For the first time ever, the board that disciplines attorneys is recommending a former Massachusetts prosecutor lose her law license for failing to turn over evidence that might have exonerated defendants.
The Board of Bar Overseers (BBO) recently released a rare proposal to disbar former assistant attorney general Anne Kaczmarek for her actions in the state's nearly decade-old drug lab scandal.
Disbarment was the most severe potential penalty Kaczmarek and two other former assistant attorneys general faced as the board reviewed their handling of the case against disgraced ex-chemist Sonja Farak. The state Supreme Judicial Court will review the board's recommendations and make a final decision on the punishments.
"This matter is – literally – unprecedented," wrote the BBO in a memorandum detailing its proposed sanctions. "Rare is the case involving prosecutorial misconduct. Rarer still is the case of prosecutorial misconduct on such a wide scale, impacting thousands of criminal defendants. The entire criminal justice system has suffered."
In 2014, Farak was convicted of using drug samples she was supposed to test at a state lab in Amherst. Kaczmarek oversaw the prosecution of Farak for the office of former Attorney General Martha Coakley.
The BBO's memorandum said Kaczmarek "actively misled others in the AGO [attorney general's office] and the district attorneys," and that "her primary motivation appears to have been to contain the damage" from Farak's misconduct, adding she exhibited a “disregard for the rights of defendants" in criminal cases potentially tainted by Farak's misconduct. Thousands of cases were dismissed in the sweeping scandal.
As defense attorneys sought evidence from the case against Farak to determine whether their own clients' cases were affected by her misconduct, Kaczmarek repeatedly said all evidence had been turned over to district attorneys prosecuting the drug cases. However, a key piece of exculpatory evidence in State Police evidence files had not been brought forward.
After Farak's conviction, defense attorney Luke Ryan received approval to examine the AG's evidence in the case. It was then that Ryan discovered so-called "mental health worksheets" found in a search of Farak's car after her arrest. The worksheets were Farak's therapeutic records, showing Farak had used drugs for a longer period than the attorney general's office claimed.
"The system broke down on many levels, involving intentional misconduct
and recklessness," the BBO memorandum reads. "There were unfounded assumptions, miscommunications, incompetence, an attempt to minimize the scope of the scandal (even at the expense of the truth), and a supercilious attitude toward defense attorneys who were trying zealously to represent their clients."
The BBO recommended less harsh sanctions for the two other former assistant attorneys general involved in the imbroglio, Kris Foster and John Verner. For former prosecutor Kris Foster, then a junior lawyer in the AG's office, the BBO recommended her law license be suspended for one year and one day. That would force Foster to reapply to have her law license reinstated. The BBO rejected Foster's claims that she was an inexperienced attorney following the orders of her supervisors and believed all relevant evidence had been disclosed.
"Kaczmarek’s misconduct does not excuse Foster’s," the BBO wrote. "If Foster had reviewed the file and asked the obvious questions, she would have seen the exculpatory evidence. She would have learned what had been disclosed. Her professional duty required her to learn for herself what had been disclosed and not rely on proclamations of others."
For John Verner, Kaczmarek's former supervisor, the BBO recommended a three-month suspension of his law license. The board acknowledged that in previous cases, legal supervisors have faced only a public reprimand for failing to properly oversee a subordinate. But the BBO said the drug lab scandal "required a more proactive approach from a supervisor."
"Verner failed to comply with his responsibilities to ensure that the AGO complied with its ethical and constitutional obligations," the BBO wrote. "His failure caused catastrophic harm."
In a written dissent, BBO member Rita Allen, one of the non-attorney members of the board, called the three-month suspension recommended for Verner "unduly lenient." Allen argued Verner should have better supervised the case, and that he should at least face the same sanctions as Foster.
"In light of the severity of the harm caused by his dereliction of duties, I cannot support a sanction of less than one year and one day," Allen wrote. "It is difficult to think of a failure of supervision with more serious repercussions."
The Office of Bar Counsel, which prosecuted the case before the BBO, said the board's recommendations "preserve and enhance the integrity and high standards of the bar" and prove that unethical attorneys - even prosecutors - will be punished."
"To some extent, the misconduct of these three prosecutors unfairly placed all prosecutors in a bad light," said Joe Makalusky, assistant bar counsel in the Office of Bar Counsel. "As a former criminal prosecutor, I know that the overwhelming majority of prosecutors are hard-working and self-sacrificing individuals who earnestly strive to do justice."
The BBO proposed sanctions that are more stringent than the penalties previously recommended for the former prosecutors. After the Office of Bar Counsel filed a complaint for discipline against the three attorneys in 2019, a Special Hearing Officer (SHO) held weeks of disciplinary hearings. Last year, that hearing officer recommended a two-year law license suspension for Kaczmarek, a suspension of one year and a day for Foster and a public reprimand for Verner.
The BBO said tougher sanctions were warranted because the Farak case harmed criminal defendants and the entire state criminal justice system.
"The Farak case caused unprecedented pain to many, not only the defendants who were wrongfully convicted, many of whom are from communities of color," the BBO wrote. "Thousands of defendants lost time with families and friends while wrongfully incarcerated. Their lives were forever altered. Many of the defendants in the Farak cases were immigrants. Due to their convictions, they likely were deported before the misconduct came to light. The scandal weakened public confidence in our criminal justice system."
A final decision will be made by the state's Supreme Judicial Court because it is tasked with approving or altering suspensions for any lawyer.
"The court exercises its own judgment," said attorney Nancy Kaufman, a former assistant bar counsel. She said the Supreme Judicial Court will "pay attention" to the board's recommendations, but in attorney disciplinary cases "very often it does not go along with the BBO recommendations."