May 2018 - IAPE Monthly Newsletter
 
Ask Joe...
Each month, IAPE's primary instructor, Joe Latta, answers one of your questions. Consider writing us if you have a question that needs an answer. We would love to hear from you.
 
To submit a question for Joe  Contact Us 
 
 
Dear Joe,
 
I just became a member of IAPE and recently was assigned to the property room. I must say it was overwhelming walking into a room that probably hasn't been purged in decades. One of the first things I noticed was the over abundance of alcohol in over 100 exhibits of beer dating back to the 90's.   As I started to claw my way through the mess, I started asking everyone in the department if there was a reason we had to keep all of the beer. I should note that 99% of the case are for simple alcohol crimes such as minor in possession, open container in vehicle, etc. 

When I started asking why we were keeping, the response was, "cause we always have"! Getting to my question, what do most departments do with misdemeanor alcohol cases. 

Regards,
Morri, Beers

Dear Morri,

After teaching hundreds of classes around the US and Canada, I would say that the vast, majority of departments never receive alcohol anymore because it almost never goes to court as an exhibit.  It appears, if there is an arrest or citation, the alcohol is generally dumped and not submitted to the evidence room. Exceptions may be traffic accidents with injuries, d runk driving arrest where the suspect has an extensive record. Some agencies will book the evidence in and the property office (by policy) will dump when received and keep just a sample can/bottle or vial for court purposes.  Does one can/bottle prove the elements of the crime? If you like the idea,make sure policy provides the submitting employees the authority to dump. 

Thank you for your question.

Joe  

Headline of the Month 

SJC considers tossing out 11,000 more drug cases 

 May 11, 2018
 
The Massachusetts Supreme Judicial Court on Tuesday heard arguments over dismissing up to 11,000 more cases connected to the Amherst drug lab and potential punishments in the mishandling of the drug lab case, including the possibility of substantial fines for the attorney general's office. 

The Massachusetts Supreme Judicial Court on Tuesday heard arguments over dismissing up to 11,000 more cases connected to the Amherst drug lab and potential punishments in the mishandling of the drug lab case, including the possibility of substantial fines for the attorney general's office. 

"This is the most significant record of harm as a consequence of prosecutorial misconduct that this court has ever seen," said Matt Segal, legal director for the American Civil Liberties Union of Massachusetts. 

Chief Justice Ralph D. Gants, who called the Amherst drug lab scandal "a nightmare," grilled prosecutors on whether his court should take drastic steps to ensure misconduct of this magnitude never happens again. 

The court expressed particular concern over how prosecutors investigated Sonja Farak, the former Amherst lab chemist arrested in January 2013 for stealing from the evidence locker. Gants said prosecutors working under former attorney general Martha Coakley showed a problematic "lack of curiosity" about the scope of Farak's crimes, and suggested prosecutors "put blinders on" despite having evidence Farak used drugs for more than a year prior to her arrest. 

The Massachusetts Supreme Judicial Court on Tuesday heard arguments over dismissing up to 11,000 more cases connected to the Amherst drug lab and potential punishments in the mishandling of the drug lab case, including the possibility of substantial fines for the attorney general's office. "This is the most significant record of harm as a consequence of prosecutorial misconduct that this court has ever seen," said Matt Segal, legal director for the American Civil Liberties Union of Massachusetts. 

Chief Justice Ralph D. Gants, who called the Amherst drug lab scandal "a nightmare," grilled prosecutors on whether his court should take drastic steps to ensure misconduct of this magnitude never happens again. 

The court expressed particular concern over how prosecutors investigated Sonja Farak, the former Amherst lab chemist arrested in January 2013 for stealing from the evidence locker. Gants said prosecutors working under former attorney general Martha Coakley showed a problematic "lack of curiosity" about the scope of Farak's crimes, and suggested prosecutors "put blinders on" despite having evidence Farak used drugs for more than a year prior to her arrest. 

Two state prosecutors - Anne Kaczmarek and Kris Foster, both of whom now work in other government agencies - hid that evidence. And when defense attorneys unearthed it, prosecutors failed to flag the evidence for courts, including the SJC.  "In retrospect, we could have done things better," Assistant Attorney General Thomas Bocian conceded. 

The state's 11 district attorneys have already agreed to dismiss more than 8,000 cases in which Farak analyzed samples of suspected narcotics during her nine years at the Amherst lab. But defense advocates want the court to dismiss every case that passed through the Amherst lab during Farak's tenure. 

Because Farak confessed to stealing from other chemists' samples and tampering with the lab's evidence tracking systems, public defender Rebecca Jacobstein of the Committee for Public Counsel Services argued the court must presume she tainted additional cases. But because prosecutors didn't test samples again, there's no way of telling which samples Farak tampered with and which she didn't, Jacobstein said. 

Prosecutors disagree on whether the court should toss more cases. The district attorneys said the court should consider only cases in which Farak conducted the analysis herself, while Healey's office proposed dismissing all Amherst lab cases back to June 2012. 

The attorney general's office suggested this time period based on Farak's testimony that she only started taking from co-workers' samples in summer 2012, Bocian told the court. Her labmates noticed declines in her productivity and appearance during this six-month period, according to grand jury testimony.  Some of the justices seemed skeptical of what Justice David A. Lowy called the "magic date" of June 2012. 

Berkshire County Assistant District Attorney Joseph Pieropan, speaking on behalf of all the district attorneys, pointed to previous findings by a judge that Farak's colleagues' analysis should still be considered reliable. Pieropan also argued there was no evidence Farak falsely reported that samples contained narcotics, unlike former Hinton lab chemist Annie Dookhan. 

"With Farak, we have questions about her reliability because of the nature of her addiction and, more importantly, because of the fact she was under the influence while testing," Pieropan said. "But nonetheless she was never motivated to turn negatives into positives." 

Segal asked the court to impose monetary sanctions on the attorney general's office as a deterrent against future prosecutorial misconduct. Prosecutors said fines against the state were both unprecedented and unnecessary. 

The referral of Kaczmarek and Foster to the state bar is adequate deterrent, Bocian said. Beyond possible disbarment, Pieropan said indictment could be appropriate for prosecutors who intentionally withhold evidence. Gants said he had a "real dilemma" in considering not only whether to order sanctions, but if so, how steep. 

"If we impose a sanction which you say is commensurate with the extent of the harm, it's a very large sanction," Gants told Segal. "If we do one which is purely symbolic, which is relatively small, are we viewed as understating the significance of the problem?" 

Chief Justice Ralph D. Gants, who called the Amherst drug lab scandal "a nightmare," grilled prosecutors on whether his court should take drastic steps to ensure misconduct of this magnitude never happens again. 
  
 
 
Commentary: This story illustrates the need for routine audits, inventories and close supervision which appear to be lacking in the cases. It should be noted that on April 19, 2017 the Massachusetts Supreme Judicial Court vacated over 21,000 drug convictions.  https://www.innocenceproject.org/historic-massachusetts-drug-vacation/ . Since that time there have been numerous law suites filed again the agency for wrongful convictions. What will the financial cost be to the state?






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