MA: A reckoning for prosecutors in drug lab scandal?

Commonwealth Magazine –

After rare public trial, disciplinary case now in hands of hearing officer

THE JANUARY 2013 drug arrest of disgraced Massachusetts state chemist Sonja Farak and its impact on thousands of drug cases was widely reported as it unfolded, and memorialized to devastating effect in Netflix’s docu-series How to Fix a Drug Scandal.   

The case notoriously involved a rare one-two punch of official misconduct. On top of Farak’s years of drug use and tampering with evidence used to convict thousands of defendants, in 2017, a judge found that two former assistant attorneys general charged with handling key aspects of the investigation committed “intentional” and “egregious” misconduct as well as “fraud on the court.” A similar ruling by the Supreme Judicial Court – again citing both Farak’s misconduct and that of the former prosecutors — has led to dismissals of a staggering 24,295 drug charges to date

Last month, what may be the final chapter in the now-infamous Amherst drug laboratory scandal moved one step closer to resolution, after a rare public disciplinary trial for the former prosecutors involved. The evidence presented during that proceeding revealed much about how the system can fail so badly. 

Eight years after Farak’s arrest and subsequent conviction and imprisonment, a key question remains: What, if anything, will happen to the law licenses of the former prosecutors who were cited for grossly mishandling the Farak investigation in the first place?

That question will largely turn on written findings soon to be issued by Alan Rose — a noted Boston attorney appointed as a “special hearing officer” by the Board of Bar Overseers, or BBO, the state agency charged with investigating and evaluating complaints against attorneys. After 21 days of witness testimony, Rose will now assess whether these prosecutors violated the legal code of ethics, and what consequences they should face if so. 

As the Innocence Project attorney who filed the original disciplinary complaint against two of the charged prosecutors, Anne Kaczmarek and Kris Foster – and as someone who has represented too many wrongly convicted people whose lives were shattered by prosecutorial misconduct – I watched the recent disciplinary trial with great interest. 

It’s extremely rare for prosecutors to be charged with ethical infractions, even in egregious cases – and rarer still for them to be sanctioned. Indeed, according to a recent study by the National Registry of Exonerations, out of 729 wrongful convictions since 1989 that involved prosecutorial misconduct, only 4 percent of the prosecutors involved faced any kind of personal or professional discipline. And only five attorneys were disbarred or suspended from the practice of law. 

The Farak scandal could well be an exception. The BBO’s counsel methodically laid out a strong case that two of the prosecutors charged (Kaczmarek, and her former co-counsel and supervisor, John Verner) inexcusably failed to disclose key evidence of Farak’s drug abuse that they received early in the investigation, even as they were repeatedly called upon to do so. And bar counsel made an equally powerful case that a third prosecutor (Foster) effectively put her head in the sand to protect her colleagues from further inquiries in response to court orders – falsely telling the court that “every document” from the lead investigator’s file had been disclosed, and that Farak’s pre-arrest drug use had dated back “roughly four months” but no longer. 

In fact, Farak had been using drugs on the job for years. And prosecutors failed to disclose key evidence of her longstanding addiction that they received from the lead investigator just weeks after Farak’s arrest – including 2011 drug treatment notes and reports of suspected missing drugs from her cases dating back to 2005. This evidence also notably contradicted the bold statement then-Attorney General Martha Coakley had made at an earlier January 2013 press conference announcing Farak’s arrest, where she said that Farak’s drug use did not “implicate the fairness” of convictions the state had obtained against any other defendants. 

At worst, prosecutors working for Coakley intentionally concealed this evidence and deceived the courts. Why? Perhaps they did not want to embarrass their boss after her premature announcement that Farak’s arrest would not result in another major lab scandal. Perhaps they feared what Kaczmarek once candidly referred to as “avalanche of work” from reopening Farak’s old cases. Or perhaps they wanted to keep defendants they believed were guilty of drug crimes from voiding their charges on so-called technicalities. 

At best, these three were – in the words of Kaczmarek’s lawyer – mere “cog[s] in a wheel” of a larger institutional failure. Believing that other officials were responsible for investigating and disclosing this critical information, Kaczmarek’s lawyer argued, “the ball was dropped,” without nefarious intent but with disastrous consequences. 

However these conflicting claims are resolved, as an attorney who has worked in criminal justice for two decades, I came away from the hearings profoundly disturbed by much of what I heard.  For the prosecutors’ testimony was often marked by a jarring disregard for the accused citizens to whom justice was so long denied.

Take, for example, Anne Kaczmarek, the lead prosecutor on Farak’s own charges. She received an email from a detective weeks after Farak’s arrest containing detailed notes Farak made in conjunction with her own drug treatment, pointedly identified as “FARAK Admissions” — but failed to disclose them for years. At the BBO hearing, Kaczmarek claimed that she “forgot” about these records because assessing the harm Farak caused to other defendants “wasn’t my job.” Kaczmarek said she “had all of the evidence that I needed for my case, for my prosecution, and I wasn’t concerned with anything else.”
Even taking Kaczmarek at her word that she did not intentionally conceal these records (although bar counsel made a strong case that she did), her testimony is striking. Kaczmarek may not have “needed” Farak’s drug treatment records – but thousands of other citizens whose evidence Farak touched certainly did.

Even after a judge convened a hearing in 2013 to assess the scope and duration of Farak’s drug abuse, and Kaczmarek herself received a summons, she failed to ensure the attorney general’s office responded with complete or accurate information. If she truly believed it “wasn’t [her] job,” at the very least, she had a duty to find out whose “job” it was – and to make sure that they knew of any undisclosed evidence she had.

Former assistant attorney general Foster displayed a similar disregard for the court’s inquiry. She was assigned to respond to defense subpoenas for the lead detective’s file, and to represent the AG’s office at a hearing convened by a judge for the specific purpose of determining “the timing and scope” of Farak’s drug use on the job. She claimed she relied on her colleagues’ word when she told the court that “everything” in the detective’s investigative file had already been “turned over.” But Foster did nothing to confirm the accuracy of those assurances – and as a result, key evidence of Farak’s longstanding drug use held by the attorney general’s office was not disclosed for nearly two more years.

Foster was an experienced prosecutor who had argued numerous appeals in murder cases. But she didn’t ask her colleagues the most basic questions one would expect from a first-year lawyer, such as: What exactly was disclosed? When? To whom? And do we have a record of what we provided, in case the judge asks?

Why didn’t Foster do more? In her words, “I didn’t think I would really get anywhere by challenging my superiors.” But asking such questions isn’t a “challenge” to a colleague’s integrity – it’s simple diligence. And it’s hard not to conclude that if the rights of these defendants had mattered to Foster, she would have probed harder.

Throughout the hearing, I also waited for Kaczmarek and Foster to express some empathy for the thousands of people charged with drug crimes who were deprived of this information for two years. I heard reference to their plight only once from Kaczmarek, and not at all from Foster.

According to the transcript of Farak’s 2014 sentencing hearing, Kaczmarek cited the impact of Farak’s tampering on the integrity of other defendants’ drug cases as a reason why Farak should receive state prison time. In other words, Kaczmarek invoked concern for the considerable harm caused to the “Farak defendants” only when it furthered her own prosecutorial goals.

Kaczmarek also made the remarkable admission in her hearing testimony that to this day she still has not read the entirety of the judicial opinion that led to her disciplinary charges. She read it only “in part,” including some (but not all) of the sections that “pertain[ed] to me.” As for the court’s rulings regarding the impact of state misconduct on the defendants at this hearing — nine men and women, charged with 50 separate drug crimes, many of whom were still in prison? “I didn’t get to that part,” Kaczmarek admitted.

In a similar vein, Foster testified that even after the undisclosed mental health records came to light and the Commonwealth scrambled to handle the fallout, she “had not thought about this case” in the two years since she left the attorney general’s office – until she was subpoenaed to testify in 2016.

As for that 2016 testimony — from which the court found she committed “fraud” — Foster argues it should not now be used against her. This is because she did not “prepare” for that hearing, even after four attorneys from the AG’s office came to her house to meet with her. Why not? Because Foster had no idea that she herself would be “a focus.”

Had she known, Foster said, “I would have been prepared.” In other words, when her fellow citizens accused of drug crimes had their lives on the line, Foster cared little about giving accurate testimony. It was only when the “focus” suddenly was on her – and her law license – that she took the time to do so.

These are but a few excerpts from a complex record, spanning tens of thousands of pages. But they are a jarring reminder of how far we have to go to prevent such disastrous outcomes from happening again.

Most prosecutors play by the rules and care deeply about fairness. But until each and every prosecutor’s office in the nation fosters a culture in which prosecutors know that protecting defendants’ rights is every bit as much their “job” as securing convictions, history will be doomed to repeat itself.  

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