orp, COMMONWEALTH OF MASSACHUSETTS HAMPDEN, s SUPERIOR COURT CRIM, A. NO. 2007-770 ‘COMMONWEALTH HaMppew county SUPER ion couRT a PLLED ERICK COTTO Mar” 3 2016 and related eases Chee: Lig MEMORANDUM OF DECISION AND ORDER 1. Introduction “These Hampden County "drug lb cases are before the Court! on defense motions following the issuance of investigative reports into the scope of misconduct of Amherst drug ab chemist Sonja Farak and into allegations of prosecutorial withholding of exculpatory evidence, ‘The defendants, who all seek post-conviction relief, now move to lift impoundment and non dissemination orders covering some of the investigative evidence and they have moved for discovery. For the reasons set forth below, the motions are allowed in part and denied in part. 'commomeith . Glenda Lis Aponte, Crim. A, No. 2012-226; Commonealthv. Omar Brown, Ci. A. No. 05-159; Commonreli . Far Ligur, Cia. A. No, 12-624, Conmonveal. Rolando Peat, Crm. [No 12.83; Commonwealth ran Ware, iin. A. Nos. 2007-1072, 2009-072 & 2010-253; Commonwealth» LJarmaine Wat, Crim. Nos. 2008-1068 & 2009-1069; Commonveath v.Lizardo Lee Voga Ct. A. No- 2009 ‘00, The Cort hasbeen informod that the defendant a Commanweathv Rafael Rodrigues, Ct, A, No, 2010- TBE, who bad motions pending, has rece pase ay. 50m December 7, 2015, the Superior Cou Chia ustice Jui Fabicnt pecially sine this ge to bear “staring rom the conduct of Sana Far as desrbed in Cammomsealihv. Cai, 471 Mas. 99 2013), forall purposes”2. Background ‘The defendants were convicted of drug offenses between 2005 and 2013 and all elaim ‘that they are entitled fo orders vacating their convictions due to government misconduct. All of “were teste by Sonja Fath, a formes chemist at the Department of Public Health's State Laboratory Institute in Amherst (the Ambrst drug lab), who was convicted of tampering with ‘evidence.’ These defendants also complain that the Commonwealth withheld from them exculpatory evidence relating to the scope of Farak's misconduct at chat lab. Finally, some of the defendants argue that the validity of their convictions is further compromised by the alleged ‘misconduct of the evidence officer of the Springfield Police Department, Kevin Bumham, who ‘was recently indicted on charges of thelt of seized drug money evidence and who purportedly failed tw seal evidence of substances he submitted to the Amherst drug Iab for testing, ‘As defense counsel sought from the Commonwealth evidence concerning Farak's drug ‘tampering in order to assess its impact on each ofthese cases, the Supreme Judicial Court ‘mandated a thorough, expeditious investigation into the timing and scope of Farak’s misconduct, See Commonwealth v. Cotto, 471 Mass. 97, 115 2015). The Cotto cout described the ‘Commonwealth's investigation thus far into the timing and scope of Farak's misconduct as “cursory a best” and emphasized that “rig imperative thatthe Commonwealth thoroughly investigate the timing and seope of Parak's misconduct at the Amberst drug lub in order to remove the cloud that has been. stn Jrunry of 2013, Fara was charged by criminal compl wit wo counts of ampecng wit viens, nil possession ef cacsine nd wll posesion of eoin. Three months te, sh was Inde fr evidence tampering thet of + cool substance, a ula possesion ofeocane. She plod guy to those charges on Janay 6, 2014cast aver the integrity of the work performed at that facility, which has serious implications forthe entire eriminal justice system. Within one month of the issuance of this opinion (Apri 8, 2015], the Commonwealth shall notify the judge below whether it intends to undertake such an investigation, fs the investigation shall begin promptly and shall be completed in an expeditious manner.” Ha. at 11, 15. “Two investigations ensued atl roxntly concluded. The Court deseribes the course of ‘each ofthese investigations in turn. ‘Investigation into Timing and Scope of Farak’s Misconduct “The fies investigation focused on the timing and scope of Fara’s misconduct and was Jaunched by the Attorney General's Office, which appointed Assistant Attomey General Thomas Caldwell (AAG Caldwell) for that task, AAG Caldwell convened two grand juries and called as witnesses Farak, who testified subject to an immunity agreement, and other chemist, some of ‘whom also testified subjet to cooperation agreements. On November 5, 2015, AAG Caldwell filed with this Court an interim report, entitled The Cormmonwealth's Response to June 1,2015, Scheduling Order, on the status ofhis investigation. ‘That interim report states: (1) Ms, Farak began using controlled substances regulary in the last quarter of 2004; (2) ‘Ms, Farak was under the influence of controlled substances during a vast majority of her "working hours from the last quarter of 2004 to her removal from the lab on January 18, 2013; (3) Ms. Farak began stealing from police submitted samples in the last quarter of 2009 until her removal ftom the lab on January 18,2013. She began regularly taking from samples inthe first quarter of 2011, The majority of samples tampered with were powder and base coctine, In addition, there was evidence of tampering with hallucinogens, specifically lysergic acid diethylamide (LSD). ‘There has been no evidence found at this point that there was any tampering that included heroin or opioids.” [Although AAG Caldyells interim roport has beea impounded and subject to a non-dissemination order, its substance was made public without any objections in this Courts rulings on some of thedefendants! post convietion motions (on Apa 1,2016, AAG Caldwell ied his report, captioned Investigative Report Pursuant to Commonveathv. Coto, 471 Mass. 97 (2018) ‘This 53 page report details the investigative evidence uncovered to dat and alerts the Cour tata supplemental report may bs Forthcoming concerning resently received documents provided by the Deprtent uf Public Healt (DP) pursuant to cout order, AAG Cale Api Ist report does no drew conclusions or assess the creiiliy ofthe witnesses. The report hasbeen impounded bu disclosed to defense conse subject toa non-ssemination order. ‘sed on evidence obtained by AAG Caldwell fom grand jury testimony given by Fara, other lb chemits, and a Massachusetts State Police Office, the report desibes the progression ‘of Fak’ adton and ue of drugs obtained ftom the Amherst ab between 2008 and the ine other aes, andthe many flaws atthe lab, osding the absenesof necessary protocols and security system before July of 2012, the use of standards manufactured by Hanchett, and use of visual categorization of suspected Class E substances, b. Investigation into Alleged Prosecutorial Withholding of Exeulpatory Evidence “The second investigation prompted by Cotto addressed claims by "drug lab" defendants, that the Commonvvealth had withheld from them exculpatory evidence about the extent of ‘Farak’s misconduct, ‘The Commonwealth took the position that Furak’s drug tampering impacted defendants whose drug certificates Farak had signed inthe later part of 2012, whereas many defendants sought information showing that Fara tampered with drug lab substances earlier. At the crux ofthe second investigation isthe belated disclosure to defense counsel of evidence,primarily mental health records, seized in January 2013 fiom Fara’ vehicle. Police who ‘prepared the return on the search warrant on Farak’s vehicle listed Farek's mental health treatment records as “assorted lb paperwork." Those records included ServiceNet diary cards with hhanduitten notes by Farak, "Emotional Regulation" worksheets, some bearing handwaitten notes, a Distess Tolerance Workslcct, and various other sheets regarding therapy. These ‘materials shed light on FaraK's long struggle with addiction and ber drug tampering atthe Amberst drug lab 1m 2013, defense counsel Luke Ryan moved for a court order to aocess evidence seized from Farak’s vehicle, and at that time only knew that poce had seized what was deseribed as “assorted lab paperwork.” In 2013, the Commonwealth successfully objected to Attomey Ryan's discovery motion on the grounds thatthe evidence should be safeguarded during the pendency of FFarak’s prosecution to bar chain of custody issues. In the fll of 2014, following Farak’s convietion, Atfomey Ryan was allowed to inspect the evidence and forthe firs ime saw the ‘mental health care records which were exculpatory “The second investigation commenced on June 15, 2015, when the Attorney General's Oftice (AGO) appointed Retired Superior Court Justice Peter A. Velis as a Special Assistant “Attomey General (SAAG Velis). Adultonally, on August 6, 2015, Northwestem District Attomey David E, Sullivan appointed Retired Distict Court Justice Thomas T. Merrigan as Special Assistant District Atomey (SADA Merrigan) for the Northwestern District “inthe mater of the investigation and prosecution ofthe conduct of the Massachusetts Attomey General Office ‘relating to the case of Commonwealth v. Sonja Farak. ...* (See letter dated March 31, 2016, fiom SAAG Velis to this Court), SAG Velis and SADA Merrigan decided to work together‘and requested their own investigators ‘Two Massachusetts State Police Officers, L, Detective Captain Paul J. L'talien and Capt. James F. Coughlin (the troopers), were assigned to conduct the investigation for SAAG Velis end SADA Mertigan and to prepare a report. The troopers began their work on August 24, 2015. “They interviewed prosecutors and police officers and reviewed and described the evidene seized from Farak’s vehiele as well as correspondence related to Farak’s mental health records and defense counsel's discovery requests. ‘On January 7, 2016, the troopers submitted their 15 page report to SAAG Velis and SADA Merrigan. ‘The troopers eported that they had found no evidence of prosecutorial misconduct or obstruction of justice, principally based upon the following three conclusions. “The troopers described as most significant an email dated February 14, 2013, to ‘lerantexcerps ofthat comespondeace inc the follwing. ‘On Febrory 1, 2013, Serpent allo wrote to leadFarak prosecutor AAG Anne Kaczmarek, ARG Roker rin ad ANG Jon Verne eral wits he subject ne "Pra Admisions." Heese thse Forms with {he mais of drag se Is talking abou, Thre se also news ares withandwrten comments about other ‘ens blag cnet with drugs. All ofthese were foend in hor car sie ofthe nb mana envelopes." The ena {sas atachments Arties and Notes, Emtional Regulation Weorkshed, and Positive Morphine Tex. “on Mare 13,2013, AAG Kacasark wrote o Mj James Comolly ofthe Massachscts State Plize Focesi and Technology Cette think [Fara] had been sing heavy for at east 4S outs before the aes." n'a dra prosraton merorandh dated ete March 2013, AAGs Kaczmarek aod Verner wrote that tems recovered frm Fara’ weice inched “mental beth worksheets describing how Fara feels when she wes eas ebitaee ad he emplation of working with wg fl ompes"™ The se mera states tht he ‘Commune wil present evidene epsinet Farak that "Fars wdmisions on her 'ematinsl worksheet recovered ‘omer ar dual harstugsle with substan ane.” The AAGS wrote, "Based upon her" writing andthe samples ‘ye ow were tampered withing quit to cack cocaine eases is resonable (ot his ne) and that [we re ‘ct tht Peak) ene nite, wil ail hw Tong be ae been using ge a nw any a8 ae sifted" ‘Om July 3, 2013, AAG Kasam sents enalto Fak’ attrey sting that "Here ae my prope redactions 1 ink only faa’) meofin of her mental ise shouldbe redacted. Her ther nesses and maison 010 the cre offer testinony ™ ‘Om Sepember 10,2013, AAG Kacamarck rat to AAGs Vere, Foster, and thers that Sergent Ballou baal of his eps, search warrants and retums, and "copes ofthe paperwork ze rom her car regarding eel ales al er meatal eal worksties*prosecutors from Sergeant Joseph Ballou, who wrote, “Here are those forms with the admission ‘of drug use Iwas talking about. There ae also news articles with handvriten comments about ‘other officials being caught with drugs. All ofthese were found in her car inside ofthe lb ‘manila envelope." Based on that emai, without further comment, the troopers wrote, “It is our collective opinion that e-mail... dispels the unprofessional, wifvunded and negligent allegations within the Ryan Affidavit (pages 6-10) whieh accuses Sergeant Ballou of serious wrongdoings." bs. With respect to alleged misconduct by AAG Kais Foster, the troopers quoted Attorney ‘Ryan's affidavit that AAG Foster had “refused a defense request to inspect the physical evidence jn an e-mail dated August 29, 2013. The troopers reported that they were unable to find an mail in whieh AAG Foster refused Attomey Ryan's request to review the Farak evidence. «©. The troopers also concluded that there was no misconduct by lead Farak prosecutor 'AAG Anne Kacrmare, who did not allow "drug lab" defense counsel to inspect Farak's mental health records, The troopers reasoned that "As it relates tothe allegation of concealing the treatment records und admission of drug use, there was @ concem that these items may have been privileged. The strategy taken by the [AGO] was in the [sie] abundance of caution to not {introduce these items into the grand jury. The evidence was, however, disclosed to Farak’s defense counsel and would have been introduced if there had been a criminal tral. ‘On March 31, 2016, SAAG Velis sent the troopers! report to this Court. SAAG Velis's cover letter outlines the nature and procedural course ofthe investigation, entailing interview of ‘communications with defense counsel, the troopers review of documents and their assistant attomey generals and Massachusetts State Police officers. The last page of SAAG's letter summarily concludes:“After our [SAAG Velis's and SADA Merrigan's} thorough review of the investigative activities and their [the troopers} recommendations, we agree that there is no evidence of prosecutorial misconduct or obstruction of justice by the Assistant Attomey Generals and MSP officers in matters related tothe Farak case." ‘On April 26,2016, the Court heard motions from "drug lab" defendants concerning the continued impoundment and non-disseminetion orders and many more motions for discovery? 3. Diseussion tion and Bx Parte Motions a, Motions Regardi 1g Impoundment, Non-Dissemi (0) AAG Catdwel's Interim Report Cott, Liqui, Ponte, and Watt move oi the nor-ssemination order covering AAG Cadwell interim repot dated November 5, 2015, Theres no objection nor any reason sninsin he non-dissemination order, where the substance of that report as already been isseminated through court rulings addressing some defendants’ motions to stay the execution of their sentences. Sarak has od sever requct that the Court no permit ational iseminton of ecords contining ter medical or mena lth informal, Among them ibe Objection by Sonja Fara tothe Dislosice of Privileged Records inthe Possession of Arberst Medal Asoc and Dr Barry Federman, Fare args that ‘sg eet recs provide atid story of Fal’ ogee with dag dapendence a that hy ‘Cumulative of Parks rand jury testimony which the paris aleady poses, Frasers tht hei release woul ‘beumecesary anda frhr invasion of Ber pavcy. “Paras counsel received atl nce of the bearing on Apel 26,2016, but lil not eppese. Th Court bas arfillyconired Fura’ uvacy concerns andthe defendant couneargunens. Evidence of Fak medical Brana bess wbichsbeds light onthe ting ad sepe of her addiction wil Hklybe exalt evidence fr Iinny defendant ren some who een cuenty pst of te "dug ab” cases, I isnot clear th the medial and ‘ental bath ocords are cumulative ofthe ecards possessed by the defendants. In this unigue situation, Fara’ ‘vary concern mt ive wy to the defendant lpmate new for exculpatory evidence, The cape of the [Prvor vaio wl be aie to the exet posible bya protective ode.(2) Grand Jury Minutes “The same defendants move to vacate non-dissemination orders entered in September 2015 governing Hampshire County Grand Jury minutes, and in February 2016 covering Suffolk County Grand Jury minutes. Counsel curently have acces o those minutes bat have not been allowed to disseminate information about thm. They argue thatthe grand jury minutce aupport their clients’ request for ational disoovery of third-party records and that such information reeds tobe brought tothe Court's atention for consideration ofthe discovery motions. Grand jury proceadings are seoret. See Mas. R. Crm. P. 5 (@) ("Secrecy of Proceedings ‘and Disclosures. . . . A person performing an official function in relation to the grand jury may not disclose matters oceurting before the grand jury excep inthe performance of his or her offical duties or when specially diese todo so by the court. No obligation of secrecy may ‘be imposed upon any person except in accordance with law"). ‘The policy reasons for grand jury scorey ae: () protecting individuals fom the notoriety associated with a grand jury investigation unless probable cause is found against them and an indictment is returned; (b) shielding the grand jury from outside influences which could distort ther investigatory or accusatory functions; (c) protecting witnesses from improper influence; (d) encouraging the full disclosure of information to the grand jury; and (e) facilitating the freedom of the grand jury's deliberations. See Reporter's Notes to Mass. R, Crim. P. 5. Disclosure of minutes of the grand _jury proceedings relating to Karak, who has already been convicted, would not undermine any of these policy easons for grand jury searecy. “hues have discretion to limit the disclosure of grand jury minutes to defendants in oxder to protect persons mentioned, for other reasons of security, or on grounds of irelevance.Commonsealthv, Dew, 443 Mass, 620, 28 (2005) (where grand jury testimony relevant and unrelated to murder at issue, and disclosure would have adversely affected that investigation, impoundment of grand jury minutes was not improper). The grand jury minutes at issue here are relevant und the non-dissemination order is not needed to rote the grand jury witnesses or for other security reasons. The Commonwealth has not voted a specific concer tat he release of| these grand jury minutes might compromise any eiminal proceeding. Moreover, the Coito cout recognized that cloud has been cas over the integrity ofthe work performed athe Amerst dg lab, erating serious implications forthe ene criminal justice system. There is a probability that mamerous other defendants other than those presently before the Court may have, ‘based upon the grand jury minutes and the reports recently issued, a basis for bringing motions for post-conviction relief. In ight ofthe need for more information and disclosures about Faraks misconduct, the motions to vacate the non-disseminaton orders are allowed (6) Motions to Vacate Nou-Dissemination and Impoundment Orders to AAG ‘Caldvell's Report, Letter filed by SAAG Velis With Attached Documents, arak’s Emails, and Farak's Personnel File Coto and Watt move for an order allowing the unimpoundment and dissemination of exculpatory evidence which they categorize into four groups. Fest there is no objection to disclosure of AAG Caldwells report excep insofar as it describes the grand jury's minutes, on which thavealeady decided to vacate the non-disemination order, ‘The defendants nent sek the release of SAG Veli's filing, consisting ois eter, the troopers’ por, and the attachments to the report. dhe motion hearing on April 26,2016, ‘SAAG Velis did not object tothe disclosure of those materials. Upon careful consideration ofSAAG Velie’ filing andthe parties’ arguments, I conclude that SAAG Veliss letter and the troopers report should be released, ‘The attachments to the woopers' report, however, contain some of Farak’s medical and mental heath records. To the extent that those records have not been previously disclosed, they are now released subject toa protective order due to their ‘sensitive nature. With respect to Farak’s personnel file, defense counsel seeks only the performance reviews, not any medical or mental health information. There is no objection to disclosure of the performance reviews. Finally, defense counsel seek the unimpoundment and dissemination of Farak's approximately 10,000 emails forthe period of 2009 to 2013 which defense counsel recsived but have not disseminated due to the AGO's catlier laim, not repeated atthe hearing, that these ‘emails are CORFprotected. The voluminous and potentially sensitive nature of these mails sought to be unimpounded and disseminated merits further and eareful consideration and review | ‘of them. ‘Therefore, the Court takes no action with the request fo unimpound and disseminate Farak’s emails } . Discovery Motions @) Burnham Misconduct (a) Motions for Discovery Regarding Misconduct of Springfield Evidence Officer Kevin Burnham Cotto, Watt and Vega have moved for discovery concering former Springfield Evidence Officer Kevin Burnham, and specifically the results from the city audit of the evidence room in2014, and results from the audit conducted by a private forensic accounting firm into the missing funds, ‘There is no objection to these motions nor other reason to deny them, (b) Motion for Disclosure of Chain of Custody Brown ts moved for discovery of whether the evidence seized in connection with his case was at any point entrusted to Bumbam, ‘There was no opposition to this motion, and the evidence sought is relevant to Brown's motion for post-conviction relief. The motion i allowed. (@) Numbers of Samples Tested Per Month at Amberst Drug lab In their Motions for Discovery Regarding Park's Misconduct Pursuant to Mass. R. Crim. '. 30(6\4), the defendants Cott, Liquor, Penate and Watt had initially sought discovery of four groups of information: (1) results ofthe search of Farak’s work emails, (2) the number of samples tested per chemist per month and year atthe Amherst ab from 2004 to January of 2013; 3) the percentage of sumples which tested as negative by chemist per month and per year during Fark’ employment atthe lab, and (4) Farak's application to attend a DPA seminar in March of 2012. ‘At the motion hearing, counsel informed the Court tat as to this motion, the defendants ‘now only seek the second group of documents. AAG Caldwell persistent good faith efforts to ‘obtain those materials have been fustrated. I was agreed at the motion hearing that AAG Caldvll and Attorney Ryan will confer and propose a means, petheps by a cour order, by which these materials can most effectively be sought, Accordingly, the Court wil tke no ction at this point and will await further submission from the pasties, {@) Motions for Discovery Relating to Prosecutorial Misconduct R(4) Motion for Discovery Regarding Proseeutorial Misconduct Pursuant to Mass. R. Crim. P, 30(0(4), In their Motion for Discovery Regarding Prosecutotial Misconduct Pursuant to Mass. R Crim. P.30(¢}(4) filed on June 29, 2015, the defendants Cotto and Watt had requested all intemal emails, memoranda, and other communications regarding dhe Favak investigation and responses to requests for discovery and access to evidence seized from Farak’s vehicle. Some of those materials are attached to the troopers’ report in an enerypted CD which should be made available to defense counsel subject to a protective order tothe extent that it contains medical or ‘mental heath information about Farak not already released. “The defendants seek all emails conceming Farak and to or from AAG Foster between ‘September 2013 through the present and all emails relating tothe defendant Rolando Penate ‘within the same time frame. Defense counsel pointed out at the motion hearing that the 810, ‘emails they have been able to access so far are incomplete and thatthe complete production of those communications is needed to support the defendants’ argument of egregious prosecutorial ‘misconduct in withholding exculpatory evidence. [Atthis time, the Court defers reaching a decision on the defendants’ motions for discovery of additional internal emails and other communications ofthe AGO. ‘Those emails ‘which have already been disclosed will no longer be subject to any impoundment or non- dissemination order, However, in light ofthe AGO's submissions following the April 26, 2016, heating, a hearing on the issue ofthe discovery of the AGO's emails is necessary to consider psorney Jacobsen stated te motion bering that defece counsel re ava of ie incomplete production bora sme of tei own email comauietons withthe Aterney Gears staf and concerning Farak Aree ot produced, despite epesatations by the AGO tat al elevant documents had been tamed ver, Bmore closely the scope and breadth of such a possible discovery onter. Accordingly, as to this and all motions for discovery of internal emails and communications within government offices, action is defered pending a further hearing, (b) Penate’s Motion for Discovery Pursuant to Mass. R, Crim. P.30(Q(4) Relating to Prosecutorial Misconduct Claims In July 2015, Penate filed this motion for an order allowing discovery ofall comespondence emails and communications fom January 19,2013, tothe pesent pertaining to (1 communications to or from AAG Keis Foster relating to Fara andlor the Penae case; @) ‘communications to, fom, or among the Attorney General's Office and the Western Massachusetts istrict Attorney! offices regarding the sope of evidence tampering and/or deficiencies atthe Amherst drug lb and/or the evidence seized from Farak's ca; and (3) all hemist” The nim ofthis request is to documentation relating to the performance of Farak as gather evidence of what the praseeuting attorneys knew, when they knew it, and how many people informed defense counsel that exculpatory evidenee--including the mental health records scized from Farak’s ear did not exist. For the reasons just explained above, action is deferred on this motion as it secks discovery of internal governmental emails, anda further hearing will be schedule. (© Penate'« Motion for Production of Discovery Information (On May 21,2015, Penate moved for discovery of thre types of documents: (1) any additional AGO and law enforcement investigation reports; (2) all therapy records of Fara with "aL the motion bering, Pests counsel dno pest gues for ther documets nally sought inthis notion, sch as prformanee evans of AAG Foster, “provider Anna Kogan, related to her use and abuse of controlled substances dated between June 2010 to January of 2014; and (3) all records ftom ServiceNet from June 2010 to January of 2014. Penaté’ tome aid nat present an oa agument specifically on this motion atthe hearing, Many ofthe documents sought are the subject of other discovery motions before te Court. Therefore, the motion is eid wiht pejuice, Should Pente sek patcalar Aisovery not aleady covered by this decision and order, he may filea writen request fora hearing (8) Ware's Motions for an Order Requiring Production of Post-Convietion Discovery Inhis motion filed on April 21,2016, Ware seks an oda compelling the AGO duce the following documents (8) dacuments indicating when the AGO fis eae that Fara’s misconduct had been ongoing since 2004 of 200, (b) communications, including emails, showing when the AGO first leamed that Fras misconduct had been well under in 2011, (6 documents including communications between the AGO and any other governmental rpanization conceming why ara’ prosecation vas limited tothe four cases in which tampering was evident on January 18,2013, and (2) documents in 2013 and 2014 between the ‘AGO and other governmental organizations) which relate tothe Commonweal “choise not o conduct thorough investigation” of Fares misconduct. Ware states that he has obtained similar discovery fom the Flampden District Atomey Otic but as not yet received documents fom the AGO as ordered by Kinder, Jon October 19,2018 [Atthe motion hearing on April 26,2016, conse for Ware di nt adress tis motion, despite the Court's invitation to all counsel to raise any isues not argued by the close ofthe 1shearing, The Court takes such silence as a signal that Ware is satisfied that AG Caldwell ether has produced of will produce any remaining documents sought in compliance with other silat discovery orders. Because Ware seeks intemal emails and communications, action on these motions is deferred pending a further hearing as explained above (6 Ware's and Brown's Motious forthe Disclosure of All Exeulpatory Evidence ‘Ware and Brown seek inthis motion “each and evry bit of exculpatory evidence in and accompanying" AAG Caldwell's Api 1, 2016, epor, andthe March 31,2016, eter and accompanying troops report, with exhibits fled by SAAG Ves, Asset forth above, thse materials will al be released, subject toa protective order covering Farak’s medical and mental health record, to the extent that those records have not already boen disclosed sve to Conduct Post-Conviction Discovery of Email (@) Aponte's First Motion for L Records on April 21,2016, Aponte filed pursuant to Mass. R. Crim, P.30(2(4) a motion to conduct postconviction discovery of all e-mail communications ofthe Amherst drug lab employees. Aponte proposed that if that request were deemed to be too broad, which its, she "would request to discover only the ema communications between Farak and Annie Dookban and between Farak and Kevin Burmham, This limited request wll be allowed. (6) Motions for Additional Discovery Pursuant to Mass, R. Crim. P. 30(6)(4) Cotto and Watt moved on October 30, 2015, for an order thatthe Commonvrealth produce: (a) dug certificates and drug lab discovery packets in connection with () 16Commonwealth v. Cosme, identified by the defendants asa 2009 case; (ji) cases in which drugs submitted to the Amherst drug lab were purported to be acid, LSD, methampthetamine, MDMA, ‘or esta; (ii) samples assigned to Hanchett from Pitsfield purportedly containing 24.5 grams ‘of eoeane; (iv) samples assigned to Hanchett from Northampton purportedly containing 3.5, grams of cocaine; (¥) samples assigned to Fontes Irom Springlteld purportedly containing 73 or 74 grams of cocaine; (b) ist of samples inthe possession of Fark, Pontes and Hanchett on January 9, 2012; (¢)Farak’s immunity egreement; and (8) notes relied upon by Farak in her erand jury testimony. These motions were not argued atthe April 26,2016, hearing. Itis unclear, absent any oral or writen argument onthe pont, why Cotto and Watt sock documents relating tothe Casme case, Insofar asthe motion seeks the notes reed upon by Farak during her grand jury testimony, itis denied, There is no objection tothe production of Farsk’s ‘immunity agreement, The othe items sought by these defendanis are relevant and should be produced (© Motos fr Ducovery of Grand Jury Wine’ Immunliy Order and Cooperation greement Cotto and Wat! have moved for discovery ofthe order dated August 25,2015, granting ‘Farak immunity in connection with her grand jury testimony. ‘There is no objection to these ‘motions nor any reason not to allow them. Cotto and Watt also have moved for discovery of any cooperation or proffer agreements signed by former Amherst drug lab staf members James Hanchett, Sharon Salem and Rebecca Pontes, all of whom recently testified before the grand jury. As wit the Farak immunityagreement, there is no objection to these motions or reason for denying them, () Motions for the Discovery of Farak's Medical and Mental Health Information (a) Evidence in Possession of Barry Federman, M.D, ‘According to defense counsel, Daery Federman, M.D., vos Fark’s payciatriet, Cotto and ‘Watt have moved for discovery of records pertaining to Federman's treatment of Farak relating to her ws of controlled substances, preseriptions for stimulants, and evidence of liver problems resulting from the use of controlled substances between July of 2003 and January of 2014. AAs noted above, Farak, through her counsel, has filed objections to any further dissemination of her ‘medical and mental health records. Farak's attomey recsived actual notice of the hearings on this ‘and other motions, The defendants havea right to exculpatory evidence, and Farak’s medical and mental health information may well be relevant to shed light on the timing and extent to which her substance abuse impacted her work and judgment as a chemist at the Amberst drug lab, The requested information shall be produced subject to a protective order. (b) Kvidence in Possession of Amherst Medical Associates On the same grounds, Cotto and Watt seck exactly the same documents from Amherst Medical Associates, ‘The reasoning above pertains to these records as well, and the motions to obtain evidence from Amherst Medical Associates shall be allowed subject to a protetive order. (© ServiceNet Records Cotto and Watt have moved for a complete set of records of ServiceNet, Ine., on the 18ayounds thatthe Court (Kinder) in Febery of 2015, llowed th defendants motions for Mast. Cm, P.17 subpoenas for those records. In response, ServceNet set defense counsel some, but not ll, of the documents in its possession as required bythe subpoenas. Defense counsel states that AAG Caldwell subpoensed the missing records as past of a grad jury investigation. ‘Although Fara has objected to the disclosure ofthe ServiceNet records, they a highly relevant tothe defendant! motions for post-conviction rele, they eonce the timing and scope of Faas drug action and abuse, The Cour rledovera yer ago thet the defendants axe ented to these record. I fllows that the defendants’ motions fora complete set of the ServiceNet records are allowed, subject oa protective onder. (@ Motions for Access tothe Navignnt Database for Information About Farak’s Conduct in 2008-2004 a¢ Hinton Lab Cotto and Watt moved on April 22, 2016, for acces tothe Navigant Database, & searchable database compiled as pat of the Office of the Inspector General’ investigation into the misconduct which occured a the Hinton lb in Jamaica Pain, Fark worked at tht a rom approximately May of 2003 to August of 204. The defendants seek fom the Navigant database Fatal’ erie rom that ime, emails between the Hinton La analysts to Fark after August 2004, an information about an incident in March of 2004 when an analyst whom the defendants tative tobe Fak misclasfed a substance as cocaine when it actually was heroin. [Atthe hearing on these motions, AAG Caldwell replied that he des ot have acces to the Navigant datbase with espost tothe Fark mater, and thatthe AGO is notin possesion of the database. AAG Caldvell stated that he advises his office on how to get access to and allow 19‘defense attorneys in the Dookhan/Hinton lab cases access tothe Navigant database, such that ‘counsel signs CORI waivers and that searches of the database are submitted tothe Governor's Office. He stated that a lar sytem has not been set wp in connection withthe Amberst drug Incase fans are lacking. [AAG Caldwell wil continue to seek a means by which he can ees information shout Fara in the Navigant database including infomation relevant oer work atthe Hinton lab in 2003-2004. AAG Caldwell will also confer with defense counsel and propose a m perhaps by court onder, through which the Navigant Database materials can most effectively be sought. Accordingly, the Coust wil take no action at this point and will await further submission from ‘the parties, 2»‘ORDER’ For all the foregoing reasons, it is hereby ORDERED that: (1) the Motions to Vacate the Non-Dissemination Order Regarding the Commonwealth's -Respoune lo June 1, 2015, Scheduling Onder filed by Cotto in 07-770 (#82), by Liquori in 12-624 (rough a motion to join, # 107), by Penate in 12-83 (¢hrough a motion to join, #169), and by ‘Watt in 09-1068 (£105) and in 09-1069 (#98) are ALLOWED; (2) the Motions to Vacate the Non-Diseminaton Order (ean the pan jury transi) id by Coton 07-70 (ied as #68 and subsequent rebiled by counsel and locket a8 #83); by Liquor in 12-624 (rough amon to jin, # 107), by Penate in 12.83 (trough a motion to join, #165), and by Wat in 09-1068 (99 106) ann 09-1069 (@ocketed 2s #86 and subsequently refed by counsel and docketed as #99) ae ALLOWED; ‘otter motion were filed but were not red a the motion hearing despite counsel being invited to sree ll motions mike up for beng Atlan tee are the Mons Sri for Transparency and ‘Reconsideration by Waren 07-1072 (171, 09-1072 (87) andi 10-253 (853, whch made general requests. ‘Other daendans Hod Motions to Hed impendeat Orders asking the Coto end the “ongoing oder of Innpoundnent eave to excspstory evidence,” The mations, led by Aponte in 12-226 (54), Brown in 05-1139 (4) ae Wrst 10-253 (50) do mot ent any speci order, nor was any creation oparding the ubect ‘ofthis motion offered during te hearing. It ey th the tet of thse motions have ben acl a other Foligno i inpoundment and non-disseminaion orders “The March 2, 2016, Motions fr Discovery He by Cotto in 07-770 (83.1), ad by Wat in 08-1068 (#1061 and in 09-1069 (997.1) were abo nt mpued athe hearing” Its unclear wheter all the mater ied by ‘hove mons have Been resolved Ta te ete hat any aspect ofthese nd oter motions which were sched fr te Apel 26, 2016, ave ot bean adesd in thie doision and ode, they re denied withou prejudice. Ifeomsel determines that Pricer requst sot eovered By this decision sad order, be or she may sai writen regust fra earag. 2{@) the Motions to Vacate Non-Dissemination and Impoundment Orders to Allow forthe Dissemination of Exeulpatory Evidence by Cotto in 07-770 (#95) and by Watt in 09-1068 (#124 and in. 09-1069 (#114) ace ALLOWED only s to (1) the perforance reviews of Fark in her personnel file, (2) AAG Caldwell's report dated April 1, 2016, and (3) SAAG Velis's ‘March 31,2016 filing and the altched troopers report wit ts atachments, excep hat al ‘medical and mental health records not previously disclosed are subject toa protective order; the Court takes no aetion a this time onthe defendants’ motion insofar as it socks the ‘unimpoundment and dissemination of Farak's emails; (the Motions for Discovery Regarding the Misconduct of Springfield Evidence Officer Kevin Bumham by Cotto in 07-770 (docketed as #80 and as #86.1) and by Watt in 09-1068 (104 and #112.1) and in 09-1069 (#96), and by Vega in 09-97 (#64) are ALLOWED only insofar as they concern the 2014 city audit and the report by the private forensic accounting firm; (6) the Motion for Disclosure of Chain of Custody by Brown in 05-1159 (#43) is ALLOWED; (6) the Motions for Discovery Regarding Farak’s Misconduet Pursuant to Mass. R. Crim, , 30(¢)(4) filed by Cotto in 07-770 (#56), Liquor 12-624 (#107), Penate in 12-83 (#169) and ‘Watt in 09-1068 (#80) and in 09-1069 (#71) are deferred by agreement of the parties; (7) no actin is taken on the Motions for Discovery Regarding Prosecutorial Misconduct 2Pursuant to Mass, R. Crim, P.30(¢)(4) filed by Watt in 09-1068 (#82) and in 09-1069 (#73), pending a further hearing; (8) action on the Defendant's Motion for Discovery by Penate in 12-83 (W146) is deferred ‘pending a futher hearing; (©) the Motion for Production of Discovery Information filed by Penate in 12-83 (#144) is DENIED without prejudice; (10) aetion on the Motions for an Order Requiing Production of Post-Convietion Discovery by Ware in 07-1072 (#73), 09-1072 (#69), and in 10-253 (#5) is deferred pending a further hearings (L1) the Motions forthe Disclosure of All Exculpatory Evidence fied by Brown in 05- 1159 (#50) and by Ware in 07-1072 (#72), in 09-1072 (#68) and in 10-253 (#54) are ALLOWED subject to protective orders insofar asthe documents contain medical or mental health records not previously disclosed; (12) Aponte’ First Motion for Leave to Conduct Post-Convietion Discovery of Email ‘Records (58) is ALLOWED only with respect fo email communications between Farak and ‘Dookihan andl Farak and Burnham. a(13) Motions for Additional Discovery Pursuant to Mass. R. Crim. P. 30(6)4) by Cott in (07-770 (#69) and by Watt in 09-1068 (#94) and 09-1069 (85) are ALLOWED as to (@) drug certificates and drug lb discovery packets in connection with (cases in which drugs ‘submitted to the Amberst drug lab were purported tobe acid, LSD, methampthetamine, MDMA, orcostaey; ip samples asigned ro Hanes rom Pits purportedly ening 245 emus of cocaine; i samples assigned to Hanchet rom Northampton purportedly containing 3.5 grams of cocaine; i) samples ssigned to Ponte from Spring purportellycontuning 73 or 74 rms of cocaine; () is of samples in he possession of Farak, Pons and Hanchett on January 9, 2012; and (¢) Fara’ immunity agreement; and are otherwise DENIED: (14) the Motions for Discovery of Immunity Order for Sonja Farak filed by Cotto in 07 770 G85), by Liquori in 12-624 (through a motion to join, #107), by Penate in 12-83 (through & ‘motion to join, #169), and by Watt in 09-1068 (#108) and in 09-1069 (#101) are ALLOWED: (15) the Motions for Discovery Regarding Cooperation or Proffer Agreements Signed by James Hanchett, Sharon Salem and Rebecca Pontes, fled by Cotto in 07-770 (#84), and by Watt {in 09-1068 (#107) and in 09-1069 (#100) are ALLOWED; (6) the Motions for Summons of Evidence in Possession of Dr. Barry Federman, Pursuant to Mss. R. Crim. P, 17(a)(2) filed by Cott in 07-770 (#86), by Liquori in 12-624 (through a motion to join, # 107), by Penate in 12-83 (through a motion to join #168), and by ‘Watt in 09-1068 (#109) and in 09-1069 (#102). are ALLOWED subject toa protective order; 4(17) the Motions for Summons of Evidence in Possession of Amherst Medical Associates, Pursuant to Mass. R. Crim, P.17(a)2) filed by Cotto in 07-770, by Liquori in 12-624 (through a motion to join, # 107), by Penate in 12-83 (through a motion to join, #165), and by ‘Watt in 09-1068 (110) and in 09-1069 are ALLOWED subject to a protective order; (18) the Motions for Missing ServiceNet Records filed by Cotto in 07-770 (#98), and by ‘Watt in 09-1068 (#123) and in 09-1069 (#113) are ALLOWED subject to a protective order; and (19) action on the Motions for Access to the Navigant Database filed by Cotto in 07-770 (#97) and Wat in 09-1068 (#122) and in 09-1069 (#112) is defered pending a further report and/or proposal from AAG Caldwell and defense counsel, within 30 days of the entry ofthis (Order, on the ability to provide uocess fo the requested materials to defense counsel Dated: May 3, 2016 25