Defense bar lauds Rule 14 review in wake of Farak'.


Byline: Kris Olson

Most importantly, a recent Supreme Judicial Court ruling will bring delayed justice to defendants whose drug convictions had been tainted by the misconduct of former state chemist Sonja Farak and two assistant attorneys general. But the decision could also usher in a new era of prosecutors turning over potentially exculpatory information more promptly and completely, defense attorneys hope.

In its Oct. 11 opinion in Committee for Public Counsel Services, et al. v. Attorney General, et al., the SJC requested its Standing Advisory Committee on the Rules of Criminal Procedure to take a fresh look at Mass. R. Crim. P. 14, which currently broadly defines exculpatory evidence as "any facts of an exculpatory nature."

"While Rule 14 envisions a broad disclosure requirement for exculpatory facts, the rule explicitly identifies only a few specific categories of potentially exculpatory information that a prosecutor must disclose," Justice Frank M. Gaziano wrote for the court.

The SJC has asked the advisory committee to draft a proposed "Brady checklist" an allusion to Brady v. Maryland, the U.S. Supreme Court's seminal decision in 1963 on prosecutors' duties of disclosure that would more clearly define "exculpatory evidence," providing prosecutors with more detailed guidance.

Having such guidance might have prevented what in December 2016 Superior Court Judge Richard J. Carey called a "fraud upon the court" by the two AAGs. Carey said the pair had done so by "withholding exculpatory evidence and providing deceptive answers to another judge in order to conceal the failure to make mandatory disclosure to criminal defendants whose cases were affected by Farak's misconduct."

In a brief submitted in the recent CPCS case, the Attorney General's Office had supported the petitioners' request for the SJC to issue a "standing Brady order requiring specific disclosures, and setting forth specific disclosure deadlines."

However, the state's district attorneys argued that issuing such an order would be unnecessary, given that such an obligation was already incorporated in both the Brady principle and Rule 14.

But Matthew R. Segal, legal director of the ACLU of Massachusetts, said he was heartened by the SJC's announcement that "it's not enough just to have a Brady rule."

"One thing that emerges [from the opinion] is that the court is saying a violation of the duty to disclose evidence is really serious, and the court is going to treat it that way," he said in a call with reporters after the SJC's decision was announced.


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