Worse Living Through Chemistry

Three prosecutors have been charged with ethics violations by the Massachusetts Office of Bar Counsel.

The charges involve alleged failures to disclose information concerning a dirty chemist

The Attorney General’s Office (AGO) prosecuted [chemist] Farak between January 18, 2013, when the investigation was opened and January 4,2014, when Farak pled guilty. During that period, the AGO was solely in possession of information obtained through its investigation and was responsible for providing potentially exculpatory information to the district attorneys who were prosecuting Farak defendants or opposing the efforts of Farak defendants to reopen cases that involved Farak drug analyses.

Now

This petition for discipline alleges that three assistant attorneys general (AAG) engaged in violations of the Massachusetts Rules of Professional Conduct by participating in the conduct that resulted in the AGO’s failure to timely disclose exculpatory evidence in the AGO’s possession.

Two were responsible for the Farak case

Verner and Kaczmarek were-co-counsel in the Farak investigation and prosecution.

As the investigation proceeded and uncovered crimes

By March 27,2013, the AGO began receiving requests from the district attorneys for potentially exculpatory information.

The responses were coordinated by the two 

Verner reviewed the letter and approved it. Verner did not direct Kaczmarek to include all the potentially exculpatory information in the AGO’s files or direct Kaczmarek to include information known to him that was potentially exculpatory for the Farak defendants, including the mental health worksheets. Verner directed Kaczmarek to sign and send the letter.

 Kaczmarek signed and caused the letter to be sent in her name to the district attorneys’ offices. Kaczmarek did not include with the letter to the district attorneys all the potentially exculpatory Farak-related information known to her.

After sending the two letters to the district attorneys, Kaczmarek and Verner did not disclose to the district attorneys all potentially exculpatory Farak-related information known to them.

The attorneys allegedly failed to make disclosures to district attorneys and an attorney for the state police

Kaczmarek responded to [state police attorney] Farrell, in relevant part, “Everything other than [police reports] and [drug certificates] is a NO from us.” Kaczmarek falsely implied that the AGO had no information responsive to the Penate requests in its files. Kaczmarek failed to disclose that she, Verner, Ballou and others had exchanged correspondence pertaining to the scope of Farak’s evidence tampering.Kaczmarek also failed to disclose that she, Verner, and Ballou had the mental health worksheets that tended to show Farak had disclosed her struggles with drug addition to her therapist. Kaczmarek’s statement to Farrell was materially misleading.

Eventually the cover up unravelled

On November 13, 2014, the AGO turned over to the district attorneys, who gave the Farak defendants, 289 pages of documentary evidence not previously turned over. This
documentary evidence included seven pages of mental health worksheets and other papers supporting a strong inference that Farak’s misconduct began before 2012. October 30,2014 was the first time that any Farak defendant gained access to the mental health worksheets and other potentially exculpatory information known to Kaczmarek and Verner that had been in the possession of the MSP since January 2013.

In December 2016, Judge Richard Carey, an associate justice in the Hampden Superior Court, held a six-day evidentiary hearing on motions for new trial filed on behalf of eight (8) defendants who asserted that the government’s egregious misconduct of failing to turn over exculpatory information had violated their rights to due process.

On July 26,2017, Judge Carey granted relief to seven (7) of the defendants concluding that the respondents Kaczmarek and Foster had committed a fraud upon the court.

On May 8, 2018, the Supreme Judicial Court ordered relief for additional “Farak Defendants.” Due to the conduct of the AGO, the Court determined that, in addition to cases that had already been dismissed, that Farak Defendants were entitled to dismissal and relief from (1) all convictions based on evidence that was tested at the Amherst lab on or after January 2009, regardless of the chemist who signed the drug certificate; and (2) all methamphetamine convictions where the drugs were tested during Farak’s tenure at the Amherst lab. As a result, 11,000 convictions were vacated.

The Appeal reported on the bar complaint.

The United States Court of Appeals for the First Circuit affirmed the rejection of absolute prosecutorial immunity in a case where the former criminal defendant sued Kaczmarek

She first argues that she enjoys absolute prosecutorial immunity because the conduct alleged in the complaint occurred during the time period when she was assigned to prosecute Farak. We reject this argument because, on the facts alleged in the complaint, Kaczmarek’s decision to withhold evidence from the criminal prosecution of Penate lacked a “functional tie” to her prosecutorial role in Farak’s separate case. Buckley, 500 U.S. at 277. Kaczmarek alternatively seeks absolute immunity on the ground that, in performing some conduct alleged in the complaint, she functioned as an advocate for the government in an evidentiary hearing associated with the criminal case against Penate. But certain allegations in the complaint are best read to allege that Kaczmarek played an administrative role concerning this hearing. On that basis, we reject this second argument for absolute immunity.

Farak’s role in Penate’s prosecution

Penate was charged by the Hampden County District Attorney with several drug-related offenses on November 16, 2011. The suspected drugs were sent to the Massachusetts Department of Public Health’s Amherst Drug Lab and were assigned to Farak for analysis. Farak reported that the substances from Penate’s case had all tested positive for the presence of controlled substances.

Farak tested the samples on December 22, 2011, January 6, 2012, and January 9, 2012. Also on December 22, Farak entered on a Diary Card kept as part of her treatment for drug addiction that she “tried to resist using [at] work but ended up failing.”

Farak later placed this Diary Card in the trunk of her car, where, as discussed below, it was found, along with similar worksheets, by the state police. Those documents revealed that, during the period that the lab held the samples in Penate’s case, Farak had struggled with drug addiction, had frequently consumed drugs while at work, and had often tampered with and used drug samples and supplies held by the lab. At the heart of this case is Kaczmarek’s failure to disclose this exculpatory evidence to  Penate, to his prosecutor, and to the court in his criminal proceeding.

A recent Massachusetts case involving prosecutorial misconduct (violating Rule 4.2) resulted in a one-month suspension.

Hat tip to Massachusetts Lawyers Weekly story by Kris Olson. (Mike Frisch)