Due Process Only Applies to the Powerful

They were probably just guilty anyway

This piece also appears in my book Welcome to Hell World Dispatches from the American Dystopia which you can get here. If you can please consider a subscription to this newsletter thank you.

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You hear a lot about due process lately from the right. Fresh off a series of sudden epiphanies about the capriciousness of justice when it comes to the way men like Brett Kavanaugh and Paul Manafort and men accused of sexual assault and as the president said yesterday the murderous monarchy of Saudi Arabia are being treated one might be heartened to see such a renewed attention to the concept of innocent until proven guilty. You would be stupid to have believed in the sincerity of any of that though because it was all concern trolling and lies. If it weren’t we might have heard a single word from any of them about the latest development in one of the most sprawling and egregious miscarriages of justice in the history of the criminal justice system that’s been playing out in Massachusetts.

The latest news came on Thursday of last week when the Supreme Judicial court here ordered the dismissal of an additional thousands of drug cases worked on by chemist Sonja Farak at a lab in the Amherst, Massachusetts. More than 11,000 had previously been dismissed when it was found that Farak had herself been high at work for years using the very drugs she had been tasked with testing. Farak plead guilty in 2014 and was sentenced to 18 months in prison.

But now the court has found that all of the cases worked on at the lab in question between 2009-2013 and not just those Farak dealt with herself must be dismissed. On top of that following the finding that two former prosecutors withheld crucial evidence about the extent of her misconduct — efforts that resulted in numerous people either remaining in prison or being sent back to prison or having their tainted convictions needlessly upheld — the court has imposed penalties on the Attorney General’s office in a rare instance of misconduct having actual consequences.

You might be thinking that all of this sounds vaguely familiar but you’re probably just remembering the other corrupt drug lab chemist Annie Doohkan who served three years in prison back in 2013 and had over 20,000 of the drug cases she worked on dismissed after being found guilty of falsification of records and obstructing of justice.

This all seems a little confusing and overwhelming to understand but in short two separate drug lab chemists in Massachusetts went to jail in the past few years — one for being fucked up on the shit she was testing all the time and one for just inventing shit because she wanted to put more addicts in prison — and as a result tens of thousands of drug cases have been dismissed. In a way it’s a victory but a late arriving one. We shouldn’t have ever gotten to this point in the first place.

I spoke with Matthew Segal the legal director of the ACLU of Massachusetts who has been leading the charge on the Farak case about what these new dismissals mean and how the two scandals differed and what happened with the misconduct from state prosecutors.

How do the new developments from last week differ from what we’ve known about the drug testing scandals in Massachusetts for a while now?

What’s difference about Amherst lab scandal is that after Farak was arrested there were two Assistant Attorneys General that had engaged in a coverup of the extent of what Farak did. They hid evidence about the duration of her misconduct, and one of them even wrote an intentionally deceptive letter to a judge saying all the evidence they had had been turned over. Not only was that not true, she later testified that she had reviewed none of the files. That was bad! It was the most remarkable testimony I’d ever seen outside of watching A Few Good Men. She took to the witness stand and confessed to deceiving a judge.

And the decision last week addressed that misconduct?

What was left to be decided in the Amherst lab scandal was if there should be more dismissals and what to do about the prosecutorial misconduct. What the court decided last week was: Yes there needs to be a more significant remedy for the Amherst scandal than for the Dookhan scandal.  Partly because of the prosecutorial misconduct and partly because of what Farak did. They court said we’re going to order the dismissal of all the cases where Farak was assigned as the chemist, all of the meth cases during her tenure, because she was messing with the meth standard, and all of the cases that went through the Amherst lab from 2009-2013, a decent chunk of her tenure.

We already knew the courts were dismissing between 9-11,000 drug charges with cases tied to Farak. Thursday means there will be some additional number of dismissals. It’s probably going to be in the thousands.

What were the details of the coverup?

Farak was arrested in January of 2013, and a search of her car was conducted. She was prosecuted by the same Assistant Attorney General who prosecuted Dookhan. Some of this is accounted in Thursday’s opinion, but basically a state trooper in 2013, within about a month of when Farak was arrested, sent an email to the prosecutor with the subject Farak Admissions, and attached were these worksheets where Farak had been keeping track of her drug use. One of them was very obviously from 2011.  It was the Attorney General’s position, for a good chunk of time after she was arrested, that Farak had only been using drugs for a few months. Based on that people were denied release from prison, people had to serve out their sentences, and at least one person was sent back to prison on the theory that his case was before Farak had started using drugs.

That’s disgusting.

An attorney named Luke Ryan led the charge of defense attorneys who didn’t take the word of the Attorney General at face value. He said Show us what you’ve got on Farak, and the Attorney General’s office did not turn over these worksheets. That went on for a while. Ryan submitted a subpoena to the Attorney General’s office for the files, they moved to quash it with all these excuses, and the judge said Can I see what you’re claiming you don’t have to turn over? That’s when a different assistant Attorney General, the one assigned to defend this decision to withhold the documents, wrote this letter to the judge and said actually I went back and looked and turns out there’s nothing for you to see. She later testified she did that without l even looking at anything.

Wait, Farak was documenting the fact she was high at work all along?

Farrak was using a company to get drug counseling. It’s a company called ServiceNet that helps people deal with problems relating to addiction. She was using one of their diary notes to track her cravings, to track when she used, including at work. It’s a person who was struggling with addiction, and this was one way she was trying to overcome it.

What is the motivation of the Attorney General here being willing to keep people in jail? Just so they didn’t look bad?

I really can’t look inside their heads to understand why they made the decisions they made. One possibility,  although I don’t know, was a strong desire for the Farak scandal to not to be as big as the Dookhan scandal. The first thing that happened after Farak was arrested was then-Attorney General Martha Coakley went out and did press saying this is a very small scandal.

How was Farak’s misconduct different from Doohkan’s?

Dookhan was not using the drugs, she was basically cutting corners at work. She wanted to be very productive and she also, according to emails, wanted to get defendants off the streets. She was like a war on drugs drug warrior according to her emails. So she was inventing the test results, she wasn’t actually doing the testing required to confirm something is cocaine or heroin or whatever. She also forged people’s signatures and all sorts of other things. She was cheating at her job committing forgeries, they call that dry-labbing, when you just eyeball the substance and say what it is.

Farak was herself addicted to drugs, and was basically tampering with the drugs in order to use them. Also, presumably, she was high every day when she was performing these tests. And that’s one of the reasons why it’s been difficult to pin down when she was doing what. It’s like pulling someone over if they’ve been driving drunk and asking them how fast were you going. So even assuming she wanted to tell the truth it’s not clear she could.

Are either of them still in prison?

They’re both out.

Why hasn’t this all been a bigger national story?

I’ve been surprised about how it’s been covered. Honestly if you’ve seen how criminal justice stories somehow get covered, sometimes there’s… I guess I’ll just say the magnitude of the coverage has not really matched the magnitude of the story. It’s not really just a story about this massive misconduct, it’s showing that the substantial part of the entire war on drugs in Massachusetts is basically this house of cards. One person who was causing people to be convicted of drug crimes making stuff up and cutting corners that would never be cut when it comes to white collar defendants. Imagine a forensic accountant who does white collar crimes and convicts a bunch of people and it turns out Whoops she was just making it up? That would be a very big story.

“They were probably just guilty anyway” is something I heard a lot. But this kind of corner cutting and due process violations would never be tolerated if the defendants had more power and less pigmentation.

Do you have a sense of the demographics of the people convicted here?

In a scandal that affects thousands it’s going to be a cross-section of the defendant population, and we don’t have race and data for these defendants.  I don’t know specifically but we do know based on broader data sets that the war on drugs in Massachusetts, as in so many other places, harms people of color and tends to affect poor folks. In the Dookhan case we had data analysts look at the list. What we saw was that in over 60% of cases the drug crimes were solely for possession. In 90% of the Doohkan cases they were prosecuted in District Court, as opposed to Superior Court, where the more serious cases are brought. So in 90% of these Dookhan cases the District Attorney had already decided it wasn’t a particularly serious case.

Were people sent to prison in many of these cases or were they largely probationary?

A lot of them were sentenced to incarceration we think. One of the horrible consequences is that a lot of folks had served their time before the scandals were uncovered or while they were being covered up. A decision in October 2018 for cases prosecuted in 2004 doesn’t help much to a lot of folks who already served their time.   We do know some folks are still incarcerated. I heard of at least one person who walked out of prison this week because of last week’s decisions. I know about people who have been deported. Then there are all the collateral consequences of people who can’t get jobs and housing. One of the really awful consequences of the scandal is that information about them, and therefore the remedies, are coming too late for a lot of folks.

You hear a lot about due process from the right lately, have many of them commented on this?

It’s pretty obvious that Trump and many of the politicians supporting him don’t believe a word of what they’re saying about due process. What they really mean is powerful people should be protected from any consequences.  Although we have had some folks on the right sincerely interested in due process and fairness who have been helpful. The Cato Institute filed an amicus brief in support of some of the remedies we sought in the Amherst lab scandal. There are conservative voices out there who take due process and prosecutorial misconduct seriously. But what we’re seeing from Trump and his allies is something completely different. It’s a bad faith effort to try to use the rhetoric they’ve heard form progressives, but they don’t believe a word of it, and especially not for poor folks or people of color.

The two women served a couple of years for this I think. Not that I’m an advocate for long prison sentences, but to have wrongfully impacted so many other people’s lives, sending them to prison…

It’s a weird situation for the ACLU. Similarly, we don’t really think the answer to most problems is to throw someone in jail. But I would say that one reason why people get wrongfully convicted is because it’s so rare to see any consequences for the misconduct.  What happened here was there was a cover up by the Attorney General’s office, then a change in administration, with a new Attorney General now. Then there was this testimony which I said was pretty remarkable one for the two Assistant Attorneys General saying I wrote this letter to a judge to deceive him. Even after that testimony the Attorney General’s office said these were merely unintentional mistakes not prosecutorial misconduct. A Superior Court judge said, No this is egregious, and that started the train toward the remedy we got on Thursday. In addition to the dismissals they say they want to change the criminal rules in Massachusetts to say there is more of a duty on behalf of prosecutors to disclose evidence.  They also want the Attorney General’s office to pay for notifying the defendants as a monetary sanction. Letters and other notices need to go out saying you were wrongfully convicted and so on, and we have to find the people and send them these notices. The Attorney General’s office has been ordered to pay for that, for what its former employees did. That’s not sending anyone to prison but it’s very rare to see even that level of accountability for prosecutorial misconduct.

It’s insane they don’t face any sort of penalties for screwing up so badly. On purpose it seems.

That is one reason why we have so many instance of wrongful conviction in this country. Basically the justice system operates on the principles that punishment deters wrongdoing by poor people and people of color, but does not for powerful people and therefore there’s no reason to even punish powerful people. That was basically the Attorney General’s argument in the case that was decided. They said Well, there was already a strongly worded opinion and negative press attention and that was punishment for them enough they argued. That is decidedly not the argument when a poor person messes up. I don’t think defense attorneys have much luck when they say Your honor, it’s already been published that my client was arrested….

Where are the two Assistant Attorney Generals involved in the cover up now?

The person who received the email with Farak’s mental health worksheets and didn’t turn it over is Anne Kaczmarek. The one who was tasked with trying to quash the subpoenas is Kris Foster. There’s a pending bar complaint against them from the Innocence Project in New York that has been pending for over a year with no results. Kaczmarek is presently a clerk magistrate in Suffolk County. Foster is the General counsel for a government agency.

lol. Are you happy? Has justice been done here?

A lot of justice has been done. We represent two people who’ve moved on with their lives and are recovering after this now. For them and thousands of other people we really do think this is a substantial victory. It’s going to help them move on, get jobs and houses because of this opinion. But we hope that these scandals will start to turn the tide in favor of a public health approach with the problem of addiction in Massachusetts and all over the place and lead to a new way of dealing with wrongful conviction which says the default should be to dismiss them and prosecutors should have burden of dealing with them. We think that shifting the burden can make everyone think twice about the war on drugs. The easiest way not to have wrongful conviction is not have a conviction in the first place. We’ve seen officials in Massachusetts say they want a public health approach to drugs but we hope these decisions in these scandals cause them to actually do that.