The state bar has been asked to investigate two former state prosecutors who worked on the case of a former state chemist at the Amherst drug lab, a month after a Springfield judge determined that the lawyers committed egregious misconduct.
In a decision that resulted in dismissal of drug charges against several defendants, Judge Richard J. Carey of Hampden County Superior Court ruled that the two former prosecutors, Anne Kaczmarek and Kris Foster, deliberately concealed documents and made misrepresentations to another judge. Carey found their conduct “constitutes a fraud upon the court.”
“Their intentional and deceptive actions ensured that justice would certainly be delayed, if not outright denied, and in the process, they violated their oaths as assistant attorneys general and officers of the court,” Carey wrote.
Complaint letters that cite Carey’s ruling were written by Nina Morrison, an attorney with the Innocence Project, a legal services and criminal justice reform group based in New York, and Daniel Medwed, a professor at the Northeastern University School of Law. The complaints were filed with the Office of Bar Counsel, which investigates claims of misconduct by Massachusetts attorneys.
The letters ask the state bar to conduct an investigation into whether the former prosecutors violated ethical rules for attorneys and warrant some kind of sanction.
“No lawyer, especially one with the power and responsibility of an assistant attorney general, should be immune from investigation for ethical violations,” Morrison and Medwed wrote.
The accused attorneys, who no longer work for the state attorney general’s office, did not respond to requests for comment. The attorney general’s office declined to comment.
Kaczmarek, now a Suffolk County assistant clerk magistrate, led the prosecution of former forensic chemist Sonja Farak, who pleaded guilty in 2014 to stealing from the evidence locker to feed her addiction to narcotics. Kaczmarek also directed the prosecution of chemist Annie Dookhan.
Foster, now general counsel for the Massachusetts Alcoholic Beverages Control Commission, fielded motions from defendants whose cases involved drug samples that were analyzed by Farak. At hearings held in December, Foster admitted to writing a “vague” letter to another judge about reviewing evidence seized from a search of Farak’s car.
Carey found that both prosecutors withheld key evidence “through deception,” such that another judge incorrectly ruled that Farak’s on-the-job drug use extended back just a few months. Many defendants in cases in which Farak analyzed evidence outside that time frame were denied the opportunity to appeal their cases.
But materials obtained by state troopers indicated Farak had used drugs in the lab for at least a year before her arrest. These documents were not disclosed to the court or defendants until several months after Farak went to prison. Farak later testified that her substance abuse stretched back several years earlier.
Kaczmarek acknowledged that she made mistakes in handling the evidence, while Foster defended her actions as stemming from her supervisors’ directions. At hearings in March, the state attorney general’s office argued that such errors did not warrant throwing out any cases.
The Office of Bar Counsel did not respond to inquiries about the complaints against Kaczmarek and Foster.
It is rare for the state bar to sanction prosecutors. A review earlier this year by the New England Center for Investigative Reporting found only 11 Massachusetts prosecutors have been disciplined for improper trial conduct since 1980, and that nine of these were anonymous admonishments.
Hearings recently concluded in disciplinary proceedings for a Martha’s Vineyard prosecutor accused of failing to share information with defense lawyers. A decision has not yet been issued in that case.Shawn Musgrave can be reached at email@example.com. Reporting for this story was supported by the Fund for Investigative Journalism.