The Executive Office of Public Safety and Security (“EOPPS”) has released its report regarding its investigation into the Office of Alcohol Testing (“OAT”). In response to the motion filed by Attorney Bernard alleging serious discovery violations in the consolidated litigation of Commonwealth v. Ananias, EOPPS began an investigation into the discovery practices of OAT. This report will assist in developing appropriate sanctions.
EOPPS has concluded that “OAT leadership made serious errors of judgment in its responses to court-orderred discovery, errors which were enabled by a longstanding and insular institutional culture that was reflexively guarded, which frequently failed to seek out or take advantage of available legal resources, and which was inattentive to the legal obligations borne by those whose work facilitakes criminal prosecutions.”
“As a result, OAT failed to provide prosecutors with … records that would appear to fall squarly into the category of documents that had been ordered to be produced in pending criminal prosecutions... The guarded and witholding nature of OAT's approach to sharing information with prosecutors left those prosecutors unable to adequately carry out their responsibilities.”
Further, EOPPS stated that the reason that certain documents were not turned over to defense counsel is that “OAT had a long-standing but unwritten policy not to turn these documents over to any requester.” EOPPS concluded that the policy has no legal authority to override a court order or an on-going obligation to provide exculpatory evidence to defense counsel.
"We must remember that this case was litigated for over two years with countless requests for materials." According to Attorney Bernard, "the investigation validates the fact that the Office of Alcohol Testing ignored court orders and was uncooperative to many of our requests. This investigation shows that cooperative effort with law enforcement can assist the citizen and develop transparency with evidence."
"Any further use of the breath test without appropriate scrutiny from Judge Brennan is inappropriate under these very serious circumstances. I believe this could have impact on every single breath test case across Massachusetts."