Three former Massachusetts assistant attorneys general, accused of withholding information that evidence was tainted in thousands of drug cases, engaged in professional misconduct, according to a report by a state hearing officer released last week.
In the 98-page report issued after weeks of hearings last year, Board of Bar Overseers Special Hearing Officer Alan Rose said former assistant attorneys general Anne Kaczmarek, Kris Foster and John Verner investigating the state drug lab scandal committed "numerous lapses, oversights, intentional misconduct and rule violations" from 2013 to 2016. Rose said he will make recommendations on possible sanctions in a future report.
The Board of Bar Overseers is charged with reviewing complaints against Massachusetts attorneys accused of misconduct and determining whether attorneys should be disciplined.
In this case, the complaints accused the three former assistant attorneys general of deliberately withholding evidence discovered while prosecuting former chemist Sonja Farak, who was convicted in 2014 of stealing and using drug samples that she was supposed to be testing for evidence at the Amherst Drug Lab. Farak served 18 months in prison.
Attorney general Martha Coakley's office originally said in 2014 that Farak had been using drugs for months, potentially tainting the evidence in drug cases handled during a relatively narrow time period.
But it turned out the attorney general's office found materials showing that Farak's drug use had gone on for years — affecting many more criminal drug cases that relied on the evidence that Farak was testing. Thousands of drug convictions have been overturned because of the compromised testing.
The attorneys representing the former prosecutors have until Aug. 16 to respond to Rose's findings and recommend possible sanctions. Rose will then recommend possible punishment, which could range from private admonition to suspension. The state Supreme Judicial Court will then decide whether to approve any sanctions.
"It's very rare to see formal proceedings geared to accusations of the wrongful holding of exculpatory evidence," said Matt Segal, legal director for the ACLU of Massachusetts, who sued on behalf of defendants affected by the drug lab scandals. "It is even rarer to see findings like this and whatever anyone thinks of these findings or this process, we should all want a system in which people need to think twice about any action to withhold exculpatory evidence from criminal defendants."
Much of Special Hearing Officer Rose's report was critical of Kaczmarek, who led the attorney general's office prosecution of Farak.
During the hearings before the Board of Bar Overseers, Kaczmarek testified that the "system failed " and there was a "disconnect" when the potentially exculpatory materials were not turned over. She also said that it wasn't her job to make sure they were turned over and her focus was on prosecuting Farak.
Rose discredited that testimony, saying it "was understood from the outset that all evidence that was inculpatory towards Farak was potentially exculpatory to Farak defendants." He wrote further that "this conclusion would be obvious to any prosecutor or criminal defense counsel."
Kaczmarek's behavior was "the antithesis of how a prosecutor should act."Board of Bar Overseers Special Hearing Officer Alan Rose
During last year's disciplinary hearings before Rose, Kaczmarek testified that she initially did not realize the significance of so-called "mental health worksheets" found in Farak's car. The worksheets, essentially counseling notes, showed that Farak had been using drugs — often on the job — for much longer than the attorney general's office had claimed.
Defense attorneys had been asking for all materials related to the Farak investigation that might be exculpatory for their clients. Kaczmarek testified that she believed that all materials had been turned over to the state's district attorneys to distribute to defense attorneys.
But Rose said he did not find her claims credible and said that Kaczmarek "actively misled" colleagues.
"I find that Kaczmarek’s attitude toward the (Farak) investigation was that of a prosecutor who was not eager to investigate her subject fully," Rose's report reads. He also said Kaczmarek "developed a theory of Farak’s conduct and its scope within days of Farak’s arrest and declined to depart from it."
Rose concluded that Kaczmarek didn't want to understand the scope of problem at the lab, writing that Kaczmarek's behavior was "the antithesis of how a prosecutor should act."
Kaczmarek's attorneys testified during last year's hearings that Kaczmarek was dealing with two drug lab scandals simultaneously. Four months before Farak was arrested, former chemist Annie Dookhan was charged with misconduct at the Hinton Lab in Boston.
"She was in the midst of dealing with Farak and Dookhan at the same time, and her instructions in both cases had been to focus and find charges quickly to be brought because of the public interest in the case," Kaczmarek's attorney Tom Kiley said during the hearings.
Kaczmarek's attorneys did not comment on Rose's findings.
Kaczmarek's supervisor at the time was former assistant attorney general John Verner, who led the Attorney General's Criminal Bureau. The Office of Bar Counsel accused Verner of not making sure that the exculpatory materials were handed over and not taking action. Verner testified that he believed all the materials had been disclosed and he relied on his subordinates to do so. Rose's findings say that while Verner should have been more diligent in supervising Kaczmarek, Verner did act once he learned that defense attorneys had discovered the mental health worksheets in 2014.
"My finding above reflects that in failing to follow up, he (Verner) committed misconduct," Rose's report reads. "However, I did not and do not find that Verner was actually aware, until November 2014, that the potentially exculpatory material had not been turned over. Once he learned this, he acted promptly. In the circumstances, I do not find that bar counsel has proved that Verner failed to take remedial action when he was aware of Kaczmarek’s misconduct."
Verner's attorneys said they're pleased with the report and they respect Rose's findings.
"John Verner has been a highly respected prosecutor for 20 years," Verner's attorneys Patrick Hanley and Thomas Butters from the firm Butters Brazilian said in an emailed statement. "Today, Attorney Alan Rose, the Special Hearing Officer in this case found that John did not intentionally violate any rule of professional conduct. That is the right result."
The third former prosecutor accused of helping the attorney general's office withhold the Farak evidence is Kris Foster. She had been with the office for only a few months before Farak was arrested and was assigned to handle some defense attorneys' requests for materials from the Farak investigation. Rose's findings suggest that Foster did not act deliberately, but that her actions were incompetent and that she was not diligent in her work.
"Foster performed her role in an incompetent manner," Rose's report reads. "She failed to ask sufficient questions of those with knowledge of the facts, she did not educate herself about the Farak investigation and documents obtained from Farak."
Foster testified that she did not deliberately withhold evidence, was a junior attorney in the attorney general's office and was just following her bosses' instructions. During the hearings her attorneys said that Massachusetts’ rules of professional conduct for lawyers allow for subordinate lawyers to defer to the instructions of their supervisors. In Rose's findings, he said he "rejects that analysis" and had not found "pertinent cases" accepting that as a defense.
Rose's report questions how Foster handled hearings before judges in western Massachusetts who were seeking information from the attorney general's office about the extent of Farak's misconduct to determine how drug cases in their jurisdictions might be affected. After the hearings, Hampden Superior Court Judge Richard Carey concluded the Kaczmarek and Foster had committed "fraud upon the court" by not disclosing the potentially exculpatory materials.
Special Hearing Officer Rose has concluded that Foster should have been better prepared for those hearings and found that Foster "made repeated representations to the Court on critical issues without having any factual foundation. She misrepresented that she had personal knowledge about the evidence when in fact she had failed to make a diligent — or, indeed, any — inquiry about it. "
Foster's attorneys said they are pleased their client had a chance to defend herself in the hearings and that Rose rejected allegations that Foster intentionally acted improperly.
"The Special Hearing Officer expressly found that Ms. Foster’s direct supervisor should not have assigned the matter to her, should have provided her with better supervision after doing so and personally reviewed and approved all submissions to the Court," said Foster's attorney George Berman with the firm Peabody Arnold. "The law is clear that 'the buck stops' at the top and that subordinate lawyers are entitled to rely upon the instructions and information provided by superiors. We are confident that the ultimate disposition will reflect that very reasonable standard."
Both sides have the opportunity to appeal Rose's findings, but it's not clear who will pay the former prosecutors' legal bills if the matter drags on. The state attorney general has already paid roughly $1 million in legal fees to defend the former prosecutors, but said it was not expecting to make "additional payments."
Last week Suffolk County District Attorney Rachael Rollins filed a motion asking the state Supreme Judicial Court to determine if new trials should be granted to anyone whose case was based on evidence tested at the Hinton Lab — where Farak once worked with Dookhan.
Rollins' motion would apply to any case where the drugs were tested at the Hinton Lab between May 2003 and August 2012, regardless of the chemist who did the testing.