Defense lawyers are urging the courts to dismiss all cases related to the misconduct of Sonja Farak, the forensic chemist who stole from narcotics samples to feed her addiction, in a move similar to the resolution of cases related to another drug lab scandal.
Last month, district attorneys dismissed more than 21,000 cases connected to disgraced drug lab chemist Annie Dookhan, who admitted to tampering with evidence and falsifying reports at the Hinton drug lab in Jamaica Plain.
Current estimates suggest that Farak touched far fewer cases during her time at the state drug lab in Amherst, but defense lawyers have urged the courts to take a similar path.
“As the Annie Dookhan scandal demonstrated, fairly addressing harm caused by a state scientist whose misconduct may have tainted thousands of cases can be complex but must be done,” wrote the American Civil Liberties Union of Massachusetts, the New England Innocence Project, and other civil liberties advocates in a memo regarding the Farak scandal.
Nine “Farak defendants” are challenging their convictions — primarily for cocaine possession and distribution — in Hampden County. Hearings concluded in March before Superior Court Judge Richard Carey.
Farak was arrested in Northampton in January 2013 after a colleague noticed samples were missing from the evidence safe.
She pleaded guilty to stealing from narcotics evidence in January 2014 and was sentenced to eighteen months in jail.
More than four years later, these defendants have asserted that Farak’s malfeasance was aggravated by “egregious, deliberate, and intentional prosecutorial misconduct,” claiming prosecutors from the state attorney general’s office misled the court about the evidence against Farak, and did not thoroughly investigate the scope of her substance abuse.
A ruling that state prosecutors committed misconduct could substantially bolster arguments that the defendants are entitled to new trials, or that their charges should be thrown out entirely.
The attorney general’s office acknowledges that its criminal investigation failed to uncover all of Farak’s misconduct, but argued that courts cannot vacate convictions on that basis. Further, the state says that “there was no intentional, deliberate withholding of evidence, only a series of mistakes.”
When state troopers searched Farak’s car in January 2013, in addition to crack cocaine and drug paraphernalia, they found worksheets detailing her daily struggle with substance abuse. The worksheets also showed that her evidence tampering began earlier than was revealed in court.
These handwritten admissions were not entered as evidence during Farak’s trial. The attorney general’s office, which was headed by Martha Coakley at the time, did not turn them over to local district attorneys or to defendants challenging Farak’s analysis in their own cases.
These papers, and how state prosecutors handled them, are at the center of bids to dismiss Farak-related charges.
Unaware of the full evidence, judges determined that Farak’s drug use started only six months before her arrest, and rejected challenges regarding samples she analyzed any earlier. But the worksheets showed Farak stole from evidence for at least a year, and she later testified that she had been using drugs daily as early as 2005.
The state has argued that Anne Kaczmarek, the assistant attorney general who led Farak’s prosecution and who also prosecuted Dookhan, made an honest mistake.
“I see now that I totally misjudged the dates, and I see where that was a mistake on my part,” Kaczmarek testified in December.
“If I had realized that, like, what it really meant, I would have turned it over.”
Kaczmarek left the attorney general’s office in 2014 and is now an assistant clerk magistrate in Suffolk County. She declined to comment due to the ongoing litigation.
The Hampden County defendants dismiss Kaczmarek’s explanation.
“Such testimony — that all involved prosecutors and investigators were too inept to identify the year of the evidence they chose not to disclose — strains credulity,” wrote defense attorney James McKenna in a January motion. McKenna characterized the prosecution of Farak as “non-adversarial.”
The Massachusetts Supreme Judicial Court ruled in 2015 that the Commonwealth did not thoroughly investigate Farak’s crimes.
But it is the state’s position that Kaczmarek’s decisions in prosecuting Farak were reasonable at the time, and that judges cannot now scrutinize her decisions to justify dismissing Farak-related convictions.
“Can the court tell the AG’s office how far to go back, or when the investigation must have started?” asked Kim West, chief of the attorney general’s criminal bureau, at hearings in March. “It can’t,” she answered.
All sides have invoked legal precedents set by the Dookhan scandal, including the January ruling that resulted in the unprecedented number of tossed convictions.
Even with the Dookhan scandal, prosecutors pointed out, the state’s top court declined to dismiss all affected cases at once. The state emphasized that the SJC considered blanket dismissal a “drastic remedy.”
Defendants argue that prosecutors’ actions amplified the already egregious misconduct by Farak, and drastic remedies are appropriate.
“This Court should send a clear message that the conduct that occurred here will not be tolerated by dismissing the indictments,” public defender Rebecca Jacobstein wrote in her filing.