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SJC-12471

 COMMITTEE FOR PUBLIC COUNSEL SERVICES & others1    vs.    ATTORNEY
                       GENERAL & others.2



            Suffolk.    May 8, 2018. - October 11, 2018.

    Present:    Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
                            & Kafker, JJ.


Controlled Substances. Constitutional Law, Conduct of
     government agents. Due Process of Law, Disclosure of
     evidence, Conduct of prosecutor. Supreme Judicial Court,
     Superintendence of inferior courts. Practice, Criminal,
     Conduct of prosecutor, Conduct of government agents,
     Postconviction relief. Evidence, Certificate of drug
     analysis, Disclosure of evidence.



     Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on September 20, 2017.


     1 Hampden County Lawyers for Justice, Inc.; Herschelle
Reaves; and Nicole Westcott.

     2 District Attorney for the Berkshire District, District
Attorney for the Bristol District, District Attorney for the
Cape and Islands District, District Attorney for the Eastern
District, District Attorney for the Hampden District, District
Attorney for the Northern District, District Attorney for the
Norfolk District, District Attorney for the Northwestern
District, District Attorney for the Plymouth District, District
Attorney for the Suffolk District, and District Attorney for the
Middle District.
                                                                  2


    The case was reported by Gaziano, J.


     Rebecca A. Jacobstein, Committee for Public Counsel
Services (Benjamin H. Keehn, Committee for Public Counsel
Services, also present) for Committee for Public Counsel
Services.
     Matthew R. Segal (Carlton E. Williams & Daniel N. Marx also
present) for Hampden County Lawyers for Justice, Inc., & others.
     Thomas E. Bocian, Assistant Attorney General (Anna E.
Lumelsky & Thomas A. Caldwell, Assistant Attorney General) for
Attorney General.
     Joseph A. Pieropan, Assistant District Attorney (Susanne M.
O'Neil, Hallie White Speight, Shoshana Stern, & Sara Concannon
DeSimone, Assistant District Attorneys, also present) for
District Attorney for the Berkshire District & others.
     The following submitted briefs for amici curiae:
     Jessica Ring Amunson, of the District of Columbia, & Andrew
C. Noll for Legal Ethics and Criminal Justice Scholars &
another.
     Douglas I. Koff, of New York, Adam S. Hoffinger & Nicholas
A. Dingeldein, of the District of Columbia, & Radha Natarajan
for The Innocence Project, Inc., & another.
     David M. Siegel & Elizabeth A. Ritvo for Boston Bar
Association.
     Clark M. Neily, III, & Jay R. Schweikert, of the District
of Columbia, Monica Shah, & Emma Quinn-Judge for Cato Institute
& another.
     Steven Fitzgerald, pro se.


    GAZIANO, J.   We are called upon, in the exercise of our

broad powers of superintendence over the courts of the

Commonwealth, to remedy egregious governmental misconduct

arising out of the scandal at the State Laboratory Institute in

Amherst at the campus of the University of Massachusetts

(Amherst lab or lab).   The misconduct at issue involves evidence

tampering by a chemist, Sonja Farak, who stole drugs submitted

to the lab for testing for her own use, consumed drug
                                                                       3


"standards" that are required for testing, and manipulated

evidence and the lab's computer system to conceal her actions.

The government misconduct at issue also involves the deceptive

withholding of exculpatory evidence by members of the Attorney

General's office, who were duty-bound to investigate and

disclose Farak's wrongdoing.

    This is our third decision addressing the Amherst lab

scandal.    See Commonwealth v. Cotto, 471 Mass. 97 (2015);

Commonwealth v. Ware, 471 Mass. 85 (2015).     Three years ago, we

considered evidence that Farak had stolen portions of samples

from a handful of cases that had been submitted to the lab for

analysis.   See Cotto, supra at 109-110.    Based on the reported

limited scope of Farak's misconduct, we concluded that evidence

tampering at the Amherst lab did not constitute "a systemic

problem" warranting extraordinary relief.      Id. at 110.   We also

expressed our dissatisfaction with the Commonwealth's "cursory

at best" investigation into the timing and scope of Farak's

misconduct.   Id. at 111-112.   We remanded the matter to the

Superior Court to provide the Commonwealth an opportunity to

fulfil its duty to "learn of and disclose . . . any exculpatory

evidence that is held by agents of the prosecution team, who

include chemists working in State drug laboratories" (citation

and quotations omitted).    Id. at 112, 120.
                                                                    4


    On remand, on December 7, 2015, the Chief Justice of the

Superior Court appointed Superior Court Judge Richard J. Carey

to hear all cases arising from Farak's misconduct.   In December,

2016, Judge Carey conducted an evidentiary hearing over six

days, after which he found that the government had vastly

understated the extent of Farak's misconduct.   Moreover, he

determined that two assistant attorneys general had perpetrated

a "fraud upon the court" by withholding exculpatory evidence and

by 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.       The

judge determined that certain cases in which Farak had signed a

certificate of drug analysis (drug certificate) during her

employment at the Amherst lab were subject to dismissal.     He

found further, however, that Farak's misconduct had not

undermined testing results reported by other chemists who had

been assigned to the Amherst lab during the period that Farak

was employed there.

    The petitioners -- the Committee for Public Counsel

Services; Hampden County Lawyers for Justice, Inc.; and two

named former criminal defendants -- sought relief in the county

court through a petition pursuant to G. L. c. 211, § 3, and

G. L. c. 231A, § 1, claiming that the misconduct by the district

attorneys and members of the Attorney General's office required
                                                                    5


the imposition of a "global remedy."    The petitioners requested

that the single justice construct a "global remedy" by vacating

and dismissing all convictions tainted by the Commonwealth's

misconduct.    More particularly, the petitioners argued that all

drug convictions in which the samples had been tested by the

Amherst lab during Farak's almost nine-year tenure should be

vacated and dismissed.    In addition, the petitioners asked the

single justice to exercise the court's superintendence authority

and to issue prophylactic standing orders designed to ensure

that, in the future, the Commonwealth timely discloses

exculpatory evidence, and that procedures are in place to

prevent a recurrence of a similar situation.

    Following a number of hearings, the district attorneys

agreed to the vacatur and dismissal of approximately 8,000 cases

in which Farak had signed a drug certificate.    Two district

attorneys did not agree to dismissal of all charges, in their

respective counties, in which Farak had signed the drug

certificate.   The single justice reserved and reported the

matter to the full court, and issued three questions for the

parties to answer in their briefs.   The reported questions

asked:

         "1. Whether the defendants in some or all of the
    'third letter' cases are entitled to have their convictions
    vacated, and the drug charges against them dismissed with
    prejudice, given the undisputed misconduct of the assistant
    Attorneys General found by Judge Carey in Commonwealth vs.
                                                                   6


     Erick Cotto, Hampden Sup. Ct., No. 2007-770 (June 26, 2017)
     (memorandum and order on postconviction motions), and given
     the conduct of the District Attorneys that the petitioners
     allege was improper.

          "2. Whether the definition of 'Farak defendants'
     being employed by the District Attorneys in this case is
     too narrow; specifically, based on the material in the
     record of this case, whether the appropriate definition of
     the class should be expanded to include all defendants who
     pleaded guilty to a drug charge, admitted to sufficient
     facts on a drug charge, or were found guilty of a drug
     charge, if the alleged drugs were tested at the Amherst
     Laboratory during Farak's employment there, regardless [of]
     whether Farak was the analyst or signed the certificates in
     their cases.

          "3. Whether, as the petitioners request, the record
     in this case supports the court's adoption of additional
     prophylactic measures to address future cases involving
     widespread prosecutorial misconduct, and whether the court
     would adopt any such measures in this case."

After the matter had been reported to the full court, the

district attorneys agreed to dismiss all of the so-called "third

letter"3 cases in which Farak had signed the drug certificates,

rendering moot the first reported question.

     Before this court, however, the respondent district

attorneys contest the relief sought by the petitioners:

dismissal of all cases where the drug samples had been tested by

the other chemists who worked at the Amherst lab during Farak's

tenure.   The district attorneys argue that there is no factual

     3 "Third letter" cases are "cases that the District
Attorneys intend to re-prosecute if motions for new trial are
allowed, and that they represent can be prosecuted independently
of any drug certificate signed by Farak, or related testimony."
See Bridgeman v. District Attorney for the Suffolk Dist., 476
Mass. 298, 328 (2017).
                                                                   7


basis for a conclusion that Farak's misconduct compromised the

analyses performed by other chemists at the Amherst lab, and

that prosecutorial misconduct does not merit dismissal of such a

large group of cases as is at issue here.   In addition, the

district attorneys contend that existing rules of criminal

procedure and professional conduct are adequate to ensure that

prosecutors disclose exculpatory evidence and do so in a timely

manner.

    The respondent Attorney General contests the petitioners'

proposed remedy, as well as the result suggested by the district

attorneys.   The Attorney General proposes a different remedy.

Based on Farak's admission that she began to tamper with other

chemists' samples in the summer of 2012, the Attorney General

contends that those defendants whose drug samples were tested

between June, 2012, and Farak's arrest in January, 2013, should

be offered the opportunity to obtain relief under the protocol

established by this court in Bridgeman v. District Attorney for

the Suffolk Dist., 476 Mass. 298, 316-317 (2017) (Bridgeman II).

    We conclude that Farak's widespread evidence tampering has

compromised the integrity of thousands of drug convictions apart

from those that the Commonwealth has agreed should be vacated

and dismissed.   Her misconduct, compounded by prosecutorial

misconduct, requires that this court exercise its

superintendence authority and vacate and dismiss all criminal
                                                                    8


convictions tainted by governmental wrongdoing.   While dismissal

with prejudice "is a remedy of last resort," it is necessary in

these circumstances (citation omitted).   Id. at 316.    No other

remedy would suffice in this case, where the governmental

misconduct was "egregious, deliberate, and intentional," and

resulted in a violation of constitutional rights that "give[s]

rise to presumptive prejudice" (citation omitted).     Id.

    Accordingly, to answer the second reported question, we

rely on evidence that Farak's misconduct between 2004, when she

began working at the Amherst lab, and the end of 2008 was

limited to stealing from a methamphetamine standard, and that,

in 2009, she began stealing from police-submitted samples and

otherwise engaging in widespread evidence tampering.     Thus, we

define the term "Farak defendant" to include, in addition to

those defendants whose drug certificate was signed by Farak (and

whose convictions have been vacated), (1) those individuals who

were convicted of methamphetamine offenses during Farak's tenure

at the Amherst lab; and (2) those individuals whose convictions

were based on drugs tested in the Amherst lab on or after

January 1, 2009, and through January 18, 2013, the date the lab

closed, regardless of who signed the drug certificate of

analysis.

    In response to the third reported question, we ask this

court's standing advisory committee on the rules of criminal
                                                                     9


procedure to draft proposed amendments to rule 14 of the

Massachusetts Rules of Criminal Procedure to better define the

prosecutor's absolute duty to disclose exculpatory evidence in a

timely manner.4

     Background.   The following facts are drawn from the

findings by Judge Carey in his exhaustive, 127-page memorandum

and order on the petitioners' motions to dismiss or for

postconviction relief, based on the evidence before him at the

six-day hearing.

     1.   Amherst lab.   In the 1960s, the Department of Public

Health (DPH) began operating a laboratory for drug testing on

the campus of the University of Massachusetts at Amherst.      The

State police took over operation of the lab in July, 2012, and

oversaw the lab until its closure on January 18, 2013.      The

Amherst lab served as a satellite laboratory for DPH's William

A. Hinton State Laboratory Institute (Hinton lab), which was

located in the Jamaica Plain area of Boston.    By 1987, the

Amherst lab's primary function was the analysis of suspected

controlled substances submitted by law enforcement agencies in

western Massachusetts.


     4 We acknowledge the amicus briefs submitted by the Boston
Bar Association; the Cato Institute and the Center on the
Administration of Criminal Law; The Innocence Project, Inc., and
the New England Innocence Project; Legal Ethics and Criminal
Justice Scholars and the DKT Liberty Project; and Steven
Fitzgerald.
                                                                      10


    From at least 2008 until the closure of the Amherst lab,

four employees were assigned to it.    These were chemists Farak

and Rebecca Pontes; supervisor James Hanchett; and evidence

officer Sharon Salem.    The Amherst lab was "more laid back [than

the Hinton lab]," and had "basically . . . no oversight."      Farak

and Pontes, for example, occasionally would assign evidence

samples if the evidence officer was not in the office, and every

employee had unfettered access to drug standards, police-

submitted samples, and the computer inventory system.       Between

2006 and July, 2012, officials from DPH visited the Amherst lab

only once or twice.

    2.     Farak's employment.   Farak was hired in May, 2003, as a

Chemist I at the Hinton lab; she transferred to the Amherst lab

in August, 2004.    Farak worked as a chemist at the Amherst lab

until the lab closed on January 18, 2013.     The supervisor who

preceded Hanchett indicated on Farak's annual personnel reviews

from 2004 to 2008 that she was a thorough analyst with high

output, who met or exceeded expectations in all performance

criteria.   In June, 2005, DPH promoted Farak to Chemist II, and

she was assigned additional responsibilities, including testing

larger and more complex samples and repairing equipment.

Hanchett assumed supervision of the Amherst lab in June, 2008,

and discontinued the practice of conducting annual performance

reviews.    He and Farak's other coworkers believed that,
                                                                   11


throughout most of her employment, Farak was an excellent,

meticulous chemist.

     3.   Misuse of lab samples.   Farak began using alcohol and

marijuana regularly around the year 2000, while she was in her

first year of a Ph.D. program.     She occasionally experimented

with other drugs, including cocaine, methylenedioxy

methamphetamine (also known as "MDMA" or "Ecstasy"), and heroin.

     At some point in late 2004 or early 2005, after

transferring to the Amherst lab, Farak discovered a large bottle

of methamphetamine oil in the unlocked refrigerator that held as

many as fifty standards.5   She used a pipette to remove some of

the methamphetamine from the bottle and squirted it into her

mouth.    The methamphetamine gave her increased energy and

alertness, providing "the pep [she had] been looking for."     She

later testified that she "felt amazing" when using

     5 As used in a drug laboratory, a "standard" is a known
controlled substance (e.g., cocaine or heroin) against which an
unknown sample submitted by a law enforcement officer is
compared to determine its identity. Using a gas
chromatographer/mass spectrometer, a chemist compares the mass
spectral patterns of the tested sample and the standard to
determine if there is a match.

     Two types of standards are used in this testing. "Primary"
standards are pure drug samples acquired from pharmaceutical
companies, and are considered much the better practice.
"Secondary" standards are manufactured in a laboratory from
police-submitted samples that tested positive for a controlled
substance, and were purified to remove any adulterants. Due to
budget constraints, the Amherst lab regularly used secondary
standards until July, 2012, when the State police assumed
control of the lab.
                                                                     12


methamphetamine.     Within a short period of time, Farak was

stealing and consuming portions of the methamphetamine standard

every morning.    By 2009, her consumption had increased to

several times per day.     She was under the influence of

methamphetamine much of the time she was at work, including days

when she testified in court.

    By the end of 2008 or early 2009, Farak had almost

completely exhausted the methamphetamine standard.     Around the

same time, Hanchett was planning to conduct an audit of the lab;

Farak became "slightly paranoid" that he would notice that the

amount of methamphetamine oil in the jar had decreased

substantially.    To avoid this eventuality, she added water to

the jar.   Thereafter, Farak began searching for other standards

to use.    She discovered a "large jar" of amphetamine and "a

couple smaller containers of phentermine," and she began to

consume these drugs.     Additionally, throughout 2009, Farak also

stole from the lab standards for ketamine, MDMA, methylenedioxy

ethylamphetamine (MDEA), lysergic acid diethylamide (LSD), and

cocaine.

    In early 2009, Farak also began substance abuse

counselling.     At first, she declined to answer questions about

her drug use.    On April 28, 2009, she admitted to her therapist

that she had been using illegal drugs for a long period of time,

and that she "obtain[ed] the drugs from her job at the [S]tate
                                                                  13


drug lab, by taking portions of samples that [had] come in to be

tested."   Farak explained that she initially had begun by taking

relatively small amounts from police-submitted samples that fell

within the "acceptable loss" of approximately five per cent that

ordinarily could be depleted due to testing and evaporation in

storage.   On August 25, 2009, Farak told her therapist that she

was "almost out" of her drug supply.

    Farak later explained to her therapist that, in late 2009,

she had stolen cocaine from a large batch of samples submitted

by inspectors for the United States Postal Service, and

maintained that that was the first time she had tampered with a

submitted sample.   She recalled the sample clearly because of

its size and its source, but also because that had been the

first time that she had crossed a line into a new level of lab

misconduct.   According to Farak, "taking from . . . evidence

[was] a whole []other level of morality [she] never thought

[she] would cross and [she] did and it scared [her]."

    In 2011, Farak's cocaine use increased at the same time

that she used up lab standards; in response, she turned to

police-submitted samples of powder and "crack" cocaine.   By the

end of 2011, Farak was "totally controlled by [her] addiction."

Throughout 2012, she was smoking crack cocaine ten to twelve

times per day, both when she was at work and at home and while

driving.   Farak smoked crack cocaine in the bathroom of the lab,
                                                                  14


at her lab bench when no one else was around, in the evidence

room, and in the lab's fume hood so that she could "get rid

of . . . the smoke directly."6

     To hide her burgeoning drug use from her colleagues, Farak

began to counterfeit crack cocaine using a variety of

substances, including rocks, soap chips, candle wax, and

modeling clay, and to manipulate the inventory list on the

evidence computer.    By the end of 2011, Farak routinely

manipulated the computer system to assign herself the samples

that she wanted.     If she skimmed from a sample before it was

assigned to anyone, she altered the gross weight on the drug

receipt so that the chemist who tested the sample would not

notice; following analysis, she changed the weight back to the

original amount so that the investigating officers would be

unaware of the tampering.     Farak also lowered the temperature on

the heat sealers, so that samples brought in unsealed could not

be sealed properly, thereby allowing her easier access without

noticeable tampering.

     In one illustrative case, Farak removed "a good hundred

grams" from a kilogram of cocaine that had been submitted by the

Chicopee police department.     Unsure whether the missing one

hundred grams would be noticed, Farak replaced the missing


     6 When crack cocaine was not readily available, Farak
manufactured it at her work station, using powder cocaine.
                                                                  15

volume with a mixture of baking powder and baking soda.     On

another occasion, she removed 200 grams of powder cocaine from a

Holyoke case and took the drugs home to cook into crack cocaine.

    Judge Carey noted that Farak testified at the grand jury

that "she began taking other chemists' samples in the summer of

2012."   Farak testified that she took approximately six of

Hanchett's samples of crack cocaine from his work station.

These samples included "3.5 grams submitted by the Northampton

Police Department, and a 24.5 gram sample from the Pittsfield

Police Department."   Farak replaced the crack cocaine with

counterfeit substances and placed the samples in bags that

Hanchett had pre-initialed to save time.   Farak testified that,

on another occasion, she took thirty grams of cocaine from a

seventy-three-gram Springfield police department submission that

had been assigned to Pontes.   She used it to manufacture crack

cocaine, and replaced the missing cocaine with a filler

substance.

    After the State police assumed control of the Amherst lab

in July, 2012, their quality assurance team instructed Hanchett

to inventory the lab standards.   At that point, Hanchett noticed

that the standards were more depleted than he had expected, and

mentioned that observation to Salem, Pontes, and Farak.   In

September or October, 2012, Hanchett noticed that Farak's

productivity had dropped, and he encouraged her to focus on her
                                                                   16


work.    Aside from this single comment by Hanchett, and despite

Farak's almost daily drug use starting in 2004, her coworkers

did not question her work.    State police team members who met

with Farak also did not notice that she was under the influence

of drugs.

     4.   Farak's arrest.   On January 17, 2013, Salem was

matching drug certificates to corresponding samples and noticed

that two samples were missing.    She determined that both samples

had been assigned to Farak, who had identified them as cocaine.

The next morning, Salem told Hanchett about the missing samples.

Hanchett searched the lab and discovered at Farak's work station

an envelope containing the cut-open packaging for the missing

samples, as well as materials Farak used as fillers to create

counterfeit drugs.   The substances in the packaging tested

negative for cocaine.   Hanchett notified the lab director, State

police Major James Connolly, who instructed Hanchett to close

the lab immediately.7   State police officers then alerted the

office of the Attorney General.

     On the morning of January 18, 2013, Farak was expected to

testify in a case in which she had issued a drug certificate.


     7 Hanchett's discovery took place four months after Annie
Dookhan, a former chemist at the Hinton lab, had been arrested
for evidence tampering and obstruction of justice. See
Commonwealth v. Scott, 467 Mass. 336, 337, 339 (2014). By that
time, the Hinton lab had been closed due to Dookhan's
misconduct. See id. at 342.
                                                                    17


Two State police detectives located her at the court house and

interviewed her.     Following the interview, Farak refused to

consent to a search of her vehicle; the vehicle was seized and

towed to the garage at the State police barracks.

    On January 19, 2013, Farak was arrested on charges of

tampering with evidence, possession of cocaine, and possession

of heroin.    On the same day, a clerk-magistrate issued a warrant

to search Farak's vehicle.     Detective Lieutenant Robert Irwin,

Sergeant Joseph Ballou, and Trooper Randy Thomas, who were

assigned to the Attorney General's office, executed the search

warrant; a crime scene services officer photographed the vehicle

and the evidence found within it.     Among other things, the

officers discovered bags containing pills, a white powdery

substance that resembled cocaine, a brown tar-like substance

that resembled heroin, and crack cocaine.     The vehicle also

contained empty evidence bags marked with Hanchett's initials,

and a sheet of paper that bore repeated written instances of

Pontes's initials.     In addition, there were multiple manila

envelopes containing hundreds of pages marked with case numbers,

some dating back to 2008.     Given time restraints and the sheer

volume of documents, the initial search warrant return listed

the folders and documents as "assorted lab paperwork"; the

officers intended to examine the evidence more closely at a

later time.
                                                                   18


    On January 25, 2013, investigators also executed a search

warrant for Farak's duffel bag, which was found at the Amherst

lab, and discovered substances that could be used to create

counterfeit cocaine, including soap, baking soda, candle wax,

off-white flakes, and modeling clay, as well as plastic lab

dishes, wax paper, and fragments of a crack cocaine pipe.     In

addition, they found empty evidence bags that had been cut open;

one bag was labeled with Pontes's initials, and two were labeled

with Farak's initials.   On January 28, 2013, State police

searched Farak's work station and found a vial of white powder

that tested positive for oxycodone; they also found 11.7 grams

of cocaine in one of her desk drawers.

    Assistant Attorney General Anne Kaczmarek was assigned to

prosecute the case against Farak.   As with the Attorney

General's investigation and prosecution of former DPH chemist

Annie Dookhan, the Attorney General's office agreed to provide

the district attorneys with information as the case unfolded.

The district attorneys, in turn, were required to provide any

such discovery to defendants whose convictions were called into

question by Farak's misconduct.

    5.   Attorney General's investigation.   The Attorney

General's office initially assumed that Farak's misconduct had

been limited to the six-month period of time immediately

preceding her arrest, and had consisted of stealing cocaine
                                                                  19


samples for her own use, because of her addiction.   An inventory

conducted at the time of Farak's arrest revealed only four

missing samples, whereas an inventory that had been conducted

four months earlier had not uncovered any missing samples.

    Judge Carey found that the "assumption [concerning the time

frame of the misuse] was at odds with the evidence uncovered

even at that early juncture."   By the end of January, 2013, the

evidence indicated that "(1) Farak was addicted to and had

stolen from the lab cocaine, phentermine, oxycodone[,] and

possibly heroin; (2) her misconduct occurred as early as 2011;

and (3) she may have tampered with samples assigned to Pontes

and Hanchett, as she inexplicably had [evidence] bags with their

initials on them."

    On January 23, 2013, Ballou received information from the

district attorney for the Hampden district concerning two cases

in which Farak had tested samples and the district attorney

later had discovered inconsistencies.   In one case, a

Springfield narcotics officer indicated that he had submitted

for analysis fifty-one pills that resembled oxycodone; when he

retrieved the sample after testing, it contained sixty-one pills

with a different color and different markings.   Farak, who

signed the drug certificate, had indicated on the certificate

that the sample contained no illegal substances.   In the other

case, Farak certified the weight of a sample of cocaine as four
                                                                    20


grams less than the weight recorded by police after it had been

seized.   When Ballou brought these cases to Kaczmarek's

attention, she dismissed the importance of the missing

prescription pills by stating, "Please don't let this get more

complicated than we thought.   If she were suffering from back

injury -- maybe she took some oxys?"

    Upon further review of the documents found in Farak's

vehicle, Ballou discovered that the "assorted lab paperwork"

contained mental health records.   These records were significant

because they "(1) disclosed Farak's admission of drug use and

theft of police-submitted samples while she was working at the

lab; (2) supported inferences that Farak's misconduct occurred

as early as 2011; and (3) revealed that Farak was receiving

treatment for drug addiction and that her treatment providers

likely would have more information about the scope of Farak's

drug use and theft at the lab."

    On February 14, 2013, Ballou sent an electronic mail

message titled "FARAK Admissions" to Kaczmarek, Irwin, and John

Verner, who was then chief of the criminal bureau for the office

of the Attorney General.   The text of the message provided,

"Here are those forms with the admissions of drug use I was

talking about.   There are also news articles with handwritten

comments about other officials being caught with drugs.    All of

these were found in her car inside of the lab manila envelopes."
                                                                   21


Ballou attached the documents he had found to his message.       Both

Kaczmarek and Verner were aware of the admissions before

receiving Ballou's message.

    In preparation for grand jury proceedings, Kaczmarek

drafted a prosecution memorandum that referenced the mental

health records, with a footnote stating, "These [records] were

not submitted to the grand jury out of an abundance of caution,

in order to protect possibly privileged information."    The

memorandum noted that the Attorney General's office was not

certain of the scope of Farak's misconduct, and that staff were

"hoping that the defendant, once indicted, [would] detail how

long she had been abusing drugs and how many cases are

affected."    Verner and Dean Mazzone, then senior trial counsel

for the criminal bureau, each reviewed and approved the

memorandum.    Verner wrote a comment near the footnote noting

that the mental health records had "not [been] turned over to

[the district attorney's] [o]ffice yet."

    On April 1, 2013, a grand jury returned indictments

charging Farak with four counts of evidence tampering, four

counts of theft of a controlled substance, and two counts of

unlawful possession of cocaine.   When Farak was arraigned on

April 22, 2013, Kaczmarek provided her defense attorney with the

entire file, including the mental health records.    Later,

Kaczmarek told Farak's attorney that the Attorney General's
                                                                  22


office considered the mental health records to be privileged

and, therefore, would not turn them over to defendants

challenging their convictions on the ground of Farak's

misconduct.

    Kaczmarek sent an electronic mail message to Farak's

attorney on September 10, 2013, asking if Farak would be willing

to make a proffer to determine the scope of the misconduct.      The

attorney responded that Farak would cooperate if she were to

receive a sentence of probation and immunity for additional

State and Federal charges.   The Attorney General's office

declined to accept the offer.   On January 6, 2014, Farak pleaded

guilty to all of the charges.

    6.   Amherst lab defendants.   While the Attorney General's

office focused on prosecuting Farak, defendants whose drug

certificates had been signed by Farak began to file motions for

discovery and postconviction relief.   On July 25, 2013, then

Superior Court Judge C. Jeffrey Kinder consolidated sixteen

postconviction claims, involving fifteen defendants.     He

conducted an evidentiary hearing on the consolidated cases over

three days in September and October of 2013.     Another defendant,

who had filed a motion to dismiss as part of his pretrial

proceedings, also participated in the hearing.    Judge Kinder

limited the hearing to information concerning (1) the timing and

scope of Farak's misconduct; (2) the State police's quality
                                                                   23


assurance audit from October, 2012; and (3) how Farak's

misconduct and the conditions at the Amherst lab might have had

an impact on the results of drug analyses the lab produced.

Judge Kinder also designated two attorneys as lead counsel for

the defendants.

    From August through October, 2013, numerous defendants

served subpoenas duces tecum on Ballou and Kaczmarek and filed

motions in the Superior Court seeking to inspect the evidence

seized from Farak's vehicle.     They also sought disclosure of the

Attorney General's office correspondence relating to the scope

of Farak's misconduct and any indication that a third party had

had knowledge of Farak's behavior prior to her arrest.

Assistant Attorney General Kris Foster, a member of the appeals

division of the criminal bureau, was assigned to respond to the

subpoenas and motions.

    a.   Subpoenas.   After communicating with her superiors,

Foster filed motions to quash the subpoenas.     She argued that

the Attorney General's office already had turned over all

nonprivileged information.     In the alternative, Foster asked the

court to restrict the scope of the subpoenas by allowing the

government not to produce documents that contained the criminal

history of any individual, legal work product, or "[i]nformation

concerning the health or medical or psychological treatment of

individuals."   Although internal policies for responding to
                                                                   24


subpoenas indicated that a review of the file should be the

first step in responding to a request for a subpoena, and a

supervisor urged her to confirm the accuracy and truth of her

representations about the contents of the file, Foster did not

personally review Ballou's file.

    On September 9, 2013, Judge Kinder denied the motion to

quash the Ballou subpoenas insofar as the documents related to

Ballou's testimony at the evidentiary hearing.   When he inquired

of Foster concerning the Attorney General's office's request for

a protective order, she explained that she had not personally

reviewed the file and that neither she nor Ballou had brought

the file to the hearing.   Judge Kinder instructed Foster to

examine Ballou's file by September 18, 2013, and to present to

him for in camera review on that date any material the Attorney

General's office believed was privileged.   In electronic mail

messages among Foster, Kaczmarek, and Verner discussing the

hearing, Kaczmarek indicated that Ballou's file contained the

news articles and mental health records seized from Farak's

vehicle.

    On September 16, 2013, Foster sent Judge Kinder a letter

stating, "After reviewing Sergeant Ballou's file, every document

in his possession has been disclosed.   This includes grand jury

minutes and exhibits, and police reports.   Therefore, there is

nothing for the Attorney General's office to produce for your
                                                                     25


review on September 18, 2013."    At that point, however, Foster

had yet to review Ballou's file, and she intentionally had used

the passive phrase "after review" so that she would not directly

misrepresent to Judge Kinder that she had personally examined

the file.   At a subsequent hearing on October 2, 2013, Foster

again represented to Judge Kinder that the entire contents of

Ballou's file had been disclosed.

    b.   Motions to inspect.     Within the same time frame, one of

the appointed defense counsel, Luke Ryan, asked the Attorney

General's office for permission to inspect the documents; as the

investigation was still ongoing, Kaczmarek refused.     Kaczmarek

again rejected Ryan's efforts to examine the documents after

Ryan received permission from Hampden County Assistant District

Attorney Frank Flannery, who was in charge of the protocol for

handling the Amherst lab defendants' cases.     At the hearing on

September 9, 2013, Ryan asked Judge Kinder for an order allowing

him access to the documents.     Judge Kinder told Ryan that he

could file a motion for access if he were unable to make

arrangements with the Attorney General's office.     Over the next

few days, Ryan sent Foster electronic mail messages asking for

permission to review the documents.    Kaczmarek told Foster not

to allow these requests, because the documents were not relevant

to Ryan's case.
                                                                     26


    Ryan then filed a motion to inspect, pursuant to Mass. R.

Crim. P. 17 (a) (2), 378 Mass. 885 (1979).     At a hearing on the

motion on October 2, 2013, Foster told Judge Kinder that the

documents sought were not relevant, and that the Commonwealth

would be prejudiced by the number of defendants who would seek

to review them.   Concluding that he was "not persuaded that Rule

17 (a) (2) permits a third-party to inspect evidence held in a

pending criminal case . . . [p]articularly under the

circumstances of this case where the physical evidence has been

described in detail for the defendant and photographs of that

evidence have been provided," Judge Kinder denied the motion to

inspect.

    c.     Motions to compel.   A different defendant filed a

motion to compel production by the Attorney General's office of

"copies of all inter and intra-office correspondence from

1/18/13 to present pertaining to the scope of evidence tampering

and/or deficiencies at the Amherst drug lab."    Foster asserted

in response that such correspondence was protected by the work

product doctrine.   At the hearing on October 2, 2013, Foster

told Judge Kinder that she had not personally examined the

correspondence, and she agreed that the requested information

would be exculpatory if it existed.     Judge Kinder allowed the

motion to compel.   The Attorney General's office then filed a

motion for clarification and requested that privileged work
                                                                  27


product and material related to an ongoing investigation be

excluded; Judge Kinder allowed that motion, and limited the

scope of his earlier motion as the office of the Attorney

General had requested.

    Another motion to compel, filed by a different defendant,

requested "any and all evidence suggesting that a third party

may have been aware of Farak's evidence tampering at the Amherst

lab prior to Farak's arrest in January 2013."     Although the

mental health records were responsive to this discovery motion,

Foster again responded that the Attorney General's office had

turned over all materials, and claimed that "there [was] no

reason to believe that a third-party had knowledge of Farak's

alleged malfeasance prior to her arrest."     Had the documents

been produced, they would have revealed that Farak's mental

health care providers knew of her evidence tampering as early as

2011.   Judge Kinder denied the motion.

    d.   Judge Kinder's findings.    Relying on representations

made by the Attorney General's office, Judge Kinder concluded

that Farak's misconduct began in July, 2012, and ended with her

arrest in January, 2013.   He found that although Farak had been

an agent of the Commonwealth, there was insufficient evidence

that her misconduct began earlier than July, 2012, and that any

other deficiencies at the Amherst lab did not have an impact on

the reliability of her testing.     As a result, Judge Kinder
                                                                   28


denied the motions for postconviction relief by defendants who

had pleaded guilty before the summer of 2012; he also denied the

motion to dismiss filed by the defendant who was still in the

pretrial phase.   Defendants whose motions were denied, and other

defendants who had not been part of the hearings before Judge

Kinder but who had filed motions which subsequently were denied

on the basis of his rulings, appealed.   See Cotto, 471 Mass. at

99; Ware, 471 Mass. at 91-92.

    7.   Discovery of the mental health records.   In

March, 2014, following Farak's guilty plea, an Amherst lab

defendant filed a motion to inspect the evidence from Farak's

criminal case.    Ryan sent an electronic mail message to Foster

on June 23, 2014, on behalf of another defendant, asking for

permission to view that evidence; the message was unanswered.

On July 21, 2014, that defendant filed a motion for an order to

allow Ryan to inspect the evidence.    The motion was allowed on

July 31, 2014.

    On October 30, 2014, Ryan reviewed the evidence and

discovered multiple documents that had not been disclosed

previously, including the mental health records.   On November 1,

2014, Ryan sent a letter titled "Newly Discovered Evidence" to

Assistant Attorney General Patrick Devlin, who had helped to

arrange the inspection.   Ryan indicated that he had discovered

proof that Farak had been abusing drugs since at least 2011, in
                                                                     29


contrast to Judge Kinder's findings, which were based on the

Attorney General's office's representations that Farak's drug

abuse and tampering with Amherst lab samples began in July of

2012.   Ryan indicated that "[i]t would be difficult to overstate

the significance of these documents."     He asked Devlin to allow

him to provide the mental health records to another attorney and

to other defendants who had sought postconviction relief based

on Farak's misconduct.

     On November 5, 2014, Foster sent an electronic mail message

to Devlin, requesting a copy of the mental health records, which

she had never seen.    In a letter dated November 13, 2014, the

Attorney General's office notified the district attorneys that

it was sending 289 pages of documentary evidence that had not

been turned over previously, including the mental health

records.

     8.    Decisions in Cotto and Ware.   In December, 2014, this

court received filings from two defendants whose appeals from

the denials of their motions for postconviction relief were then

pending.   See Cotto, 471 Mass. at 97; Ware, 471 Mass. at 85.

The defendant in Cotto, supra at 99, directly appealed from

Judge Kinder's ruling, and sought to withdraw the defendant's

guilty pleas.   He claimed that Farak's misconduct predated his

guilty pleas in April, 2009, and that he would not have pleaded

guilty if he had been aware of the misconduct.    Id. at 98-99.
                                                                  30


The defendant in Ware, supra at 90-92, sought postconviction

discovery and retesting of suspect drug samples; he argued that

allowance of his discovery request would be "reasonably likely

to uncover evidence that might warrant granting [him] a new

trial."   In addition, he questioned the thoroughness of the

investigation by the Attorney General's office into the scope of

Farak's misconduct.     See id. at 92.

    On the basis of Judge Kinder's findings, and the eight

cases of tampering that had surfaced at that point, we

determined that "the scope of Farak's misconduct [did] not

appear to be . . . comparable to the enormity of Dookhan's

misconduct."   See Cotto, 471 Mass. at 111.   We therefore

declined to extend the conclusive presumption of egregious

government misconduct that was applicable in cases affected by

Dookhan's misconduct.    See id., citing Commonwealth v. Scott,

467 Mass. 336, 352-353 (2014).    We noted, however, "the

Commonwealth's failure to thoroughly investigate the matter of

Farak's misconduct," see Cotto, supra at 99, and indicated that

it was "imperative that the Commonwealth thoroughly investigate

the timing and scope of Farak's misconduct at the Amherst drug

lab in order to remove the cloud that has been cast over the

integrity of the work performed at that facility, which has

serious implications for the entire criminal justice system."

Id. at 115.    See Ware, 471 Mass. at 96.   We allowed the
                                                                    31


Commonwealth one month to decide whether to undertake an

investigation.   Cotto, supra.   In June, 2015, the Attorney

General's office notified the Superior Court in Hampden County

that it would do so.

    9.   Velis and Caldwell Reports.    Following this court's

remand and prior to the hearing before Judge Carey, the Attorney

General's office conducted its own investigation of the

situation at the Amherst lab.    In June, 2015, the Attorney

General appointed retired Judge Peter A. Velis as a special

assistant attorney general and independent investigator to work

with Assistant Attorney General Thomas A. Caldwell.    In August,

2015, the district attorney for the northwestern district

separately appointed retired Judge Thomas T. Merrigan as a

special assistant district attorney and independent investigator

for the northwestern district.    The two judges then consolidated

their investigation, which was focused on issues raised by Ryan.

Two State police investigators were assigned to assist the

judges with the investigation of allegations of misconduct by

State police officers and prosecutors assigned to the office of

the Attorney General.

    In September, 2015, the Attorney General's office also

undertook to examine the scope of Farak's misconduct and

initiated two grand jury investigations, in Hampshire and

Suffolk Counties, to hear evidence.    Caldwell was assigned to
                                                                  32


conduct the investigations.   Farak testified before the

Hampshire County grand jury, over three days, concerning her

extensive drug use, theft of standards and police-submitted

samples, tampering with other chemists' samples, and

manufacturing of crack cocaine at her workbench.8

     In November, 2015, Hanchett, Salem, and Pontes testified

before the Suffolk County grand jury concerning conditions at

the Amherst lab and their interactions with Farak.     The Attorney

General's office also reviewed and introduced more than 4,700

electronic mail messages that Caldwell had obtained from

multiple sources; the Amherst lab records; and Farak's bank

records, telephone records, and communications while being held

in a house of correction awaiting trial.

     On March 31, 2016, Judges Velis and Merrigan issued a

report which concluded,

          "After our thorough review of the investigative
     activities and their recommendations, we agree that there
     is no evidence of prosecutorial misconduct or obstruction
     of justice by the Assistant Attorney[s] General[] and
     [State police] officers in matters related to the Farak
     case."

On April 1, 2016, Caldwell submitted his completed report

(Caldwell Report) to Judge Carey, who had been assigned to the

matter after Judge Kinder was appointed to the Appeals Court.

     8 In September, 2015, after she had pleaded guilty to
tampering charges, Farak testified before the grand jury under a
grant of immunity for any additional charges, concerning the
timing and scope of her misconduct.
                                                                     33


The report summarized the information learned from the grand

jury investigations, and provided no recommendation on how to

proceed; the report concluded that "[t]he results of the

Commonwealth's investigation are now provided to the Court so

that the Court can determine how to proceed in the matters

before it" (footnote omitted).

       10.   Carey hearing.   In 2015, ten defendants who had been

convicted of drug offenses between May, 2006, and

September, 2014, based on substances that had been tested at the

Amherst lab filed renewed motions to dismiss, to withdraw guilty

pleas, or for new trials.     They asserted that they should be

awarded postconviction relief based on Farak's tampering; the

failure of the office of the Attorney General to disclose

exculpatory evidence and to conduct an adequate investigation in

2013 on the nature and extent of Farak's misconduct; and

inadequate conditions, policies, and procedures at the Amherst

lab.    The cases were consolidated and assigned to Judge Carey on

December 7, 2015.

       In December, 2016, Judge Carey conducted an evidentiary

hearing over six days at which Kaczmarek, Foster, Verner,

Mazzone, Ravitz, and Reardon testified.      Edward Bedrosian

(former first assistant attorney general), and Sheila Calkins

(former deputy attorney general) also testified.     In addition,

Judge Carey heard testimony from Ballou, Irwin, and Thomas of
                                                                   34


the State police; Flannery; Farak's attorney; former Amherst lab

employees Hanchett, Salem, and Pontes; Timothy Woods, an

employee of the State police crime laboratory in Sudbury, who

conducted some retesting of substances that originally had been

tested at the Amherst lab; and two laboratory quality experts,

Robert Powers and Heather Harris.   Although Farak did not

testify, Judge Carey reviewed her grand jury testimony from the

investigation by the office of the Attorney General.   Judge

Carey considered Farak's grand jury testimony to be "generally

candid," but he did not credit her testimony regarding the

reliability of her analysis or the extent of her addiction and

her use of police-submitted samples, given the evidence that she

had lied to her therapist in order to downplay her substance

abuse.   He did, however, credit other aspects of her testimony,

including her statement that she had not succeeded in forging

Hanchett's or Pontes's initials on evidence bags.

    On June 26, 2017, Judge Carey released a memorandum of

decision in which he found that (i)   Farak's misconduct,

beginning in 2004, "created a problem of systemic magnitude";

(ii) Foster and Kaczmarek exhibited "reprehensible" misconduct

in continually withholding the mental health records and

misleading Judge Kinder in a manner that constituted a fraud

upon the court; and (iii) there was "no evidence that a

comprehensive, adequate, or even reasonable investigation by any
                                                                  35


office or agent of the Commonwealth had been attempted,

concluded, or disclosed prior to issuance of the Caldwell

Report."   Judge Carey determined that evidence of deficiencies

at the Amherst lab was not a sufficient basis for postconviction

relief, but that the egregious misconduct by Farak, Foster, and

Kaczmarek irreparably harmed some defendants.

    Judge Carey did not call into question, however, any of the

analysis performed by the other Amherst lab employees; he

concluded that any postanalysis tampering by Farak did not have

a negative impact on the defendants and thus did not justify

postconviction relief.   He determined also that the misconduct

by the office of the Attorney General was limited to Foster and

Kaczmarek, whose "intentional and deceptive actions ensured that

justice would certainly be delayed, if not outright

denied, . . . violat[ing] their oaths as assistant attorneys

general and officers of the court."

    The judge therefore concluded that, "at least with respect

to selected drug lab defendants, the deliberate misconduct [of

Kaczmarek and Foster] was so egregious that presumptive

prejudice arises, so that dismissal with prejudice is the

appropriate prophylactic remedy to deter similar future

misconduct."   He limited the class of defendants entitled to

dismissal with prejudice to cases where (i) Farak had signed the

drug certificate; (ii) the defendants' had sought postconviction
                                                                    36


relief or discovery between January 19, 2013, and November 1,

2014, and their efforts had been unsuccessful; and (iii) the

defendants' motions had been denied because of the misleading

evidentiary record presented to Judge Kinder.    Judge Carey

indicated that the cases where defendants had filed motions to

withdraw guilty pleas would require a more individualized

factual inquiry to determine whether the defendant would have

acted differently if he or she had known of Farak's misconduct

at the time of the plea.9

     11.   Subsequent proceedings.   In September, 2017, the

petitioners filed a petition pursuant to G. L. c. 211, § 3, and

G. L. c. 231A, § 1, in the county court, seeking relief based on

Judge Carey's decision.     Specifically, the petitioners requested

dismissal with prejudice of all convictions "tainted by the

Commonwealth's misconduct."    They also asked the single justice

to order the Commonwealth "to comply with its legal and ethical

obligations to respond to this lab scandal and any future

systemic crises."

     Following a hearing on October 31, 2017, the single justice

issued an order on November 2, 2017, requiring the parties to

identify any cases in which there was agreement to vacate the

convictions and to dismiss the matters with prejudice.    The


     9 The respondents do not contest Judge Carey's factual
findings.
                                                                  37


district attorneys agreed to vacate more than 8,000 convictions

of individuals whom they classified as "Farak defendants," and

to dismiss those charges with prejudice.   According to the

district attorneys, the definition of "Farak defendants"

included any "defendants who pleaded guilty to a drug charge,

admitted to sufficient facts to warrant a finding of guilty on a

drug charge, or were found guilty of a drug charge in any case

in which Farak signed a drug certificate as an analyst between

August, 2004[,] and January, 2013, while she was employed at the

[Amherst lab], except for the so-called 'Ruffin defendants.'"10

At that point, there were approximately forty-five cases from

Berkshire and Bristol Counties that the district attorneys had

not agreed to dismiss; those cases subsequently have been

dismissed.

     On January 26, 2018, the single justice reserved and

reported the case to the full court, and ordered the parties to

address three questions:

          "1. Whether the defendants in some or all of the
     'third letter' cases are entitled to have their convictions
     vacated, and the drug charges against them dismissed with
     prejudice, given the undisputed misconduct of the assistant
     Attorneys General found by Judge Carey in Commonwealth vs.
     Erick Cotto, Hampden Sup. Ct., No. 2007-770 (June 26, 2017)
     (memorandum and order on postconviction motions), and given
     the conduct of the District Attorneys that the petitioners
     allege was improper.

     10"Ruffin defendants" are individuals who pleaded guilty
before receiving results of the drug analysis in their cases.
See Commonwealth v. Ruffin, 475 Mass. 1003, 1004 (2016).
                                                                 38



         "2. Whether the definition of 'Farak defendants'
    being employed by the District Attorneys in this case is
    too narrow; specifically, based on the material in the
    record of this case, whether the appropriate definition of
    the class should be expanded to include all defendants who
    pleaded guilty to a drug charge, admitted to sufficient
    facts on a drug charge, or were found guilty of a drug
    charge, if the alleged drugs were tested at the Amherst
    Laboratory during Farak's employment there, regardless [of]
    whether Farak was the analyst or signed the certificates in
    their cases.

         "3. Whether, as the petitioners request, the record
    in this case supports the court's adoption of additional
    prophylactic measures to address future cases involving
    widespread prosecutorial misconduct, and whether the court
    would adopt any such measures in this case."

    On April 5, 2018, the single justice vacated and dismissed

with prejudice all convictions that were identified by the

district attorneys and the Attorney General on or before March

30, 2018.

    Discussion.   We address each of the reported questions in

turn.

    1.   "Third letter" cases.   The first reported question asks

whether the defendants in "third letter" cases are entitled to

have their convictions vacated and dismissed with prejudice due

to prosecutorial misconduct.   Under the protocol established in

Bridgeman II in response to Dookhan's misconduct, "third letter"

cases are "cases that the District Attorneys intend to re-

prosecute if motions for new trial are allowed, and that they

represent can be prosecuted independently of any drug
                                                                   39


certificate signed by Farak, or related testimony."   See

Bridgeman II, 476 Mass. at 328.

    As stated, when the single justice reserved and reported

this case to the full court, there were approximately forty-five

"third letter" cases from Berkshire and Bristol Counties in

which Farak had signed the drug certificates and the district

attorneys had not agreed to dismiss the convictions with

prejudice.   Because those cases have now been dismissed, the

first reported question is moot.   See Lawyers' Committee for

Civil Rights & Economic Justice v. Court Administrator of the

Trial Court, 478 Mass. 1010, 1011 (2017) (upholding single

justice's dismissal of petition as moot where "no further

effective relief [could] be granted").

    2.   Definition of "Farak defendants."   The second reported

question asks whether the class of "Farak defendants" includes

"all defendants who pleaded guilty to a drug charge, admitted to

sufficient facts on a drug charge, or were found guilty of a

drug charge, if the alleged drugs were tested at the Amherst

Laboratory during Farak's employment there, regardless [of]

whether Farak was the analyst or signed the certificates in

their cases."

    a.   Bridgeman framework.   We confronted a similar challenge

after the discovery of Dookhan's misconduct at the Hinton lab.

The Dookhan petitioners twice asked this court to utilize its
                                                                   40


superintendence authority to vacate and dismiss all Dookhan

cases as a "global remedy."   See Bridgeman II, 476 Mass. at 321–

322; Bridgeman v. District Attorney for the Suffolk Dist., 471

Mass. 465, 487 (2015) (Bridgeman I).   The petitioners in those

cases argued that "the time and expense of proceeding on a case-

by-case basis [was] untenable," Bridgeman I, supra, and that "a

case-by-case adjudication of so many cases [was] 'doomed to

fail' given the limited resources of the Commonwealth's indigent

criminal defense system," so that "the only just and practical

alternative . . . [was] the global remedy," Bridgeman II, supra

at 314, 322.   The district attorneys maintained that "individual

case-by-case adjudication of motions for a new trial brought by

Dookhan defendants [was] both practical and fair."   Id. at 315.

    In considering how best to balance the rights of defendants

affected by governmental misconduct and society's interest in

administering justice, we focused on four fundamental principles

of our criminal justice system.   See Bridgeman II, 476 Mass. at

315–318.   See also Bridgeman I, 471 Mass. at 487, quoting Scott,

467 Mass. at 352 (declining to implement "global remedy," but

fashioning procedure intended to "account for the due process

rights of defendants, the integrity of the criminal justice

system, the efficient administration of justice in responding to

such potentially broad-ranging misconduct, and the myriad public

interests at stake").
                                                                     41


    "First, where there is egregious misconduct attributable to

the government in the investigation or prosecution of a criminal

case, the government bears the burden of taking reasonable steps

to remedy that misconduct."     Bridgeman II, 476 Mass. at 315.    We

similarly noted in Cotto, 471 Mass. at 112, that "[t]he

Commonwealth's obligation to conduct an investigation is

premised on a prosecutor's duty to learn of and disclose to a

defendant any exculpatory evidence that is held by agents of the

prosecution team, who include chemists working in State drug

laboratories. . . .    It is incumbent on the Commonwealth to

perform this duty in a timely fashion.    The burden of

ascertaining whether Farak's misconduct at the Amherst drug lab

has created a problem of systemic proportions is not one that

should be shouldered by defendants in drug cases."     (Quotations

and citations omitted.)

    Second, "relief from a conviction generally requires the

defendant to file a motion for a new trial."     See Bridgeman II,

476 Mass. at 316.     Such a motion is usually required because,

without it, "we cannot be sure that a defendant wishes to accept

the risk that the Commonwealth will retry the defendant rather

than issue a nolle prosequi."    Id. at 323.   The "uncertainty and

disruption inherent in being a defendant in a criminal trial"

should not be forced on anyone who does not desire to be

retried.   Id.
                                                                    42


    Third, "dismissal with prejudice 'is a remedy of last

resort,'" but may be available in certain limited circumstances.

Id. at 316, quoting Commonwealth v. Cronk, 396 Mass. 194, 198

(1985).    "Two parallel legal principles" balance "the rights of

defendants . . . against the necessity for preserving society's

interest in the administration of justice."     Cronk, supra at

198-199.   Under the first principle, "[w]here the prosecutor

fails to disclose evidence the defendant is entitled to receive

and the defendant is prejudiced by the failure to disclose, a

motion to dismiss should not be allowed absent a showing of

irremediable harm to the defendant's opportunity to obtain a

fair trial."   Id. at 198.   See Commonwealth v. Lam Hue To, 391

Mass. 301, 314 (1984) ("Such a drastic remedy would be

appropriate where failure to comply with discovery procedures

results in irremediable harm to a defendant that prevents the

possibility of a fair trial").    Alternatively, "prosecutorial

misconduct that is egregious, deliberate, and intentional, or

that results in a violation of constitutional rights may give

rise to presumptive prejudice . . . and the 'drastic remedy' of

dismissal of charges may become an appropriate remedy."     See

Cronk, supra at 198-199.     The latter theory should be narrowly

applied, and confined to situations where the misconduct has

"cast such doubt . . . as to poison the entire investigation,"

Commonwealth v. Hine, 393 Mass. 564, 571 (1984), and a "stronger
                                                                    43


deterrent" is warranted to prevent repetition of such

misconduct.   See Bridgeman II, 476 Mass. at 322; Commonwealth v.

Lewin, 405 Mass. 566, 587 (1989) ("The only reason to dismiss

criminal charges because of nonprejudicial but egregious police

misconduct would be to create a climate adverse to repetition of

that misconduct that would not otherwise exist"); Commonwealth

v. Manning, 373 Mass. 438, 444 (1977) ("The indictment itself is

so inextricably interwoven with the misconduct which preceded it

that the only appropriate remedy here is to dismiss the

indictment").

    Finally, "where large numbers of persons have been wronged,

the wrong must be remedied in a manner that is not only fair as

a matter of justice, but also timely and practical."    Bridgeman

II, 476 Mass. at 317.   "A remedy that is perfect in theory is

not perfect in fact if it would take too long to be

accomplished, or if the resources required to implement it would

overwhelm the limited resources available to the courts."     Id.

at 317-318.

    We stated in Bridgeman II, 476 Mass. at 322-323, that

"dismissal with prejudice for government misconduct is very

strong medicine . . . [that] should be prescribed only when the

government misconduct is so intentional and so egregious that a

new trial is not an adequate remedy."   Noting that Dookhan's

misconduct was not accompanied by misconduct by a prosecutor or
                                                                      44


an investigator, we ultimately determined that the stronger

deterrent of dismissal with prejudice was not required.        See id.

at 322.    Accordingly, we established the Bridgeman II protocol

to allow efficient case-by-case adjudication of the remaining

cases affected by Dookhan's misconduct.      Id. at 326.

     b.    Appropriate remedy.   The petitioners argue that the

very strong medicine of dismissal with prejudice is required

here.     We agree.   The government misconduct by Farak and the

assistant attorneys general was "so intentional and so

egregious" that harsher sanctions than the Bridgeman II protocol

are warranted.    See Bridgeman II, 476 Mass. at 322.      Indeed,

before the briefs were filed, the district attorneys had agreed

to bypass the Bridgeman II protocol and to dismiss with

prejudice all convictions based on drug certificates signed by

Farak.

     It is difficult, however, to determine the appropriate

scope of the dismissal remedy.     In Cronk, 396 Mass. at 199, we

cautioned that "[r]emedies for prosecutorial misconduct should

be tailored to the injury suffered and should not unnecessarily

infringe on competing interests."     See Commonwealth v. Carney,

458 Mass. 418, 427 (2010) (sanctions "should be limited to truly

remedial, and not punitive measures" [citation omitted]).        We

therefore must determine whether the class of defendants whose

cases are subject to dismissal with prejudice should include
                                                                     45


individuals whose convictions rest upon samples tested at the

Amherst lab by chemists other than Farak.

     The petitioners contend that all convictions based on drug

samples tested at the Amherst lab during Farak's tenure should

be vacated and dismissed with prejudice, regardless of whether

Farak signed the drug certificate.     They argue that the precise

scope of Farak's misconduct is "unknown (and at this point,

unknowable)," because of the Commonwealth's failure to conduct a

prompt and adequate investigation.11    They contend also that

dismissals with prejudice are "the only appropriate remedy" for

the egregious prosecutorial misconduct here, and that such

dismissals are "a necessary prophylactic in response to the

Commonwealth's transforming the courts into unwitting agents of

injustice."

     The sweeping extent of this proposed remedy, however, is

not supported by the record.   The only evidence of misconduct by

Farak between 2004 and 2009 is her theft of the methamphetamine

     11The petitioners contend also that the Attorney General's
office and the district attorneys deliberately impeded
defendants' appellate rights by failing to inform defendants of
the misconduct at the Amherst lab while the matter was being
litigated. In our determination of the appropriate remedies, we
have considered the full scope of the misconduct by the office
of the Attorney General. We discern no fault, however, in any
actions by the district attorneys and their offices. The
district attorneys properly turned over the evidence they
received to defendants whose convictions were called into
question by Farak's misconduct, and engaged in time-consuming
work promptly to identify and notify individuals whose cases
were affected by Farak's misconduct.
                                                                   46


oil standard.   There is no evidence to support a finding that

Farak's consumption of portions of the methamphetamine standard

affected other chemists' analyses of other controlled

substances.   Accordingly, the complete dismissal with prejudice

of all convictions based upon samples tested at the Amherst lab

during Farak's employment is not a sufficiently tailored remedy.

    The district attorneys would limit the class of "Farak

defendants" to the individuals whose convictions rested upon

samples tested by Farak herself, precisely those individuals

whose cases already have been vacated and dismissed with

prejudice.    The district attorneys reach their recommendation on

the basis of Judge Carey's findings that the integrity of the

analyses by other chemists was "not in question," and that

defendants who did not seek discovery or postconviction relief

were not "material[ly] connect[ed]" to the Attorney General's

office's egregious misconduct.

    It is undisputed that Farak tampered with other chemists'

samples, both before and after they had been tested.    By 2011,

Farak intentionally was manipulating information in the

inventory list stored on the lab's computer to assign herself

samples that involved drugs she wanted for her own use.    In

order to avoid detection of her theft of drugs before they had

been analyzed, she altered the gross weight on the drug receipt

before another chemist tested the sample, and then changed the
                                                                    47


weight back to the original number before law enforcement

officers retrieved the samples after testing.    Farak admitted

that, by the summer of 2012, she also was tampering with other

chemists' samples after the samples had been tested, by cutting

into sealed evidence bags to remove portions of the samples and

then resealing the remainder in pre-initialed evidence bags that

she had stolen from other chemists.    In addition, she regularly

replaced stolen drugs with counterfeit substances.

    We must remedy these forms of evidence tampering and cannot

limit relief only to those defendants where Farak signed the

drug certificate.     Any interference with samples that calls into

question the accuracy of the drug certificates or prevents later

retesting of the original substance diminishes the reliability

and integrity of the forensic testing at the Amherst lab, and

also reduces public confidence in other drug certificates from

other laboratories.    The district attorneys' proposal does not

go far enough to protect the rights of defendants whose

convictions rest upon samples that were tested at the Amherst

lab during the period of Farak's misconduct.

    The appropriate remedy therefore lies between dismissing

all cases relying on samples tested at the Amherst lab,

regardless of the chemist who performed the analysis, and

dismissing no cases where samples were tested by chemists other

than Farak.   The Attorney General's office suggests that,
                                                                  48


because Farak testified that she tampered with other chemists'

samples in mid-June, 2012, any defendant whose conviction rests

upon evidence tested at the Amherst lab by any chemist between

June, 2012, and January, 2013, should be eligible to have the

conviction vacated and dismissed pursuant to the Bridgeman II

protocol.   Although the Attorney General's office believes that

Farak tampered with only a small number of samples during that

period, Farak herself was unable to identify which samples she

had misused; the reliability of all samples tested during that

time period therefore is compromised.

    Before the grand jury, Farak testified that her theft of

other chemists' samples was limited to a few cases.   In response

to a question from the assistant district attorney, "At any

point . . . . did you ever manipulate or take samples from other

chemists at the laboratory?" she responded, "Yes."    She then

detailed a few specific instances of having removed amounts from

other chemists' samples, and said that she would do so generally

if she was able to obtain an open, signed plastic bag with other

chemists' initials that the chemists used to reseal the samples

after they had completed their testing.   She explained that she

would try not to use others' samples unless she had no "other

way" to obtain crack cocaine.

    "If it was either me taking from my own evidence I analyzed
    or other people's, I would definitely do my own. That was
    one of the lines I had thought I would never cross. I
                                                                   49


     wouldn't tamper with evidence, that I wouldn't smoke crack
     and then wouldn't touch other people's work due to how it
     could look."

This testimony was consistent with Farak's proffer.     "Farak took

from approximately six of Hanchett's samples; including a 24.5

gram crack cocaine sample from Pittsfield and a 3.5 gram crack

cocaine sample from Northampton.   Farak used Hanchett's

initialed evidence bags to repackage the samples.     Farak took

from one of Pontes' samples; specifically 30 grams of 73 grams

of powder cocaine from a Springfield case.   Farak replaced the

cocaine with a counterfeit substance (baking soda) and made

crack cocaine with it."

     There are two problems, however, with the assumption that

Farak did not steal from her colleagues prior to the summer of

2012.   First, Judge Carey did not credit those portions of her

testimony that were at odds with what she had reported to her

therapists about her addiction and her theft of police-submitted

samples.   In 2009, Farak told her therapist that she had

obtained drugs from the lab by taking portions of samples that

had been sent to the lab to be tested.   Farak later testified

that she was totally controlled by her drug addiction, and that,

in tampering with police-submitted samples, she had begun

crossing lines that she never thought she would cross.

     Second, Farak's testimony was not supported by

postconviction discovery produced by the Attorney General's
                                                                  50


office as part of its investigation.   The Attorney General was

unable to corroborate Farak's testimony before the grand jury,

and as part of her proffer, as to specific samples where she

said that she had taken portions of a sample that had been

assigned to another chemist.

    Farak testified that she had skimmed from the samples in

three particular cases where she remembered the specific amounts

involved.   She testified in detail as to the amounts that she

had removed from those samples.    One was a case in which the

Springfield police department submitted a sample of seventy-

three grams of powder cocaine.    The sample was assigned to

Pontes.   The second was a case submitted by the Northampton

police department involving 3.5 grams of crack cocaine that had

been assigned to Hanchett, and the third was a sample of 24.5

grams of crack cocaine submitted by the Pittsfield police

department that had been assigned to Hanchett.    The database

provided to the office of the Attorney General of all samples

tested at the Amherst Lab did not directly match any of these

cases, and the office of the Attorney General was unable to

confirm the existence of any such samples.    Thus, the record

indicates that Farak's testimony as to the extent of her

misconduct was, at least at times, unreliable.

    It is our responsibility, in the exercise of this court's

supervisory authority, to craft a remedy suitable to the
                                                                    51


available, reliable evidence.     As far as can be determined on

this record, Farak's drug use spiraled out of control at the

beginning of 2009, when she nearly depleted the jar of

methamphetamine oil and started to search for other sources of

drugs to satisfy her addiction.     Around that time, Farak began

manipulating the computer system.    She also started stealing

from police-submitted samples before and after they were tested,

and from samples that had been assigned to other chemists.

    In light of the extensive and indeterminable nature of

Farak's misuse of police samples and the lab's standards, a much

more inclusive remedy is required than that suggested by either

the district attorneys or the Attorney General.     In order to

protect the integrity of the criminal justice system, and to

afford relief to defendants whose convictions may have rested

upon tampered evidence, we conclude that, in addition to those

already dismissed where Farak signed the drug certificate, all

convictions based on evidence that was tested at the Amherst lab

on or after January 1, 2009, regardless of the chemist who

signed the drug certificate, and all methamphetamine convictions

where the drugs were tested during Farak's tenure at the Amherst

lab, must be vacated and dismissed.     Accordingly, the class of

"Farak defendants" includes the defendants in all of these

cases.
                                                                    52


     3.    Prophylactic measures.   Finally, we turn to the third

reported question:    whether the court should adopt additional

prophylactic measures to address any future cases involving

prosecutorial misconduct.

     The petitioners argue that the court should issue three

standing orders to "create a better mechanism for addressing

government misconduct [than future lawsuits] and ensur[e]

disclosure of exculpatory evidence."     The petitioners request

the court to issue a standing Brady order12 requiring specific

disclosures, and setting forth specific disclosure deadlines.

The Attorney General indorses this request; the district

attorneys argue that Mass. R. Crim. P. 14, as appearing in 442

Mass. 1518 (2004), and the rules of professional conduct

adequately address prosecutors' disclosure obligations.     The

petitioners suggest that standing Bridgeman II and Cotto orders,

which would provide a procedure by which district attorneys

could report and remedy government misconduct, would be

appropriate so that any future misconduct of this nature could

be remedied without protracted litigation.13    The district


     12   See Brady v. Maryland, 373 U.S. 83, 87 (1963).

     13The petitioners request that the court fine the Attorney
General's office to punish its past misconduct adequately, and
to create an incentive for the Attorney General's office to put
into place meaningful controls to monitor, detect, and disclose
future misconduct. The Attorney General does not dispute that
the court has the authority, pursuant to Mass. R. Crim. P.
                                                                    53


attorneys argue that the Bridgeman II and Cotto protocols would

be "one size fits all" attempts to resolve unknown future

misconduct, and that it would be preferable to tailor responses

to any particular case, should one arise.

    a.   Brady order.   A prosecutor's core duty is "to

administer justice fairly."    Commonwealth v. Tucceri, 412 Mass.

401, 408 (1992).   To fulfil that duty, a prosecutor is required

to turn over exculpatory evidence to a defendant without regard

to its impact on the case.    See generally Brady v. Maryland,

373 U.S. 83, 87 (1963) (explaining that failure to disclose

"evidence favorable to an accused . . . [that] is material

either to guilt or to punishment" is violation of due process).

Litigation strategy plays no role in this process.


14 (c) (1), to impose remedial monetary sanctions for a
discovery violation. See Commonwealth v. Frith, 458 Mass. 434,
439 (2010) (sanctions may be imposed under Mass. R. Crim. P.
14 [c] [1] for failure to comply with discovery obligations);
Commonwealth v. Carney, 458 Mass. 418, 427 (2010) (rule
14 [c] [1] sanctions should be "tailored appropriately to cure
any prejudice resulting from a party's noncompliance" with its
discovery obligations).

     The Attorney General argues, however, that monetary
sanctions are unnecessary because the office of the Attorney
General has taken steps to avoid future misconduct, including
revising existing policies and procedures. We do not agree.
Based on our experience in Bridgeman II, we are aware of the
substantial costs associated with providing adequate notice to
thousands of individuals whose cases will be dismissed,
including hiring outside vendors to research last known
addresses. Because the office of the Attorney General is
responsible for the prosecutorial misconduct, it shall bear the
entire financial burden associated with notifying those affected
defendants that their cases have been dismissed.
                                                                   54


    Under our rules of professional conduct, a prosecutor is

required to "make timely disclosure to the defense of all

evidence or information known to the prosecutor that tends to

negate the guilt of the accused or mitigate the offense."     Mass.

R. Prof. C. 3.8 (d), as appearing in 473 Mass. 1301 (2016).     See

Mass. R. Prof. C. 3.4 (a), as appearing in 471 Mass. 1425 (2015)

(attorney prohibited from unlawfully obstructing another party's

access to evidence or from concealing evidence); Mass. R. Prof.

C. 3.8 (g), as appearing in 473 Mass. 1301 (2016) (prosecutor

may not avoid pursuit of exculpatory evidence); Mass. R. Prof.

C. 3.8 (i), as appearing in 473 Mass. 1301 (2016)

(postconviction disclosure of exculpatory evidence).

    The due process clauses of the Federal Constitution and the

Massachusetts Declaration of Rights require that the

Commonwealth disclose to a defendant material, exculpatory

evidence in its possession or control.   See United States v.

Agurs, 427 U.S. 97, 106-107 (1976); art. 12 of the Declaration

of Rights of the Massachusetts Constitution ("every subject

shall have a right to produce all proofs, that may be favorable

to him"); Commonwealth v. Bing Sial Liang, 434 Mass. 131, 135

(2001).   "A prosecution that withholds evidence . . . which, if

made available, would tend to exculpate [a defendant] or reduce

the penalty helps shape a trial that bears heavily on the

defendant.   That casts the prosecutor in the role of an
                                                                 55


architect of a proceeding that does not comport with standards

of justice . . . ."   Brady, 373 U.S. at 87.

     Under our rules of criminal procedure, one of the nine

categories of "automatic discovery" that the Commonwealth must

provide to the defendant at or before the pretrial conference is

"[a]ny facts of an exculpatory nature."14   See Mass. R. Crim.

P. 14 (a) (1) (A) (iii), as amended, 444 Mass. 1501 (2005); E.B.

Cypher, Criminal Practice and Procedure § 26:8 (4th ed. 2014).15

Rule 14 also requires a prosecutor to disclose certain specific

categories of potentially exculpatory evidence, including all

statements made by the defendant, "all promises, rewards or

inducements made to witnesses the party intends to present at

trial," and "all statements made in the presence of or by an

identifying witness that are relevant to the issue of identity

or to the fairness or accuracy of the identification




     14At the pretrial conference, the prosecutor and defendant
are to "consider such matters as will promote a fair . . .
disposition of the case," including discovery. See Mass. R.
Crim. P. 11 (a), as appearing in 442 Mass. 1509 (2004). We
emphasize that judges may choose to be active participants,
where necessary, to ensure compliance with disclosure
obligations.

     15Rule 14 (a) of the Massachusetts Rules of Criminal
Procedure incorporates the constitutional disclosure
requirements of Brady. See Cassidy, Plea Bargaining, Discovery,
and the Intractable Problem of Impeachment Disclosures, 64 Vand.
L. Rev. 1429, 1481 (2011). See also Reporter's Notes to Mass.
R. Crim. P. 14 (a), Massachusetts Rules of Court, Rules of
Criminal Procedure (Thomson Reuters 2018).
                                                                 56


procedures."   See Mass. R. Crim. P. 14 (a) (1) (A) (i), (viii),

(ix).

    We take this opportunity to reexamine our rules of criminal

procedure to determine whether they should be modified to better

facilitate the timely disclosure of exculpatory evidence, and

refer the question of an amendment of rule 14 to the court's

standing advisory committee on the rules of criminal procedure.

    Rule 14 broadly defines exculpatory evidence as "[a]ny

facts of an exculpatory nature" (emphasis added).     Mass. R.

Crim. P. 14 (a) (1) (A) (iii).   See Commonwealth v. Hill, 432

Mass. 704, 715–716 (2000) (impeachment evidence is exculpatory);

Commonwealth v. Ellison, 376 Mass. 1, 22 n.9 (1978)

("'exculpatory' is not a technical term meaning alibi or other

complete proof of innocence, but simply imports evidence which

tends to negate the guilt of the accused . . . or, stated

affirmatively, supporting the innocence of the defendant"

[quotations omitted]).   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.   See Mass. R. Crim. P. 14 (a) (1) (A) (i), (viii),

(ix) (Commonwealth must disclose defendant's statements,

"promises, rewards or inducements" given to prosecution
                                                                  57


witnesses, and statements made during and about identification

procedures).

     To provide more detailed guidance to prosecutors, we ask

the standing advisory committee to draft a proposed Brady

checklist to clarify the definition of exculpatory evidence.     A

practice indorsed by the American Bar Association,16 a Brady

checklist establishes a more thorough baseline of the most

likely sources and types of exculpatory information for

prosecutors to consider.   Brady checklists have been added to

the local rules in many Federal District Courts, in some

instances in response to prosecutorial misconduct.     See

generally Sullivan, Enforcing Compliance with Constitutionally-

Required Disclosures:   A Proposed Rule, 2016 Cardozo L. Rev. de

novo 138 (2016) (describing author's experience as trial judge

in case where sitting United States Senator was convicted but

Federal prosecutors concealed evidence favorable to defendant,

and discussing local rules that incorporate requirements of

Brady).   See also Rule 26.2 of the Local Rules of the United

States District Court for the Northern District of Florida (eff.

Nov. 24, 2015); Rule 88.10 of the Local Rules of the United

States District Court for the Southern District of Florida (rev.

Dec. 1, 2017); Yaroshefsky, Prosecutorial Disclosure

     16See American Bar Association, Resolution (rev. 2011),
http://www.abajournal.com/files/104A_Revised_2011.pdf
[https://perma.cc/5T2D-2DCR].
                                                                    58


Obligations, 62 Hastings L.J. 1321, 1327-1328, 1346 (2011)

(describing American Bar Association Criminal Justice Standards

governing "Disclosure of Evidence by the Prosecutor," as well as

indorsing use of Brady checklists).

    No checklist can exhaust all potential sources of

exculpatory evidence.   It is crucial, therefore, that the

proposed amendment to rule 14 make clear that the potential

universe of exculpatory evidence includes, but is not limited

to, the types of evidence included in the checklist.    See

generally Jones, Here Comes the Judge:    A Model for Judicial

Oversight and Regulation of the Brady Disclosure Duty, 46

Hofstra L. Rev. 87, 113–114 (2018).    See also Sullivan, supra at

148-149; Rule 116.2 of the Local Rules of the United States

District Court for the District of Massachusetts (eff. June 1,

2018).    The committee should consider whether the categories

used in the Federal District Courts would be useful, and also

should consider whether any other categories would help

facilitate the disclosure of Brady materials.

    We emphasize, in addition, that where a prosecutor is

unsure whether exculpatory information should be disclosed, due

to a concern regarding privilege or work product, or for any

other reason, the prosecutor must file a motion for a protective

order and must present the information for a judge to review in

camera.   See Mass. R. Crim. P. 14 (a) (6).   The judge will then
                                                                       59


decide whether, and under what conditions, the information must

be disclosed.   Id.   Absent a protective order, no prosecutor,

whether in the office of the Attorney General or in the office

of a district attorney, has the authority to decline to disclose

exculpatory information.

    b.   Bridgeman II and Cotto orders.      The petitioners argue

that the court should adopt standing orders based on the

procedures formulated in Bridgeman II and Cotto.      A Bridgeman II

order would require that a prosecutor who knew, or had reason to

know, that misconduct had occurred in a particular case would

have ninety days to notify the Chief Justice of the Trial Court

and the Committee for Public Counsel Services and to provide

them with a list of cases affected by the misconduct.      See

Bridgeman II, 476 Mass. at 328.     The district attorneys then

would have the burden of establishing, for any case that they

did not agree to dismiss, that they had untainted evidence to

support the conviction.    Id.   A Cotto order would require a

government attorney who knows that attorney misconduct affected

a criminal case to notify the Chief Justice of the Trial Court,

the Committee for Public Counsel Services, and the Office of Bar

Counsel within thirty days.      See Cotto, 471 Mass. at 114.    The

petitioners argue that, when misconduct occurs, a lawsuit should

not be required in order to initiate these protocols.      The

Attorney General agrees with the petitioners that the requested
                                                                    60


standing orders should issue.    The district attorneys contend,

however, that such standing orders do not take into

consideration that the Bridgeman II protocol placed the burden

on the district attorneys, in part out of necessity, because of

the need to adjudicate 20,000 convictions.    The district

attorneys note also that such standing orders would be

repetitive of existing professional and ethical obligations for

attorneys in the Commonwealth.

    In fashioning the remedy in Bridgeman II, we took into

account the scope of the misconduct and the number of

convictions implicated by the misconduct.    See Bridgeman II, 476

Mass. at 317 ("where large numbers of persons have been wronged,

the wrong must be remedied in a manner that is not only fair as

a matter of justice, but also timely and practical").     While we

do not "expect defendants to bear the burden of a systemic

lapse," id., the balance of equities will not always favor a

departure from the general principle that "relief from a

conviction generally requires the defendant to file a motion for

a new trial" (citation omitted).    See id. at 316.   If similar,

widespread abuse does come to light in the future, the

appropriate remedy must be complete, and it must correspond to

the scope of the misconduct.    A court reviewing that misconduct

in the first instance is best positioned to determine the remedy
                                                                 61


appropriate to a particular case.   We therefore decline to adopt

standing Bridgeman II and Cotto orders.

    Conclusion.   We answer the reported questions as follows:

     1. The question is moot, as there are no remaining "third
letter" defendants.

     2. The class of "Farak defendants" includes all defendants
who pleaded guilty to a drug charge, admitted to sufficient
facts on a drug charge, or were found guilty of a drug charge,
where (i) Farak signed the certificate of analysis; (ii) the
conviction was based on methamphetamine and the drugs were
tested during Farak's tenure at the Amherst lab; or (iii) the
drugs were tested at the Amherst lab on or after January 1,
2009, and through January 18, 2013, regardless of who signed the
certificate of analysis.

     3. Prophylactic measures are appropriate based on the
record in this case. We recommend that this court's standing
advisory committee on the rules of criminal procedure propose
amendments to Rule 14 of the Massachusetts Rules of Criminal
Procedure to include a Brady checklist and any other
modifications the committee believes would be beneficial,
consistent with this opinion.

    The matter is remanded to the county court for entry of a

declaratory judgment, as set forth in this opinion, vacating and

dismissing the drug convictions of all "Farak defendants," as

defined herein, and for further proceedings consistent with this

opinion.

                                    So ordered.
