By Maggie Mulvihill, Jessica Huang and Matthew Meusel
BU News Service
In a rare sanction of prosecutors for the “spectacular” harm they caused to the public, the state’s criminal justice system, and scores of Massachusetts drug defendants, a hearing officer for the Board of Bar Overseers recommends three former assistant attorney generals accept punishments ranging from a two-year ban on practicing law to a public reprimand, for their misconduct during the 2014 prosecution of disgraced chemist Sonja Farak.
Special Hearing Officer Alan D. Rose recommended a two-year suspension for Anne K. Kaczmarek, the lead prosecutor in the Farak case. Kaczmarek intentionally withheld exculpatory evidence from drug defendants challenging their convictions based on tests that Farak conducted at the state lab in Amherst, Rose found. Farak pleaded guilty in 2014 to tampering with and stealing drug evidence at the lab.
Rose, retained by the board to evaluate the misconduct charges, also recommended former assistant attorney general Kris C. Foster be suspended for a year and a day. Foster made false statements to judges considering the challenges to drug convictions brought by defendants convicted with evidence Farak had tested, Rose found.
Rose found Foster exhibited a “pervasive lack of candor and truthfulness” and a “lack of remorse” for her conduct during disciplinary hearings last year.
Rose recommended a public reprimand for former assistant attorney general John C. Verner for failing to properly supervise Kaczmarek.
The suggested penalties are the latest repercussions in the continually evolving drug lab fiasco, which first spilled into public view nearly a decade ago with the arrest of chemist Annie Dookhan.
Dookhan pleaded guilty in 2013 to tampering with drug samples at the William A. Hinton State Laboratory Institute in Jamaica Plain.
The state’s highest court has dismissed roughly 35,000 drug convictions due to the misconduct of Dookhan at Hinton and Farak in Amherst in what has become the biggest crime lab scandal in U.S. history.
Dookhan and Farak collectively served less than five years behind bars.
Rose found Kaczmarek intentionally withheld mental health worksheets found in Farak’s car after her 2013 arrest that indicated she struggled with a severe drug addiction. The information revealed Farak’s habit could have impacted her work far longer than just the the six months predating her arrest, as the attorney general’s office claimed.
In fact, Farak admitted in 2015 grand jury testimony that her drug use at the Amherst lab began after she arrived there in 2004 and she was on drugs “nearly every day, all day”.
Defendants who sought the exculpatory evidence, Rolando Penate and Lizardo Vega, remained imprisoned because the worksheets were withheld. Those cases were later dismissed.
“Kaczmarek displayed no remorse, admitted no wrongdoing, and showed no appreciation for her role in what occurred,” Rose wrote. He said Kaczmarek caused “great harm to the third-party defendants, the system of justice and the public at large.”
Rose’s recommendation for Kaczmarek is far short of the disbarment urged in August by the state Bar Counsel’s office, which brought the ethics charges against the prosecutors.
Rose acknowledged in his 25-page decision that Massachusetts prosecutor discipline is rare, and there is no precedent for the misconduct committed by the three lawyers committing misconduct in the unparalleled drug lab crisis.
Rose’s recommendations must be approved by the Board of Bar Overseers and the state’s highest court.
Bruce A. Green, a former federal prosecutor who now directs the Louis Stein Center for Law and Ethics at Fordham University Law School, said there is no guarantee Kaczmarek will be readmitted to the bar if she seeks reinstatement.
Despite Kaczmarek’s long career as a prosecutor with no prior allegations of improprieties, she would still need to persuade the Board and the Supreme Judicial Court, which reinstates lawyers to practice, that she acknowledged her mistakes and would not repeat them.
“That is going to be an uphill battle,” Green said.
Kaczmarek’s attorney, Thomas R. Kiley, did not respond to a request for comment yesterday.
Kaczmarek is no longer working as an attorney. Foster is the general counsel for the state’s Alcoholic Beverage Control Commission. Verner is a prosecutor at the Suffolk County District Attorney’s office.
Rose found Foster misled Judge C. Jeffrey Kinder during an Oct. 2, 2013, hearing, falsely claiming all exculpatory evidence had been turned over to defendants.
Rose also laid some blame on Foster’s superiors in the attorney general’s office, who have not been charged with misconduct.
Foster lacked the legal experience to handle the matter before Kinder and had relied on Kaczmarek’s claim the material had been disclosed. Kinder denied the defendant’s requests for relief, partly because of Foster’s assurances.
Rose also found Foster was evasive during disciplinary hearings last year and made “false and misleading” statements to Superior Court Judge Richard J. Carey, who held lengthy hearings in 2016 to consider challenges to convictions brought by defendants whose evidence Farak tested in Amherst.
“Foster showed pervasive dishonesty across three tribunals. This is deeply disturbing” Rose wrote. Foster’s conduct “undermined confidence in the public’s perception of the fairness of the criminal justice system in Massachusetts,” he wrote.
Foster’s attorney, Allen N. David, said: “We are disappointed in the decision. We had expected and hoped for something less.”
David said he plans to appeal Rose’s recommended sanction for Foster.
He said Rose appeared to base his recommended suspension for Foster on “intentional misconduct” she was never charged with committing.
According to Rose’s decision, that included “dishonesty before Kinder” during the Oct. 2, 2013, hearing and “false testimony under oath” before Judge Carey.
It is unprecedented in Massachusetts to suspend a lawyer for a year for conduct the Bar Counsel did not charge her with committing, David said.
Rose also credited Verner’s honesty in ensuring in 2014 that the mental health worksheets and other evidence be immediately turned over to defendants, once Verner learned it had been withheld.
“. . . . Verner demonstrated candor, remorse, and recognition of and responsibility for his mistakes,” Rose wrote.
Verner’s attorneys, Patrick Hanley and Thomas J. Butters, said of Rose’s decision:
“The Special Hearing Officer’s findings as to John’s candor, remorse, insight and responsibility are emblematic of who he is as a person and attorney and are consistent with what Judge Carey found four years ago, which is that John was a “committed and principled public servant.”
Mulvihill is an associate professor of the practice in computational journalism at Boston University and can be reached at email@example.com. Huang and Muesel are Boston University journalism students.