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1 THE LAW OFFICES OF JOSEPH D. BERNARD, P.C. JOSEPH D. BERNARD, ESQ. ERICA M. BRUNO, ESQ. ONE MONARCH PLACE, SUITE 1100 SPRINGFIELD, MA TELEPHONE: ( FAX ( SENT VIA ELECTRONIC MAIL: ; August 19, 2017 Ms. Ann Dawley First Assistant Clerk Magistrate 1 Lowell Street Peabody, MA Re: Commonwealth v. Evando Ananias and Others Docket No.: 1248CR1075 and others Dear Clerk Dawley, Enclosed for filing, please find a copy of the Defendants Motion to Compel and Impose Sanctions along with a supporting Memorandum of Law, Affidavit and Exhibits. Should you have any questions or concerns, please do not hesitate to contact our office. Sincerely, Attorney Joseph D. Bernard Encl.

2 COMMONWEALTH OF MASSACHUSETTS MIDDLESEX, ss. CONCORD DISTRICT COURT DOCKET NO. 1248CR1075 AND OTHERS COMMONWEALTH OF MASSACHUSETTS v. EVANDO ANANIAS AND OTHERS MOTION TO COMPEL AND IMPOSE SANCTIONS NOW COME the consolidated Defendants in the above-entitled action, and hereby move this Honorable court to compel the Commonwealth to produce withheld worksheets which contain exculpatory Brady material and impose significant sanctions against the Commonwealth. Brady v. Maryland, 373 U.S. 83, 87 (1963. Further, order the immediate preservation of any and all withheld worksheets and related documents as well. The Commonwealth has previously submitted discovery to the consolidated Defendants and, upon review of this documentation, it has become evident that a significant number of worksheets which hold exculpatory information have not been provided to defense counsel. The Commonwealth s failure to produce these withheld worksheets during discovery is a direct violation of this Court s Order compelling the Commonwealth to produce all worksheets on March 2, The consolidated Defendants further move this Honorable Court to order the immediate preservation of any and all withheld worksheets. See Commonwealth v. Olszewski, 401 Mass. 749, 519 N.E.2d 587 (1988; Commonwealth v. Gliniewicz, 398 Mass. 744, 500 N.E.2d 1324 (1986. The Consolidated Defendants point the Court s attention to a supporting Affidavit discussing the discovery received that specifically indicates that the Office of Alcohol Testing ( OAT withheld worksheets from the consolidated Defendants. The consolidated Defendants also note that OAT has possession or knowledge of the withheld worksheets and the government consciously chose not to provide this information. The misconduct warrants dismissal of the all the defendant's impacted by the misconduct as well as fees and costs. Commonwealth v. Lam

3 Hue To, 391 Mass. 301, 310 (1984. motion. WHEREFORE, the consolidated Defendants respectfully request this Court to grant their Respectfully submitted: Date: August 19, 2017 /s/ Joseph D. Bernard The Law Office of Joseph D. Bernard, PC One Monarch Place, Suite 1100 Springfield, MA ( BBO#:

4 COMMONWEALTH OF MASSACHUSETTS MIDDLESEX, ss. CONCORD DISTRICT COURT DOCKET NO. 1248CR1075 AND OTHERS COMMONWEALTH OF MASSACHUSETTS v. EVANDO ANANIAS AND OTHERS MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT S MOTION TO COMPEL AND IMPOSE SANCTIONS The consolidated Defendants request that this Honorable Court compel the Commonwealth to produce worksheets containing exculpatory Brady material that have been withheld in direct violation of this court s order, ( see Exhibit B. Further, the consolidate defendants move that the court find that the misconduct warrants dismissal of the all the defendant's impacted by the misconduct as well as fees and costs. Commonwealth v. Lam Hue To, 391 Mass. 301 (1984. In addition it is imperative that the court order the immediate preservation of any and all withheld worksheets. See Commonwealth v. Olszewski, 401 Mass. 749, 519 N.E.2d 587 (1988; Commonwealth v. Gliniewicz, 398 Mass. 744, 500 N.E.2d 1324 (1986. It has become evident that a significant number of worksheets which hold exculpatory information have not been provided to defense counsel. The exculpatory worksheets exist and have deliberately not been produced despite the order of the court. The withheld worksheets were discovered by comparing the transactions in the Office of Alcohol Testing ( OAT 9510 database with worksheets that were provided by the Commonwealth in the Ananias discovery. Through the Ananias discovery, the defendants received 1972 worksheets pursuant to the Court s order on March 2, See Exhibit B. After the hearing, despite representations from OAT to the contrary the consolidated defendants believed there to be more information and made subsequent Freedom of Information Act ( FOIA. Additional information was provided and by cross-referencing the data provided through FOIA requests and the Ananias discovery, the

5 consolidated Defendants were able to obtain the date, time and serial number of every machine which revealed every calibration check and verification step, including, but limited to the those that eventually lead to a successful certification. During the cross-reference of data, it was was discovered that OAT failed to provide all worksheets as the Court had ordered. In fact, OAT conducted over four hundred (400 calibration checks during various certification processes that were never reported to this Court or the citizen s affected. In other words, the consolidated Defendants identified over four hundred (400 occasions where OAT performed cal check and/or a verification step on a date where there was no corresponding worksheet provided. Every time a "cal check" and or verification step is conducted, OAT is attempting to calibrate the machine and a worksheet is created and filled out by a chemist. When the data illustrates that a calibration was performed on a particular date, followed by a series of verification steps of different wet and dry standards, those electronic records should have a corresponding worksheet that shows the initials of the chemist who performed the steps. The cross-referenced data contains the name of the chemist, but the OAT never provided the corresponding worksheet with matching the initials. Virtually all (89% -383 out of 431 of the of the withheld worksheets provide exculpatory Brad y material. Brady v. Maryland, 373 U.S. 83, 87 (1963. Where virtually all of the exculpatory worksheets were withheld, and virtually all of the inculpatory worksheets were produced, it is difficult to imagine how this result could be obtained without calculated and intentional actions on the part of the OAT who were the agents for the Commonwealth that carried out the work of producing the worksheets. The intentional withholding of exculpatory materials was not a single act, but a series of calculated actions designed to prevent the receipt of discovery ordered by this Court. Furthermore, during a hearing before Judge Michael Brennan on August 2, 2017, Daniel Renczkowski, a chemist from OAT, confirmed that worksheets are created when a chemist performs a cal check with a series of verification steps. He testified that any time a chemist

6 performs a cal check with a series of verification steps, it signals that a calibration/certification is underway and the chemist begins with the creation of a worksheet. Daniel Renczckowski confirmed the existence of these undisclosed worksheets. Upon this confirmation, the court recessed for lunch and ordered OAT to produce the undisclosed problematic worksheets that accompanied the alleged successful calibration. The three (3 worksheets produced at the hearing before Judge Michael Brennan illustrated unsuccessful attempts to calibrate the machine. Hence, there is ample evidence that these worksheets exist, but were not provided pursuant to this Court s order. It is likely that all these withheld worksheets contain exculpatory information illustrating that the machine at issue had calibration problems. Nearly two years ago on October 5, 2015 among other things, the consolidated Defendants sought documentation of the certification process which provides instruction to the OAT employees and evidence that the certification is being performed in a scientifically reliable manner. (Oct. 5, 2015 Hr g on Omnibus Discovery Mot. at 64. Defense counsel explained in detail why this request for production was crucial: [O]ne of the important things is whether there exist[] protocols within OAT as to how these periodic tests and annual certifications [are performed]. So when a machine is run through a periodic test or given an annual certification, OAT, [the] controlling government agency that directs and trains and implements this machine, must have some kind of written instructions to these analysts telling them this is how you annually certify a machine. [T]here s got to be a protocol behind that certification process. (Id. at 64, 65, 66. The Commonwealth objected, but the Court ordered all the documentation of the certification process. Thousands of documents were provided none of which included the worksheets evidencing the failed calibration process. After review of the thousands of documents the consolidated defendant's believed OAT had additional documentation that it did not provide pursuant to the court s order. Recognizing the significance of the certification process to the reliability of the breath test results the consolidated

7 Defendant s on February 19, 2016 moved for additional discovery, including, but not limited to discovery relating to annual certification. In its pleadings the defendants informed the Court: This Court ordered that OAT produce "Documentation of the certification process, which provides instructions to the OAT employee performing the certification." The Commonwealth produced a 21 page Calibration procedure written in September of 2014, and thus did not provide any procedures prior to September By supplying only the September 2014 version the defendants do not have any information regarding the protocol for the calibrations performed for the 9510 between June 2011 and September Being that a crucial component of the defense's argument involves an appraisal as to whether the procedures and protocols were adhered to, and that the resulting discovery does not allow for analysis of more than three years worth of data, this order fails to provide adequate information for the Defendants. (Mot. for Reconsideration of Omnibus Discov. Mot., Feb. 19, 2016, at 4, Section II On March 2, 2016 a hearing addressing the missing discovery was held. Again the Commonwealth objected and during the hearing Kerry Collins, counsel for the State Police Crime Lab (which oversees OAT, represented under oath to the Court that the worksheets were a crucial component to the certification process. During the hearing OAT opposed and objected to producing any the additional worksheets. It is bewildering why the Office of Alcohol Testing was so secretive regarding the process of certifying the breath test machines. During the March 2, 2016 hearing in response to questions from the court regarding additional protocols Ms. Collins again emphasized the the only written instructions used to calibrate the 9510 machines were the various worksheets used by technicians to record the results of annual certification tests. She emphasised the importance of the worksheets over and over. Collins Ltr., Mar. 1, 2016, at 6 (stating that prior to 2014, the worksheets used during calibration tests were the protocol ; Hr g on Mots. to Reconsider, Mar. 2, 2016, at 66 ( MS. COLLINS:

8 Well, there s no written protocol. The worksheets worked as the protocol. ; id. at ( So if Melissa [O Meara] were testifying here today, she would testify, because I asked her about that and -- I said well where are these protocols that they re asking for and the response was, the worksheet, itself, was the protocol.; id. at 79 ( MR. BERNARD: I don t know if the letter specifically states it, but I ve heard a couple times now there is no written protocol. THE COURT: She pretty much said it in the letter, there was no written protocol. MS. COLLINS: It s the worksheets that are the protocol. COURT:... So, right. I mean, so there you go. It s an issue maybe you ll drive a bus through, I don t know, see how it plays out. (emphasis added. Over OAT s objection the Court ordered production of additional worksheets and the Commonwealth produced additional worksheets evidencing only successful calibration/certifications of the breath testing machines. The most troubling aspect is that neither OAT nor the Commonwealth revealed the existence of worksheets identifying all the illustrated unsuccessful attempts to calibrate the machine. During the January 2017 ten day hearing many issues including the vulnerabilities in OAT s certification process were explored. Eight experts testified for the Commonwealth, including four Draeger employees and representatives - none of whom is a Massachusetts residents. Fact and expert witnesses testified as well. The consolidated proceedings were intended to address, and resolve, all issues concerning the scientific reliability and accuracy of breath test results from 9510 machines. OAT made a conscious and calculated decision not to provide these worksheets as well as other discovery material before the hearing began. Cross examination of the Commonwealth s witnesses and direct examination of the defendant s witness was conducted without knowledge of all the exculpatory worksheets evidencing over 400 failures. The certification process was a central concern in the consolidated litigation and whether annual testing conducted by OAT to calibrate and certify the performance of the 9510 machines (frequently referred to as annual certification was scientifically reliable enough, and sufficient enough, to ensure that 9510 machines would give accurate BT results when used in the field with a Massachusetts citizen. One of Draeger s representatives, Burkhard Stock, testified that if an instrument is not calibrated correctly annually, it will not work in the field.

9 Although an extreme sanction, dismissal (with fees and costs is appropriate where, as here, there has been a pattern of egregious misconduct and there is prejudice. See Commonwealth v. Cinelli, 389 Mass. 197, 210 (1983; Commonwealth v. Carney, 458 Mass. 418, 427 (2010. The egregious misconduct is set out above. This was not merely negligence or poor judgment. Despite orders from this court and the need for transparency crucial exculpatory evidence was not produced. There is ample evidence of reckless disregard for the Court s orders that OAT intentionally and repeatedly deceived defendants and the Court. See Commonwealth v. Sanford, 460 Mass. 441, 450 (2011 (violation of discovery order that is intentional, knowing, or in reckless disregard of its directives constitutes misconduct more culpable than mere negligence and thus requires special scrutiny. The prejudice is clear. At a minimum, all consolidated defendants (possibly thousands of others were deprived of their ability to challenge the scientific reliability of calibrating 9510 machines using the described worksheets. They were deprived of the opportunity to seek additional discovery of documents relating to these worksheets (such as notes, s, and evidence relevant to the process of revision, elicit additional testimony from their expert Janine Arvizu, and prepare additional cross examination of multiple Commonwealth witnesses - including four Commonwealth witnesses from Draeger, the German manufacturer, who reside outside the jurisdiction (indeed, outside the country and cannot reasonably be summonsed. The length and breadth of the misconduct over the course of nearly a year, corroborates the existence of prejudice. The specter of further discovery and analysis in the consolidated litigation - additional digging by consolidated defendants to expose OAT s lack of internal scientific rigor and the basic vulnerability in [OAT s] protocol[s] - drove OAT s decision to deceive the Court repeatedly about the existence and importance of draft protocols. See Commonwealth v. Viverito, 422 Mass. 228, 230 (1996 (misconduct that is egregious, deliberate, and intentional may give rise to presumptive prejudice, and in such instances, dismissal may become an appropriate remedy. Hence, dismissal and imposition of cost and fees is warranted. If dismissal is not granted, exclusion of the BT results with costs and fees is warranted, for the reasons stated above. See Commonwealth v. Frith, 458 Mass. 434, 440 (2010 (discussing court s authority to enter tailored sanctions for discovery violations, including

10 exclusion in cases of bad faith and prejudice. Exclusion would not deprive the Commonwealth of the ability to go forward on this case, as it may still avail itself of the investigating and arresting officers observations and statements by the defendant. For these reasons, the consolidated Defendants request that this Honorable Court allow its motion to compel the withheld worksheets, find that the misconduct warrants dismissal of the all the defendant's impacted by the misconduct as well as assess fees and costs. Commonwealth v. Lam Hue To, 391 Mass. 301, 310 (1984. Further, the defendants request this court to order the immediate preservation of any and all withheld worksheets. Respectfully submitted: Date: August 19, 2017 /s/ Joseph D. Bernard The Law Office of Joseph D. Bernard, PC One Monarch Place, Suite 1100 Springfield, MA ( BBO#:

11 COMMONWEALTH OF MASSACHUSETTS MIDDLESEX, ss. CONCORD DISTRICT COURT DOCKET NO. 1248CR1075 AND OTHERS COMMONWEALTH OF MASSACHUSETTS v. EVANDO ANANIAS AND OTHERS CERTIFICATE OF SERVICE I hereby certify that I ed a true and accurate copy of the Defendants Motion to Compel and Preserve Evidence with a supporting Affidavit and Exhibits attached herein, to the five lead attorneys for the prosecution on the date hereof. 1. ADA Cyrus Chung cyrus.chung@state.ma.us 2. ADA Richard Linehan richard.linehan@state.ma.us 3. ADA Laura Miller laura.s.miller@state.ma.us 4. ADA Michael Sheehan michael.f.sheehan@state.ma.us 5. ADA Casey Silvia casey.silvia@state.ma.us Date: August 19, 2017 /s/ Joseph D. Bernard The Law Offices of Joseph D. Bernard, PC One Monarch Place, Suite 1100 Springfield, MA ( BBO#: