Penate v. Kaczmarek

ROLANDO PENATE, Plaintiff, v. ANNE KACZMAREK, JOSEPH BALLOU, ROBERT IRWIN, RANDY THOMAS and SONJA FARAK, Defendants.

Civil Action No. 3:17-30119-KAR

United States District Court, D. Massachusetts

September 22, 2021

MEMORANDUM AND ORDER REGARDING DEFEDANT JOSEPH BALLOU'S MOTION TO DISQUALIFY MAGISTRATE JUDGE (DKT. NO 275)

KATHERINE A. ROBERTSON UNITED STATES MAGISTRATE JUDGE

I. Introduction

This is a civil rights action filed on September 5, 2017, pursuant to 42 U.S.C. § 1983 by plaintiff Rolando Penate (Dkt. No. 1, Compl.). Penate named the Estate of Kevin Burnham, officials and employees of the Massachusetts Department of Public Health, the Massachusetts State Police, the Attorney General's Office of the Commonwealth, and the Springfield Police Department, and the City of Springfield as defendants. The list of defendants has shortened over the life of the case. Plaintiff's claims against Springfield, officers of the Springfield Police Department, the Estate of Kevin Burnham, officials and all but one of the employees of the Department of Public Health, and two employees of the Attorney General's Office have been dismissed, either by action of Penate, agreements between parties, or pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. The remaining defendants are Anne Kaczmarek, Joseph Ballou, Robert Irwin, Randy Thomas, and Sonja Farak.

Now before the court is a motion by defendant Joseph Ballou for my recusal pursuant to 28 U.S.C. § 455(a), (b)(1), and (3) arising from my previous role as an assistant district attorney in the appellate division of the Hampden County District Attorney's Office (“HCDAO”). The court gave Ballou the opportunity to be heard on his motion at the April 5, 2021, case management conference (Dkt. No. 282). For the reasons set forth below, Ballou's motion is denied.

II. Relevant Background

Springfield police officers arrested Penate on November 15, 2011, for the sale of illegal controlled substances and on firearms charges (Compl. ¶¶ 111-121, 162). On February 10, 2012, Penate pled not guilty (Compl. ¶ 163). In December 2013, Penate was convicted on a single count of distributing a Class A substance (Compl. ¶ 376).

On January 18, 2013, an employee at the Amherst drug laboratory (“Drug Lab”) discovered that cocaine samples assigned for analysis to Farak, then working as a chemist for the Massachusetts Department of Public Health (“DPH”), were not in the evidence room (Compl. ¶¶ 8, 188). The Drug Lab supervisor called the Massachusetts State Police (“MSP”) to investigate (Compl. ¶ 190). By the afternoon, MSP officers had interviewed Farak and impounded her car (Compl. ¶¶ 194-96). The next day, executing a search warrant obtained from a state court judge, Ballou, an MSP sergeant assigned to the Massachusetts Attorney General's Office (“AGO”), and others searched Farak's car and seized, among other things, over 300 pages of documents (Compl. ¶¶ 5, 199, 201). On January 22, 2013, Farak was arraigned on charges of tampering with evidence and drug possession (Compl. ¶ 212). On January 6, 2014, Farak pled guilty to criminal charges stemming from misconduct in the Drug Lab (Compl. ¶ 381). Farak was prosecuted by attorneys employed by the AGO (Compl. ¶ 204).

In summary, Penate alleges that Ballou acted in concert with Kaczmarek and others to cover up and lie about the existence of relevant documents, including mental health worksheets filled out by Farak that evidenced her illicit use of drugs while at work and documented her treatment for substance use disorder, that Ballou and others discovered during the search of Farak's car (Compl. ¶¶ 2, 419). Penate asserts that the mental health worksheets were exculpatory information, that Ballou was aware of his obligations under Brady v. Maryland, 373 U.S. 83 (1963), to make relevant disclosures to Penate (Compl. ¶¶ 420-21), and that he intentionally, recklessly, or with deliberate indifference to Penate's rights, concealed Brady information and failed to disclose it prior to Penate's criminal trial, and knowingly caused false or misleading testimony to be presented in state court hearings (Compl. ¶¶ 423-24).

On July 15, 2013, Penate filed a pretrial motion to dismiss the charges against him based mainly on Farak's alleged misconduct (Compl. ¶ 242). On July 25, 2013, Honorable C. Jeffrey Kinder of the Massachusetts Superior Court ordered the consolidation of fourteen unrelated criminal cases, including cases filed by Erick Cotto, Jr., and Bryant Ware, seeking postconviction relief based on Farak's misconduct. The consolidation was for purposes of a September 9, 2013, evidentiary hearing addressing the timing and scope of Farak's misconduct at the Drug Lab (Compl. ¶ 247). The parties agreed that the evidence in the hearing before Judge Kinder would be relied on to adjudicate Penate's motion to dismiss the indictment (Compl. ¶ 262). On November 4, 2013, Judge Kinder denied Penate's motion to dismiss on the grounds that the evidence adduced at the September 9, 2013, hearing showed that Farak's misconduct postdated the drug testing in Penate's case (Compl. ¶¶ 341-42). I did not represent the Commonwealth in opposing the motions for post-conviction relief or in connection with the September 9, 2013, evidentiary hearing.^[1]

Cotto filed a motion to withdraw his guilty plea and for a new trial based on Farak's indictment. See Commonwealth v. Cotto, 27 N.E.3d 1213, 1216 (Mass. 2015). Ware also filed a motion for a new trial based on Farak's misconduct, followed by a motion to conduct postconviction discovery and for funds to do so. See Commonwealth v. Ware, 27 N.E.3d 1204, 1208-09 (Mass. 2015). On October 30, 2013, based on the evidence adduced at the September 9, 2013, evidentiary hearing, Judge Kinder denied Cotto's motion, concluding that “although there was ‘powerful evidence' that Farak had engaged in egregious misconduct by stealing cocaine and replacing it with other substances, ” Cotto had “failed to establish that Farak's misconduct antedated his guilty pleas.” Cotto, 27 N.E.3d at 1219. On March 12, 2014, Judge Kinder denied Ware's discovery motion for similar reasons. Ware, 27 N.E.3d at 1212. The Supreme Judicial Court granted applications for direct appellate review in the Cotto and Ware cases and consolidated them for argument. I represented the Commonwealth in the Ware and Cotto appeals in my capacity as an assistant district attorney in the appellate division of the Hampden County District Attorney's Office (“HCDAO”). The SJC heard argument on the cases on December 4, 2014. On or around January 6, 2015, I was sworn in as a Magistrate Judge of the United States District Court for the District of Massachusetts.

On April 8, 2015, The SJC issued its Cotto and Ware decisions. In Ware, the Court affirmed the denial of the defendant's motion for postconviction relief and for funds for the discovery he proposed. Ware, 27 N.E.3d at 1213. The Court remanded the case for further proceedings because:

the precise timing and scope of Farak's wrongdoing are unclear. When personnel at the Amherst drug lab notified the State police in January, 2013, that Farak may have compromised the evidence in two drug cases, the Commonwealth had a duty to conduct a thorough investigation to determine the nature and extent of her misconduct, and its effect both on pending cases and on cases in which defendants already had been convicted of crimes involving controlled substances that Farak had analyzed.

Id. at 1211-12. The Court suggested that “the State police detective unit of the Attorney General's office might be best suited to lead an investigation.” Id. at 1212 n.14.

The Court also reversed the trial judge's ruling in Cotto, stating that, given what it knew, it had “no basis for concluding in the [Cotto] case that Farak's misconduct [wa]s a ‘lapse of systemic magnitude in the criminal justice system, '” Cotto, 27 N.E.3d at 1225 (quoting Commonwealth v. Scott, 5 N.E.3d 530, 544 (Mass. 2014)), and that the defendant had not shown that Farak's misconduct antedated the testing of the drug samples in his case. Id. at 1226. The court held, however, that Cotto was entitled to have the Commonwealth conduct a thorough investigation to determine the nature and extent of Farak's misconduct. Id.

In response to the SJC's Cotto decision, the Attorney General directed Assistant Attorney General Thomas Caldwell “to investigate the timing and scope of Farak's misconduct and the deficiencies in the operation of the Amherst [drug] lab.” Cotto 2017, 2017 WL 4124972, at *32. Farak and other drug lab employees testified before two grand juries convened by Caldwell, who filed his report on April 1, 2016. Id.

Throughout Penate's defense of the November 2011 charges, Luke Ryan Penate's defense attorney - also his attorney in this case - was diligent in seeking access to the documents seized from Farak's car when she was arrested. See id. at *21, 47. He was unsuccessful in obtaining such access before Penate's criminal trial and was subsequently limited by the presiding trial judge in defending Penate based on Farak's misconduct. Id. at *46-47. In July 2014, representing Wayne Burston, another so-called Drug Lab defendant, Ryan successfully moved for access to the evidence seized from Farak's car. See id. at *31. On October 30, 2014, Ryan inspected the evidence seized from Farak's car and discovered documents not previously turned over to defense counsel, including the mental health worksheets that suggested that Farak had been treated for substance use disorder in 2011. Id. Ryan immediately notified the AGO about his discovery and its significance. Id. On November 13, 2014, the AGO notified Massachusetts district attorneys “that, pursuant to a...