Yesterday, the Boston Bar Association filed an amicus brief in the case of Committee for Public Counsel Services v. Attorney General (SJC-12471) in support of measures to address future cases involving widespread prosecutorial misconduct.
The BBA filed its brief in response to the third question of the Single Justice’s Reservation and Report, as to whether additional prophylactic measures are appropriate. The BBA believes such measures are indeed appropriate, and necessary, to protect the integrity of the Commonwealth’s justice system.
Two years ago, we submitted a brief in Bridgeman v. District Attorney for the Suffolk District (SJC-12157) in response to the Hinton Drug Lab scandal. Our 2014 Drug Lab Crisis Task Force Report argued justice demanded the dismissal of all of the convictions where Annie Dookhan served as the primary or secondary chemist. That case resulted in more than 21,000 vacated drug convictions on the grounds that evidence could have been tainted by Dookhan.
Now, the Court considers the matter arising from the Amherst Drug Lab scandal, where chemist Sonja Farak had stolen and tampered with drug samples and tested evidence while under the influence of drugs for years. Additionally, two prosecutors failed to disclose all relevant exculpatory evidence in the matter. The brief posits that, through their own misconduct, they delayed the determination of the full scope of Farak’s misconduct and misleading defense attorneys and a Superior Court judge. Already, about 7,500 cases have been dismissed by District Attorneys and the Attorney General. The Supreme Judicial Court is undertaking review of three outstanding questions.
Drafted by BBA Amicus Committee co-chairs, Elizabeth Ritvo of Brown Rudnick LLP and David Siegel of New England Law | Boston, the brief argues that repeated, intentional misconduct in criminal prosecutions requires more than a focus on individuals and individual prosecutions. The brief urges the court to adopt additional system-wide measures that will prevent the type of misconduct that denied and delayed justice for so many.
The brief supports the Petitioners’ and Attorney General’s positions that Court should make permanent the Bridgeman protocol, the disclosure obligations for lawyers’ misconduct that may have tainted a case, and for disclosure obligations under Brady v. Maryland, 373 U.S. 83 (1963). In addition to these measures, the brief posits that “[the] Court should make clear that the prosecutor’s primary ‘responsibility [is that] of a minister of justice and not simply that of an advocate,’ S.J.C. Rule 3:07, Massachusetts Rule of Professional Conduct (MRPC) 3.8, Comment ¶, by establishing, through standing order…a mandatory reporting obligation for every prosecutor who has knowledge or credible information of misconduct by anyone, lawyer or non-lawyer, on the prosecution team.”
“We have seen in recent years the dire consequences of misconduct that goes unreported for too long. The fair administration of justice requires prompt discovery and response, and a standing order that establishes an obligation l for disclosure would help to minimize the risk of the sweeping injustices thousands endured following the Amherst and Hinton Drug Lab scandals,” Siegel said.
“The misconduct here undermines the integrity of the entire justice system, and now is the time to move beyond the ‘few bad apples’ narrative and establish systemic reforms that will help to formalize and improve the much-needed mechanisms to prevent and respond to these crises,” Ritvo said.
“Access to justice is at the core of the BBA’s mission, and we are proud to continue our advocacy on matters relating to widespread misconduct and wrongful convictions,” BBA President Mark Smith said. “We hope the Court will consider the measures proposed in the brief and take steps to ensure the Commonwealth has a procedure in place that will ensure access to a fair and efficient justice system.”