The state failed in its duty to investigate the work of a drug-addled chemist at a Boston laboratory whose flawed tests at another state lab led to the dismissal of thousands of convictions, a single justice of the state’s highest court ruled Thursday.
The ruling by Supreme Judicial Court Associate Justice Scott L. Kafker is the latest development in the ongoing drug lab saga involving former state chemist Sonja Farak. Her misconduct, combined with that of her former co-worker, Annie Dookhan, has led to the dismissal of 61,000 drug charges in Massachusetts.
Farak was arrested in 2013 and convicted the following year for stealing drug evidence at the state lab in Amherst, where she went to work after leaving the Hinton lab in Jamaica Plain in 2004.
In his 12-page decision, Kafker agreed with a previous court decision finding that the state, once it became aware of the scope of Farak’s Amherst misconduct, had a legal duty to investigate her conduct at Hinton to determine how it might affect pending and concluded cases.
Kafker also ruled that Middlesex Superior Court Judge Michael D. Ricciuti did not err in ordering the state’s inspector general and the Middlesex County district attorney’s office to determine if the IG had exculpatory evidence that could help a defendant in a heroin possession case involving Farak.
The state is now paying millions to wrongfully convicted drug defendants due to the shoddy practices and lack of supervision at the Hinton and Amherst labs and the misconduct by Farak and Dookhan. The two are free after serving prison time for mishandling drug evidence at the labs.
On Thursday, Kafker also rejected the IG’s claim that its massive investigative files in the Hinton drug lab scandal are confidential, ordering IG Glenn A. Cunha to share them with the DA’s office that prosecuted the defendant in the heroin case, Eugene Sutton. Sutton’s constitutional rights trump any statutory privilege the IG asserts, Kafker wrote.
“In recognizing this confidentiality concern, I do not, however, in any way adopt the argument of the OIG that its documents are protected by a blanket privilege against disclosure,” Kafker wrote. “Whatever confidential rights the OIG has in these documents must ‘yield’ to the defendant’s constitutional rights.”
Kafker did give the inspector general’s office credit for previously turning some exculpatory materials over to the DA’s office.
Sutton’s attorney, James McKenna, said the ruling will now spur a much-needed examination of Farak’s work at Hinton — and why the state never investigated it.
“This is a vindication of the truth and now we’ll get there,” McKenna said.
Kafker’s decision follows a letter filed last week by attorneys representing scores of drug lab defendants who alleged that the IG misled the public for years by claiming to have done a top-to-bottom investigation of the Hinton lab. The IG acknowledged in the Sutton case, in a memorandum filed with the SJC on Sept. 5, that it never specifically probed Farak’s work in Jamaica Plain.
“This is a stunning admission,” lawyers from the Committee for Public Counsel Services and the ACLU Foundation of Massachusetts wrote in an Oct. 9 letter urging the full bench to dismiss all of Farak’s Hinton cases. Farak, who worked at the Hinton lab from 2002 to 2004 before transferring to Amherst, tested as many as 11,000 samples there, regularly surpassing the testing done by Dookhan.
Farak admitted tampering with drug samples obtained during criminal investigations by replacing the narcotics with other substances in order to feed her drug habit.
In March 2014, the IG released a report stating it had done an “exhaustive review” spanning from 2002 to 2012 to determine whether any “chemists, supervisors or managers” at Hinton committed misconduct.
At the time, Governor Deval Patrick stated publicly that the IG was supplanting the criminal investigators reviewing the conduct of chemists at the lab.
The sweeping investigation, which cost taxpayers $6.2 million and garnered the IG a prestigious award for excellence in public service from Patrick, found Dookhan was the “sole bad actor” at Hinton.
The IG issued a second supplemental report in February 2016 restating it did a “top-to-bottom review“ of the lab and restating its findings about Dookhan. In total, the IG’s investigation covers 63 file boxes and 22.3 gigabytes of electronic data, Kafker noted.
Fifteen months before the IG issued his report, Farak was arrested for stealing drug evidence at the lab for her personal use.
She was convicted in January 2014 of drug theft, evidence tampering, and cocaine possession
In a statement Thursday night, the IG’s office said its 2014 report “accurately and fully described how we conducted a comprehensive investigation of the drug lab’s operation and management, including extensive document analysis, interviews under oath with two dozen witnesses, and re-testing drug samples. As we stated in our report, our comprehensive review produced no evidence that Sonja Farak or any chemist other than Annie Dookhan committed any malfeasance with respect to evidence testing. We stand by the scope, objectivity and independence of our work.”
The Middlesex district attorney’s office, which has already turned over 1,200 pages of documents from the IG’s investigation to Sutton, said in a statement Thursday night it is reviewing the Kafker decision. It has argued it does not have the capacity to go through the IG’s investigative files.