GIST: "What is believed to be the biggest stain on the Massachusetts criminal justice system continues to reverberate, seven years later. After countless court hearings, judicial rulings, investigations and even a Netflix series, one of the state's two drug lab scandals was the focus of weeks of disciplinary hearings for three former prosecutors essentially turned defendants.
The three prosecutors — former assistant attorneys general John Verner, Kris Foster and Anne Kaczmarek — face a range of possible punishments, up to disbarment, for not properly disclosing evidence in the case against disgraced state chemist Sonja Farak. It's rare for the Massachusetts Board of Bar Overseers (BBO), which was created to hear complaints against attorneys, to hold public disciplinary hearings involving prosecutors.
With the hearings lasting more than eight weeks and legal work continuing, the state confirmed it will cover all lawyers' fees for the three respondents before the BBO.
'I Did Not Think It Was My Job'
Of the prosecutors, Kaczmarek was the most directly involved and oversaw the prosecution of Farak. The chemist pleaded guilty in 2014 to tampering with — and personally ingesting — drug samples she tested at the state lab in Amherst. Tens of thousands of criminal cases were eventually dismissed because of her misconduct. Farak served 18 months in prison.
When Farak was arrested in early 2013, then-state Attorney General Martha Coakley said that Farak tampered with drugs at the lab for a few months, indicating only evidence tested during that period might be compromised. But among the documents state police seized in Farak's arrest were "mental health worksheets" — a term Kaczmarek used to describe counseling notes. In those papers, Farak disclosed her drug habits at work dated back years.
"Farak had an addiction so severe that she was getting high at work," Stacey Best, assistant bar counsel, said in her opening statement. "The respondents learned about her addiction and did not properly disclose this information to anyone other than the attorney general's office and state police. To make matters worse, they prevented defense counsel from finding this out for almost two years."
Early on in the case, the AG's office denied defense attorneys' requests for more information about the extent of Farak's drug use, citing the ongoing investigation of Farak. After the chemist's conviction in January of 2014, and after Kaczmarek went to work in the Suffolk County clerk's office, defense attorney Luke Ryan successfully fought to inspect all the AG's evidence. He found the mental health worksheets in the AG's files in late 2014.
Kaczmarek testified that she didn't deliberately prevent anyone from seeing the mental health worksheets. She said it wasn't her responsibility to analyze all documents in the case and determine their importance, as she was only concerned with what was needed for a conviction against Farak.
"I wasn't trying to establish scope and timing beyond what I could prove against Farak," Kaczmarek testified. "I wasn't tasked with it. It wasn't my job and if it was my job, I didn't do it. But I did not think it was my job.”
At first, Kaczmarek said she didn't realize the significance of the worksheets because they weren't dated and to her, didn't immediately suggest Farak had a longstanding substance problem. When asked why the Farak case information she sent to district attorneys did not mention the worksheets, Kaczmarek said she didn't realize the papers weren't included.
She blamed poor communication and a bureaucratic state legal system struggling to deal with two simultaneous crime lab scandals. Less than four months before Farak's arrest, former chemist Annie Dookhan was arrested for tampering with evidence at the Hinton Lab in Boston. Tens of thousands of criminal drug convictions based on Dookhan's testing also were dismissed.
Kaczmarek said she assumed, as it was for Dookhan cases, that all documents would be given to district attorneys so they could determine if their drug cases were potentially compromised by Farak.
"My understanding is that Farak would be handled the same way [as Dookhan]," Kaczmarek testified, "which was let the district attorneys' offices sort through all the materials and make the determination as to whether this helps their cases or hurts them. I don't think of the evidence as something that should have been kept from them, and I don't think that was anybody's intention.
"I just think that the system failed, and it never kicked in. I can't assume responsibility for it," she added. "I was also a cog in a wheel."
'We Want To Prevent A Floodgate Of Subpoenas'
The BBO hearings also focused on a 2016 hearing that resulted in a scathing rebuke of Kaczmarek and former assistant attorney general Kris Foster, who was assigned to handle some defense attorneys' requests for evidence in the Farak investigation. Foster said she was told by her supervisors in the AG's office to deny attorneys subpoenas for the evidence.
After hearing arguments about the A! She testified that she was a junior attorney in the AG's office who did not deliberately withhold information and was just doing what her supervisors asked her to do. Her attorneys said Massachusetts’ rules of professional conduct for lawyers allow for subordinate lawyers to defer to the instructions of their supervisors.
After hearing arguments about the AG's failure to turn over the counseling worksheets, Hampden Superior Court Judge Richard Carey concluded the prosecutors had committed "fraud upon the court." He said he didn't buy Kaczmarek's claim that she thought the potentially exculpatory materials had been turned over. Carey also wrote that Foster's denial of any wrongdoing "underscores her lack of a moral compass." Yet, at the BBO hearings, Foster still maintained she did nothing wrong."
"I was incredibly new at the office, and I had no role in decision-making," Foster testified. "And I didn't think I'd really get anywhere if I challenged my superiors."
Foster said her direct supervisor, Randy Ravitz, told her to file motions to quash defense attorneys' subpoenas related to Farak and handed her a template form to do so.
"Randy told me, 'This isn't a Dookhan, but we're anticipating getting a handful of subpoenas,' " Foster said. " 'And we're going to be filing motions to quash in all of these because we want to prevent a floodgate of subpoenas where Anne [Kaczmarek] and others essentially become professional witnesses traveling the state, testifying.' And then he gave me three samples that were all essentially verbatim to each other and said, 'Don't spend a lot of time on this. Don't reinvent the wheel.' "
Foster acknowledged writing a letter that said all evidence in the Farak case had been turned over, despite never reviewing the evidence file herself. She said she wrote that letter based on what Kaczmarek told her. Foster also said she believed the 2016 hearing before Judge Carey was to determine how the AG's office handled the case — not about her personally. Foster, who is now general counsel at the state Alcoholic Beverages Control Commission, said she felt betrayed because she wasn't prepared for the hearing and thought that the assistant attorney general representing the office was her legal counsel as well.
"I had been led to believe that I had representation at this hearing when I clearly didn't," Foster testified. "Instead of just not having representation, I was being attacked by my own attorney and my reputation was being attacked. It was quite upsetting that someone who was representing me was actually against me."
'Something Slipped Through The Cracks, Obviously'
Although not Foster's immediate supervisor at the time, John Verner was head of the AG's criminal bureau in 2013. The BBO "petition for discipline" alleges that Verner, now a prosecutor in the Suffolk County district attorney's office, was involved in the decisions about withholding the Farak evidence and should have ensured all evidence was disclosed. Verner testified he relied on his subordinates to make sure it was done.
"John Verner thought everything was OK when he was told all the evidence had been turned over," said Verner's attorney, Patrick Hanley. "He admitted that his job was to do justice and that did not happen. Something slipped through the cracks, obviously. He believed the materials were turned over with the rest of the items and this proved to be an error, an unintentional error by someone supervising a staff of more than 100 people and overseeing many cases."
Attorneys for all three former prosecutors said the problem was more systemic and not a deliberate attempt to withhold evidence to minimize a scandal.
"The contention that there was some conspiracy to hide the mental health worksheets is absurd," Hanley said. "If not for the work of the AG's office, the district attorneys would not have received 3,300 pages of discovery related to Farak. There is only one bad actor in this case, and that is Sonja Farak."
In closing statements, attorney George Berman, who represented Kris Foster, said the prosecutors have already been punished by the negative publicity in a high-profile case.
"For the rest of her career, whenever a potential client or employer Googles her name, the first thing they will see is that Judge Carey said that she committed fraud," Berman said. "The scar that was so casually inflicted on her career is beyond her power to erase. All you can do is see to it that the second thing people see when they Google her name is that when Ms. Foster finally got a chance to be heard, it was found that it was not true."
Attorney Tom Kiley, who represented Kaczmarek at the BBO hearings, blamed the system set up by leaders in the AG's office — and the state — to handle the drug lab scandals. He said there was no outside investigation of the Amherst lab, as there was with Dookhan, and no money set aside in the state budget to deal with the fallout.
"What my client Anne Kaczmarek told you was that she thought that she had a slam-dunk case [against Farak], and there was going to be a plea," Kiley said. "She was in the midst of dealing with Farak and Dookhan at the same time, and her instructions in both cases had been to focus and find charges quickly to be brought because of the public interest in the case."
Kiley also questioned whether other agencies, such as the Committee for Public Counsel Services, the state public defender agency, could have been more direct in seeking all the evidence.
The suggestion that others might share some of the blame for the imbroglio prompted an emotional response from Assistant Bar Counsel Stacey Best, who said the respondents were accusing "empty chairs" and not taking responsibility.
"This case has been going on for a long time and a lot of questions concerning the conduct of a lot of lawyers has crossed my mind and my heart," Best said tearfully. "The bottom line is that the rules and the Constitution required these lawyers to produce that information. It is not acceptable to put that responsibility on someone else. There may have been other lawyers who failed, and there probably were. But these defendants were entitled to this information from these respondents."
The complaint against the three prosecutors was filed with the BBO by the Innocence Project. It asked the state bar to take action against Kaczmarek and Foster after Carey's ruling. The BBO filed its "petition for discipline" last year, naming Verner as well, and alleging the trio failed to timely disclose evidence in the office's possession.
Nina Morrison, senior litigation counsel with the Innocence Project in New York, said while prosecutors have broad immunity for their professional actions, they also have official obligations known as "Brady disclosures," which require prosecutors to present evidence that might be favorable to a defendant.
"Our Constitution relies on prosecutors to ... turn over exculpatory evidence as one of its important responsibilities. If they don't take it every bit as seriously as the job of building a case against the people they are prosecuting, the system will fail."
NINA MORRISON
"Our Constitution relies on prosecutors to hold this duty to discover and turn over exculpatory evidence as one of its important responsibilities," Morrison said. "If they don't take it every bit as seriously as the job of building a case against the people they are prosecuting, the system will fail. And that's what we saw here."
In Massachusetts, prosecutors are not often punished, according to a 2016 report from the New England Center for Investigative Reporting. It found no case in Massachusetts in which a prosecutor was disbarred for professional misconduct since 1974. During that time, there were two public reprimands for professional misconduct. Both came without fines or other punishment. The BBO's last discipline of a prosecutor was in 2017, which resulted in a one-month suspension from the practice of law and a requirement to take legal courses.
The BBO rarely holds public hearings about disciplining prosecutors. The board initially denied WBUR permission to record the hearings, but later agreed to a written request.
Attorneys on both sides of the disciplinary proceedings now have 30 days to present their findings to BBO Special Hearing Officer Alan Rose. He will make a recommendation about any possible punishments, which range from reprimands to disbarments for up to eight years.
The Massachusetts Supreme Judicial Court will then decide whether to implement those recommendations."
The entire story can be read at:
https://www.wbur.org/news/2020/12/04/kaczmarek-foster-verner-bar-overseers-drug-lab-hearings
