A Massachusetts judge has instructed prosecutors and defense attorneys to create a plan to find any undisclosed emails related to possible prosecutorial misconduct in handling documents seized from disgraced state crime lab chemist Sonja Farak.
As The Eye reported last month, attorneys trying to overturn convictions that relied on Farak’s tainted drug-testing have challenged a report by special state-appointed investigators who concluded that police and prosecutors did nothing wrong in handling the Farak papers. The report, which reviewed 810 emails to and from prosecutors, was unsealed in early May.
Apparently not yet convinced by the report and state Attorney General’s Office arguments against further email production, Hampden County Superior Court Judge Richard Carey yesterday signaled that he wants to know more about how prosecutors handled the Farak documents, according to people present at a hearing yesterday in Springfield. Carey has been assigned to handle multiple cases arising out of Farak’s conviction.
Defense attorneys say the special-report investigators failed to find or adequately review emails that could show prosecutors knowingly withheld the papers, including notes Farak wrote about her on-the-job drug abuse. The notes didn’t come to light until more than a year after police found them in her car.
Carey said he was interested in prosecutors emails from January 2013 until fall 2014, MassLive reported. That spans the time between Farak’s arrest and the time when notes became public indicating her illicit activities may have started earlier than the state had previously asserted.
The Attorney General’s Office declined to comment on Carey’s instructions or to address questions about the special report. The two judges who oversaw the report didn’t respond to emailed questions. The state police officers who conducted the investigation declined to address questions.
Defense attorney Luke Ryan, who was at yesterday’s hearing, has pointed to a five-month gap in prosecutors’ emails catalogued in the report. A spreadsheet listing emails reviewed by the state police officers jumps from July 2014 to January 2015.
Ryan and Rebecca Jacobstein, a staff attorney at the Committee for Public Counsel Services, which provides state-funded defense lawyers, view early November 2014 as a particularly important time. In a lengthy letter sent to one of the report’s overseers, former Judge Peter Velis, last summer, they suggested that his investigation should review internal correspondence at the Attorney General’s Office from this period.
Ryan reviewed the Farak evidence in late October 2014, and alerted the office in early November of his discovery of the Farak notes indicating earlier drug abuse. Two weeks later, the attorney general distributed nearly 300 pages of previously undisclosed materials to local prosecutors around Massachusetts.
Ryan and Jacobstein said it’s reasonable to think supervisory prosecutors may have conducted an internal assessment in this time frame “to determine how and why evidence seized from Farak’s car had not been disclosed.”
The Attorney General’s Office declined to say whether it conducted such an assessment, and why there were no emails from this period among those listed.
In the report, the state police officers wrote that they “could not find an e-mail within the body of the audit” in which former Assistant Attorney General Kris Foster “refuses Attorney Ryan’s request to review the Farak evidence” for one of his clients facing drug charges. Foster represented the state in answering Ryan’s motions to access Farak evidence in 2013.
Jennifer Appleyard, another defense attorney who has alleged misconduct, said she sent documents to Velis in June 2015, one of which was an email indicating Foster’s resistance to sharing evidence the Farak case.
“Our position is that viewing the seized evidence is irrelevant to any case other than Farak’s,” Foster wrote to Ryan in the September 2013 email.
In another email exchange the previous month, Foster told Ryan that she would oppose his motion to see the Farak evidence because the investigation against the lab chemist was ongoing. Ryan noted this exchange in his letter to Velis and provided a copy to The Eye.
The state police and Velis declined to provide an explanation for why these messages weren’t included in their list of emails reviewed.
It’s unclear whether the state police officers talked to Foster for their investigation. The former judges declined to say whether she was interviewed, as did a state police spokesman.
Foster, now general counsel at the Massachusetts Alcoholic Beverages Control Commission, referred all questions to the Attorney General’s Office, which declined to comment.