COMMONWEALTH OF MASSACHUSETTS

SUFFOLK, SS. SUPREME JUDICIAL COURT
FOR SUFFOLK COUNTY
NO: 

COMMITTEE FOR PUBLIC COUNSEL SERVICES othersl
VS.

ATTORNEY GENERAL others2

RESERVATION REPORT

After preliminary proceedings, the case before me has
progressed to the point that the District Attorneys have agreed
to vacate more than 8,000 convictions that were obtained using
drug certificates signed by Sonja Farak, and to dismiss those
charges with prejudice. The parties currently are engaged in
developingand implementing a protocol, similar to the protocol
prescribed by this court in Bridgeman v. District Attorney for
the Suffolk Dist., 476 Mass. 298 (2017) (Bridgeman II), to
accomplish that. For these purposes, the District Attorneys

define ?Farak defendants? as defendants who pleaded guilty to a

 

Hampden County Lawyers for Justice, Inc., Herschelle
Reaves, and Nicole Westcott.

2 District Attorney for Berkshire County, District Attorney
for Bristol County, District Attorney for the Cape and Islands,
District Attorney for Essex County, District Attorney for Hampden
County, District Attorney for Middlesex County, District Attorney
for Norfolk County, District Attorney for the Northwestern
District, District Attorney for Plymouth County, District
Attorney for Suffolk County, and District Attorney for Worcester

County.

 

 

drug charge, admitted to sufficient facts to warrant a finding of
guilty on a drug charge, or were found guilty of a drug charge in
any case in which Farak signed a drug certificate as an analyst
between August, 2004 and January, 2013, while she was employed at
the Department of Public Health's laboratory in Amherst, except
for the s0ucalled ?Ruffin defendants.? See Commonwealth V.
Ruffin, 475 Mass. 1003 (2016).

There remain, however, approximately fortwaive cases from
Berkshire and Bristol counties that the District Attorneys have
not agreed to dismiss with prejudice. Those cases are the
equivalent of the "third letter? cases in phase one of the
Bridgeman II protocol, cases that the District Attorneys
intend to re?prosecute if motions for new trial are allowed, and
that they represent can be prosecuted independently of any drug
certificate signed by Farak, or related testimony.

Having carefully considered the parties' submissions to
date, I hereby reserve and report the following questions to the

full court:

1. Whether the defendants in some or all of the ?third
letter? cases are entitled to have their convictions
vacated, and the drug charges against them dismissed with
prejudice, given the undisputed misconduct of the assistant
Attorneys General found by Judge Carey in Commonwealth Kg.
Erick Cotto, Hampden Sup. Ct., No. 2007?770 (June 26, 2017)
(memorandum and order on postconviction motions), and given
the conduct of the District Attorneys that the petitioners
allege was improper.

2. Whether the definition of "Farak defendants? being
employed by the District Attorneys in this case is too

 

narrow; specifically, based on the material in the record of
this case, whether the appropriate definition of the class
should be expanded to include all defendants who pleaded
guilty to a drug charge, admitted to sufficient facts on a
drug charge, or were found guilty of a drug charge, if the
alleged drugs were tested at the Amherst Laboratory during
Farak's employment there, regardless whether Farak was the
analyst or signed the certificates in their cases.
3. Whether, as the petitioners request, the record in
this case supports the court's adoption of additional
prophylactic measures to address future cases involving
widespread prosecutorial misconduct, and whether the court
would adopt any such measures in this case.
In addition, the parties may address in their briefs any other
issues of law relative to the cases that the District Attorneys
intend to retry. I will retain jurisdiction over the remaining
matters in this case. Pending receipt of the answers from the
full court, the parties shall continue working toward the
dismissal with prejudice of all cases that the District Attorneys
have identified (or will identify) for such treatment. Upon
receipt of the response from the full court, I will make further
orders as appropriate toward the disposition of the entire
petition.

The record before the full court shall consist of the
following:

I) All items that have been filed in the case thus far;

2) Judge Carey's order of June 26, 2017, in the Cotto case;

3) all of the interim orders issued by this court;

4) the docket sheet in and

5) this reservation and report.

 

The clerk of the county court shall assemble the record of
all material that has been filed thus far and notify the clerk of
the full court. The petitioners are designated as the
appellants. The case shall be scheduled for argument in May,
2018. The petitioners' brief shall be due no later than
March 13, 2018; the District Attorneys' and the Attorney
General's briefs shall be due no later than April 12, 2018; and
any reply brief shall be due no later than April 26, 2018. No
extensions of time are to be anticipated. This matter shall
proceed in all respects in conformance with the Massachusetts
Rules of Appellate Procedure.

By the Court

  

  

 

Frank M. 
Associate Justice

Entered: ?:32er 2358