When the Prosecution Doesn’t Play by the Rules, Criminal Charges Should Be Dropped

February 20th, 2018 by Attorney Dan Carman

The prosecution in a criminal case has the burden of proving a defendant committed the crime alleged. It’s not up to a defendant to prove he or she is innocent. Part of the prosecution’s burden is complying with state and federal constitutions, statutes, court opinions and court rules. If they can’t play by the rules, a judge responsible for the case should dismiss criminal charges.

Society would like to think that police officers and prosecutors are always the good guys, the ones in the white hats, protecting everyone. It doesn’t always work that way, as Massachusetts residents are finding out after the revelation of wide-ranging scandals involving thousands of criminal cases.

Massachusetts prosecutors identified more than 8,000 convictions in December that they say will be dismissed because they are tainted by wrongdoing at the state drug lab, according to court filings by the Massachusetts attorney general, reports the Washington Post. The prosecution of these cases has been tainted by the actions of lab chemist Sonja Farak, who for eight years was both testing and consuming drugs seized by police departments.

Prosecutors want to try to preserve convictions in some of the cases Farak handled, but the state’s public defenders and the American Civil Liberties Union (ACLU) want the dismissal of all of Farak’s cases. They say Farak isn’t the only problem. They also want sanctions on the prosecution to deter prosecutorial misconduct which delayed realization of the full extent of Farak’s actions for years, causing some defendants to spend additional years in prison.

Massachusetts prosecutors also had to reverse more than 21,500 drug convictions last year because of the actions of another lab chemist, Annie Dookhan, who admitted to contaminating, falsifying or not testing drugs in her Boston-area lab for eight years. The state public defenders and the ACLU convinced the state’s highest court, the Massachusetts Supreme Judicial Court (SJC), that mass dismissal was a better choice than retrying 24,000 cases involving 20,000 defendants.

The SJC ordered prosecutors to send court-approved letters to all of the impacted defendants and to create a system so public defenders needing help in these matters can get information. This process may also be used for the cases Farak worked on.

The dismissal of those cases has been delayed by two former assistant attorneys general, Anne Kaczmarek and Kris Foster, who withheld evidence of Farak’s misdeeds, which included cooking and smoking drugs in the state lab — which went on for eight years, not six months, as initially claimed.

Farak was arrested in 2013, and she pleaded guilty to criminal charges in 2014; but Kaczmarek and Foster repeatedly refused to give prosecutors and defense attorneys Farak’s notes and records showing she had been in drug treatment for years. It was only after the SJC ordered an investigation into Farak  that it was found that she had been using the lab’s drug supplies from the day she started in 2004 to the day of her arrest in 2013.

Kaczmarek prosecuted Farak in 2013 but withheld details of her drug use from defendants whose cases she had handled. A judge in the case described her conduct as “reprehensible” and said she “tampered with the fair administration of justice.” The delay caused some criminal defendants to wrongly spend years in prison, the judge found.

Someone arrested of a crime should not just give up and assume the police and prosecution have an “air-tight” case against them. As these cases in Massachusetts show, the prosecution’s case might not be built of steel but instead be a house of cards.

If you’re under investigation or have been accused of a crime and have questions about how the law might apply to your situation, discuss it with one of the attorneys at the Carman Law Firm, based in Lexington, Kentucky. As criminal defense attorneys with years of experience, we offer thorough, skilled representation. Call today at (859) 838-1415 or fill out this online contact form to find out how we can help you.