SJC hears arguments for dismissal of more cases tied to Amherst drug lab


Thursday, May 10, 2018

BOSTON — The state’s highest court heard arguments Tuesday on whether even more criminal cases should be dismissed following the Amherst drug lab scandal, and whether the state attorney general’s office should be fined  for the conduct of two of its assistants during the investigation.

A superior court judge found that two former assistant attorneys general withheld evidence about the scope of the misconduct of former chemist Sonja Farak, of Northampton, who authorities say was high almost every day of the eight years she worked at the lab.

Farak pleaded guilty in 2014 to stealing drugs from the state crime lab at the University of Massachusetts Amherst and was sentenced to 18 months behind bars.

Prosecutors already have agreed to dismiss about 8,000 convictions tainted by Farak. Of those roughly 8,000 cases, 1,497 convictions were dismissed in November by the Northwestern district attorney’s office.

Petitioning the Supreme Judicial Court for further relief are the American Civil Liberties Union and the Committee for Public Counsel Services.

“We have a criminal justice system that people need to believe in, that needs to have integrity,” Committee for Public Counsel Services attorney Rebecca A. Jacobstein said Tuesday.

“If we are saying we are keeping this conviction and we are not keeping this conviction, we need to have a reason for that, and we don’t have a reason to keep any of these convictions, knowing they could have been tampered with.”

Jacobstein argued that all cases handled by the Amherst drug lab going back to 2004, when Farak started in Amherst, should be dismissed, because no one knew how long Farak was tampering with unassigned and other chemists’ samples.

“We don’t know how long she was doing it, so we are just going to presume that she was doing it the whole time because we have no reason to believe she wasn’t,” Jacobstein said.

The district attorney’s offices have argued that the more than 8,000 cases that have already been dismissed are a sufficient remedy. However, the attorney general’s office has said it might be willing to dismiss a limited number of further cases.

Assistant Attorney General Thomas Bocian cited the decision of a superior court judge who found there was no reason to question the reliability of samples tested by other chemists. Bocian also cited Farak’s testimony, as well as a joint statement of facts provided to the court, as evidence that there was no issue with other chemists’ samples before June 2012.

“I worry we have a heavy drug user digging into all the drugs, with no controls in place,” Justice Scott Kafker said, questioning Bocian on how the attorney general’s office was comfortable with the evidence “I wouldn’t believe a word she says at this point.”

Assistant Berkshire District Attorney Joseph Pieropan argued that district attorneys in the state disagreed with both the attorney general’s office and the public defenders that more cases should be dismissed, stating there has been no finding that there had been issues with samples before 2012.

“I am advocating that the Farak defendants be defined as those defendants whose certificates, and only those defendants whose certificates were signed by Sonja Farak, have their cases dismissed with prejudice,” Pieropan said.

‘Very seriously wrong’

Matthew Segal, an attorney representing the ACLU, argued that monetary sanctions should be put on the attorney general’s office for its misconduct in the handling of the investigation. He also advocated for the creation of further procedures to be put in place to ensure that this type of misconduct does not occur again.

“The remedies of this scandal need to protect against the next one,” Segal said.

Bocian agreed that additional remedial measures and institutional reform were needed.

“We all agree things went very, very seriously wrong here and that broad remedies are needed to restore the confidence in the criminal justice system,” Bocian said. Bocian said the reforms would create a system in which there would be more transparency.

Pieropan argued against the creation of new procedures, saying that “we’re all humans” and can only hope that the rules we implement are followed and that we have procedures in place to punish those who do not follow the rules. He also aruged that existing rules did not stop the misconduct.

In arguing for financial penalties, Segal said that the same type of behavior at a private law firm would bring serious penalties.

Bocian argued against the sanction, saying it would be unprecedented and has only been applied in cases where there has been a finding of institutional bad faith — which was not the case in this instance.

Multiple justices pushed back on the sanction, asking if taxpayers would be made to pay the bill for a sanction imposed on the AG’s office.

Chief Justice Ralph D. Gants said the imposition of fines would create a dilemma. A large fine could diminish the ability of the office to do its work, but “a slap on the wrist” sanction that is more symbolic would not reflect the magnitude of the harm, Gants said.

“Are we punishing ourselves by sanctioning the attorney general’s office?” Kafker asked.

This story contains reporting from the Associated Press. Emily Cutts can be reached at ecutts@gazettenet.com.