Three former state prosecutors are facing possible disbarment. Thousands of men and women convicted of drug crimes continue to see their convictions overturned. The Commonwealth of Massachusetts is on the hook for an estimated $10 million to wrongfully convicted defendants.
And now Suffolk County prosecutors are reviewing the possibility of even more wrongdoing at the closed William A. Hinton state drug lab in Jamaica Plain.
Eight years after news broke of corruption within the state’s two drug labs, first with the arrest of chemist Annie Dookhan in 2012 and then her colleague Sonja Farak in Western Massachusetts the following year, the scandal is far from over; in fact it’s still growing.
The women admitted they had compromised drug tests in criminal cases by falsifying results, or in Farak’s case, stealing drugs for her own use. They have both served their time and been released.
In a filing last month, Suffolk District Attorney Rachael Rollins’s office said it is also examining the work of Della Saunders, another state chemist who worked alongside Dookhan, to ensure that she, too, did not falsify drug test results.
Prosecutors were reviewing more than 4,000 pages of recently released files from a 2014 inspector general report “to confirm that the investigation appropriately examined the conduct of (chemist Della) Saunders and that Dookhan was indeed the Lab’s sole bad actor,” Donna Patalano, general counsel for Rollins’s office, wrote in the filing.
For their part, the former assistant attorneys general are facing discipline from the Board of Bar Overseers for allegedly withholding key evidence that would have revealed Farak had been abusing drugs long before she got caught and raised questions about her work in many more cases.
Lawyers watching the largest crime lab scandal in US history unfold say that cleaning up the legal mess has taken so long in large measure because the injustice was so vast.
“These scandals produced two of the largest mass exonerations in the history of our criminal legal system because they were two of the gravest injustices in the history of our criminal legal system,” said Matt Segal, legal director of the American Civil Liberties Union of Massachusetts, one of the lawyers who successfully fought to vacate thousands of cases involving the two chemists.
But, he added, “Anyone who blames these injustices entirely on two chemists, instead of the system that fostered and protected their misconduct, is selling something. "
Annie Dookhan became a household name in the months after her arrest in September 2012, leaving a long trail of falsified drug analyses as well as e-mails that showed she was anything but a neutral witness in the justice system. Instead, Dookhan viewed herself as part of the prosecution team, openly saying that her goal was “getting (drug dealers) off the street.”
The case against Dookhan was clear — a year after she was arrested she admitted her crimes. She pleaded guilty in November 2013 to obstruction of justice, tampering with evidence, and perjury. She was sentenced to three years in prison and was released in April 2016.
Farak’s misdeeds were, in some ways, far worse, but less well known. She used drugs she stole on the job — and the extent of her drug use was not revealed by prosecutors until almost two years after her arrest.
At a press conference announcing Farak’s arrest in January 2013, then-Attorney General Martha Coakley suggested her misconduct was confined to two stolen drug samples.
The charges against Farak, Coakley said at a news conference, “do not implicate the reliability of testing done or fairness to defendants.”
But defense attorneys looked for proof that Farak’s drug use could have stretched back years and eventually found it: mental health worksheets that State Police pulled from her car when she was arrested. These worksheets, filled out by Farak herself, showed the chemist had been using drugs for at least a year before she was arrested.
A judge in 2017 called prosecutors’ failure to produce those worksheets sooner “a fraud upon the court.”
Eventually, defense lawyers obtained Farak’s counseling records and discovered she had been using drugs for at least eight years.
In 2018, the state’s high court threw out tens of thousands of convictions based on evidence tested at the Amherst lab while Farak worked there — and the alleged misconduct of former state prosecutors Anne Kaczmarek, Kris Foster. and John Verner.
So far, nearly 38,000 cases have been dismissed statewide in the scandal, including 16,393 cases where Farak tested the drugs and 21,405 where the chemist was Dookhan. There are potentially thousands left to go.
Today, defense attorneys argue that Farak was likely using drugs before she arrived at the Amherst lab in 2004. From 2003 to 2004, Farak worked at the Hinton Lab in Jamaica Plain, where she tested more than 9,000 samples involving some 5,000 defendants.
Already, Middlesex District Attorney Marian Ryan’s office has dropped one case that Farak handled while she worked in Boston, the conviction of Eugene Sutton for possession of heroin with intent to distribute.
Ryan’s office has 1,600 other cases where drug convictions relied on Farak’s work at the Hinton Lab. Suffolk District Attorney Rollins has about 1,000. Both prosecutors are considering vacating any convictions that hinged on Farak’s work.
“The fact that the cases handled by Farak are pretty old doesn’t change our obligation to be certain of the integrity of the convictions,” said Ryan in an interview.
“If there is something amiss with these convictions, we need to remedy that,” she added.
At the same time, state officials are still figuring out how much they need to repay drug defendants who were charged a myriad of court fees in cases that have now been thrown out.
The state has agreed to refund 10 or more types of fees and fines, including indigent counsel fees, probation supervision fees, victim witness fees, court costs, DNA test fees, drug analysis fees, and driver’s license reinstatement fees, among others.
Each wrongfully convicted defendant stands to receive thousands of dollars in refunds.
“This is certainly one of the long shadows cast by the drug lab scandal,” said Daniel Marx, who along with attorneys William Fick and Luke Ryan filed class actions lawsuits in 2018 on behalf of 40,000 Dookhan and Farak defendants. “Every day that goes by where the state continues to hold money that belongs to these people is a day that compounds the damage that was done and continues the violations of their constitutional rights.”
Probation fees alone can total nearly $1,000 a year. And defendants can’t avoid paying that fee; failure to pay could result in a probation violation that would send them to jail.
“That’s beautiful,” said Richard Salomon, who served six months in jail after pleading guilty to a cocaine offense. “It’s only right. They ruined a lot of people’s lives. I would put the money in savings for now, to eventually buy a house and take care of my family.”
State agencies have been working with Attorney General Maura Healey and defense lawyers to come up with a plan to reimburse the defendants and settle the case. The parties are expected to file a progress report by March 15.
“The crimes committed by Annie Dookhan and Sonja Farak were egregious and have had a grave impact on thousands of people in Massachusetts and undermined the integrity of our justice system,” said Healey in a statement. “The defendants that were impacted deserve a quick and fair solution and we look forward to closing this troubling chapter for Massachusetts.”
Last month, the state’s Board of Bar Overseers, a disciplinary panel appointed by the Supreme Judicial Court, wrapped up hearings against Kaczmarek, Foster, and Verner, the three prosecutors in Coakley’s office. Kaczmarek prosecuted both chemists. Foster handled appeals in Farak’s case, and Verner was their supervisor.
In 2017, Hampden Superior Court Judge Richard Carey found that Kaczmarek and Foster, had “deliberately withheld” Farak’s mental health worksheets. Carey called their actions “a fraud upon the court.”
The three lawyers have denied any wrongdoing.
Kaczmarek said her job was to prosecute Farak and she was required to provide any exculpatory evidence only to Farak’s lawyer. Any decision to share that information with district attorneys or defense lawyers would have been made by someone more senior than her, she said.
Foster, who had been an assistant attorney general for only two months when she was asked by her supervisors to respond to a subpoena from defense lawyers, said she was told by others in the office that all documents had been turned over.
Her lawyer, Allen David, argued that she was only following orders.
Verner, who was chief of the attorney general’s criminal division at the time, said he didn’t micromanage the lawyers who worked for him and didn’t know any evidence had been withheld until it finally came to light.
“John Verner has been a prosecutor for 20 years and possesses the highest professional ethics,” wrote his lawyers, Patrick Hanley and Tom Butters, in a statement to the Globe. “He denies all of the allegations of misconduct lodged by the Office of Bar Counsel.”
Northeastern Law School professor Daniel Medwed, who filed the complaint that led to the disciplinary charges against the lawyers, said he hopes they are hit with some form of punishment.
“I’m thrilled the Office of the Bar Counsel is taking it so seriously,” he said. “Not only that they’ve investigated so thoroughly, but they are pursuing sanctions and discipline in such a transparent way.”
Should Verner be disciplined, he said, it could have far-reaching implications because supervisors are “seldom held accountable where prosecutors overstep the bounds of ethics.”
But the disciplinary process could continue for some time — if the Board of Bar Overseers seeks disbarment or other serious punishment for the prosecutors, the case will go to the Supreme Judicial Court, which will have the last word.
As a result, it’s almost certain that the fallout from the drug lab scandal will continue well into 2021 — or beyond.
Segal of the Civil Liberties Union, for one, is not surprised.
“If you wrongfully convict tens of thousands of people, punish them severely, continue to punish them through severe collateral consequences, and then fight their attempts to clear their names, then any attempt to remedy all that injustice is bound to take time,” he said.
Andrea Estes can be reached at firstname.lastname@example.org.