Tag Archives: Appeals

MBA Recognizes CPCS Attorney With 2017 Access to Justice Defender Award

On May 4, 2017, Public Defender Division Staff Attorney Rebecca Jacobstein received the Massachusetts Bar Association’s 2017 Access to Justice Defender Award for her  work on behalf of clients affected by the misconduct of a state drug lab chemist in Western Massachusetts.

Rebecca and her husband and mother were present at the MBA Annual Dinner to receive the Award.

Congratulations Rebecca.  Thank you for the work you do for our clients.

You can listen to a podcast of Rebecca discussing her work on the fallout from the drug lab scandal HERE.

Here is a photograph of Rebecca receiving the award from MBA President Joseph Catalano.

2017 Access to Justice Award Winner: Rebecca Jacobstein

Here is the text of the nominating letter.

We nominate Attorney Rebecca A. Jacobstein of the Committee for Public Counsel Services for 2016-2017 Massachusetts Bar Association  Access to Justice Award – Defender Award.

Attorney Jacobstein is a CPCS staff attorney in the Appeals Unit of the Public Defender Division.

For the last three years, she has been relentless in the pursuit of justice for her clients and thousands of other people affected by the Sonja Farak Amherst Drug Lab scandal.

Sonja Farak was a chemist in the Department of Public Health’s State Laboratory in Amherst, Massachusetts. Ms. Farak apparently suffered from a drug addiction while employed as a drug analyst at the Amherst Lab.  She was convicted of stealing and tampering with drugs at the lab. An investigation, conducted by the Massachusetts Attorney General, has revealed that Ms. Farak routinely was high on drugs during her working hours at the drug lab.  As a result of Ms. Farak’s misconduct, many people have been convicted of crimes and sent to prison.  Initially, it was believed that Sonja Farak’s misconduct only affected a small number of cases.  Now, as a result of Rebecca Jacobstein’s work (together with Northampton attorney Luke Ryan), we know that it is likely that Ms. Farak’s misconduct occurred over the course of many years and affected thousands of people.

In 2014, Attorney Jacobstein had just begun working as a staff attorney in the CPCS Public Defender Division Appeals Unit. The Chief of the Appeals Unit assigned Attorney Jacobstein to represent, on direct appeal, two men who had been convicted of drug related crimes in which Sonja Farak conducted the chemical analysis: Erick Cotto and Jermaine Watt.  In the Cotto case, Attorney Jacobstein obtained direct appellate review in the Supreme Judicial Court.  The Cotto case turned out to be a watershed in the litigation involving the Amherst Drug Lab. On April 8, 2015, the Supreme Judicial Court issued an opinion calling for a full investigation into the scope and timing of Farak’s misconduct. Commonwealth v. Cotto, 471 Mass. 97 (2015).  After the decision in Cotto, the Attorney General’s Office appointed former Superior Court Judge Peter Velis as a Special Assistant Attorney General to conduct the investigation.

Meanwhile, in the Watt case, in which direct appellate review was denied, Attorney Jacobstein stayed the appeal and brought a series of motion in the Superior Court seeking to document the timing and scope of Farak’s misconduct.  The efforts of Attorneys Jacobstein and Ryan were described in Slate:

Two defense attorneys, Luke Ryan and Rebecca Jacobstein, subpoenaed

Farak’s medical records to see if their clients had been affected, and found

that her drug use and theft had extended all the way back to 2004, eight

full years before the state claimed it began.  They contend that this new

evidence warrants a review of all 29,000 samples Farak claimed to have

tested during her career.  They also claim the government concealed this

“smoking gun” evidence from defense attorneys.

Dahlia Lithwick, Crime Lab Scandals Just Keep Getting Worse, Slate (Oct. 29, 2015).

On April 1, 2016, the Attorney General’s Office released its report on the scope and timing of Farak’s misconduct. The report described serious and significant misconduct on the part of Farak, beginning in late 2004 or early 2005 and lasting until Farak’s arrest in January, 2013.

At a hearing in Hampden Superior Court on June 6, 2016, Berkshire District Attorney David Capeless, the President of the Massachusetts District Attorneys Association, stated that all eleven District Attorneys agreed that Farak defendants were entitled to the same conclusive presumption of misconduct furnished to defendants affected by Annie Dookhan’s misconduct in the case of Commonwealth v. Scott, 467 Mass. 336 (2014).

A second report, conducted by retired Judge Velis concluded that there was “no evidence of prosecutorial misconduct or obstruction of justice” in matters related to the Farak case. Attorney Jacobstein and her colleagues have submitted documents and affidavits that challenge that conclusion.  They have filed motions to dismiss Farak convictions based on prosecutorial misconduct.  Evidentiary hearings into the allegations of prosecutorial misconduct and the scope and effect of Farak’s wrongdoing on thousands of tainted convictions will begin on December 12, 2016, in Hampden Superior Court.  These hearings have the potential to reveal prosecutorial misconduct and lead to the reversal of thousands of tainted drug convictions.  These hearings are happening, in large part, because of the outstanding legal work of Attorney Jacobstein, who took her early assignment to two direct appeals and turned it into a zealous pursuit of justice for thousands of people.

Transitions in Youth Advocacy Division Appeals

The phrases most likely to come out of Barbara Kaban’s mouth: “I can do that.”  “I will do that.” And most likely: “I already did that.”

Barbara embodies all the characteristics of a great public defender: outstanding legal acumen, a never say die attitude, extraordinary energy, unending generosity, and a willingness to speak her mind.  Barbara came to the Committee for the Public Counsel Services in 2012, as the first Director of Juvenile Appeals for the Youth Advocacy Division.  At CPCS, Barbara teamed up with Ben Keehn and a host of other lawyers and social workers to seek justice and freedom for the dozens of adolescents who had been condemned to die in Massachusetts prisons.  Together they litigated the implementation of the 2012 Supreme Court decisions, Miller v. Alabama, which which prohibited imposition of mandatory sentences of life without parole for juveniles.  This resulted in the SJC decisions banning life without the possibility of parole in any juvenile case (retroactively) and creating a right to counsel and access to funds for experts in juvenile lifer parole hearings.  It also resulted (so far) in nearly a dozen positive parole votes and several former juveniles already back in the community as free men.  She has been instrumental in establishing a specialized appellate panel whose mission is to enforce and enhance the constitutional and statutory rights of Massachusetts’ juveniles.

Barbara is retiring from CPCS, but only to free her up to pursue even more litigation, writing, and teaching as a private practitioner.  She will continue to combine her expertise in education advocacy and adolescent brain development with a comprehensive understanding of the state criminal justice system to provide exceptional training and support to the cases before the state juvenile defense bar.  She has authored or co-authored countless amicus briefs and, as an expert at litigating major cases before the Supreme Judaical Court in Massachusetts, we are counting on her continuing this practice.  She will continue to be sought-after for advice regarding challenging cases and implementing innovative strategies to bend the law in the direction of justice.  Barbara is a born risk-taker and trailblazer.  We have no doubt that she will continue to push the law in a direction that most benefits juveniles and their unique legal and life needs.  She inspires (and entertains) her fellow attorneys with her quick wit and her penchant for pushing boundaries and will be deeply missed in the office.  She was never afraid to challenge conventions in her zealous advocacy for her clients.  Generations of youth in Massachusetts will reap the rewards of her efforts.  We believe we speak for all of us when we say Barbara will be sorely missed (and we certainly will keep her cell number on speed dial).

As difficult as it is to lose Barbara, we are very fortunate to be introducing the next Director of Juvenile Appeals: Ryan Schiff.  Ryan is a worth successor to Barbara.  I know this because Barbara said so.  And so did Beth.  During his tenure in the CPCS Special Litigation Unit from 2010-2015, Ryan litigated numerous successful, important appeals in the Supreme Judicial Court.  Within a month of joining the SLU, Ryan argued and won the case of Coffin v. Superintendent of the Mass. Treatment Center, in which he persuaded a majority of the SJC justices that an illegal sentence could not provide the custodial predicate for an SDP commitment.  The following year, Ryan prevailed in Doe v. Police Commissioner of Boston,  in which the SJC held unconstitutional a statutory provision of the Sex Offender Registry Law as applied to an elderly man in a rest home.  In 2013, Ryan won Comm. v Hanson H., in which the SJC held that juveniles adjudicated delinquent are not subject to mandatory GPS monitoring, and in 2014, Ryan won Moe v. Sex Offender Registry Board, a class action in which the SJC held that new registry dissemination laws for level 2 offenders could not be applied retroactively.  Prior to joining CPCS, Ryan was an Associate with Salsberg & Schneider providing representation at all stages of federal and state criminal and civil cases.  Ryan received his J.D. from Northeastern and also has an M.A. in English from UMass Boston.

As with Barbara a simple recitation of his credentials and some of his cases does not begin to do him justice.  Like Barbara, Ryan is a strategic legal thinker who excels at spotting issues and developing strategies for effecting systemic change through litigation.  He is also committed to devoting himself to providing leadership and support to all juvenile practitioners.  As he remarked in the hiring process, he is much more interested in working closely with the many strong juvenile defenders around the state to support their advocacy efforts than in playing a “Lone Ranger” role, riding to the rescue a few times a year.  Please join us in welcoming Ryan to YAD.