Appeals filed over possible sanctions for 3 former drug lab prosecutors

The process for possibly disciplining three former prosecutors accused of minimizing a state drug lab scandal nearly 10 years ago continues to unfold.

The Office of Bar Counsel is appealing proposed sanctions for the three former assistant attorneys general, arguing each should face harsher punishments.

The proposed sanctions were recommended by the so-called "special hearing officer" (SHO) for the Board of Bar Overseers (BBO), which disciplines attorneys. SHO Alan Rose endorsed different punishments for ex-prosecutors Anne Kaczmarek, John Verner and Kris Foster, ranging from a public reprimand to a two-year law license suspension.

Kaczmarek, Verner and Foster are facing discipline for not turning over potentially exculpatory evidence involving the drug testing done by former state chemist Sonja Farak. She was convicted in 2014 of using drugs she was supposed to be testing at the Amherst drug lab. Because of Farak's misconduct, thousands of criminal cases based on the drug evidence she tested were dismissed.

At the time, the Massachusetts attorney general was also prosecuting former chemist Annie Dookhan. Tens of thousands of criminal cases later were dismissed because of Dookhan's misconduct at the Hinton drug lab.

After lengthy disciplinary hearings last year, Rose recommended the harshest sanction — a two-year law license suspension — for Kaczmarek, who prosecuted the Farak case for the AG's office. Rose found Kaczmarek intentionally withheld mental health worksheets found in Farak's car that showed Farak's drug use went on for much longer than the AG's office had claimed.

The Office of Bar Counsel, which prosecuted the former prosecutors, filed an appeal of that recommended sanction last Friday, saying Kaczmarek instead should be disbarred. Bar Counsel said disbarment "is the only sanction that will reassure the public that the kinds of nefarious conduct at issue here have no place in the attorney's repertoire or in our courts."

Bar Counsel's appeal said Rose did not consider the extent of the damage done by withholding evidence in the Farak case. The appeal stated, "it must not escape attention that Kaczmarek’s prosecutorial misconduct shook the foundation of the criminal justice system in a manner never experienced before."

"Literally thousands of criminal cases were affected by her [Kaczmarek's] intentional
refusal to disclose multiple pieces of exculpatory evidence over an extended period of time," Assistant Bar Counsel Joseph Makalusky wrote in the appeal. "It can
hardly be imagined that a prosecutor’s failure to disclose exculpatory evidence could visit greater harm upon so many people or inflict more damage to the public’s perception of our system of justice.

"In other words," he continued, "Kaczmarek’s sanction will set the ceiling for all future prosecutorial misconduct cases in Massachusetts; and a ceiling of a two-year suspension is much too low."

As for Verner, who led the AG's criminal bureau as it handled Farak's case, Rose recommended a public reprimand for his failure to supervise Kaczmarek. In its appeal, Bar Counsel, which initially recommended Verner receive a one-year law license suspension, said he should be punished with more than a public reprimand.

"Even if the Board were disinclined to adopt Bar Counsel’s recommendation, it should still recommend a suspension of some duration — not to punish Verner, but in order to restore some modicum of the public’s trust in the criminal justice system," Makalusky wrote, "and to ensure that prosecutors in supervisory roles take their responsibilities more seriously when it comes to the disclosure of exculpatory evidence."

Bar Counsel agreed with the call to suspend former prosecutor Kris Foster's law license for one year and one day, but Makalusky also asked the BBO to find that Foster violated the rules of professional conduct for her letter to a judge that said all potentially exculpatory materials in the Farak case had been turned over.

Foster's attorneys also appealed Rose's proposed sanctions, however, arguing her license should not be suspended at all.

"The case bar counsel proved was essentially one of negligence, which should have
resulted in a recommendation of no more than a public reprimand," wrote Foster's attorney Kristyn Kelley, with the firm Peabody & Arnold.

Both appeals ask the BBO to schedule oral arguments before the full board.

Attorneys for Kaczmarek and Verner did not file appeals by last Friday's deadline.