Attorney Joseph Bernard discusses the breath testing debacle that occurred in Massachusetts, where nearly 27,000 breath tests were thrown out. He shares insights from the Commonwealth vs. Ananias case, which began nine years ago and uncovered significant issues with breath testing in the Commonwealth of Massachusetts.
Bernard explains how the tolerance ranges for the control test run with each breath alcohol test weren’t programmed correctly. This caused the instrument to fail to alert the operator when the control was out of tolerance.
He also discusses the Office of Alcohol Testing's discovery of missing protocols and its intentional withholding of exculpatory evidence.
Clip from the podcast
About the Guest
Joseph Bernard is an attorney based in Massachusetts. He’s developed a passion for cases involving breath testing. He has worked tirelessly to improve law enforcement's transparency in the state of Massachusetts.
Key Takeaways:
The Commonwealth vs. Ananias case revealed major issues with breath alcohol testing in Massachusetts, leading to nearly 27,000 breath tests being dismissed.
The Draeger 9510, the only breath testing machine used in Massachusetts, had control tolerance ranges that would not alert the operator to errors.
The discovery of missing protocols and the intentional withholding of exculpatory evidence by the Office of Alcohol Testing raised serious concerns about transparency and reliability.
The case highlighted the need for improved calibration, maintenance, and care of breath testing instruments to ensure accurate and reliable results.
The Ananias Agreement, signed by every district attorney in Massachusetts, acknowledged the intentional and unjustifiable withholding of exculpatory evidence and implemented remedial measures to address the issues.
Notable Quotes:
"We've made a lot of progress. I think we have a long way to go, but certainly a great deal of improvement here in the Commonwealth of Massachusetts regarding breath testing." - Joseph Bernard
"There was a very unhealthy, dishonest culture in the Office of Alcohol testing that almost condoned hiding things." - Joseph Bernard
Resources:
Automated Transcript (not checked for errors)
Introduction
Aaron Olson: Welcome to the Science of Alcohol Testing. I'm Aaron Olson and today I'm here with attorney Joseph Bernard.
The Debacle of Breath Testing in Massachusetts
Aaron Olson: We're here in the state of Massachusetts and we're here today to talk a little bit about the debacle that happened with breath testing where nearly 20, 000 breath tests were thrown out. Yes. Tell me more about what happened.
Yeah. Thanks. First of all, thanks for sharing with me
Joseph Bernard: today. You're welcome. You're welcome.
The Journey Begins: Commonwealth vs. Ananias
Joseph Bernard: It's been, you know, a passion of mine for a long period of time, and I've gotten, you know, the wonderful part about this particular case that you're referring to, Aaron, is Commonwealth versus Ananias. And nine years ago, when it all began, uh, nobody, including me, had any idea that we would be where we are today.
The, uh I think with a lot of people's help, the state of breath testing, the scientific reliability, uh, and just the overall transparency of law enforcement has improved tremendously. And, you know, people say that, uh, when you enter a situation and if you, if you're able to improve it, uh, when you leave the battlefield, then you've made, then you've made some progress.
And I feel that that's exactly what we did here. We've made a lot of progress. I think we have a long way to go, but certainly a great deal of improvement here in the Commonwealth of Massachusetts. Yes.
Aaron Olson: So, take me back to the moment where you start to realize there's something not quite right with the breath tests that are going on.
You're saying this is a nine year long battle. Yeah. What was the thing that tipped you off and where did you, where did it all start? So,
The Bennett Letter and the Start of the Investigation
Joseph Bernard: it all started with what is kind of termed as the Bennett Letter. And Dan Bennett was the, uh, was the, uh, undersecretary to the governor, uh, director of the, uh, executive office of public safety and security.
Uh, lawyers across Massachusetts started to see, Uh, results from breath testing, uh, that were being introduced that were out of the tolerance ranges of, uh, the 9510 ALCO test.
The Draeger 9510: The Only Instrument in Massachusetts
Joseph Bernard: Realize in Massachusetts, we only have one machine. Some states have a variety, but in Massachusetts, uh, the only machine we have is the Draeger Uh, 9510.
And Draeger at that point was one of the few breath testing machines that had what was referred to as dual sensoric aspect to it. So, when a citizen would breathe into the chamber, there were two different measuring devices. Uh, the, the, fuel cell and the, the infrared. Now the infrared in Massachusetts is the only reportable result, but in theory, these two sensors, uh, filter out potential, um, false positives, um, from different types of, uh, alcohol molecules.
The Discovery of Tolerance Ranges Being Off
Joseph Bernard: So, but what happened in this particular case, was that those two tolerance ranges were off. And should not have been producing results. So that's what kind of tipped everything off. Uh, judges, uh, across the, the, uh, state were having different challenges. And what happened was that our Chief Justice stepped in and said, okay, hold it, stop.
We're not going to have some sort of a polka dot. type of, of challenge here.
The Consolidation of Challenges and the Start of a Class Action Lawsuit
Joseph Bernard: We're going to consolidate, and what really happened was almost like a class action lawsuit. Um, what, what lawyers are familiar with, it was a Dahlberg challenge, a statewide Dahlberg challenge, and that's what began. And I remember, uh, There were five lawyers we, uh, were chosen.
I happened to be fortunate to be one of the five. So, um, we got together in Worcester and the chief forensic lawyer for the Committee for Public Counsel Services, or, uh, Public Defender's Office, organized the whole thing. A brilliant woman who I've become friends with, her name is Anne Goldbach, since retired.
Most people, by the way, have all retired out. I'm kind of the last man standing in all of this. But Anne organized all this, and from, I was the lawyer from Western Massachusetts. And we get involved. Nobody really knew what we were getting ourselves into, but, uh, I remember going to the Concord District Court, and what they did was they, they focused, they used the Concord District Court as the home court for the Ananias Challenge.
And at that point, I'll remember one of the first words out of Chief, uh, Judge Brennan's mouth was, We're gonna get this done in two months, everybody, and, and just be it known. And at that point, I'm sitting there thinking to myself, Wow, that's, that's kind of quick. Um, that was nine years ago and it's still not done.
Judge Brennan has left. He's off to the appeals court. So, I remember him saying that.
The Role of Tom Workman in the Case
Joseph Bernard: Um, and with, and, and with that, uh, there was a lawyer, uh, and a scientist, by the way, Tom Workman. And, and Tom, uh, was any lawyer who, who did breath testing nationally, working with breath testing. If you work with breath testing, then you knew Tom Workman.
Tom was definitely kind of one of the godfathers of, of breath testing. in that particular era, knew the 9510 better than probably any lawyer, uh, in, across the state. Uh, he was, Tom was brought in on multiple different challenges. He was an expert in, in the New Jersey versus Chung, uh, that, that received a lot of national publicity.
Um, and Tom was a very tenacious, bright man. So, Tom was very helpful, and Tom, uh, helped develop, uh, this, this 15 page discovery motion that we put before Judge Brennan. Obviously, it took a long time to develop it. We argued that motion, and, and it's important because It was the discovery aspect to it that became pretty complicated.
The Discovery Motion and the Request for Dynamic Testing
Joseph Bernard: Realized that we had a variety of different, of, of players involved. Um, one of the aspects of the discovery motion was we were requesting dynamic testing of the, of the Draeger 9510. And it never happened before. Now, the backdrop of all of this is that we are just coming out of Commonwealth vs. Camden, the challenge to the predecessor, 7110.
just finishing up. Um, they, so we asked for the two machines for dynamic testing. Uh, and amongst a lot of other things we were denied. What we did with that denial, and I'm kind of broad brushing this, what we did with that denial is that we challenged it with our Supreme Judicial Court. And the single justice took that up.
The Challenge to Obtain the Draeger 9510 Machines
Joseph Bernard: Um, and, and Judge Botsford, um, decided that we So she ordered, uh, uh, two machines. And that, as well as the request for the source code, became a huge logistical nightmare, because the Draeger company, understandably so, had, you know, some proprietary interest in the source code, uh, and no other, uh, lawyer in Massachusetts had ever touched the Draeger 9510.
So here we were. And, um, we had to develop all kinds of, uh, non compete, uh, or non disclosure agreements and there were big litigation regarding that. Um, I, I was, I was, uh, The, the person who negotiated with Draeger, I was the person who negotiated with the prosecutorial team. We had five, they had five. I was kind of the point person to all of this.
And so it, you know, I didn't know a great deal about non disclosures agreement, but I had to learn fast. And again, Workman was right there helping me. So eventually Uh, we, we got these two machines with, and we were, they were shipped off to California. We had, um, uh, Bob Zeidman, who actually was very, very involved, uh, with, with the recent, um, voting box litigation, um, and you can, you can read a lot about, about what Zeidman did there.
And he was, he was instrumental, uh, testified before Congress and so forth. But Zeidman was the guy who got involved. And we, um. We began to utilize, um, the, we did two things, source code challenge, so we, we looked at the source code, uh, and my colleague Larry Tippman, Tippman was involved with that. I was involved in all other aspects of the challenge.
The Importance of Calibration and Maintenance in Measurement Devices
Joseph Bernard: Um, now as lawyers, we realized that a, that a, that any type of measurement device, uh, is really only as good as how you care for it, how you calibrate it. And, um It took a lot of litigation and pushing, uh, to convince Judge Brennan that we could open the door to do more than just a source code review. Do you follow?
Yeah. Very important. And as a scientist, I think you can appreciate what I'm saying. Yeah. But it took an awful lot of, of litigation convincing Judge Brennan that we needed to do more. Uh, to, to explore how the machine was cared for, how it was calibrated, and what exactly, uh, the, the care and the maintenance and the calibration, the aspects to the, to the results, what, what, what it meant.
Um, so, I mean, a lot of different seminars, um, Ted Vosk, who is very, very, uh, important in all this, taught, taught me a great deal about the budget of uncertainty and how, how we didn't have that in Massachusetts, by the way. It's crazy, as, as you probably know, and, and I know you're very, uh, sensitive to the, to the, uh, budget of uncertainty, but we didn't have one in Massachusetts.
No one knew it. But, and we, you and I are going to do work on that because it's, it's. It's very, um, I, I, I think crude at this fashion, but it wasn't even a topic of conversation. But there was, so these were some of the people that I had the pleasure, uh, and, and really the privilege of working with. I mean, Ted Vosk, brilliant man, has written kind of the forensic book on uncertainty.
You've probably read it. Uh, but I had the privilege of, uh, You know, hours and hours of, of, uh, time with Ted. He was, he was phenomenal. Um, Jeanine Aravisu, nationally known for, uh, auditing labs and so forth. I can't tell you the days and hours that, uh, that Jean and Jimmy, uh, Dr. Jimmy Lee Valentine, he was really important.
Uh, Andrea Stoltz from the University of Michigan. Um, and of course, uh, I've become friends with all these people. Dr. Joe Anderson, um, and his work, you know, with the physiological aspect, uh, this all became part of the challenge of Ananias. These experts all around the country were gathered for this particular challenge, quite frankly, and then, you know, uh, Dr.
A. Wayne Jones, right? So anyone who knows anything about breath testing, A. Wayne Jones has written more materials, probably peer reviewed materials, than anybody else combined. I don't think you'd disagree, right? No, that's So, he and I, I mean, so the prosecutors hired A. Wayne Jones. Okay. And I had, I had the privilege of cross examined the, the master.
And, uh, I remember, this is funny, um, I went down to a Masters of Science conference, and I had my ledger on, I'm walking on, and And all of a sudden I see A. Wayne Jones, and he called me the TV man because he was in Sweden, right? Sweden? Isn't he from Sweden? Sweden. And, and he, he remotely, uh, testified. So, he only knew me through the TV, so I'd be holding up some of his materials.
Now, Mr. Jones, can you see this? And he would answer, I can't, and I'd bring it closer. Um, but, but, uh, one of the things we challenged and, and A. Wayne Jones testified to in Massachusetts is whether or not, uh, the breath test ratio And that's what he would constantly make me, he would always put me back. It is not the partition ratio.
We call it, I got it. I got it. So I, I
Aaron Olson: Conversion factor is what, isn't that what he likes? What does
Joseph Bernard: he call it? Oh, the blood breath ratio. I was constantly interrupted. And, uh, uh, uh, uh. I said, okay. So anyway, the 2100 to 1. Uh, and I cross examined on that pretty extensively. And ultimately, A. Wayne Jones won out and the judge, the judge disagreed.
But, these were all areas that were just so fascinating that we got to challenge and explore. Um, and quite frankly, I don't think there's anyone who's going to disagree that, you know, breath testing is, is probably Uh, a dinosaur by, by way of accuracy and precision, but we still use it. There's been millions of dollars poured into different machines across the country, and we're, we're still using it, and we're probably going to be using it for quite some time.
So, I, I tell lawyers, get used to it. We gotta, I mean, this is what we have to deal with. And as lawyers, uh, you know, there's all kinds of, of issues that we're going to be able to explore with the indirect methodology of a breath test. So, here we were. And, um, we, we were, we were now probably two years into this because Draeger had put up so many different barriers, flown in lawyers, uh, they, they had a lawyer from Mintz Levin, they had a, uh, Bonnie Chung came in from Texas, and, so anyway, big, big litigation around even getting how we got the two machines, how they had to be stored, where they could be, did they, they, they had to be under, uh, video review and so forth, so okay.
That took an awful, awful long time just to, uh, you know, obtain the logistics. We had to go up on the interlocutory appeal, had to stay the litigation. Judge Brennan was, uh, overruled and we get the machine. But getting the machines, of course, extended the litigation a great deal. So, I was saying we did two different things, right?
We did the source code review, the dynamic testing. And, I also, uh, we, we, we did some practical testing with regards to potential interference. On comes, you know, Michigan State expert. Um, uh, Andreas Stoltz, brilliant guy. Yeah. And he actually went, and I went with him, and for two days, uh, that's what we did.
And what, what Andreas did
Aaron Olson: was Did you have unfettered access to this, or were you being, were, did you go to the lab, or was it in your office, where'd you It
Joseph Bernard: was, it was, it was at the Experts Laboratory in California. Okay. See, we sent the machines to, to, to Zeidman's office up in California. And that's where Andreas and I went.
And, and we did have unfettered access. Yeah, we did. Um, I sat and I took notes, and I took some pictures, but I, what Andreas was doing is he had it all set up, uh, in, in very, very precise fashion and very organized. And we were able to show uh, and kind of fool the machine at particular tolerance levels. You know, whether it was isopropanol or other type of, of alcohol molecules, we were able to kind of fool the machine in some regards.
Okay. Yeah. Okay.
Aaron Olson: So it all started with, there was a tolerance between the infrared and the fuel cell and they had to maintain a certain agreement. And the machine wasn't, or the instrument isn't programmed to catch it in certain situations, and you saw that. And then it spirals into this whole source code, and, uh, practical testing, and the blood breath ratio, and everything gets challenged, just because of these two
Joseph Bernard: tolerances?
Yeah, that was the tipping point, and that's what got the camel's nose under the tent, and off we went. Realize, though, realize that the reason this was all kind of happening, and I think that the judges Uh, we're so interested was that we were just getting through with a, with a source code challenge in, in the, in the predecessor and realized against the backdrop of all of this was the drug lag scandal.
Do you follow me? Yeah.
The Impact of the Annie Dookhan Drug Lab Scandal
Joseph Bernard: The Annie Dookhan. The Annie Dookhan. Okay. Right. Right. Right.
Aaron Olson: Yeah. Yeah. So for those who aren't familiar, we'll, I'll put a link in the show notes, but Annie Dookhan basically falsified or did what's called dry labbing of a bunch of drug chemistry results where she actually didn't do the testing.
But she would just write in, you know, five grams of cocaine or whatever and that would be what went out from the lab report. Yeah. Pretty much the gist of that or? Yeah. There's
Joseph Bernard: more to it. There's much more to it, but, but I will say the spirit of, uh, of that was, was in the backdrop of us challenging the breath testing.
And I'm not, I'm, I am not suggesting that, that, that type of activity occurred. People weren't falsifying documents. directly, but, but what we were able to uncover, uh, was something, you know, maybe even worse because it had, it had enormous systemic issues and for scientists, I have to tell you, they were appalled.
The Discovery of Missing Protocols
Joseph Bernard: Uh, you know, going into it as a lawyer, Aaron, um, I, I felt it was important, but I didn't understand the significance of protocols. Now, to you as a scientist, that, that really matters, right? Very important. We didn't have them. We did not have them. So they were, they were calibrating these machines without protocol.
Aaron Olson: And then, was there, now I get this confused sometimes with New Jersey, but weren't they also hiding certain documents if the machine, if the instrument protocol for their certification failed, they wouldn't necessarily give you those failed documents,
Joseph Bernard: or? Well, that's message, no. Okay. So, here, this is Tom.
So, Workman had educated me enough to realize the importance of protocols. So, realized that I kept going into the judge, and they could, because they, we didn't get, we hadn't protocols. We didn't have the protocols. So, we have a calibration lab, there's no protocols, and I remember going into Judge Brennan, where maybe a month later, Two months out from the hearing and I, I go in and I'm asking Judge Brennan again, you know, and he's looking at the motion.
I'll remember it to this day. He says, Mr. Bernard, I'm looking at a motion to reconsider, a motion to reconsider. And I said, I don't know what else I can do. I can tell you this, very simply, Judge, we don't have him. Well then, and he looks to the commonwealth, and then comes the office of alcohol testing, da da da, and we have this huge argument.
And again, with workmen, knowing how important they are, for the first time, the office of alcohol testing, two months out, essentially says there are none. The judge leans back, we have, but, they say, we have worksheets. We have worksheets. I don't know what a worksheet is at that point. And I, and they were saying, the worksheets are the protocol, Judge.
So I just simply say, okay, if that's the case, I want the worksheets. Then Judge, I want you to order the worksheets. And they were very, very, um, uh, they gave me huge pushback on that because the worksheets were hard copied in individual files and there were thousands of them. And they, you know, the Office of Alcohol Testing essentially said no.
It's too difficult. We're not going to do that. And it was at that hearing the judge says, Yes, you are. Whatever resources are needed, you're going to get these worksheets, what you claim now to be protocols, to Bernard, uh, in X amount of time. Okay? So, we got thousands of, of worksheets. So
Aaron Olson: you had never seen these in all your years of
Joseph Bernard: practice?
No. Okay. Now, there you go. Great question, right? Should have been produced. Yeah. But this was part of the problem of the Office of Alcohol Testing. Never providing them. Didn't give them to the prosecutors, didn't give them to the judges, didn't give them to the lawyers. Nobody ever saw them.
Aaron Olson: Wow. Wow. Was there ever a request?
Was there an excuse of why they couldn't get them? Was it too, they say, a lot of times they'll say, oh, it's too difficult. You got to drive to the lab or
Joseph Bernard: I don't know. That's the answer. I don't know. Were they requested at some point? Probably. I just don't think As a general rule, people understood. As a scientist, you understand the importance.
Lawyers didn't. And quite frankly, they were exculpatory. They were inherently helpful to the defense. Do you follow? Yeah. And, and we shouldn't have had to ask for them. And, and that's the second part of the story. And here's what happens. So, they gather all these documents, thousands, and at this point, uh, Tom Workman is working with me.
He, we gather, we gather the documents. He, he develops a program. And he's, now what you need to realize, at this point in time, So, the 9510 was introduced to Massachusetts in 2011, right? And their certification and calibration process is one that, that, that happens in a central location. So, Workman was able, To see because there's an electronic hit every single time they begin a certification.
Do you follow me? Yeah, he developed a program within days to take these worksheets and and Compare them to to all the different certifications that took place from 2011 to 2019 Wow. All right Okay. Yeah. So, now you got, time is marching on, we've got this hearing coming, people are flying in from around the world, A.
Wayne Jones, things are happening, we've got the thousands of documents, we've got the worksheets, they represent that that's all of them. So it was Tom who said to me, Joe, that's not all of them. I said, Tom, we're preparing, we've got two weeks now or whatever, I'm just broad brushing this. But, but, I said, I'm not going back at this point.
They represented that that's all of them. I'm going to take them on their word. You follow? Yeah. So, Workman says, would you promise me, and I remember him saying this, would you promise me after the hearing, if I could spend some time and prove that it's not? I said, okay. Now, Tom being Tom, okay. So we have the hearing, and we have a great result.
We have a great result. Aravishu testifies beautifully. that they don't have protocols, and protocols are needed. Um, and again, just being very broad with the whole, the judge agreed. And what the judge did, at that first anonymized hearing, he said, from 2011 to 2016, without the protocols, I am going to presumptively exclude those breath tests, permitting the Commonwealth.
permitting the Commonwealth to, to individually on a case by case basis prove that that machine and that particular set of circumstances are operating properly. You follow? I said okay. So off we go. So we have some success and we start chugging along and breath tests are, are, are being kind of introduced throughout the Commonwealth.
And there's, what do we think Workman's doing? Ch ch ch I was at, uh, a DRE conference that the state had authorized me to go to in Washington and I get a call from Workman. He says, I have, I, I have found a case where, where these worksheets that weren't, that were not introduced, were not given to us at the Ananias hearing that are going to be used at a hearing.
to show that the machine is reliable. Do you follow me? And I said, oh, so I call the lawyer who's handling the case up from Washington. I said, would you permit Tom to come in on the case? Long story short, I eventually get Tom to get involved in the case and he calls me after the hearing and I swear it was like a kid opening up the best Christmas present in the world.
He was so excited. And what happened in that, in that hearing in Taunton, by the way, where Tom lived, was that the judge Um, on cross examination by workmen, found that there were failed worksheets, what I'll call failed worksheets, that had not been disclosed at the Ananias hearing. And he ordered, counsel for OAT just happened to be sitting in the gallery.
Interesting, right? Yeah. And he ordered her to go get them, brings them, Tom now has two failed worksheets that were not given to us. Wow.
Aaron Olson: Yep. What did OAT say about why they didn't give those out?
The Uncovering of Withheld Exculpatory Evidence
Joseph Bernard: Well, so I called the prosecutor and I, and I explained to the prosecutor what happened and, and I, and I said from the beginning and I'll say now, the prosecutors involved did not know.
They just did. It was not prosecutorial misconduct in any shape, manner, or form. Those prosecutors were honorable, hardworking people. They didn't know. They were fooled. So, here's what they said. The response was, well, we didn't think we had to give those to you. Well, the judge says all, well, we didn't have, we didn't think we had to give you the failed ones.
Now, meanwhile, after thousands and hundreds of thousands of dollars were spent on that two week international hearing, We didn't have those documents, the very documents were at the core of the understanding and you as a scientist realized it was at the core of Brennan's decision, was at the core of our argument about the protocols.
And we didn't have, you know, a vital component, because they decided not to give them to us. Yeah. Alright? Wow. Yeah. Yeah. So what,
Aaron Olson: so what happens at this point now? Well. You've got these failed certification
Joseph Bernard: documents. Here's what happens, at the Ronald Reagan, I stopped my, I was on a little bit of a family vacation after the D.
R. E., I go to the Ronald Reagan airport on a Saturday at 8 a. m. from 8 to 7, um, Workman and I bang out a motion to compel. And now, you gotta realize, what I know is that O. A. T. realized that I'm on to them. And I knew what they were going to try to do is try to, you know, remedy the problem and try to get out in front of it.
But I knew it was really important. I file a motion to compel and impose sanctions. And, uh, the media picks up on it. And that was on a Saturday. And on Monday, the Boston Globe was all over it. The New York Times was calling. So, when people say, and, and, and Deondra Grant is, is a person who, I think we all know, taught me well.
And she said, if the media can get behind you, you've got, you've got the best friend in the world. And they did. They picked up on the issue, and it was all over the papers. And you have to realize, at that point, when it, when we, we had from the Berkshires to Boston on the front page of all these papers, again, Dookhan, now I've got, we've got this, and it's a big deal.
Very, very big deal. And the governor steps in and shuts down the Office of Alcohol Testing for investigation. Assigns two lawyers to go in. And with those two lawyers, and I think you've read it, you know, they create this, this hundred-page document. They interview everyone at OAT. And it was scathing what they found.
But it was only because of, of our work be able to find these 432 and it all blew up. And from there. We have another hearing, Judge Brennan has a hearing, press is all over the place, and with that, the, um, it was attorney Douglas Levine and I think attorney David Salat were the two lawyers. They were there, they operated as representative of the governor, the executive office, um, and tens of thousands of documents.
I mean, tens of thousands were just dumped. And thank God Workman couldn't sort it all out, but he did. Um, and we got a lot of, a lot of interesting documents that we, everyone really should have had before, you know? So that, okay, so we've got all of this and what, then a big, a big change happens with the chief prosecutor in Duke and Farrock, Vince DeMoore, uh, brilliant guy.
Very honorable. He then takes over or begins assisting in the representation of the prosecutors in Ananias. So the Chief Prosecutor in Duke and Farrock comes over and now becomes the Quasi Chief Prosecutor, uh, along with, um, Casey Sylvia in the, um, in, in, in the Ananias litigation. And we did something unprecedented with, uh, I approach him.
Pretty early on, I said, rather than, you know, have big litigation on this, I asked, and he agreed, to come up with an agreement.
The Ananias Agreement and the Change in the Office of Alcohol Testing
Joseph Bernard: And that's, that's what is, you know, uh, been referred to as the Ananias Agreement. Um, and it was months and months in the working. But here's, here's what you need to realize. That is completely unprecedented.
Every single DA, every single DA from the Berkshires to Boston, across Massachusetts, every single DA signed off on the agreement. Hmm, interesting. Yeah. And what was the agreement? The agreement was the Office of Alcohol Testing intentionally Unjustifiably withheld exculpatory evidence. Now there was 13 pages, but a big part of it was that statement I just wrote to you.
Intentionally, unjustifiably, withheld exculpatory evidence. And those were the failed worksheets. They couldn't, you know? Yeah. Um, we also built in, into that agreement, particular, uh, remedial measures such as, you know, we, we, we talked about the ombudsman, we talked about the e portal, we talked about a lot of other remedial measures that was going to help the citizens and the trial court, uh, better, uh, uh, have access and, and understand breath testing and, and how the machines were maintained.
Nice. Yeah.
Aaron Olson: Wow. Wow. I mean, that's. When you found out that these, there were all these failed doc, or these bunch of documents that were sculptatory, I mean, do you think that, was there a culture in the lab that, ah, we don't need to do this, or what, was it intentional? Do you think that it was just foolishness?
What, what,
Joseph Bernard: what?
Conclusion: The Systemic Culture Problem in the Office of Alcohol Testing
Joseph Bernard: Combination of all three. Combination of all three. There, there was a, there was, and, and this is Not me saying it, but this is the document that the executive office produced, a very unhealthy, um, dishonest culture in the office that almost condoned hiding things. Do you follow? So, do I think that they, they consciously, surreptitiously, sinister like did this?
No, I just think it was condoned. That was the problem, that, you know, they don't need it, we make the decisions, so let's just move on. Um, and, and It, it was, it wasn't just unfortunately with the 432, but you also had this kind of culture that was systemic that prevented other helpful documents get into files, individual files, you know, dating back to, uh, 2011.
It just, again, you used the term, the, the, uh, the investigatory report uses the term systemic culture. It was terrible. Yeah. It was really terrible.
Aaron Olson: Wow. Wow. Wow. Well, Joe, I really appreciate you taking the time and to tell me all this. It's fascinating, and maybe we'll talk another time. I would love to. I know you've got to get going, but thanks so much for being on the show with me today.
Joseph Bernard: Absolutely. I love it. I love it. And thank you for doing what you do.
Aaron Olson: You're welcome.
Share this post