Massachusetts Attorney General Maura Healey has committed to measures to guard against the kind of egregious prosecutorial misconduct committed in the Amherst drug lab scandal, when prosecutors mis-characterized evidence of drug use by a state chemist.
In a brief submitted to the state’s top court, Healey promised to create an ethics committee within her office and train prosecutors on their obligations to share evidence, among other measures.
“The attorney general has been clear that the conduct of two line prosecutors during the previous administration was unacceptable and beneath the standards she has set for the office,” said spokesperson Emalie Gainey. “Attorney General Healey has been and will continue to be proactive in taking steps to make sure that it never happens again.”
Healey’s promise comes amid ongoing litigation regarding the state’s Amherst drug lab, which was shut down in 2013 following the arrest of former chemist Sonja Farak for stealing from the evidence locker.
Defense advocates argue that prosecutors’ subsequent ethical breaches warrant dismissing thousands of drug convictions connected to the lab, as well as monetary sanctions against the attorney general’s office to deter future misconduct.
On Monday, 18 legal ethics and criminal justice scholars from across the country urged the state Supreme Judicial Court to fine the attorney general’s office for its former employees’ misconduct.
“Absent a fear of adverse consequences, prosecutors who engage in misconduct have no incentive to change their behavior,” the scholars wrote in a joint brief. A separate brief filed Monday by the Innocence Project and the New England Innocence Project concurred that monetary sanctions were “a critical element” of misconduct deterrence.
While prosecuting Farak, former assistant attorney general Anne Kaczmarek obscured evidence of the chemist’s longstanding on-the-job drug use, including substance abuse therapy worksheets that were discovered in Farak’s car. Kaczmarek’s colleague, former assistant attorney general Kris Foster, misrepresented this evidence, including to a judge.
Last summer, a Springfield Superior Court judge ruled Kaczmarek’s and Foster’s misconduct constituted a “fraud upon the court” and violated due process rights of “Farak defendants” seeking to challenge the chemist’s analysis in their cases. Complaints were filed with the state bar counsel against both women, who left the attorney general’s office for other government positions before their misconduct was discovered.
Before the Superior Court ruling, Healey’s office maintained that the prosecutors’ actions did not amount to egregious misconduct, framing them instead as “unintentional mistakes.” But while making arguments before the SJC, her office has explicitly labeled them as misconduct.
“We are especially cognizant that misconduct committed by former attorney general’s office staff has contributed to the ways in which justice was not done in this case,” Assistant Attorney General Thomas Bocian wrote in a brief filed with the SJC on April 12.
Throughout the drawn-out Amherst lab litigation, Healey’s office has tried to distance itself from misconduct committed under former attorney general Martha Coakley. Arguing that fines against Healey’s office would be both inappropriate and unnecessary, Bocian emphasized that current leadership has taken steps to ensure its prosecutors follow the rules.
When Assistant Attorney General Kim West took over as chief of the attorney general’s criminal bureau in 2015, she instituted a new policy limiting when prosecutors can withhold evidence from defendants, according to Bocian’s brief. When a prosecutor believes evidence can be withheld, he or she must consult high-ranking supervisors.
“If the direct supervisor concurs that the evidence may be lawfully withheld, he or she is required to notify and obtain approval from the chief of the Criminal Bureau,” per an internal policy document provided to the Globe.
The attorney general’s office says this policy is taught to every prosecutor and that there will be regular, mandatory trainings on evidence disclosure. Healey’s office will convene an internal ethics committee to review current policies and provide guidance to staff members.
The attorney general’s office will also cochair a new statewide task force on conviction integrity in partnership with the Massachusetts Bar Association.
Martin W. Healy, chief legal counsel for the bar association, said the task force has been in the works since May 2017, spurred in large part by the Farak matter and separate evidence tampering by former chemist Annie Dookhan at the state’s Hinton drug lab in Jamaica Plain.
“We felt an obligation to step up, especially on the heels of Dookhan and Farak, to ensure the justice system isn’t broken,” Healy said.
The Massachusetts Bar Association has, at times, had a rocky relationship with prosecutors regarding the drug lab scandals. The bar association successfully lobbied former governor Deval Patrick to order an outside investigation into Dookhan, effectively taking that investigation away from Coakley.
The bar association also supports the American Civil Liberties Union of Massachusetts and the Committee for Public Counsel Services in their current litigation over the Farak scandal. But Healy said the attorney general’s office has been enthusiastic about the new task force.
“To the attorney general’s credit, she was very interested early on,” Healy said.
In their brief submitted Monday, the legal scholars criticized these voluntary measures taken by the attorney general’s office as “vague” and potentially inadequate.
The Farak scandal case is scheduled for oral argument before the SJC on May 8.