Prosecutors have made Massachusetts’ drug lab scandal much worse.

Prosecutors Made Massachusetts’ Drug Lab Scandal Much, Much Worse

Prosecutors Made Massachusetts’ Drug Lab Scandal Much, Much Worse

The truth about the criminal justice system.
March 16 2017 12:34 PM
FROM SLATE AND THE FAIR PUNISHMENT PROJECT

Prosecutors Made Massachusetts’ Drug Lab Scandal Much, Much Worse

The state has not only been remiss in correcting these faulty convictions; it’s actively hurt the process.

Manuel-F-O/Thinkstock
Some are still incarcerated based on one drug lab chemist’s tainted testing.

Manuel-F-O/Thinkstock

Massachusetts is home to two of the nation’s largest drug laboratory scandals: Convictions against two different lab workers have forced prosecutors to reckon with the fact that perhaps tens of thousands of people were imprisoned based on falsified or inaccurate data.

You’d expect this to cause some sense of urgency in Massachusetts. This is, after all, a state that’s proactively sued over immigration and equal marriage rights. But so far, prosecutors have badly botched the state’s response, resulting in years of delayed justice for the many defendants who may have been wrongly convicted of drug crimes.

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The crisis began more than four years ago, when state chemist Annie Dookhan was found to have falsified evidence at the Hinton Lab in Jamaica Plain, Massachusetts. The drug convictions affected by her falsifications could number 24,000. But rather than solve the crisis, some district attorneys refused to identify Dookhan’s victims and even fought procedures to expedite their cases. It took years of litigation—including a lawsuit by the ACLU of Massachusetts and state public defenders—for district attorneys to begin to rectify this widespread injustice. The DAs now have until April 18 to submit a list of cases they are prepared to dismiss and a list of cases they believe still stand.

Now the state is facing an even more serious scandal. This one involves misconduct by not only another state chemist but also by the prosecutors entrusted with investigating and rectifying her misconduct.

The case involves former Amherst, Massachusetts, drug lab chemist Sonja Farak, who in 2014 was convicted of stealing and using drugs from the state laboratory where she worked for years. Because Farak tampered with evidence and did her job while high, her misconduct called into question any case she ever touched.

But how many cases was that?

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That’s a question for the Massachusetts Attorney General’s Office, which began prosecuting Farak in early 2013. Answering it required the office to find out how long Farak had suffered from her drug addiction and thus how many wrongful convictions she might have generated. If Farak used drugs for just a few months, she might have tainted just a few cases. If she used drugs for years, she might have tainted thousands.

Our organizations—the Innocence Project and the ACLU of Massachusetts, along with the New England Innocence Project and legal ethics experts—submitted a brief Thursday explaining that the attorney general’s office came nowhere close to fulfilling its responsibility to find and disclose the truth about Farak’s possible harm to our criminal justice system. Instead, it broke at least four ethics rules, including rules requiring candor with courts and the prompt disclosure of exculpatory evidence.

For starters, a state police officer found Farak’s handwritten worksheet from a drug treatment program, in which she admitted drug use at work. In February 2013, he emailed it to the AG’s lead prosecutor under the subject line “FARAK Admissions.” Amazingly, the AG’s office did not provide this evidence of Farak’s drug use to defendants, or to district attorneys who were prosecuting people based on Farak’s tainted work, even though they were under an ethical obligation to do so.

Worse still, the AG’s office then mischaracterized the evidence in court. In September 2013, a state prosecutor wrote a letter to a judge asserting that, upon “reviewing [the state police investigator’s] file, every document” had already been disclosed. She later told that same judge that Farak’s misconduct was quite limited, lasting “roughly four months.” But, in fact, Farak’s drug use worksheet had not been disclosed, and the prosecutor who made those statements was in no position to report to the judge on Farak’s misconduct—because she had not actually reviewed the file.

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Stunningly, that former prosecutor testified under oath in December that she had never reviewed a single document from the state’s own investigation.

There was no excuse for this. The state police officer had emailed worksheets to the AG’s lead prosecutor months earlier—under the crystal-clear subject header, “FARAK Admissions”—and then reminded the prosecution team about the worksheets just days before the September 2013 letter was sent.

When Farak’s drug-use worksheet was finally uncovered by a defense attorney in late 2014, it proved that Farak’s misconduct had lasted at least 13 months. This then led to evidence that her misconduct had in fact lasted eight years. During that time, Farak helped secure an estimated 8,000 drug convictions.

It is a basic tenet of legal ethics that when a conviction is infected by misconduct, prosecutors have a duty to rectify that injustice. For example, when prosecutors in Harris County, Texas, learned that faulty drug tests were being done by local law enforcement, they took it upon themselves to root out wrongful convictions that may have resulted from the state’s errors.* Those prosecutor-initiated investigations led to record numbers of exonerations of innocent people. According to a recent study, 48 out of 166 exonerations nationwide in 2016 were from Harris County. The exonerations disproportionately involve people of color who pleaded guilty to crimes they did not commit, in large part because maintaining their innocence would have meant sitting in jail awaiting trial.

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The Massachusetts Attorney General’s Office, in contrast, has not righted its own wrongs. In November 2014, the AG’s office finally delivered the documents that proved Farak’s longstanding drug use to local district attorneys. Yet the AG’s office failed to notify any court that its prior claims about disclosing “every document,” and about Farak’s misconduct lasting “roughly four months,” had been flat-out false.

This silence caused real harm. Defendants remained incarcerated because courts had decided that their cases predated Farak’s misconduct. This was incorrect. And courts continued to hear cases without having an accurate record of Farak’s misconduct: Massachusetts’ highest court decided two of these cases in April 2015, without hearing one word from state prosecutors about their office’s prior false statements.

The AG says that its attorneys made only “unintentional mistakes.” More shockingly, it argues that these mistakes did not “prejudice” people convicted based on Farak’s testing, because they were eventually told the truth.

All they had to do was languish in prison for years.  Some are still incarcerated. Others served tainted sentences and are now living under the heavy burden of wrongful drug convictions. And still others may have been convicted of crimes they did not commit.

Soon, a Superior Court judge will decide whether victims of these “mistakes” by Massachusetts prosecutors deserve better. It should never have come to this.

*Correction, March 16, 2017: This story originally misidentified where the faulty drug tests were conducted. It was in the field by local law enforcement, not in the local laboratory. (Return.)