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The state board that oversees lawyers is recommending possible disciplinary action against three former Massachusetts prosecutors over how they handled a state drug lab scandal.
The Massachusetts Board of Bar Overseers will hold a hearing on the matter, after its investigators determined that disciplinary charges are warranted against former state Assistant Attorneys General Anne Kaczmarek and Kris Foster and their supervisor, John Verner, for deliberately withholding key evidence.
The three worked under former Attorney General Martha Coakley and investigated former chemist Sonja Farak, who worked in the state drug lab in Amherst and in 2014 pleaded guilty to using the drugs she was supposed to be testing.
The board's Office of Bar Counsel says the three prosecutors deliberately withheld evidence about the scope of Farak's drug use, despite numerous court orders to do so. The withheld evidence came to light after defense attorneys challenged Farak's testing of drug evidence.
In October, the state's highest court dismissed thousands of convictions because of Farak’s tampering and what the court said was the “deceptive withholding of exculpatory evidence.”
"Tens of thousands of people were unfairly convicted, in part because prosecutors withheld crucial information," said Matt Segal, legal director for the American Civil Liberties Union of Massachusetts. "The Board of Bar Overseers’ petition for discipline means that, for the first time, there will be a public hearing centered on accountability for individual prosecutors."
After hearings in 2017, Hampden County Superior Court Judge Richard Carey found that Kaczmarek and Foster had committed a “fraud upon the court" in withholding records showing that Farak's misconduct in the lab was going on for much longer — and affected thousands more cases — than the attorney general had initially claimed. The judge's findings prompted complaints filed by the Innocence Project and Northeastern University law professor Daniel Medwed against Kaczmarek and Foster over the misconduct.
"It's extremely rare for prosecutors to face public discipline — even after a court has found they committed misconduct," said Nina Morrison with the Innocence Project.
A 2017 review by the New England Center for Investigative Reporting found that the Board of Bar Overseers named only two prosecutors since 1980 who had been disciplined for improper trial behavior.
Morrison said it's notable that the Office of Bar Counsel also recommended discipline against Verner, who supervised Kaczmarek and Foster.
"That's a powerful message because the culture of these offices comes from the top and if supervisors don't make it a priority for prosecutors to comply with the law it often doesn't happen," Morrison said. "Formally charging Mr. Verner is something I would imagine other prosecutors who supervise attorneys will pay attention to quite seriously."
The Office of Bar Counsel says Verner, who led the former attorney general's criminal bureau, did not take action once he knew that evidence about Farak had been withheld.
Verner now works with Suffolk County District Attorney Rachael Rollins. Her office issued a statement saying it will carefully review the allegations and that Verner "has served this District Attorney with professionalism and integrity."
Kaczmarek left the attorney general’s office in 2014 and was employed as an assistant clerk magistrate in Suffolk County until last year. The Office of Bar Counsel claims that Kaczmarek made “materially misleading” statements about evidence to district attorneys.
Foster is now general counsel for the Massachusetts Alcoholic Beverages Control Commission.
The Office of Bar Counsel has requested up to five days of public hearings, which have not been scheduled yet.
The former prosecutors face sanctions ranging from dismissal to a suspension of their licenses to practice law.
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- Mass. High Court Considers Fining AG's Office In Drug Lab Case
- Innocence Project Calls For Probe Into 2 Former State Prosecutors In Amherst Drug Lab Scandal
- Judge Rebukes Prosecutors For Withholding Evidence In Amherst Drug Chemist Scandal
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