Allegations of official misconduct have been filed against three former state prosecutors related to the Amherst drug-lab scandal. The state body that investigates lawyers alleges the attorneys, two of whom currently work for government agencies, withheld evidence from defendants, district attorneys, and a judge.
A former state chemist, Sonja Farak, who worked at the state drug lab in Amherst, was arrested in 2013 for tampering with narcotics samples to feed her own addictions. Defense attorneys challenging convictions based on her lab tests found evidence of her longstanding drug use, evidence that prosecutors working under the attorney general at the time, Martha Coakley, withheld despite numerous requests and court orders.
In October, after years of litigation, the state’s top court ordered tens of thousands of convictions thrown out because of Farak’s tampering and the “deceptive withholding of exculpatory evidence by members of the attorney general’s office.”
The office of the current attorney general, Maura Healey, declined to comment on the allegations, which were filed June 28 by the Office of the Bar Counsel.
The first attorney facing potential discipline, Anne Kaczmarek, spearheaded the prosecution of Farak. Kaczmarek left the attorney general’s office in 2014 and was employed as an assistant clerk magistrate in Suffolk County until November 2018. The Office of the Bar Counsel claims that Kaczmarek knew about evidence documenting Farak’s therapy for substance abuse and made “materially misleading” statements about this evidence to district attorneys.
In June, a federal appeals court refused to dismiss a lawsuit against Kaczmarek filed by a man who was convicted on drug charges based on Farak’s tainted laboratory analysis. Evidence reviewed by Kaczmarek indicated Farak had used narcotics the day she tested samples in the man’s case. The First Circuit Court of Appeals rejected Kaczmarek’s argument that she was immune from such lawsuits as a government attorney.
“There were a series of systemic failures in the way the state handled the drug lab scandals,” said Thomas Kiley, Kaczmarek’s attorney. “Holding individual assistant attorneys general responsible for systemic failures is a questionable public policy.”
The second former prosecutor, Kris Foster, was tasked with responding to subpoenas for evidence regarding the state’s criminal investigation of Farak. Foster is currently general counsel at the state Alcoholic Beverages Control Commission.
The bar counsel alleges Foster intentionally misled a judge in September 2013 in a letter suggesting she had reviewed the evidence against Farak and found that all relevant documents were disclosed to drug-case defendants. Foster previously acknowledged her letter was intentionally vague, but said she was following orders from her supervisors in the attorney general’s office.
“It is well settled that a junior lawyer is entitled to follow the reasonable instructions of her supervisor and to rely upon the information provided by her client,” said George Berman, Foster’s attorney. “This is exactly what Ms. Foster did, and she did not violate any ethical rule by doing so.”
Last year, a federal judge threw out a lawsuit filed against Foster by the same plaintiff who is suing Kaczmarek.
The last former prosecutor facing potential discipline, John Verner, supervised both Kaczmarek and Foster as chief of the attorney general’s Criminal Bureau. Verner joined the Suffolk County district attorney’s office in 2016.
The bar counsel alleges Verner failed to take appropriate remedial action once he had become aware that evidence about Farak had not been disclosed.
“This Office is committed to ensuring just and fair prosecutions, and will therefore carefully review the serious allegations set forth in the Petition,” said a statement from Renee Nadeau Algarin, deputy press secretary for the Suffolk County district attorney. “That said, John Verner has served this Office since 2016, and the District Attorney’s administration over the last six months, with professionalism and integrity.”
In June 2017, after hearings at which all three former prosecutors took the stand, Judge Richard Carey of Hampden County Superior Court found that Kaczmarek and Foster had committed a “fraud upon the court,” but he did not find that Verner engaged in any misconduct.
Misconduct complaints were filed with the bar counsel against Kaczmarek and Foster in July 2017. After nearly two years, Daniel Medwed, a law professor at Northeastern University who filed the complaints with the nonprofit Innocence Project, was pleased to hear the bar counsel has requested disciplinary proceedings.
“I was pleasantly surprised about the inclusion of Verner,” Medwed said, “because there is limited precedent for holding prosecutorial supervisors responsible, and there is a chance here to send an essential message that supervisors, and not just line prosecutors, must satisfy their ethical obligations.”
“What remains to be seen, of course, is whether these prosecutors receive a meaningful sanction or merely a slap on the wrist,” Medwed said.
The bar counsel has requested five days of hearings that have not yet been scheduled.