 2010
2010 case
case presents
presents aa closer
closer question.
question. Of
Of the
the seven
seven charges,
charges, one
one was
was for
for drugs
drugs

(count1,
(count 1,possession
possessionwith
withintent
intentto
todistribute
distributeheroin),
heroin),whereas
whereasthe
theothers
otherswere
werefive
fivecounts
countsof
of

assault and
assault and battery
battery with
with aa dangerous
dangerous weapon
weapon and
and one
one charge
charge of
of resisting
resisting arrest
arrest(counts
(counts33through
through

109
109
 Add. 127
Add.127
Add:127

8).
8). With
With respect
respect to
to the
the drug
drug charge
charge only,
only, Ware
Ware has
has the
the benefit
benefit of
of the
the conclusive
conclusive presumption
presumption of
of

egregious
egregious government
government misconduct,
misconduct, as
as Farak
Farak signed
signed the
the drug
drug analysis
analysis certificate.
certificate. At
At issue
issue isis

whether
whether Ware
Ware has
has demonstrated
demonstrated aa reasonable
reasonable probability
probability that,
that, had
had he
he then
then known
knownof
ofFarak's
Farak's

misconduct,
misconduct, he
he would
would not
not have
have tendered
tendered the
the guilty
guilty plea
plea to
to possession
possession of
of heroin
heroinwith
withthe
theintent
intentto
to

distribute.
distribute. See
See Commonwealth
Commonwealth v.v. Scott,
Scott, 467
467 Mass.
Mass. at
at 354-355,
354-355, 358.
358.

As
As noted
noted above,
above, that
that plea
plea agreement
agreement resulted
resulted in
in the
the Commonwealth
Commonwealth nolle
nolle prossing
prossing the
the

schoolzone
school zoneviolation
violationand
andin
inWare
Warebeing
beingsentenced
sentencedto
toaaterm
termof
offive
fiveto
toseven
sevenyears
yearsin
inthe
theState
State

prison,
prison, to
to run
run concurrently
concurrently with
with his
his sentence
sentence on
on the
the 2009
2009 charge.
charge. The
The Commonwealth
Commonwealth asserts,
asserts,

and
and Ware
Ware does
does not
not deny,
deny, that
that had
had Ware
Ware not
not pled
pled guilty,
guilty, he
he would
would have
have faced
facedatattrial
trialaaminimum
minimum

mandatory
mandatory sentence
sentence of
of five
five years
years on
on the
the heroin
heroin charge,
charge, two
two and
and aa half
half years
years on
on the
the school
school zone
zone

charge
chargefrom
fromand
andafter
afteraaconviction
convictionon
onthe
thedrug
drugcharge,
charge,up
upto
toten
tenyears
yearsin
inState
Stateprison
prisonfor
foreach
eachof
of

the
the assault
assault and
and battery
battery with
with aa dangerous
dangerous weapon
weapon charges,
charges, two
two and
and aa half
half years
yearson
onthe
thecharge
chargeof
of

resisting arrest,
resisting arrest, and
and an
an 18
18 month
month sentence
sentence for
for his
his violation
violation of
of probation.
probation. Ware
Ware has
has not
not shown
shown or
or

even argued
even argued that
that his
his plea
plea agreement
agreement was
was not
not favorable
favorable to
to him.
him.

In the
In the 2010
2010 case,
case, without
without aa drug
drug certificate,
certificate, there
there isis no
no direct
direct evidence
evidence that
that the
the eight
eight bags
bags

of
ofpowdery
powderysubstance
substanceseized
seizedfrom
fromWare's
Ware's vehicle
vehicle were
were heroin.
heroin. Nor
Nor was
was there
there evidence
evidence of
of field
field

testing, controlled
testing, controlled buys,
buys, or
or police
police finding
finding with
with Ware
Ware aa large
large amount
amount of
of cash
cashor
orany
anyinstruments
instruments

commonly
commonly associated
associated with
with drug
drug distribution.
distribution. Compare
Compare Commonwealth
Commonwealth v.v. Antone,
Antone,90
90 Mass.
Mass. App.
App.

Ct.atat818
Ct. 818(significant
(significantcircumstantial
circumstantial evidence
evidence that
that substances
substances were
were cocaine
cocaine were
were that
that police
police had
had

conductedtwo
conducted twocontrolled
controlledbuys,
buys,both
bothsubstances
substancesfield
fieldtested
testedpositive
positivefor
forcocaine,
cocaine,defendant
defendant

pointed out
pointed out "drugs"
"drugs" to
to police,
police, and
and police
police found
found in
in defendant's
defendant's home
home supplies
supplies for
for cooking,
cooking,

processing
processingand
andpackaging
packagingcocaine
cocaine for
for distribution).
distribution). What
What the
the Commonwealth
Commonwealth did
did have
have as
as strong
strong

110
110
 Add. 128
Add.128
Add:128

circumstantialevidence
circumstantial evidenceof
ofguilt
guiltwas
wasWare's
Ware'sviolent
violentflight
flightto
toevade
evadepolice
policeby
byramming
rammingthem
themwith
with

hisvehicle.
his vehicle.

On
Onbalance,
balance,without
withoutchemical
chemicalanalysis,
analysis,even
eventhat
thatstrong
strongcircumstantial
circumstantialevidence
evidenceisis

insufficientto
insufficient tosupport
supportaafinding
findingthat,
that,had
hadWare
Wareknown
knownof
ofFarak's
Farak'smisconduct
misconductatatthe
thetime
timehe
hepled
pled

guiltyto
guilty tothe
the2010
2010charges,
charges,he
helikely
likelywould
wouldhave
haveaccepted
acceptedthe
theplea
pleaoffer. SeeCommonwealth
offer.See Commonwealthv.v.

Resende,
Resende,475
475Mass.
Mass.atat16-17.
16-17.The
TheCommonwealth
Commonwealthnotably
notablydoes
doesnot
notargue
argueto
tothe contrary. IIfind
thecontrary. find

that,
that,with
withrespect
respectto
tohis
his2010
2010case,
case,Ware
Warehas
hasdemonstrated
demonstratedaareasonable
reasonableprobability
probabilitythat
thathe
hewould
would

not
nothave
havepled
pledguilty
guiltyand
andwould
wouldhave
havetaken
takenhis
hischances
chancesatattrial
trialhad
hadhe
heknown
knownof
ofFarak's
Farak's

misconduct.ItItfollows
misconduct. followsthat
thathis
hismotion
motionfor
forrelief
reliefunder
underRule
Rule30(b)
30(b)isisallowed.
allowed.See
See

Commonwealth
Commonwealthv.v.Scott,
Scott,467
467Mass.
Mass.atat354-355,
354-355,358.
358.

G.
G.Omar
OmarBrown
Brown

1.
1.Factual
Factualand
andProcedural
ProceduralBackground
Background

OnNovember
On November21,
21,2005,
2005,Brown
Brownwas
wasindicted
indictedon
oncharges
chargesof
ofpossession
possessionwith
withintent
intentto
to

distributecocaine,
distribute cocaine,subsequent
subsequentoffense
offense(count
(count1),
1),trafficking
traffickingin
incocaine
cocaine(count
(count2),
2),possession
possessionof
of

marijuana
marijuana(count
(count3),
3),resisting
resistingarrest
arrest(count
(count4)
4)and
andcommitting
committingaadrug
druglaws
lawsviolation
violationnear
nearaaschool
school

orpark
or park(count
(count5).
5).Two
Twoweeks
weeksearlier,
earlier,on
onNovember
November7,
7,2005,
2005,Pontes
Pontesissued
issuedcertificates
certificatesof
ofdrug
drug

analysis
analysisstating
statingthat
thatthe
thesubstances
substanceswere
werefound
foundto
tococaine
cocaineand
andmarijuana.
marijuana.The
Theresults
resultsof
ofretesting
retesting

performed
performedearlier
earlierthis
thisyear
yearraise
raiseno
noconcerns
concernsabout
aboutpossible
possibletampering
tamperingin
inBrown's
Brown'scase."
case."

On
OnMay
May24,
24,2006,
2006,Brown
Brownpled
pledguilty
guiltybefore
beforePage,
Page,J.J.to
tocounts
counts2,
2,33and
and4,
4,with
withcounts
counts33

49
49
Pontes'most
Pontes' mostsignificant
significantcertificate
certificateininthis
thiscase
caserelates
relatestotocount
count2,2,the
thecocaine
cocainetrafficking
traffickingcharge
chargetotowhich
which
Brownpled
Brown pledguilty
guiltyand
andfor
forwhich
whichBrown
Brownwas wassentenced
sentencedtotothree
threeyears
yearsofofincarceration.
incarceration.In
In2005,
2005,Pontes
Pontescertified
certifiedthat
that
theevidence
the evidencemarked
marked170609
170609contained
containedininone
onebagbaghad
hadaanet
netweight
weightof of17.82
17.82grams
gramsof
ofpowder
powderwhich
whichshe
shefound
foundtoto
containcocaine.
contain cocaine.That
Thatsubstance
substancewas
wasretested
retestedinin2017
2017and
andfound
foundtotocontain
containcocaine
cocainewith
withaanet
netweight
weightofof17.62
17.62grams.
grams.

111
111
 Add. 129
Add.129
Add:129

and44being
and beingfiled
filedby
bythe
theCommonwealth.
Commonwealth.The
TheCommonwealth
Commonwealthentered
enteredaanolle
nolleprosequi
prosequion
oncounts
counts

11and
and5.
5.On
Oncount
count2,
2,Brown
Brownwas
wassentenced
sentencedto
toserve
serve33years
yearsof
ofincarceration
incarcerationatataaState
Stateprison.
prison.

2.
2. Brown's
Brown's Combined
Combined Motion
Motion to
to Dismiss
Dismiss and
and to
to Vacate
Vacate Convictions
Convictions

Over nine
Over nine years
years later,
later, on
on November
November 30,
30, 2015,
2015, Brown
Brown filed
filed aa motion
motion seeking
seeking the
the dismissal
dismissal

of his
of his indictments
indictments and
and to
to vacate
vacate his
his convictions.
convictions. His
His arguments
arguments in
in his
his combined
combined motion
motion to
to

dismissand
dismiss andvacate
vacate(to
(towithdraw
withdrawhis
hisguilty
guiltypleas)
pleas)overlap
overlapeach
eachother
otherin
inkey
keyrespects.
respects.In
Inboth,
both,his
his

premiseisisthat
premise thatbecause
becausethere
therehas
hasbeen
beenaafailure
failureto
toinvestigate
investigatethe
thescope
scopeof
ofFarak's
Farak'smisconduct
misconduct

and we
and we still
still do
do not
not know
know the
the full
full extent
extent to
to which
which Farak
Farak compromised
compromised the
the integrity
integrityof
ofthe
theevidence
evidence

tested by
tested by other
other chemists
chemists such
suchas
asPontes,
Pontes,Brown
Brownisisentitled
entitledto
toaapresumption
presumptionthat
thatFarak
Faraktampered
tampered

with all
with all police-submitted
police-submitted samples
samples at
at the
the Amherst
Amherst lab
lab while
while she
she worked
worked there,
there,including
includinghis.
his.

Brown
Brown has
has not
not pointed
pointed to
to aa discernible
discernible link
link between
between his
his conviction
conviction and
and any
any type
typeof
of

governmental misconduct.
governmental misconduct. As
As an
an initial
initial matter,
matter, the
the possibility
possibilitythat
thatFarak
Farakmay
mayhave
havetampered
tampered

with Brown's
with Brown's substances
substances in
in 2005
2005 isis remote
remote and
and purely
purely speculative.
speculative. Nothing
Nothing in
in the
theevidence
evidence

supports
supports an
an inference
inference that
that in
in 2005,
2005, Farak
Farak was
was tampering
tampering with
with cocaine
cocaine assigned
assignedto
toPontes.
Pontes.

Nor can
Nor can Brown
Brown complain
complain that
that the
the AGO
AGO withheld
withheld potentially
potentially exculpatory
exculpatory evidence
evidencefrom
from

him or
him or that
that aa failure
failure to
to investigate
investigate harmed
harmed him.
him. Brown
Brown filed
filed no
no motions
motions for
for post-conviction
post-conviction

reliefor
relief ordiscovery
discoverybetween
betweenJanuary
January18,
18,2013,
2013,and
andNovember
November1,
1,2014,
2014,and
andtherefore
thereforehe
hewas
wasnot
not

amongthe
among thedrug
druglab
labdefendants
defendantsdenied
deniedrelief
reliefdue
dueto
tothe
theAGO's
AGO'sfailure
failureto
tolearn
learnof
ofand
anddisclose
disclose

exculpatory
exculpatory evidence.
evidence. Because
Because Brown
Brown has
has not
not shown
shown that
that the
the AGO's
AGO's misconduct
misconductimpacted
impactedhis
his

conviction
conviction in
in any
any material
material way,
way, dismissal
dismissal of
of his
his indictments
indictments isis unwarranted.
unwarranted. See
See Commonwealth
Commonwealth

v.v. Cronk,
Cronk, 396
396 Mass.
Mass. at
at 199
199 (remedies
(remedies for
for egregious
egregious government
government misconduct
misconduct must
must be
be tailored
tailored to
to

injury suffered);
injury suffered);Commonwealth
Commonwealth v.v. Light,
Light,394
394Mass.
Mass. at
at 114;
114; Commonwealth
Commonwealth v.v. Gardner,
Gardner,467
467

112
112
 Add. 130
Add.130
Add:130

Mass.363,
Mass. 363,368-369
368-369 (2014).
(2014).

Equally
Equallyunavailing
unavailingisisBrown's
Brown'sargument
argumentthat
thathis
hisguilty
guiltypleas
pleasshould
shouldbe
bevacated
vacatedunder
under

Rule 30(b).
Rule 30(b). He
He isis not
not entitled
entitled to
to the
the conclusive
conclusive presumption
presumption of
of egregious
egregious government
government

misconduct,as
misconduct, asPontes
Pontessigned
signedhis
hisdrug
druganalysis
analysiscertificate.
certificate.As
Asexplained
explainedabove,
above,Brown
Browncannot
cannot

show that
show that egregious
egregious government
government misconduct
misconduct occurred
occurred in
in his
his case
case or,
or, therefore,
therefore,that
thatititwas
was

material to
material to his
his choice
choice to
to plead
plead guilty.
guilty. Accordingly,
Accordingly, he
he has
has not
not met
met his
his burden
burden in
in seeking
seeking Rule
Rule

30(b)
30(b) relief.
relief. See Commonwealth v.v. Cotto,
See Commonwealth Cotto,471
471Mass.
Mass.at
at116; Commonwealth v.v. Francis,
116;Commonwealth Francis, 474
474

Mass.
Mass. at
at 821;
821; Commonwealth
Commonwealth v.v. Resende, 475 Mass.
Resende,475 Mass. at
at 3-4.
3-4.

H.
H. Wendell
Wendell Richardson
Richardson

1. Factual
1. Factual and
and Procedural
Procedural Background
Background

In
In January
January of
of 2012,
2012, Richardson
Richardsonwas
wasapproached
approachedby
byan
anundercover
undercoverpolice
policeofficer
officerwho
who

asked him
asked him for
for "a
"a 20,"
20," meaning
meaning $20
$20 of
of crack
crack cocaine.
cocaine. Richardson
Richardson then
then walked
walked to
to his
hisco-
co-

defendant,
defendant,Tony
TonyMurph,
Murph,and
andasked
askedhim
himfor
forthe
thecocaine.
cocaine.Richardson
Richardsontestified
testifiedthat
thathe
heknew
knewthat
thathe
he

could purchase
could purchase the
the crack
crack from
from Murph,
Murph, although
although he
he claims
claims that
that he
he had
had not
not previously
previously done
done so.
so.

Richardsonbought
Richardson bought the
the crack
crack from
from Murph
Murph and
and within
within minutes
minutes sold
sold itit to
to the
the undercover
undercover officer.
officer.

Police
Policearrested
arrestedRichardson
Richardsonand
andMurph
Murphand
andsubsequently
subsequentlysubmitted
submittedthe
thetwo
twowhite
whitechunks
chunksof
of

suspected crack
suspected crack cocaine
cocaine to
to the
the Amherst
Amherst drug
drug lab.
lab. On
On March
March 15,
15, 2012,
2012, Farak
Farak analyzed
analyzed them
them and
and

certifiedthem
certified them to
to be
be cocaine,
cocaine, each
each with
with aa net
net weight
weight of
of .05
.05 grams.
grams.

On
On April
April 17,
17, 2012,
2012, Richardson
Richardson and
and Murph
Murph were
were indicted
indicted on
on charges
charges of
of distribution
distribution of
of aa

Class BB controlled
Class controlled substance,
substance, cocaine,
cocaine, subsequent
subsequent offense
offense (count
(count 1),
1), and
and violating
violatingcontrolled
controlled

substance
substance laws
laws in
in aa school
school or
or park
park zone
zone (count
(count 2).
2). On
On November
November 5,
5, 2012,
2012,both
bothmen
menpled
pledguilty
guilty

before
before Ferrara,
Ferrara, J.,
J., to
to distribution
distribution of
of cocaine,
cocaine, the
the lesser
lesser included
included offense
offense in
in count
count 1;
1; the
the

113
113
 Add. 131
Add.131
Add:131

Commonwealth
Commonwealth nolle
nolle prossed
prossed count
count 22 in
in each
each case.
case. Judge
Judge Ferrara
Ferrara sentenced
sentenced Richardson
Richardson to
to three
three

years
years at
at aa State
State prison,
prison, and
and he
he sentenced
sentenced Murph
Murph to
to four
four years
years at
at aa State
State prison.
prison.

On
On August
August 1,
1, 2013,
2013, after
after learning
learning of
of Farak's
Farak's drug
drug tampering,
tampering, Murph
Murph moved
moved to
to withdraw
withdraw

his
his guilty
guilty plea.
plea. The
The Commonwealth
Commonwealth did
did not
not oppose
oppose that
that motion,
motion, which
which Judge
Judge Kinder
Kinder allowed
allowed on
on

December
December 18,
18, 2013,
2013, and
and reduced
reduced Murph's
Murph's prison
prison sentence
sentence from
from 44 years
years to
to 22 1/2
1/2 years,
years, to
to be
be

served
served concurrently
concurrently with
with Murph's
Murph's sentence
sentence on
on aa similar
similar conviction
conviction in
in 1279CR00227
1279CR00227 (also
(also for
for

distribution
distribution of
of cocaine),
cocaine), with
with the
the recommendation
recommendation that
that the
the sentence
sentence be
be served
served at
at aa house
house of
of

correction.
correction.

In
In contrast
contrast to
to his
his co-defendant,
co-defendant, Richardson
Richardson did
did not
not move
move to
to withdraw
withdraw his
his guilty
guilty plea
plea until
until

much
much later,
later, February
February 26,
26, 2015,
2015, and
and the
the Commonwealth
Commonwealth opposed
opposed that
that motion.
motion. On
On June
June 8,
8, 2015,
2015,

each
each of
of the
the substances
substances in
in this
this case
case were
were retested
retested and
and certified
certified to
to be
be cocaine
cocaine with
with the
the net
net weight
weight of
of

.03
.03 grams.
grams. In
In early
early 2017,
2017, Richardson
Richardson filed
filed aa motion
motion to
to dismiss
dismiss the
the indictments
indictments against
against him.
him.

2.
2. Richardson's
Richardson's Motion
Motion to
to Dismiss
Dismiss

Richardson
Richardson argues
argues that
that he
he is
is entitled
entitled to
to dismissal
dismissal of
of his
his indictments
indictments due
due to
to the
the AGO's
AGO's

egregious
egregious misconduct
misconduct in
in withholding
withholding exculpatory
exculpatory evidence
evidence of
of Farak's
Farak's misconduct.
misconduct. There
There is
is no
no

question
question that
that Kaczmarek's
Kaczmarek's and
and Foster's
Foster's misconduct
misconduct qualifies
qualifies as
as egregious
egregious government
government

misconduct
misconduct and
and that
that in
in some
some cases,
cases, itit justifies
justifies the
the dismissal
dismissal of
of indictments
indictments on
on several
several grounds.
grounds.

The
The difficulty
difficulty with
with Richardson's
Richardson's motion
motion to
to dismiss
dismiss is
is that
that he
he is
is not
not among
among the
the drug
drug lab
lab

defendants
defendants most
most directly
directly impacted
impacted by
by the
the egregious
egregious government
government misconduct.
misconduct. He
He did
did not
not file
file aa

motion
motion for
for post-conviction
post-conviction discovery
discovery or
or relief
relief while
while Kaczmarek
Kaczmarek and
and Foster
Foster were
were withholding
withholding the
the

mental
mental health
health worksheets
worksheets between
between January
January 18,
18, 2013,
2013, and
and November
November 1,
1, 2014.
2014. Richardson
Richardson cannot
cannot

demonstrate
demonstrate that
that he
he was
was deprived
deprived of
of relief
relief during
during that
that period
period due
due to
to the
the egregious
egregious government
government

114
114
 Add. 132
Add.132
Add:132

misconduct. The
misconduct. The drastic
drastic remedy
remedy of
of dismissal
dismissal with
with prejudice
prejudice must
must be
be reserved
reserved for
for particularly
particularly

egregious cases
egregious cases of
of misconduct. See Commonwealth
misconduct. See Commonwealth v.v. Perrot,
Perrot,38
38 Mass.
Mass. App.
App. Ct.
Ct. 478,
478, 481
481

(1995).
(1995). Richardson
Richardson has
has not
not met
met his
his burden
burden of
of showing
showing why
why the
the dismissal
dismissal of
of his
his criminal
criminal charges
charges

isis warranted.
warranted. See
See Commonwealth
Commonwealth v.v. Gardner,
Gardner, 467
467Mass. 368; Commonwealth
Mass.atat368; Commonwealth v.v. Light,
Light,394
394

Mass. at
Mass. at 114;
114; Commonwealth
Commonwealth v.
v. Manning,
Manning,373
373Mass.
Mass.atat443.
443.

3.
3. Richardson's
Richardson's Motion
Motion to
to Withdraw
Withdraw Guilty
Guilty Pleas
Pleas

Because Farak
Because Farak signed
signed Richardson's
Richardson's drug
drug certificate
certificate and
and the
the Commonwealth
Commonwealth has
hasconceded
conceded

on
on the
the first
first prong
prong of
ofthe
the Ferrara-Scott
Ferrara-Scott test
test that
that Farak's
Farak's misconduct
misconduct was
was egregious
egregious and
and antedated
antedated

Richardson's
Richardson's guilty
guilty plea,
plea, the
the disposition
disposition of
of Richardson's
Richardson's motion
motion turns
turns on
on the
the second
second prong
prong of
of the
the

test, whether
test, whetherRichardson
Richardsonhas
hasdemonstrated
demonstratedaareasonable
reasonableprobability
probabilitythat
thathe
hewould
wouldnot
nothave
have

pleaded guilty
pleaded guilty had
had he
he known
known of
of Farak's
Farak's misconduct.
misconduct. See
See Commonwealth
Commonwealth v.v. Antone,
Antone, 90
90 Mass.
Mass.

App.Ct.
App. Ct.at
at815.
815.The
TheCommonwealth
Commonwealthasserts
assertsthat
thatRichardson
Richardsoncannot
cannotshow
showthat
thatFarak's
Farak's

misconduct
misconduct would
would have
havebeen
beenmaterial
materialto
tohis
hisdecision
decisionto
toplead
pleadguilty
guiltybecause:
because:(1)
(1)Richardson
Richardson

admitted
admitted his
his guilt
guilt and
and that
that the
the substance
substance was
was cocaine
cocaine during
during the
the plea
plea colloquy,
colloquy,and
and(2)
(2)he
he

obtained aa favorable
obtained favorable agreed-upon
agreed-upon sentence
sentence in
in that
that his
his school
school zone
zone violation
violation charge
charge was
was dropped.
dropped.

Neither
Neither of
of these
these arguments
arguments overrides
overrides Richardson's
Richardson's showing
showing on
on the
the second
second prong.
prong.

AAdefendant's
defendant'sadmissions
admissionsduring
duringaaplea
pleacolloquy
colloquyare
arenot
notdispositive
dispositiveof
ofhis
hismotion
motionto
to

withdraw his
withdraw his guilty
guilty pleas
pleas in
in this
this context.
context. See
See Commonwealth
Commonwealth v.v. Scott,
Scott,467
467 Mass.
Mass.atat360-361
360-361

(inquiry
(inquiry isis focused
focused on
on prejudicial
prejudicial effect
effectof
ofdefendant's
defendant'sdecision
decisionwhether
whetherto
toenter
enterguilty
guiltyplea,
plea,not
not

analysis
analysis of
of voluntariness
voluntariness of
of guilty
guilty plea
plea tendered).
tendered). Had
Had Richardson
Richardson been
been aware
aware of
of Farak's
Farak's

misconduct
misconduct when
when he
he was
was deciding
deciding whether
whether to
to plead
plead guilty,
guilty, he
he would
would have
have reasonably
reasonably concluded
concluded

that
that Farak's
Farak's drug
drug certificates
certificates could
could not
not have
have been
been used
used against
against him.
him. Cf.
Cf.Commonwealth
Commonwealth v.
v.

115
115
 Add. 133
Add.133
Add:133

90 Mass.
Antone, 90
Antone, Mass. App.
App. Ct.
Ct. at
at 817.
817. Apart
Apart from
from those
those certificates,
certificates, there
there was
was not
not then
then strong
strong

evidence that
evidence that the
the substances
substances at
at issue
issue were
were cocaine.
cocaine. Richardson's
Richardson's conviction
conviction arose
arose out
out of
of aa single
single

undercover buy,
undercover buy, and
and there
there was
was no
no field
field testing
testing of
of the
the substance
substance which
which Richardson
Richardson bought
bought from
from

Murph and
Murph and immediately
immediately sold
sold to
to the
the undercover
undercover officer.
officer. See
See Commonwealth
Commonwealth v.
v. Resende,
Resende, 475
475

Mass. at
Mass. at 17-18
17-18 (evidence
(evidence of
of field
field testing
testing of
of substance
substance was
was persuasive
persuasive in
in identifying
identifying substance
substance

and made
and made evidence
evidence against
against defendant
defendant strong);
strong); Commonwealth
Commonwealth v.
v. 'Intone, 90 Mass.
'Intone, 90 Mass. App.
App. Ct.
Ct. at
at

818 (significant
818 (significant additional
additional evidence
evidence that
that suggested
suggested that
that substances
substances were
were cocaine
cocaine was
was that
that police
police

had conducted
had conducted two
two controlled
controlled buys
buys from
from defendant
defendant and
and in
in both
both instances,
instances, substances
substances field
field tested
tested

positive for
positive for cocaine;
cocaine; also,
also, aa room
room in
in defendant's
defendant's home
home had
had all
all supplies
supplies for
for cooking,
cooking, processing
processing

and packaging
and packaging cocaine
cocaine for
for distribution,
distribution, and
and defendant
defendant pointed
pointed out
out "drugs"
"drugs" to
to police).
police).

Finally, the
Finally, the fact
fact that
that Murph
Murph obtained
obtained aa much
much better
better plea
plea agreement
agreement in
in 2013,
2013, despite
despite being
being

more culpable
more culpable than
than Richardson,
Richardson, leaves
leaves no
no doubt
doubt that
that Richardson
Richardson would
would have
have fared
fared even
even better,
better,

and likely
and likely would
would have
have had
had his
his charges
charges nolle
nolle prossed
prossed had
had he
he known
known when
when he
he pled
pled guilty
guilty what
what we
we

now know
now know about
about the
the scope
scope of
of Farak's
Farak's misconduct.
misconduct. See
See Commonwealth
Commonwealth v.
v. Cotto,
Cotto, 471
471 Mass.
Mass, at
at

116. In
116. In sum,
sum, the
the value
value to
to Richardson
Richardson of
of the
the evidence
evidence of
of Farak's
Farak's misconduct
misconduct would
would not
not have
have been
been

outweighed by
outweighed by the
the benefits
benefits of
of entering
entering into
into the
the plea
plea agreement
agreement where
where there
there was
was only
only

circumstantial evidence
circumstantial evidence that
that the
the substances
substances were
were cocaine.
cocaine. Contrast
Contrast Commonwealth
Commonwealth v.
v. Antone,
Antone, 90
90

Mass. App.
Mass. App. Ct.
Ct. at
at 819.
819. Richardson
Richardson has
has satisfied
satisfied his
his burden
burden of
of demonstrating
demonstrating aa reasonable
reasonable

probability that
probability that he
he would
would not
not have
have pleaded
pleaded guilty
guilty had
had he
he known
known of
of Farak's
Farak's misconduct,
misconduct, and
and his
his

motion to
motion to withdraw
withdraw his
his guilty
guilty plea
plea isis allowed.
allowed. See
See Commonwealth
Commonwealth v.
v. Cotto,
Cotto, 471
471 Mass.
Mass. at
at 106;
106;

Commonwealth v.
Commonwealth v. Scott,
Scott, 467
467 Mass.
Mass. at
at 361.
361.

116
116
 Add. 134
Add.134
Add:134

I.I. Glenda
GlendaLiz
LizAponte
Aponte

1.
1.Factual
Factualand
andProcedural
ProceduralBackground
Background

On
OnMarch
March6,
6,2012,
2012,aagrand
grandjury
juryindicted
indictedAponte
Aponteon
onthree
threecounts
countsof
ofdistribution
distributionof
of

cocaine,
cocaine,subsequent
subsequentoffenses,
offenses,in
inviolation
violationof
ofG.
G.L.
L.c.c.94C,
94C,§§32A(d)
32A(d)(counts
(counts1,1,3,3,and
and5),
5),and
and

three
threecounts
countsof
ofcommitting
committingthose
thosedrug
drugviolations
violationsnear
nearaaschool
schoolzone
zoneor
orpark,
park,in
inviolation
violationof
ofG.
G.L.
L.

c.c.94C,
94C,§§32J
32J(counts
(counts2,
2,44and
and6).
6).These
Thesecharges
chargesarose
aroseout
outof
ofundercover
undercoverofficer
officerpurchases
purchasesof
of

crack
crackcocaine
cocainefrom
fromAponte
Aponteatather
herSpringfield
Springfieldapartment
apartmenton
onNovember
November8,8,2011,
2011,November12,
November12,

2011,
2011,and
andFebruary
February15,
15,2012.
2012.Detective
DetectiveGarcia
Garciaof
ofthe
theSPD
SPDconducted
conductedthese
thesecash
cashtransactions
transactionsfor
for

aa"twenty"
"twenty"on
onNovember
November8,
8,2011,"
2011,"aa"forty"
"forty"on
onNovember
November12,
12,2011,
2011,and
andfor
forfour
fouroff-white
off-white

chunks
chunkson
onFebruary
February15,
15,2012.
2012.

TheCommonwealth
The Commonwealthhas
hassubmitted
submittedthree
threecertificates
certificatesof
ofdrug
druganalysis
analysisdated
datedin
in2012,
2012,and
and

representsthat
represents thatthe
thecertificates
certificatesare
arebased
basedupon
uponAponte's
Aponte'ssales
saleson
onNovember
November8,
8,2011,
2011,November
November

12,
12,2011,
2011,and
andFebruary
February15,
15,2012.
2012.The
Thefirst
firstcertificate,
certificate,dated
datedJanuary
January5,
5,2012,
2012,was
wassigned
signedby
by

Hanchett.The
Hanchett. Thelatter
lattertwo
twocertificates,
certificates,dated
datedJanuary
January6,
6,2012,
2012,and
andApril
April24,
24,2012,
2012,were
weresigned
signedby
by

Farak.
Farak.None
Noneof
ofthese
thesethree
threecertificates
certificatescontains
containsany
anyreference
referenceto
toAponte
Aponteor
orher
herco-defendant,
co-defendant,but
but

instead
insteadeach
eachidentifies
identifiesthe
thedefendant
defendantororsuspect asas
suspect "under investigation."s°
"under investigation.'On
OnOctober
October16,
16,2012,
2012,

50With
50 Withrespect
respecttotothe
thefirst
firstundercover
undercoverbuy buyon onNovember
November8,8,2011,2011,the
theCommonwealth
Commonwealthoffersoffersaadrug
druganalysis
analysis
certificatewhich
certificate whichisisdated
datedJanuary
January5,5,2012,
2012,signed
signedby byHanchett,
Hanchett,butbutcontains
containsnonoreference
referencetotoAponte
Aponteor orher
herco-
co-
defendant.
defendant.Instead,
Instead, the
the defendant
defendant is is listed
listed as
as "under
"under investigation." The substance was assignedassigned lab
lab number
number A Al11-
1-
04217
04217andandisisdescribed
describedas aswhite
whitechunks
chunksininone onebagbagwith
withaanet
netweight
weightofof.17
.17grams,
grams,determined
determinedtotobebecocaine
cocaine
Nothingininthat
Nothing thatcertificate
certificateshows
showsthat
thatthe
theanalysis
analysisperformed
performedby byHanchett
Hanchettconcerns
concernsthe
thesubstances
substancessold
soldbybyAponte
Aponteon on
November8,8,2011.
November 2011.With
Withrespect
respecttotoAponte's
Aponte'ssale saleon
onNovember
November12, 12,2011,
2011,the
theCommonwealth
Commonwealthhas hassubmitted
submittedaa
certificatesigned
certificate signedby byFarak
Farakon onJanuary
January6,6,2012,
2012,certifying
certifyingthat
thatthe
thesubstance
substancewaswasassigned
assignedlablabnumber
numberA11-04271,
A11-04271,
containedcocaine
contained cocaineandandhad
hadaanetnetweight
weightof of.11
.11grams.
grams.That
Thatamount
amountisisodd
oddbecause
becausethe
thesecond
secondsale
salewas
wasforfortwice
twicethe
the
amountof
amount ofcrack
crackcocaine
cocaineas asthe
thefirst
firstsale,
sale,but
butthe
theweight
weightof ofthe
thesecond
secondsubstance
substancewas
wasless
lessthan
thanthe
theamount
amountsubmitted
submitted
fortesting
for testingfrom
fromthethefirst
firstsale.
sale.Like
Likethethefirst
firstcertificate,
certificate,the
thesecond
secondoneonecontains
containsno
noreference
referencetotoAponte
Aponteor orher
herco-
co-
defendant;instead
defendant; insteadthe
thecertificate
certificateidentifies
identifiesthe thedefendant
defendantas as"under
"underinvestigation,"
investigation."
The
Thethird
thirddrug
druganalysis
analysiscertificate,
certificate,purportedly
purportedlyrelating
relatingtotoAponte's
Aponte'ssale
saleon
onFebruary
February15,15,2012,
2012,isisdated
dated
April
April24,
24,2012.
2012.ItItidentifies
identifiesthethesubstance
substanceas asassigned
assignedlaboratory
laboratorynumber
numberAl2-00940
Al2-00940and anddescribes
describesititas
aswhite
white

117
117
 Add. 135
Add.135
Add:135

Aponte pled
Aponte pled guilty
guilty to
to counts
counts 1,
1, 3,
3, and
and 5,
5, and
and the
the court
court (Kinder,
(Kinder, J.)
J.) sentenced
sentenced her
her to
to concurrent
concurrent

sentences on
sentences on counts
counts 11 and
and 33 of
of 33 1/2 years at
1/2 years
to 44 1/2
1/2 to at aa State
State prison,
prison, followed
followed by
by 22 years
years of
of

probation from
probation from and
and after
after the
the incarceration
incarceration on
on count
count 5.
5. The
The Commonwealth
Commonwealth entered
entered aa nolle
nolle

prosequi on
prosequi on the
the school
school zone
zone charges,
charges, counts
counts 2,
2, 4,
4, and
and 6.
6.

In May
In May of
of 2013,
2013, once
once news
news of
of Farak's
Farak's indictments
indictments for
for drug
drug tampering
tampering broke,
broke, Aponte
Aponte

successfully moved
successfully moved for
for aa stay
stay of
of her
her sentence
sentence and
and she
she was
was released
released on
on bail.
bail. On
On June
June 26,
26, 2013,
2013,

Aponte moved
Aponte moved to
to withdraw
withdraw her
her guilty
guilty pleas.
pleas. On
On November
November 12,
12, 2013,
2013, within
within two
two weeks
weeks after
after

Judge Kinder
Judge Kinder concluded
concluded the
the evidentiary
evidentiary hearing
hearing on
on the
the scope
scope of
of Farak's
Farak's misconduct
misconduct with
with respect
respect

to other
to other drug
drug lab
lab defendants'
defendants' cases,
cases, and
and again
again on
on December
December 5,
5, 2013,
2013, Aponte
Aponte filed
filed motions
motions for
for

post-conviction discovery.
post-conviction discovery. The
The Commonwealth
Commonwealth did
did not
not oppose
oppose Aponte's
Aponte's motion
motion to
to withdraw
withdraw her
her

guilty pleas.
guilty pleas.

On December
On December 30,
30, 2013,
2013, Judge
Judge Kinder
Kinder allowed
allowed Aponte
Aponte to
to withdraw
withdraw her
her guilty
guilty pleas,
pleas, and,
and,

under aa plea
under plea agreement,
agreement, she
she pled
pled guilty
guilty to
to the
the lesser
lesser included
included offenses
offenses (without
(without the
the subsequent
subsequent

offense portion)
offense portion) of
of cocaine
cocaine distribution
distribution on
on counts
counts 1,
1, 33 and
and 5.
5. Judge
Judge Kinder
Kinder sentenced
sentenced Aponte
Aponte on
on

count 11 to
count to aa house
house of
of correction
correction for
for 22 1/2 years; on
1/2 years; on count
count 33 to
to six
six months
months to
to be
be served
served at
at aa house
house

of correction
of correction from
from and
and after
after the
the sentence
sentence on
on count
count 1;
1; and
and on
on count
count 5,
5, to
to probation
probation for
for 22 years
years

chunksin
chunks inone
oneplastic
plasticbag
bagwith
withaanetnetweight
weight ofof .15
.15 grams
grams and
and certifies
certifies that
that the
the substance
substance contains
contains cocaine.
cocaine. Like
Like the
the
first two
first two certificates,
certificates, this
this third
third one
one does
does not
not refer
refer to
to Aponte
Aponte oror her
her co-defendant
co-defendant or or provide
provide any any information
information linking
linking
Aponte to
Aponte to the
the substances
substances tested.
tested. ItIt isis not
not clear
clear on
on what
what basis
basis the
the Commonwealth
Commonwealth asserts asserts that
that these
these three
three 2012
2012
certificatesqualify
certificates qualifyas asevidence
evidencein inAponte's
Aponte'scase,case,although
althoughboth
boththetheCommonwealth
Commonwealthand andAponte
Aponte appear
appear to
to assume
assume that
that
theydo.
they do.
Finally, the
Finally, the evidence
evidence of of retesting
retesting offered
offered by bythe
theCommonwealth
Commonwealthisisirrelevant,
irrelevant,as asititconfirmed
confirmedas ascocaine
cocainefour
four
police-submitted samples
police-submitted samples in in aa 2007
2007 (not (not 2011
2011 oror 2012)
2012) Aponte
Aponte case.
case. The
The substances
substances retested
retested hadhad weights
weights andand
previouslyassigned
previously assignedlablabnumbers
numbersquite quitedistinct
distinctfrom
fromthethecertificates
certificatesdescribed
describedabove.
above.TheTheretesting
retesting report
report states
states that
that
theanalyst
the analysttested
testedfour
fouritems,
items,notnotthree,
three,submitted
submittedon onDecember
December28, 28,2016,
2016,ininconnection
connectionwithwithan anincident
incidentinvolving
involving
Aponte on
Aponte on May
May 4,4, 2007.
2007. The
The four
four items
items retested had been previously assigned Laboratory numbers183340
laboratory numbers 183340
(weighing.04
(weighing .04grams),
grams),18341
18341(weighing
(weighing.04 .04grams),
grams),18342
18342(weighing
(weighing.49 .49grams),
grams),and and18343
18343(weighing
(weighing.77 .77grams),
grams),
andeach
and eachwaswasfound
foundto tocontain
containcocaine.
cocaine.Neither
NeitherthetheCommonwealth
Commonwealthnor norAponte
Aponteaddresses
addressesthesetheseevidentiary
evidentiary
problemswhich
problems whichare areconcerning
concerningbut butnot notcontrolling
controllingfor forpurposes
purposes ofof the
the present
present motions.
motions.

118
118
 Add. 136
Add.136
Add:136

from
from and
and after
after the
the sentence
sentence on
on count
count 3.
3. II find
find that
that the
the basis
basis of
of the
the 2013
2013 plea
plea agreement
agreement on
on all
all

three
three counts
counts was
was the
the assumption
assumption that
that Farak
Farak had
had tampered
tampered with
with the
the samples
samples in
in Aponte's
Aponte's case.
case.

In
In 2012,
2012, Farak
Farak tampered
tampered with
with at
at least
least six
six crack
crack cocaine
cocaine samples
samples assigned
assigned to
to and
and already
already

tested
tested by
by Hanchett
Hanchett and
and she
she later
later repackaged
repackaged them
them in
in Hanchett's
Hanchett's pre-initialed
pre-initialed evidence
evidence bags.
bags.

Because
Because those
those substances
substances were
were first
first analyzed
analyzed by
by Hanchett,
Hanchett, the
the drug
drug certificates
certificates he
he issued
issued are
are

accurate
accurate as
as to
to the
the identity
identity of
of the
the substances
substances he
he tested.
tested. Since
Since December
December 11,
11, 2015,
2015, Aponte
Aponte has
has

filed
filed several
several motions
motions to
to vacate
vacate her
her guilty
guilty pleas
pleas and
and for
for the
the sanction
sanction of
of dismissal.
dismissal.

2.
2. Aponte's
Aponte's Motion
Motion to
to Dismiss
Dismiss

Aponte
Aponte claims
claims that
that she
she was
was harmed
harmed because
because her
her conviction
conviction rests
rests on
on evidence
evidence handled
handled by
by

Burnham
Burnham and
and Farak,
Farak, and
and because
because the
the AGO's
AGO's failure
failure to
to investigate
investigate and
and its
its withholding
withholding of
of

exculpatory
exculpatory evidence
evidence foreclosed
foreclosed drug
drug lab
lab defendants
defendants from
from being
being able
able to
to argue
argue that
that the
the evidence
evidence

in
in their
their cases
cases was
was tainted.
tainted. As
As noted
noted above,
above, nothing
nothing in
in the
the credible
credible evidence
evidence supports
supports an
an

inference
inference that
that Burnham's
Burnham's misconduct
misconduct may
may have
have extended
extended to
to tampering
tampering with
with the
the substances
substances he
he

submitted
submitted for
for analysis
analysis at
at the
the Amherst
Amherst lab.
lab. Consequently,
Consequently, Aponte's
Aponte's motion
motion to
to dismiss
dismiss hinges
hinges on
on

whether
whether and
and how
how the
the AGO's
AGO's egregious
egregious government
government misconduct
misconduct may
may have
have affected
affected her
her second
second set
set

of
of guilty
guilty pleas.
pleas.

The
The answer
answer is
is that
that itit did
did not.
not. As
As repeatedly
repeatedly stated
stated above,
above, the
the drug
drug lab
lab defendants
defendants most
most

obviously
obviously harmed
harmed by
by the
the AGO's
AGO's egregious
egregious misconduct
misconduct are
are those
those whose
whose substances
substances were
were tested
tested by
by

Farak
Farak at
at the
the Amherst
Amherst lab,
lab, who
who filed
filed motions
motions for
for discovery
discovery or
or for
for post-conviction
post-conviction relief
relief between
between

January
January 19,
19, 2013,
2013, and
and November
November 1,
1, 2014,
2014, and
and whose
whose motions
motions were
were denied
denied due
due to
to the
the AGO's
AGO's

misconduct.
misconduct. Aponte
Aponte does
does not
not fall
fall into
into that
that group.
group. In
In contrast
contrast to
to other
other drug
drug lab
lab defendants
defendants here,
here,

in
in 2013,
2013, Judge
Judge Kinder
Kinder allowed
allowed Aponte
Aponte to
to withdraw
withdraw her
her initial
initial guilty
guilty pleas.
pleas. No
No prosecutor
prosecutor denied
denied

119
119
 Add. 137
Add.137
Add:137

that Farak's
that Farak's misconduct
misconduct impacted
impacted Aponte's
Aponte's case.
case. In
In fact,
fact, the
the assumption
assumption that
that Farak's
Farak's misconduct
misconduct

tainted
tainted Aponte's
Aponte's original
original conviction
conviction was
was the
the premise
premise for
for the
the Commonwealth
Commonwealth agreeing
agreeingto
toAponte's
Aponte's

motion
motion to
to withdraw
withdraw all
all three
three of
of her
her guilty
guiltypleas
pleasand
andto
toallow
allowher
herto
toplead
pleadguilty
guiltyaasecond
secondtime
timeand
and

obtain aa better
obtain better plea
plea bargain.
bargain.

Aponte does
Aponte does not
not argue
argue what,
what, ifif any,
any, evidence
evidencewhich
whichwas
wassubsequently
subsequentlydisclosed
disclosedabout
aboutthe
the

scope
scope and
and nature
nature of
of Farak's
Farak's misconduct
misconduct would
would have
have made
made aa difference
difference in
in her
her second
second set
set of
ofguilty
guilty

pleas. Her
pleas. Her general
general argument
argument that
that the
the AGO
AGO intentionally
intentionally committed
committed egregious
egregious government
governmentby
by

withholding the
withholding the mental
mental health
health worksheets
worksheets and
and failing
failing to
to investigate
investigate does
does nothing
nothing to
to show
show how
how

that misconduct
that misconduct prejudiced
prejudiced her
her when
when she
she pled
pled guilty
guilty the
the second
second time
time in
in 2013,
2013,when
whenthe
the

Commonwealth assumed
Commonwealth assumed that
that Farak's
Farak's misconduct
misconduct had
had tainted
tainted her
her first
first guilty
guilty pleas.
pleas.

Althoughthe
Although theAGO's
AGM misconduct
misconduct was deliberate, egregious and intentional,
intentional, itit has
has not
not been
been

shown to
shown to have
have violated
violated Aponte's
Aponte's constitutional
constitutional rights
rights and
and does
does not
not give
give rise
rise to
topresumptive
presumptive

prejudice.
prejudice. There
There isis no
no basis
basis upon
upon which
which to
to conclude
conclude that
that such
such misconduct
misconduct warrants
warrantsthe
thedismissal
dismissal

of Aponte's
of Aponte's indictments.
indictments. See
SeeCommonwealth
Commonwealth v.v. Cronk,
Cronk,396
396 Mass.
Mass. at
at 198-199.
198-199.

3. Aponte's
3. Aponte's Motion
Motion for
for Relief
Relief Under
Under Mass.
Mass. R.
R. Crim.
Crim. P.
P. 30(b)
30(b)

The same
The same facts
facts defeat
defeat Aponte's
Aponte's motion
motion for
for Rule
Rule 30(b)
30(b) relief.
relief. Assuming
Assuming for
for the
the sake
sake of
of

argument
argument only
only that
that she
she isis entitled
entitled to
to the
the conclusive
conclusive presumption
presumption of
of egregious
egregious government
government

misconduct
misconduct in
in satisfaction
satisfaction of
of the
the first
first prong
prong of
of the
the Ferrara-Scott
Ferrara-Scott test
test as
as to
to two
two of
of the
the three
three

cocaine
cocainedistribution
distribution convictions,
convictions, Aponte
Aponte cannot
cannot meet
meet the
the second
second prong
prong of
of that
that test,
test, which
which

requires
requires her
her to
to particularize
particularize Farak's
Farak's misconduct
misconduct to
to her
her decision
decision to
to plead
plead guilty
guiltythe
thesecond
secondtime,
time,in
in

2013. See
2013. See Cotto,
Cotto, 471
471 Mass.
Mass. at
at 116.
116. Aponte
Aponte must
must demonstrate
demonstrate in
in the
the totality
totality of
of the
the

circumstances
circumstances aa reasonable
reasonable probability
probability that,
that, had
had she
she known
known of
of Farak's
Farak's misconduct,
misconduct, she
she would
would not
not

120
120
 Add. 138
Add.138
Add:138

have admitted
have admitted to
to sufficient
sufficient facts
facts and
and would
would have
have insisted
insisted on
on taking
taking her
her chances
chances at
at trial.
trial. See
See

Commonwealth v.
Commonwealth v. Scott,
Scott, 467
467 Mass.
Mass. at
at 357.
357. Where
Where aa defendant
defendant establishes
establishes that
that there
there was
was

egregious government
egregious government misconduct,
misconduct, but
but not
not that
that itit prejudiced
prejudiced her
her ability
ability to
to tender
tender aa valid
valid guilty
guilty

plea, Rule
plea, Rule 30(b)
30(b) relief
relief isis unavailable.
unavailable. See
See Commonwealth
Commonwealth v.
v. Lewin,
Lewin, 405
405 Mass.
Mass. 566,
566, 584-585
584-585

(1989).
(1989).

The second
The second prong
prong of
of the
the Ferrara-Scott
Ferrara-Scott test
test hinges
hinges upon
upon Aponte
Aponte not
not knowing,
knowing, at
at the
the time
time

of her
of her plea,
plea, about
about the
the egregious
egregious government
government misconduct
misconduct by
by Farak.
Farak. That
That isis inapplicable
inapplicable here,
here,

where Aponte
where Aponte withdrew
withdrew her
her first
first guilty
guilty pleas
pleas and
and was
was allowed
allowed to
to plead
plead guilty
guilty aa second
second time
time

because she
because she knew
knew of
of the
the relevant
relevant aspects
aspects of
of Farak's
Farak's misconduct
misconduct and
and because
because itit was
was assumed
assumed that
that

the drug
the drug lab
lab certificates
certificates underpinning
underpinning the
the three
three charges
charges against
against her
her were
were tainted
tainted by
by Farak's
Farak's

misconduct. Nothing
misconduct. Nothing that
that has
has been
been learned
learned about
about Farak's
Farak's misconduct
misconduct since
since late
late 2013
2013 would
would have
have

made aa difference
made difference in
in Aponte's
Aponte's case.
case. Consequently,
Consequently, Aponte
Aponte cannot
cannot demonstrate
demonstrate aa reasonable
reasonable

probability that
probability that she
she would
would not
not have
have pled
pled guilty
guilty in
in late
late 2013
2013 had
had she
she known
known of
of the
the misconduct.
misconduct.

Cotto, 471
See Cotto,
See 471 Mass.
Mass. at
at 116.
116.

CONCLUSION
CONCLUSION

The defendants
The defendants before
before me
me were
were all
all convicted
convicted of
of drug
drug offenses.
offenses. The
The suspected
suspected narcotics
narcotics

tied to
tied to their
their respective
respective cases
cases were
were analyzed
analyzed at
at the
the Amherst
Amherst drug
drug lab
lab during
during Sonja
Sonja Farak's
Farak's time
time

there as
there as aa chemist.
chemist. Their
Their motions
motions to
to dismiss
dismiss indictments
indictments and/or
and/or for
for relief
relief under
under Mass.
Mass. R.
R. Crim.
Crim. P.
P.

30(b) are
30(b) are based
based on
on aa series
series of
of alleged
alleged government
government failings
failings causing
causing serious
serious damage
damage to
to the
the

administration of
administration of justice.
justice. This
This court
court has
has found
found that
that the
the two
two types
types of
of egregious
egregious government
government

misconduct which
misconduct which have
have caused
caused substantial
substantial havoc
havoc here
here are
are Farak's
Farak's evidence
evidence tampering
tampering and
and drug
drug

theft at
theft at the
the Amherst
Amherst lab,
lab, and
and the
the deliberate
deliberate nondisclosure
nondisclosure of
of exculpatory
exculpatory evidence
evidence of
of Farak's
Farak's

121
121
 Add. 139
Add.139
Add:139

misconduct by
misconduct by two
two assistant
assistant attorneys
attorneys general,
general, Anne
Anne Kaczmarek
Kaczmarek and
and Kris
Kris Foster.
Foster.

The Commonwealth
The Commonwealth appropriately
appropriately concedes
concedes that
that Farak's
Farak's egregious
egregious government
government

misconduct presumptively
misconduct presumptively occurred
occurred in
in all
all cases
cases in
in which
which Farak
Farak signed
signed drug
drug certificates
certificates at
at the
the

Amherst lab.
Amherst lab. The
The court
court finds
finds that
that Farak
Farak was,
was, throughout
throughout her
her employment
employment at
at the
the Amherst
Amherst lab,
lab,

under the
under the influence
influence of
of drugs
drugs or
or drug
drug withdrawal
withdrawal symptoms
symptoms on
on almost
almost aa daily
daily basis.
basis. What
What began
began

as theft
as theft from
from lab
lab standards
standards in
in 2004,
2004, evolved
evolved by
by 2009,
2009, to
to Farak's
Farak's theft
theft of
of police-submitted
police-submitted drug
drug

samples. Farak's
samples. Farak's addiction
addiction and
and tampering
tampering began
began principally
principally with
with methamphetamine,
methamphetamine, then
then

progressed to
progressed to prescription
prescription drugs,
drugs, LSD,
LSD, powder
powder cocaine,
cocaine, and
and eventually
eventually ramped
ramped up
up to
to an
an almost
almost

nonstop use
nonstop use of
of crack
crack cocaine.
cocaine.

The
The court
court finds
finds that,
that, apart
apart from
from Farak's
Farak's misconduct,
misconduct, the
the deficiencies
deficiencies at
at the
the Amherst
Amherst lab
lab

do not
do not give
give the
the defendants
defendants grounds
grounds for
for post-conviction
post-conviction relief
relief There
There isis no
no factual
factual basis,
basis, as
as

asserted by
asserted by some
some defendants,
defendants, that
that all
all testing
testing performed
performed at
at the
the Amherst
Amherst lab
lab during
during Farak's
Farak's tenure
tenure

isis suspect.
suspect. The
The lab
lab chemists,
chemists, other
other than
than Farak,
Farak, were
were capable
capable and
and diligent
diligent employees
employees who
who worked
worked

under challenging
under challenging conditions,
conditions, without
without adequate
adequate security,
security, supervision,
supervision, mandatory
mandatory protocols
protocols or
or

optimal materials.
optimal materials. Nonetheless,
Nonetheless, nothing
nothing in
in the
the evidence
evidence shows
shows that
that their
their analysis
analysis was
was inaccurate
inaccurate

in the
in the cases
cases before
before me.
me.

The second
The second type
type of
of egregious
egregious government
government misconduct
misconduct underpinning
underpinning the
the motions
motions

addressed here
addressed here isis Kaczmarek's
Kaczmarek's and
and Foster's
Foster's deliberate
deliberate withholding
withholding of
of exculpatory
exculpatory evidence
evidence in
in

violation of
violation of the
the defendants'
defendants' right
right to
to due
due process.
process. There
There isis no
no merit
merit to
to the
the AGO's
AGO's contention
contention that
that

itit had
had no
no duty
duty to
to disclose
disclose the
the exculpatory
exculpatory evidence.
evidence. Farak's
Farak's mental
mental health
health worksheets,
worksheets, revealed
revealed

that Farak's
that Farak's addiction
addiction and
and drug
drug tampering
tampering had
had aa wider
wider scope
scope and
and an
an earlier
earlier start
start than
than previously
previously

known. The
known. The defendants
defendants were
were entitled
entitled to
to that
that evidence,
evidence, and
and the
the AGO
AGO was
was duty
duty bound
bound to
to provide
provide

122
122
 Add. 140
Add.140
Add:140

it.
it.Kaczmarek's
Kaczmarek'sand
andFoster's
Foster'sintentional,
intentional,repeated,
repeated,prolonged
prolongedand
anddeceptive
deceptivewithholding
withholdingof
ofthat
that

evidence
evidencefrom
fromthe
thedefendants,
defendants,the
thecourt,
court,and
andlocal
localprosecutors,
prosecutors,justifies
justifiesdismissal
dismissalof
ofindictments
indictments

with
withprejudice
prejudicein
inmany
manycases.
cases.The
Theimproper
improperwithholding
withholdingof
ofthat
thatevidence
evidenceirremediably
irremediably

prejudiced
prejudicedan
anundetermined
undeterminednumber
numberof
ofdefendants
defendantsby
byprecluding
precludingthem
themfrom
fromasserting
assertingwhat
whatwould
would

havebeen
have beenaapowerful
powerfulpost-conviction
post-convictionor
ortrial
trialdefense
defenseargument,
argument,namely,
namely,that
thatFarak's
Farak'scertificate
certificate

of
ofdrug
druganalysis
analysiswas
wasfatally
fatallyflawed,
flawed,and
andtherefore,
therefore,inadmissible.
inadmissible.Kaczmarek's
Kaczmarek'sand
andFoster's
Foster's

misconductwas
misconduct wasso
soegregious
egregiousand
andharmful
harmfulto
tothe
theadministration
administrationof
ofjustice
justicethat
thatititgives
givesrise
riseto
to

presumptive
presumptiveprejudice.
prejudice.Additionally,
Additionally,their
theirmisconduct
misconductevinces
evincesaadepth
depthof
ofdeceptiveness
deceptivenessthat
that

constitutes
constitutesaafraud
fraudupon
uponthe
thecourt.
court.Foster
Fosterintentionally
intentionallymisled
misledJudge
JudgeKinder
Kinderinto
intoconcluding
concludingthat
that

she
shehad
hadfollowed
followedhis
hisorder
orderto
toreview
reviewthe
theAGO's
AGO'sFarak-related
Farak-relatedinvestigative
investigativematerials.
materials.

Kaczmarek,through
Kaczmarek, throughFoster,
Foster,deliberately
deliberatelymisrepresented
misrepresentedto
toJudge
JudgeKinder
Kinderthat
thatthe
theAGO
AGOhad
had

turnedover
turned overall
allthose
thosematerials
materialsto
tothe
thedefendants
defendants(through
(throughthe
thedistrict
districtattorneys).
attorneys).The
Thedrastic
drastic

remedy
remedyof
ofdismissal
dismissalwith
withprejudice
prejudicemust
mustbe
bereserved
reservedfor
forextreme
extremecases.
cases.Some
Someof
ofthe
thecases
caseshere
here

fall
fallwithin
withinthat
thatcategory.
category.More
Morespecifically,
specifically,that
thatcategory
categorycontains
containsthose
thosecases
caseswhere
wheremotions
motionsfor
for

discovery,
discovery,dismissal,
dismissal,and/or
and/orfor
forpost-conviction
post-convictionrelief
reliefwere
werefiled
filedand
anddenied
deniedbetween
betweenJanuary
January18,
18,

2013,and
2013, andNovember
November1,1,2014;
2014;based
basedupon
uponthe
thelimited
limitedevidentiary
evidentiaryrecord
recordbefore
beforeJudge
JudgeKinder;
Kinder;

andcaused
and causedby
byKaczmarek's
Kaczmarek'sand
andFoster's
Foster'sdisregard
disregardfor
forthe
thedefendants'
defendants'constitutional
constitutionalrights
rightsand
and

their
theirviolation
violationof
ofJudge
JudgeKinder's
Kinder'sdirect
directcourt
courtorders.
orders.

Unlike
Unlikethe
themotions
motionsto
todismiss,
dismiss,the
thedefendants'
defendants'motions
motionsunder
underMass.
Mass.R.
R.Crim.
Crim.P.
P.30(b),
30(b),to
to

withdraw
withdrawguilty
guiltypleas
pleasor
orfor
foraanew
newtrial,
trial,require
requireaamore
moreindividualized
individualizedfactual
factualinquiry
inquiryinto
intothe
the

circumstances
circumstancesof
ofeach
eachcase.
case.AApivotal
pivotalquestion
questionisiswhat
whatwould
wouldeach
eachdefendant
defendanthave
havedone
done

differently,
differently,ififanything,
anything,atatthe
thetime
timeof
ofthe
theconviction,
conviction,had
hadthat
thatdefendant
defendantknown,
known,atatthat
thattime,
time,of
of

123
123
 Add. 141
Add.141
Add:141

the
thescope
scopeof
ofFarak's
Farak'smisconduct.
misconduct.The
Thedispositions
dispositionsof
ofsome
someRule
Rule30(b)
30(b)motions
motionsmay
maybe
bemoot
mootin
in

cases
caseswhere
whereIIhave
haveallowed
allowedthe
themotions
motionsto
todismiss.
dismiss.However,
However,even
evenin
inthose
thosecases,
cases,in
inthe
theinterest
interest

of
ofjudicial
judicialeconomy,
economy,IIhave
haveaddressed
addressedthe
theRule
Rule30(b)
30(b)motions
motionsso
soas
asto
toprovide
providethe
thealternative
alternative

disposition
dispositionin
inthe
theevent
eventthat
thatan
anappellate
appellatecourt
courtdetermines
determinesdismissal
dismissalwith
withprejudice
prejudiceinappropriate.
inappropriate.

Hopefully,this
Hopefully, thisdecision
decisionmarks
marksthe
thebeginning
beginningof
ofthe
theend
endof
ofthis
thissad
sadchapter
chapterof
of

Massachusetts
Massachusettslegal
legalhistory.
history.ItIthas
hasbeen
beenstartling
startlingto
tosee
seeunveiled
unveiledthe
theamount
amountof
ofdamage
damagedone
doneby
byaa

singlelab
single labanalyst,
analyst,Sonja
SonjaFarak,
Farak,who
whoplaced
placedher
herown
ownselfish
selfishwants
wantsand
andneeds
needsbefore
beforeher
herduties
dutiesas
as

aapublic
publicservant
servantin
inaacritically
criticallyimportant
importantrole.
role.ItIthas
hasbeen
beensad
sadto
tosee
seehow
howthat
thatsingle
singleanalyst's
analyst's

betrayal
betrayaldragged
draggedinto
intosuspicion
suspicionher
herlab
labcolleagues
colleagueswho,
who,without
withoutexception,
exception,are
areextremely
extremely

hard-working,ethical
hard-working, ethicaland
andcompetent
competentpublic
publicservants.
servants.

Similarly,
Similarly,but
butin
inmany
manyways
waysmore
moredamning,
damning,the
theconduct
conductof
oftwo
twoassistant
assistantattorneys
attorneys

general,Kaczmarek
general, Kaczmarekand
andFoster,
Foster,compounded
compoundedand
andaggravated
aggravatedthe
thedamage
damagecaused
causedby
byFarak.
Farak.Their
Their

intentionaland
intentional anddeceptive
deceptiveactions
actionsensured
ensuredthat
thatjustice
justicewould
wouldcertainly
certainlybe
bedelayed,
delayed,ififnot
notoutright
outright

denied,
denied,and
andin
inthe
theprocess,
process,they
theyviolated
violatedtheir
theiroaths
oathsas
asassistant
assistantattorneys
attorneysgeneral
generaland
andofficers
officersof
of

thecourt.
the court.In
Inanother
anotherparallel
parallelto
toFarak,
Farak,Kaczmarek
Kaczmarekand
andFoster's
Foster'sbetrayal
betrayalof
ofthe
thepublic
publictrust
trustalso
also

dragged
draggedinto
intosuspicion
suspiciontheir
theircolleagues
colleaguesin
inthe
theattorney
attorneygeneral's
general'soffice,
office,who,
who,like
likeFarak's
Farak'slab
lab

colleagues,
colleagues,the
thecourt
courtfinds
findsto
tobe
becommitted
committedand
andprincipled
principledpublic
publicservants.
servants.

124
124
 Add. 142
Add.142
Add:142

ORDER
ORDER

For all
For all the
the foregoing
foregoing reasons,
reasons, itit isis hereby
herebyORDERED that:
ORDERED that:

(1) Erick
(1) Erick Cotto,
Cotto, 0779CR00770
0779CR00770

Cotto's Motion
(a)Cotto's
(a) Motion to
to Dismiss
Dismiss Indictments
Indictments (#
(# 142)
142) isis ALLOWED
ALLOWED with
with prejudice
prejudice

as to
as to count
count 11 and
and DENIED as to
DENIEDas to count
count 2.
2.

(b)Cotto's
(b) Cotto's Motion
Motion to
to Withdraw
Withdraw Guilty
Guilty Plea
Plea (#
(# 31)
31) isisALLOWED.
ALLOWED.

(2) Omar
(2) Omar Harris,
Harris, 1079CR01233
1079CR01233

Harris's Motion
Harris's Motion to
to Dismiss
Dismiss Based
Based on
on Prosecutorial
Prosecutorial Misconduct
Misconduct (#86)
(#86) isis

ALLOWED with
ALLOWED with prejudice.
prejudice.

(3) Rolando
(3) Rolando Penate,
Penate, 1279CR00083
1279CR00083

Penate's Motion
Penate's Motion to
to Dismiss
Dismiss Indictments
Indictments and
and Alternatively
Alternatively for
for aa New
New Trial
Trial (#142)
(#142)

is ALLOWED
is ALLOWED with
with prejudice.
prejudice.

(4)
(4) Fiori
Fiori Liguori,
Liguori, 1279CR00624
1279CR00624

Liquori's Motion
(a)Liquori's
(a) Motion to
to Dismiss
Dismiss Based
Based on
on Prosecutorial
Prosecutorial Misconduct
Misconduct (#113)
(#113) isis

ALLOWED with
ALLOWED with prejudice.
prejudice.

(b)Alternatively,
(b) Alternatively, in
in the
the event
event the
the allowance
allowance of
of the
the motion
motion to
to dismiss
dismiss isis reversed
reversed

by an
by an appellate
appellate court,
court, Liquori's
Liquori's Motion
Motion for
for New
New Trial
Trial (#95)
(#95) isis DENIED.
DENIED.

(5) Lizardo
(5) Lizardo Lee
Lee Vega,
Vega, 0979CR00097
0979CR00097

Vega's Motion
Vega's Motion to
to Dismiss
Dismiss and
and Alternative
Alternative for
for Miscellaneous
Miscellaneous Relief
Relief (to
(to Withdraw
Withdraw

His Guilty
His Guilty Plea)
Plea) (#
(# 67)
67) isis ALLOWED
ALLOWEDwith
with prejudice
prejudice insofar
insofar as
as itit seeks
seeks dismissal
dismissal

of the
of the indictments.
indictments. To
To the
the extent
extent that
that the
the motion
motion seeks
seeks the
the alternative
alternative relief
relief of
of

withdrawing his
withdrawing his guilty
guilty plea,
plea, and
and in
in the
the event
event the
the allowance
allowance of
of the
the motion
motion to
to

125
125
 Add. 143
Add.143
Add:143

dismiss isis reversed

dismiss reversed by
by an
an appellate
appellate court,
court, the
the motion
motion isis DENIED.
DENIED.

(6) Bryant
(6) Bryant Ware,
Ware, 0779CR01072
0779CR01072

(a) Ware's
(a) Ware's Motion
Motion to
to Vacate
Vacate Conviction
Conviction and
and [for]
[for] Sanction
Sanction of
of Dismissal
Dismissal (#48)
(#48) isis

DENIED.
DENIED.

(b)Ware's
(b) Ware's Motions
Motions to
to Vacate
Vacate (#77
(#77 and
and ## 82)
82) are
are DENIED.
DENIED.

(7) Bryant
(7) Bryant Ware,
Ware, 0979CR01072
0979CR01072

(a) Ware's
(a) Ware's Motion
Motion to
to Vacate
Vacate Conviction
Conviction and
and [for]
[for] Sanction
Sanction of
of Dismissal
Dismissal (#44)
(#44) isis

ALLOWED.
ALLOWED.

(b)Ware's
(b) Ware's Motion
Motion to
to Vacate
Vacate (#73)
(#73) isisALLOWED.
ALLOWED.

(8) Bryant
(8) Bryant Ware,
Ware, 1079CR00253
1079CR00253

(a)
(a)Ware's
Ware's Motion
Motion to
to Vacate
Vacate Conviction
Conviction and
and [for]
[for] Sanction
Sanction of
of Dismissal
Dismissal (#28)
(#28) isis

ALLOWED insofar
ALLOWED insofar as
as itit seeks
seeks the
the dismissal
dismissal with
with prejudice
prejudice as
as to
to count
count 11 and
and to
to

withdraw all
withdraw all of
of his
his guilty
guilty pleas;
pleas; itit isis DENIED
DENIED insofar
insofar as
as itit seeks
seeks the
the dismissal
dismissal of
of

counts 33 through
counts through 8.
8.

(b)Ware's
(b) Ware's Motion
Motion to
to Vacate
Vacate (#59)
(#59) isis ALLOWED
ALLOWED insofar
insofar as
as itit seeks
seeks

to withdraw
to withdraw his
his guilty
guilty pleas.
pleas.

(9) Omar
(9) Omar Brown,0579CR01159
Brown, 0579CR01159

Brown's Motion
Brown's Motion to
to Vacate
Vacate Conviction
Conviction and
and for
for Sanction
Sanction of
of Dismissal
Dismissal (#40)
(#40) isis

DENIED.
DENIED.

(10)
(10) Wendell
Wendell Richardson,
Richardson, 1279CR00399
1279CR00399

(a)Richardson's
(a) Richardson's Motion
Motion to
to Dismiss
Dismiss (#
(# 42)
42) isis DENIED.
DENIED.

(b)Richardson's
(b) Richardson's Motion
Motion to
to Withdraw
Withdraw Guilty
Guilty Plea
Plea (#17)
(#17) isis ALLOWED.
ALLOWED.

126
126
 Add. 144
Add.144
Add:144

(11) Glenda
(11) Glenda Liz
Liz Aponte,
Aponte, 1279CR00226.
1279CR00226.

(a)Aponte's
(a) Aponte's Motion
Motion to
to Vacate
Vacate Convictions
Convictions and
and for
for the
the Sanction
Sanction of
of Dismissal
Dismissal

(#48) isis DENIED.

(#48) DENIED.

(b)Aponte's
(b) Aponte's Motion
Motion to
to Vacate
Vacate Convictions
Convictions and
and for
for the
the Sanction
Sanction of
of Dismissal
Dismissal of
of

the Underlying
the Underlying Indictments
Indictments (#59.1)
(#59.1) isis DENIED.
DENIED.

(c)Aponte's
(c) Aponte's Motion
Motion to
to Vacate
Vacate Convictions
Convictions (#63)
(#63) isis DENIED.
DENIED.

(d)Aponte's
(d) Aponte's Motion
Motion to
to Vacate
Vacate Convictions
Convictions (#65)
(#65) isis DENIED.
DENIED.

Rich J.3,Care
Rich. Care
Justice of
Justice of the
the Su
Su erior
erior Cour
Cour

Dated: June?;
Dated: June?4 2017
2017

127
127
 Add. 145
Add.145

COMMONWEALTH OF MASSACHUSETTS

SUPREME JUDICIAL COURT

JUDICIAL COURT

SUFFOLK,
SUFFOLK,ss.
ss. No. SJ-12471
No. SJ-12471

COMMITTEE
COMMITTEE FOR PUBLIC COUNSEL SERVICES,
and others

v.

ATTORNEY GENERAL,
and others

AFFIDAVIT OF CHRISTOPHER K. POST

I, Christopher K. Post, state the following based on

knowledge, information, and belief:

1.I am a staff attorney with the Committee for Public Counsel

Services ('C.P.C.S.'),
( 1C.P.C.S.'), Drug Lab Crisis Litigation Unit.
2.This affidavit is submitted to provide the Court with
information regarding the estimated number of adverse drug
dispositions tainted by the Amherst Drug Lab scandal.

Background

3.I was tasked with providing a similar estimate in the

summer of 2016, Bridgeman
Bridgeman
2016, while Bridgeman v.v.District
District Attorney for
v. District
Attorney for
Attorney fo
the Suffolk
the
the Suffolk
Suffolk No. SJ-2014-005, was being litigated.
District,
District, No.
At that time, C.P.C.S. had not been provided with data from
the Amherst Drug Lab's evidence database for the years 2004
through approximately the first half of 2008. We had,
however, been given spreadsheets covering the second half
of 2008 through January 2013. These spreadsheets contained
information corresponding to each evidence sample's

1
 Add. 146
Add.146

submission date, the assigned chemist, testing date, and

result of analysis.
4.I used
4.I used Microsoft
Microsoft Excel's
Excel's built-in
built-in functions
functions in order to
tabulate the total number of samples processed by each
chemist at the Amherst lab for the years that were
available as well as each chemist's monthly testing
average. I then used these averages to estimate the total
number of samples each chemist would have analyzed during
the missing years.
5.At that time, we considered these estimates to be
5.
conservative because the vast majority of available data
covered the years that followed Melendez-Diaz
Melendez-Diaz v. v.
Massachusetts,
Massachusetts,
Massachusetts, 557 U.S. 305 (2009). In interviews with the
State Police, numerous chemists from both the Amherst and
Hinton labs noted that their productivity declined after
the decision issued because they were required to appear in
court. See
SeeInvestigation
See of the Drug
Investigation ofLaboratory
the Drug
Laboratory at the
at Laboratory at
William
William A. Hinton
Hinton State
State Laboratory
A. Hinton Laboratory Institute
Institute 2002
State Laboratory 2002 -- 2012,
2012,
Institute 2002
Office cf
of the Inspector General, March 4, 2014, at 16.
6.
6.C.P.C.S. had also been provided with data from the Hinton
Drug Lab for the years 2003 through 2012. This second set
of spreadsheets contained similar information and also
showed the number of "overflow" samples that had been sent
from Hinton to Amherst for processing.
7.
7.I combined these figures and came to an approximate total
of 54,288 samples assigned to chemists at the Amherst Drug
Lab from the time that Farak began working there until her
arrest.
8.
8.I then attempted to estimate the number of adverse
dispositions that would have been associated with these
samples.

2
 Add. 147
Add.147

9. With no other metric to apply, we looked to the only

available point of comparison: the number of adverse
dispositions associated with the total number of samples
that Annie Dookhan had analyzed over the course of her
career. The number of adverse dispositions was tabulated
using the lists that had been provided by the District
Attorneys and the total number of Dookhan involved samples
was computed using the Meier list. These figures yielded a
sample-to-adverse-disposition ratio of 0.28448, or
approximately twenty-eight percent.
10.1 then applied this ratio to the estimated totals in order
to approximate the number of potentially tainted
dispositions. When applied to the estimated number of
samples assigned to chemists at the Amherst Drug Lab during
the period of time that Farak worked there, this yielded
approximately 15,444 adverse dispositions. When applied to
the estimated number of samples assigned solely to Farak,
this yielded 5,552 such dispositions.
11.This estimate was not orders of magnitude off from the
number of Farak related adverse dispositions recently
reported by the District Attorneys. See Tom Jackman,
See
Massachusetts
Massachusetts Prosecutors To Throw Out
Prosecutors To 8,000
ThrowConvictions
Out 8,000in Convic
Second
Second Drug Lab Lab
Drug Scandal, The Washington Post, December 28,
2017. Final lists are expected to be submitted later this
year.

Estimate Based Upon New Data

12.C.P.C.S. was recently provided with Amherst Drug Lab data

for the missing years, 2004 through the first half of 2008.
Hinton Drug Lab overflow data was represented in these
spreadsheets, unlike the ones covering the latter half of
2008 to 2013. I again used Microsoft Excel's built-in

3
 Add. 148
Add.148

functions to tabulate the total number of samples processed

by each chemist, which resulted in the following:
a.James Hanchett was assigned to 16,441 samples.
b.Rebecca Pontes was assigned to 25,285 samples.
c.Sonja Farak was assigned to 24,783 samples.
d.Sharon Salem was assigned to 434 samples.
e. Alan
e. Stevenson was
Alan Stevenson was assigned
assigned to
to four samples.
f.An additional 655 samples had been sent to the lab for
analysis, but had not been assigned by the time Farak
was arrested.1
13.Combining these figures, a total of 67,602 samples were
processed at the Amherst Drug Lab during the period in time
in which Sonja Farak worked there.
14.Applying the same sample-to-adverse-disposition ratio to
the total number of samples processed by Amherst chemists
while Farak worked at the lab yields approximately 19,231
adverse dispositions, 7,050 of which were attributable to
Farak.
1 .=.: . This approximation
1E..This approximation therefo=re
therefore likely
likely slightly
slightly underestimates
underestimates
the total number of adverse dispositions, as the District
Attorneys have already agreed to vacate and dismiss with
prejudice some 8,000 Farak tainted convictions.

Signed under the pains and penalties of perjury, on this, the

the
I 1-4k'day
day of March,
of March, 2018.

Clristopher R. Post,
C'57fistopher Post, esq.
esq.

1 These were included due to the fact that Farak admitted to opening

unassigned evidence bags and tampering with their contents. She also
admitted to smoking crack cocaine while she was in the evidence room. See
Grand Jury Testimony of Sonja Farak, Sept. 16, 2015, at 143, 160-164.