DA Capeless expects 'all but maybe a handful' of 615 Berkshire drug cases to be dismissed after drug lab chemist's tampering

David F. Capeless

PITTSFIELD — More than 600 drug cases in Berkshire County are in jeopardy as officials statewide contend with the fallout — years in the making — from drug theft and tampering in a now-defunct state crime lab.

Berkshire County District Attorney David Capeless said Friday he expects his office will have to abandon most of some 615 cases, with a wide range of drug convictions,that could be compromised.

"I expect that all but maybe a handful are going to be dismissed," he told The Eagle.

The cases will join some 6,300 statewide already slated for dismissal in light of the scandal, and most of them are here in Western Massachusetts.

At risk are all cases touched by former drug lab chemist Sonja Farak, who was arrested in January 2013 for tampering with and stealing drug evidence at the state crime lab at the University of Massachusetts Amherst to feed her own drug addiction. Nearly five years later, the ordeal hangs like a cloud over officials still working to quantify the damage and devise a reasonable solution. Issues of miscarried justice for defendants, layers of government misconduct and lack of funding to fix it continue to swirl around the scandal.

Compounding the tampering ordeal was subsequent misconduct: The Attorney General's Office, under previous leadership, failed to release evidence that Farak struggled with addiction for years, beyond the six-month window prosecutors originally thought — a misstep courts ruled led to longer sentences for some defendants.

From the lax security measures at the under-resourced lab to the tampering itself and the prosecutorial misconduct that followed, the state's failures were systemic, Hampden County Superior Court Judge Richard Carey ruled in July.

Carey ruled former prosecutors Kris Foster and Anne Kaczmarek distorted the courts' decisions in the wake of the tampering.

"They tampered with the fair administration of justice by deceiving [then Superior Court Judge C. Jeffrey Kinder] and engaging in a pattern calculated to interfere with the court's ability impartially to adjudicate discovery in the drug lab cases and to learn the scope of Farak's misconduct," he wrote. "Their conduct constitutes a fraud upon the court."

Last month the state's top court ordered district attorneys to respond to a petition filed in September by the Committee for Public Counsel Services, the American Civil Liberties Union of Massachusetts and a coalition of defense attorneys across the state. It called for all Farak cases to be dismissed without prejudice, meaning without a retrial, in light of the multiple layers of what Carey ruled was "egregious government misconduct."

"If the court does not deliver this strong remedy, a scandal that began with mistaken notions about one bad apple could end with a justice system that is rotten to its core," petitioners wrote.

Capeless, among the last district attorneys in the state to provide the Supreme Judicial Court with a to-dismiss list, said he and his team are still carefully combing the cases to identify any they may be able to retry on evidence independent of Farak.

The fallout is arriving in Berkshire County at a time when public safety officials in Pittsfield contend with gang violence they say is often connected with drugs.

"We have to make a case-by-case determination," he said. "This is obviously a matter of public integrity. It's also a matter of public safety."

Capeless said his requests for financialresources to deal with the wreckage "fell on deaf ears" in a way he said is typical of the state's dealing with issues that crop up in Western Mass.

"It's created an enormous burden for my office, for which we haveno support from the Legislature in order to clear up this mess," he said, noting the mess has nothing to do with officials in the Berkshires.

State Rep. Tricia Farley-Bouvier said this isn't the only issue for which funding has been hard to come by.

"I share the DA's frustration with lack of funding. There are many, many needs," she said, citing stalled funds for winter shelters and funds needed for early education and the opioid epidemic. "We have a revenue problem in the commonwealth and we need as many voices as possible coming together to address it."

The since-closed Amherst lab had a small staff, so Farak singlehandedly certified drug evidence in thousands of Western Mass. cases between 2004 and 2013.

"I don't know what remedy the court could come up with that won't include dumping all the cases handled by Farak, and honestly I think it's fair that they do," Pittsfield Police Capt. Mark Trapani said Friday. "This situation doesn't make anyone here happy, but dwelling on it is not going to get us anywhere. If it's one thing that I have learned in my 20 years here at PPD, I know that drug dealers are the biggest recidivists there are."

In question is the reliability of the drug evidence used in the cases, seeing as Farak was taking and using evidence and tampering with standards — base samples used to certify incoming evidenceat the lab. This cast doubt on the signatures she made certifying a drug was actually a drug, and also the corresponding weights.

"It took so long for the scope and breadth to come to light — that makes the case for dismissal that much stronger," said city attorney Ray Jacoub, who representedsome of the defendants in the affected cases. "Dismissing these cases is the only way to work toward regaining the public trust."

The Department of Public Health ran the lab from the 1960s until July 2012, about six months before the Farak scandal came to light. The Massachusetts State Police took the reins of evidence analysis at a time when the Farak scandal and a separate tampering case at the Hinton State Laboratory Institute in Jamaica Plain were boiling beneath the surface.

In the Hinton case, a lab chemist named Annie Dookhan was arrested in 2012 for falsifying drug test results. An unprecedented 20,000 drug convictions ultimately were overturned.

Carey wrote in his ruling that state officials handled the Western Massachusetts scandal differently than they had the one in Jamaica Plain in Eastern Massachusetts.

"In contrast to what transpired with respect to Dookhan and the Hinton lab, which were the subject of broad investigations, no full-fledged investigation into the scope of Farak's misconduct began until long after her conviction," Carey wrote.

According to an affidavit filed with the Supreme Judicial Court last week, there was only one local drug lab defendant who remained in prison as of May 2016. In the five years it's taken the state to reckon with the scandal, most of the affected defendants — Farak included — served their time.

It's possible that some potentially affected by the governmental misconduct remain in jail or on probation. But for most the sentences are behind them and the repercussions linger on.

"Every day they continue to suffer the consequences of having a wrongful felony drug conviction on their record," said Dan Marx, a Boston attorney working with the American Civil Liberties Union and the Committee for Public Counsel Services on obtaining relief for the affected defendants. "The counties should just dismiss all these cases. Based on the nature of Farak's misconduct, it's implausible you're going to retry these cases with untainted evidence."

Several in Berkshire County have already been able to negotiate relief in light of the tampering that may have poisoned evidence in their case. Some served shortened prison sentences because of it.

Capeless said nondrug charges included in the affected cases will remain in place.

Until the lists are compiled into the Supreme Judicial Court record, it remains unclear the status of the state's potentially tainted drug cases.

"Since this has come out I've been waiting for the list," said Pittsfield attorney Josh Hochberg. "I really think they should be acting in a faster way to try to bring some remedy to the defendants and to the system."

Defense attorneys don't deny it's a painstaking process, but they argue that for these defendants living with convictions based on potentially tainted evidence — who face felony-related obstacles every time they apply for a job, a license or a loan — five years is too long to wait.

"It can't be OK to wait this long to do this," saidattorney Rebecca Jacobstein of the Committee for Public Counsel Services. "This just can't be the normal."

Reach Amanda Drane at adrane@berkshireeagle.com, @amandadrane on Twitter, or at 413-496-6296.