Lessons to be Learned from the First Cases of Discipline of Prosecutors for Failure to Disclose Exculpatory Material

By David M. Siegel

Systemic failures are opportunities to learn rather than anomalies to ignore. On August 31, 2023, the Supreme Judicial Court (“SJC”) upheld the first bar discipline ever imposed on Massachusetts prosecutors for failure to disclose and misrepresentations concerning exculpatory material in Matter of Foster, 492 Mass. 724 (2023). When something “so intentional and so egregious” as to be a “system-wide failure” occurs, it is tempting to demand increased penalties. Id., 492 Mass. at 752. For example, one local criminal law and ethics professor has suggested more aggressive professional discipline for supervisory prosecutors under Rule 5.1 of the Massachusetts Rules of Professional Conduct (R. Michael Cassidy, Unleashing Rule 5.1 to Combat Prosecutorial Misconduct, 102 Ore. L. Rev. ___ (2024) (forthcoming)). But outcomes in complex systems that should never happen rarely result from one person’s action, and now that individual culpability has been determined and penalties assessed, it is time to learn from institutional failures.

The cases involved the collective failure of three lawyers to disclose information concerning the period and scope of illicit drug use by Sonya Farak, the Amherst drug lab chemist whose tampering with samples of suspected narcotics and falsification of test results ultimately led to dismissal of 33,000 drug cases. The prosecutors’ multiple ethical violations included misrepresentations to a judge and counsel, failure to adequately supervise, lack of competence and diligence, and conduct prejudicial to the administration of justice.

Farak’s drug use affected the reliability of everything she did at work. During consolidated post-conviction actions involving her cases, the central factual questions were: (1) when had her drug use begun and (2) what was its scope. The potential systemic impact of Farak’s misconduct was immediately evident as her case broke exactly one month after Hinton Drug laboratory analyst Annie Dookhan was indicted for perjury and twenty-seven counts of tampering with evidence from falsifying tests she never conducted, contaminating samples, and submitting false laboratory reports on her analyses. The two prosecutors of record in Dookhan’s case from the Attorney General’s Office (“AGO”) were two of the three involved in Farak’s case. One of them, the supervisory prosecutor, had assigned the Assistant Attorney General (“AAG”) to Farak’s case because of her familiarity with laboratory misconduct issues from Dookhan’s case. The third AAG was brought in to respond to the discovery requests. Prosecutors in the AGO recognized Farak’s case as a “matter of high importance.” 492 Mass. at 727.

The non-disclosures and misrepresentations by lawyers in the AGO were “sentinel events” warning of systemic risks. In safety research, events that should never occur such as surgeons operating on the wrong limb or aircraft doors opening in flight are called “unsafe acts” and can happen through unintentional behaviors (“errors”) or willful disregard of rules (“violations”) in environments whose supervision and organizational culture tolerate or even foster them. Systems involving human decision making require mechanisms to recognize both intentional and unintentional error, and the entities involved need to develop a culture of continuously checking their work, called a “culture of safety.” Sentinel events signal the need for such a culture.

Determining how an event, which should never have happened, occurred, requires a different process than the BBO or the SJC. Sentinel event reviews have been increasingly applied to criminal justice system failures, such as convictions of innocent persons, officer-involved shootings of unarmed persons, deaths in custody, forensic laboratory failures, or loss of probative evidence. A national demonstration project for these efforts funded by the U.S. Department of Justice and based at the Quattrone Center at the University of Pennsylvania’s Law School recently recommended such reviews based on a study of fifteen years of prosecutorial misconduct cases in Pennsylvania See “Hidden Hazards: Prosecutorial Misconduct Claims in Pennsylvania, 2000-2016.”

As the Quattrone Center report explains, sentinel event reviews “evaluate the impacts of upstream systems and existing policies, procedures, and cultural norms on prosecutorial misconduct while recognizing that prosecutors may often commit acts defined as misconduct unintentionally and/or in good faith pursuit of justice.” Id. at54.

Such a process might examine questions including:

• How do prosecutors respond to cases posing systemic risk? Error by persons whose work or activities involve them in many cases, such as police officers, forensic lab analysts, or informants, necessarily pose system-wide risks. What incentives encourage prosecutors to respond by identifying the full scope of the possible risks? Do policies “err on the side of caution and disclose” as the SJC has specified prosecutors should do in cases of potential exculpatory evidence? Matter of Grand Jury Investigation, 485 Mass. 641, 650 (2020).
• How is responsibility allocated in system-risk cases? Responsibility in very important cases may be shifted up to senior lawyers, but individuals in organizations facing significant risk often try to avoid involvement.
• Is there diffusion of responsibility through group management of system-risk cases? Many veteran lawyers in the AGO with decades of combined experience regularly discussed issues arising from the Amherst lab. Did anyone “own” the responsibility? A group of like-minded people can foster “groupthink” in which dissenting, or minority views are implicitly discouraged to maintain consensus. Are these views sought in systemic risk cases?
• How do prosecutors measure their performance in disclosure of exculpatory material? Policies and training are important, but testing shows how a policy is implemented. Line personnel in complex systems who must perform routine tasks are often tested by being given material that should trigger an atypical response. Users of organizational IT systems are occasionally “tested” with fake spear-phishing emails. Couldn’t a supervisory prosecutor collaborate with the head of the principal law enforcement agency to include an item that should unquestionably be subject to disclosure in some police department files provided to the office?
• How do prosecutors avoid motivated reasoning in their decision-making about exculpatory material? Humans subconsciously process information to avoid undesirable outcomes, and disclosing information that helps the opposing side is counter-intuitive to lawyers operating in an adversarial system. While this information processing happens without conscious action, knowing about it, testing for it, and measuring it can help.
• What is the organizational culture surrounding disclosure of exculpatory material? Is it celebrated or are prosecutors who convince a judge that certain information is not exculpatory celebrated?

These lessons require a process focused on learning and systems improvements rather than judging. The more learning and improvement, the less risk there will be a need for judging in the future.

David M. Siegel is Professor of Law at New England Law | Boston. He coauthored the BBA’s amicus brief in Committee for Public Counsel Services v. Attorney General, 480 Mass. 700 (2018).