Defense Bar Lauds Rule 14 Review in Wake of Farak

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

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

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

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

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

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