Prosecutors indicated they will seek to preserve convictions in some of the cases Farak handled, either through retesting or other evidence. But the state’s public defenders and the American Civil Liberties Union are seeking a blanket dismissal of all Farak’s cases and further sanctions to deter prosecutorial misconduct such as the kind that delayed the full exposure of Farak’s misadventures for years, resulting in some defendants spending more years in prison.
The list compiled by prosecutors marks a key step in resolving the second debacle from the Massachusetts drug lab scandal.
This year, Massachusetts prosecutors had to erase more than 21,500 drug convictions because of the actions of lab chemist Annie Dookhan, who admitted contaminating, falsifying or not testing drugs in her Boston-area lab over eight years. The state public defender service and the ACLU convinced the Massachusetts Supreme Judicial Court, the state’s highest court, that mass dismissal was more efficient than individually retrying 24,000 cases with 20,000 defendants. Prosecutors compiled a list of cases for dismissal and a small number, about 1.5 percent, where it would seek to preserve the conviction. The high court also ordered the prosecutors to send a court-approved letter to all affected defendants and establish a phone number to public defenders for defendants needing guidance — all at government expense.
That process, all sides agree, can be used again in trying to clean up the Farak mess. But reaching this stage was delayed because two assistant attorneys general, Anne Kaczmarek and Kris Foster, withheld evidence that showed that Farak’s drug-fueled escapades, including cooking and smoking drugs in the state lab in Amherst, Mass., had lasted for eight years, not six months as they initially claimed. The attorney general’s office prosecuted Farak after she was arrested in January 2013 — and Farak pleaded guilty in January 2014 — but Kaczmarek and Foster repeatedly refused to provide either prosecutors or defense attorneys with Farak’s own notes and records showing she had been in drug treatment for years. It was only after the high court ordered an investigation into Farak that it was revealed she had been using the lab’s drug supplies from the day she started in August 2004 to the day of her arrest in 2013.
“Foster and Kaczmarek piled misrepresentation upon misrepresentation,” Superior Court Judge Richard J. Carey wrote last June, “to shield the mental health work sheets from disclosure to the drug lab defendants.” The delay in revealing Farak’s misconduct caused some defendants to wrongly spend years in prison, the judge found. “Kaczmarek and Foster compounded and aggravated the damage caused by Farak. Their intentional and deceptive actions ensured that justice would certainly be delayed, if not outright denied.”
In September, the ACLU and the Committee for Public Counsel Services, which oversees public defenders and appointed defense counsel in Massachusetts, sued the attorney general and all 11 district attorneys seeking a list and dismissal of all Farak-related cases. In November, the prosecutors began providing lists of cases they were willing to dismiss and those they wished to preserve. Although the numbers for each district aren’t complete, Attorney General Maura Healey’s office stated in a filing last week that the district attorneys “will agree to the dismissal with prejudice of over 8,000 tainted convictions,” and said that “these dismissals should not be delayed.”
Healey also accepted all of Carey’s findings about the misconduct by the former assistant attorneys general Kaczmarek and Foster, both of whom are working elsewhere in state government, to “bring expeditious relief to thousands of affected defendants.” The district attorneys also agreed to use the same notice and dismissal process from the Dookhan case, but not for a blanket dismissal of all Farak cases. “Denying the district attorney the opportunity to reprosecute,” Assistant Berkshire County District Attorney Joseph A. Pieropan argued in a November brief, “would be an extreme sanction, for conduct unconnected to the district attorney.”
But the defense attorneys want their suit referred to the full high court — it is currently being heard by a single justice — to resolve the legal question of whether action should be taken to deter prosecutorial misconduct. “What we’re actually trying to build here,” ACLU lawyer Matthew Segal said, “is a completely new way of dealing with wrongful convictions in the United States. Instead of arguing over each individual defendant, we’re trying to create a legal structure to not have these people come forward one at a time.”
The defense bar notes that even minor drug convictions can have collateral impacts on people’s lives, such as the ability to get loans or jobs or school admissions. In the Farak case, the defenders want the high court to dismiss all convictions “tainted by the Commonwealth’s misconduct” without individualized showings of prejudice, and “without allowing prosecutors to maintain any convictions.” It also wants the court to consider “additional relief to remedy or sanction the egregious prosecutorial misconduct in this case, and to deter similar misconduct in the future.”
The district attorneys responded that their lists of cases to be dismissed will include fewer than 40 cases statewide to be preserved, and so the high court need not take up any larger questions about the misconduct committed by the two attorneys general. The defense bar “have not established any widespread prosecutorial misconduct such that a question should be reported to the full (supreme) court,” Assistant Essex County District Attorney Ronald DeRosa wrote recently, for “a prophylactic rule or standing order for future cases.”
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