GIST: "A Massachusetts prosecutor was disbarred Thursday after her failure to disclose exculpatory evidence in a drug theft case sowed major doubt in the criminal justice system.
Anne Kaczmarek is the first former member of the Massachusetts attorney general’s office to ever be disbarred. Her behavior may have impacted thousands of defendants who were convicted on drug charges.
John Verner, a former state prosecutor who supervised Kaczmarek, was publicly reprimanded. Kris Foster, a more junior former prosecutor, was suspended for one year and one day.
“The harm that resulted from the combined misconduct of Verner, Foster, and Kaczmarek cannot be overstated,” the Supreme Judicial court said in an opinion, continuing that “many criminal defendants were found guilty, admitted to sufficient facts, or pleaded guilty because of the AGO’s failure to turn over exculpatory evidence.”
“Thousands of defendants, who otherwise would have been eligible for relief at an earlier date, remained incarcerated during this time,” the justices said.
Almost 25,000 drug convictions in nearly 16,500 cases were dismissed after the Supreme Judicial Court found they were tainted by ex-chemist Sonja Farak’s drug theft and tampering, in addition to the prosecutor’s misconduct.
The court dropped convictions for every drug case Farak was involved in at the lab, as well as any case tested at the lab between 2009 and 2013.
Withheld Evidence
The ex-chemist’s job at the Massachusetts drug lab in Amherst was to evaluate whether substances the state seized were illegal drugs.
At some point, Farak started tampering with the drug samples and using them herself. She was arrested in 2013.
The point at which Farak began tampering with evidence would become crucial for thousands of criminal defendants whose samples were tested by Farak, the state’s Office of Bar Counsel told the court.
The attorney general’s office obtained evidence that traced Farak’s misconduct back to 2011—further than the District Attorney’s office previously knew—and failed to disclose that evidence in a timely manner.
Varying Accountability
While each attorney’s “misconduct caused great harm, both to the criminal defendants whose cases were corrupted by Farak’s tampering and to the public’s perception of the criminal justice system,” their accountability for the office’s misconduct varies, the justices agreed.
Kaczmarek “bore the most responsibility” because she was in charge of Farak’s investigation and prosecution, and still failed to disclose exculpatory evidence and lied about it repeatedly, the opinion said.
“Although they are not entirely unprecedented, there are few disciplinary cases in Massachusetts against prosecutors,” the opinion said. “In reviewing these cases, we have come across none that is comparable to the facts we have here.”
The justices adopted the Board of Bar Overseer’s recommendation to disbar Kaczmarek because of her “intentional and egregious misconduct,” misleading statements, and lack of remorse or admission that she made mistakes, as well as the significant harm her behavior caused thousands of criminal defendants.
Verner, Kaczmarek’s supervisor, assigned the case to her, and failed to follow up with Kaczmarek about whether she had disclosed the exculpatory evidence.
He was chief of the criminal bureau at the attorney general’s office, and managed more than 100 people, according to the opinion.
The Supreme Judicial Court typically gives substantial deference to the Massachusetts Board of Bar Overseers, which had recommended a three-month suspension for Verner.
“Kaczmarek was Verner’s subordinate, and Verner knew her to be an experienced prosecutor who had demonstrated her competence during her work” on a previous case related to the drug lab scandal, the opinion said. His reliance on Kaczmarek’s false representations that she had turned over exculpatory information was “reasonable and in good faith,” the opinion said.
Verner’s misconduct was “limited to failing to follow up with her as to whether she had disclosed all such information,” so the justices concluded that “anything more severe than a public reprimand would be inappropriate,” the opinion said.
“We are pleased that the SJC agreed with John’s position that a public reprimand was appropriate,” his attorneys Patrick Hanley and Thomas Butters, from Butters Brazilian LLP, said in a statement.
Foster, a newer lawyer, helped Kaczmarek with discovery requests. In doing so, she failed to ensure the attorney general’s office had reviewed a case file containing exculpatory evidence.
The Board of Bar Overseers argued Foster’s lack of experience mitigated some of her behavior.
The Supreme Judicial Court disagreed. “Foster’s lack of experience in responding to subpoenas does little to mitigate misconduct based largely on her competence and diligence; more is expected of a fifth-year attorney,” the opinion said.
The justices also found the less experienced attorney more culpable for relying on Kaczmarek’s misstatements than Verner, the supervisor.
“Foster was making affirmative representations in court filings, on which she signed her name.
It should have been abundantly clear to Foster that it was her responsibility to verify the truth of her own representations,” the opinion said.
Her lack of honesty, remorse, and awareness of her wrongdoing also influenced her sanction.
The case is In re Foster, Mass., No. SJC-13360, opinion 8/31/23."
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PUBLISHER'S NOTE: I am monitoring this case/issue/resource. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy: Publisher: The Charles Smith Blog;
SEE BREAKDOWN OF SOME OF THE ON-GOING INTERNATIONAL CASES (OUTSIDE OF THE CONTINENTAL USA) THAT I AM FOLLOWING ON THIS BLOG, AT THE LINK BELOW: HL
https://www.blogger.com/blog/post/edit/120008354894645705/47049136857587929
FINAL WORD: (Applicable to all of our wrongful conviction cases): "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices.
Lawyer Radha Natarajan;
Executive Director: New England Innocence Project;
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FINAL, FINAL WORD: "Since its inception, the Innocence Project has pushed the criminal legal system to confront and correct the laws and policies that cause and contribute to wrongful convictions. They never shied away from the hard cases — the ones involving eyewitness identifications, confessions, and bite marks. Instead, in the course of presenting scientific evidence of innocence, they've exposed the unreliability of evidence that was, for centuries, deemed untouchable." So true!
Christina Swarns: Executive Director: The Innocence Project;
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YET ANOTHER FINAL WORD:
David Hammond, one of Broadwater’s attorneys who sought his exoneration, told the Syracuse Post-Standard, “Sprinkle some junk science onto a faulty identification, and it’s the perfect recipe for a wrongful conviction.”
https://deadline.com/2021/11/alice-sebold-lucky-rape-conviction-overturned-anthony-broadwater-1234880143/
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