Bar oversight agency considers misconduct by attorneys in lab scandal case
Three former assistant AGs accused of withholding evidence in Sonja Farak case
THE STATE Board of Bar Overseers on Monday began a two-week hearing to decide whether to recommend disciplinary action against three attorneys who worked for former attorney general Martha Coakley, who are accused of withholding evidence in the case of rogue drug lab chemist Sonja Farak.
Assistant Bar Counsel Stacey Best, whose office oversees complaints against lawyers and is arguing that the three attorneys violated professional conduct rules, said the case is about the culpability of each one in violating the due process rights of thousands of drug defendants and imperiling public confidence in the criminal justice system. “This is one of the most severe cases of conduct prejudicial to the administration of justice that this Commonwealth has ever seen,” Best said in her opening arguments.
Attorneys for the three lawyers –– assistant attorneys general Anne Kaczmarek and Kris Connolly Foster and former chief of the criminal division John Verner – said the withholding of evidence was a mistake.
Patrick Hanley, who represents Verner, called the charges against the attorneys a “gross overreaction.” “An honest mistake is not a violation of the rules of professional conduct,” Hanley said.
Farak, who worked as a chemist at the Amherst state drug lab from 2004 to 2013, pleaded guilty to stealing drug samples from the lab to feed her addiction. Thousands of drug convictions where samples were tested in the Amherst lab were overturned due to Farak’s misconduct. During litigation related to the case, it came out in 2014 that the attorney general’s office had failed to release exculpatory evidence to attorneys for drug defendants affected by Farak’s actions – information the defendants were legally entitled to have.
According to a petition by the Bar Counsel, the evidence showed that Farak had taken several types of narcotics from the lab, that Farak had sought therapy for drug addiction, and that Farak’s misconduct had been ongoing for several years prior to her arrest. The evidence included notes Farak had written detailing her struggles to resist using drugs at work. The petition accuses Verner, Kaczmarek, and Foster of violating the Massachusetts Rules of Professional Conduct for their involvement in failing to disclose the exculpatory evidence.
Verner was chief of the attorney general’s criminal bureau and supervised Kaczmarek and Foster. Kaczmarek was the attorney who oversaw Farak’s prosecution, while Foster was assigned to the case for a short time to respond to a subpoena issued to Kaczmarek and a state police officer seeking documents pertaining to the Farak case.
The petition faults Verner and Kaczmarek for knowing about the evidence and failing to disclose it, and Foster for failing to review the files and find the evidence in response to the subpoena.
The hearing before special hearing officer Alan Rose, a Boston attorney, is expected to continue at least through the end of next week. Rose will hear witness testimony and view emails, transcripts, and other written evidence.
In her opening statement, Best argued that the three attorneys engaged in conduct that resulted in a two-year delay before defense attorneys received information they were entitled to. “The totality of details will leave you unable to excuse the conduct of each of these defendants, and their conduct was deeply damaging indeed,” she said.
But attorneys for all three denied wrongdoing and said the failure to disclose the evidence was an unintentional mistake. Hanley said the attorney general’s office submitted 3,000 pages of evidence to district attorneys and mistakenly did not disclose several pages of worksheets. “There was a mistake as to disclosure to the DAs,” Hanley said. “John Verner had no intent ever to hide evidence.”
In an earlier case involving Boston drug lab chemist Annie Dookhan, who falsified drug test results, the attorney general’s office prosecuted Dookhan and passed information on to the district attorneys to address any fallout in related drug cases. But when the attorney general’s office tried to investigate the situation at the lab, the criminal defense bar objected that there was a conflict of interest, and the inspector general took over the investigation. The Legislature budgeted $30 million to investigate and deal with the fallout from the Dookhan case.
Both Hanley and Kiley argued in their opening statements that the attorney general’s office was following the same steps in the Farak case: prosecuting Farak and passing information on to the district attorneys to let the chips fall where they may with regard to affected cases, but not conducting a top to bottom investigation of the lab. But Kiley said there was no $30 million budget and no outside investigation into the Farak case, as there was into Dookhan. “There were mistakes made, there were consequences to those mistakes, but the mistake with respect to Amherst has roots far deeper than these three Indians, as opposed to the chiefs who were making the relevant decisions,” Kiley said.
Foster’s attorney, George Berman, said Foster was a new, inexperienced lawyer in Coakley’s office who followed her superiors’ instructions and relied on the information they provided regarding what evidence had been disclosed. Berman said Foster is covered by a provision in the code of professional conduct that protects a “subordinate lawyer” who relies on the advice of superiors.Verner now works for the Suffolk County district attorney’s office, as a supervisor investigating cold case homicides. Kaczmarek was an assistant clerk magistrate in Suffolk Superior Court, a position state payroll records show she left in 2019. Foster works as general counsel at the state Alcoholic Beverages Control Commission.