Massachusetts Sanctions Prosecutors Who Withheld Evidence

The much-anticipated decision of the Massachusetts Supreme Judicial Court imposing sanctions on three prosecutors who had participated in withholding exculpatory evidence in a high profile drug lab scandal prosecution has been issued

A prosecutor "may prosecute with earnestness and vigor -- indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones." Berger v. United States, 295 U.S. 78, 88 (1935). In this appeal, we address disciplinary sanctions imposed by the Board of Bar Overseers (board) on three assistant attorneys general accused of crossing that line.

The consolidated bar disciplinary proceedings arise from the respondents' involvement in the withholding of exculpatory evidence during the prosecution of a chemist in the State Laboratory Institute in Amherst (Amherst lab or drug lab), Sonja Farak, by the Attorney General's office (AGO). As detailed in Committee for Pub. Counsel Servs. v. Attorney Gen., 480 Mass. 700, 705-720 (2018), we dismissed with prejudice thousands of pending drug charges and drug convictions tainted by evidence tampering at the Amherst lab. Id. at 725. This "strong medicine" was necessary, we stated, to remedy the intentional and egregious governmental misconduct of Farak and two of the three respondents, Anne K. Kaczmarek and Kris C. Foster. Id.

In the wake of the Farak drug lab scandal, bar counsel filed petitions for discipline with the board charging Kaczmarek, Foster, and John C. Verner with various violations of the Massachusetts rules of professional conduct. The matter was heard by a special hearing officer (SHO). The board adopted in full the extensive factual findings of the SHO. The board recommended that Verner, who supervised the Farak prosecution, be suspended for three months for neglecting his supervisory duties. The board further recommended that Foster, who was responsible for the AGO's response to subpoenas and discovery motions filed by defense counsel, be suspended for one year and one day for her violations that, for the most part, amounted to "gross incompetence" and "reckless lawyering." In so holding, the board rejected bar counsel's argument that Foster engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation, in violation of Mass. R. Prof. C. 8.4 (c), 426 Mass. 1429 (1998).2 Finally, the board recommended disbarment for Kaczmarek, who, as lead prosecutor in the Farak case, "[bore] the greatest responsibility" and "the greatest culpability." A single justice reserved and reported the matter to the full court.

We adopt, in part, the board's recommendations. The record supports a finding that the prosecutors failed in their collective duty to disclose potentially exculpatory information that was known to the AGO. We also conclude, however, that in certain circumstances, reasonable and good faith reliance on another attorney's representations may be a special mitigating factor. Because Verner reasonably relied in good faith on Kaczmarek's misrepresentations that she had turned over exculpatory information, and his liability is limited to failing to follow up with her as to whether she had disclosed all such information, we differ with the board and conclude that anything more severe than a public reprimand would be inappropriate.

Because Foster was reckless in her representations about what the AGO had disclosed, and otherwise exhibited incompetence in her response to the subpoena and discovery motions, we accept the board's recommendation that she receive a suspension of one year and one day. Finally, because Kaczmarek was most culpable for the AGO's failure to turn over all exculpatory information, and because she displayed a lack of candor and remorse at the disciplinary hearing, we accept the board's recommendation that she be disbarred. The matter is remanded to the county court for entry of final judgment.

At stake

Verner and Kaczmarek understood early in the Farak case, as had been the case in the Dookhan investigation, that defendants with pending cases, as well as those who had been convicted on the basis of Farak's drug analysis, would be entitled to receive from the district attorneys' offices (DAOs) potentially exculpatory information obtained by State police and the AGO in the investigation and prosecution of Farak. Verner and Kaczmarek further understood that any information inculpatory toward Farak potentially would be exculpatory toward those defendants.

Harm caused by the misconduct

The harm that resulted from the combined misconduct of Verner, Foster, and Kaczmarek cannot be overstated. Over the course of a year, from October 2013 through the time defense attorney Ryan discovered the exculpatory mental health worksheets in October 2014, many criminal defendants were found guilty, admitted to sufficient facts, or pleaded guilty because of the AGO's failure to turn over exculpatory evidence. Thousands of defendants, who otherwise would have been eligible for relief at an earlier date, remained incarcerated during this time. As a result of Farak's prolonged misconduct and the AGO's failure to produce exculpatory evidence relating to that misconduct, this court dismissed with prejudice thousands of convictions based on drug offenses. See Committee for Pub. Counsel Servs., 480 Mass. at 704-705. We held that "[t]he government misconduct by Farak and the assistant attorneys general was 'so intentional and so egregious' that [the] harsher sanction[]" of dismissal with prejudice was necessary.
Id. at 725, quoting Bridgeman, 476 Mass. at 322. This was a system-wide failure. It is unsurprising that "the publicity has taken an ugly toll on the public's perception of the legal profession and those who practice it."

(Mike Frisch)