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The Supreme Judicial Court of Massachusetts is deciding whether and how to punish the Attorney General’s Office (“AGO”) for the misconduct perpetrated by two former attorneys in the wide-ranging criminal justice scandal that began with the troubled and drug-addicted state lab chemist, Sonja Farak. Last month, the justices heard oral argument on the matter. The questions posed are important, not the least because this constitutional catastrophe ranks among the most damning in our nation’s history. A review of the pleadings reveals that the parties—the Committee for Public Counsel Services with the ACLU on behalf of criminal defendants and the AGO for the State—have found some areas of agreement. But, it is those issues on which they disagree that raise the most interest: the scope of the class of defendants entitled to relief; whether the Court should impose monetary sanctions upon the AGO; and whether purported punishment of former AGO lawyers Kris Foster and Anne Kaczmarek has been sufficient.

Our previous post about the prosecutors’ misconduct lays out their misdeeds in detail. Nonetheless, it is well worth recapping it to set the stage. As the petitioners’ brief explains:

From the outset, rather than work to remedy the Amherst Lab crisis, prosecutors have tried to conceal and minimize its scope. Beginning in 2013, former Assistant Attorneys General Kris Foster and Anne Kaczmarek covered up the extent of Farak’s misconduct. They did so primarily by withholding exculpatory evidence and misleading the Superior Court into finding, incorrectly, that Farak’s drug use began in the summer of 2012 rather than sometime in 2004. Superior Court Judge Richard Carey found, and the AGO does not dispute, that these attorneys committed egregious misconduct and “a fraud upon the court.”

Not only did the prosecutors fail to disclose the timeframe that Farak used drugs from the lab, they also failed to meaningfully investigate the extent of misconduct for years. The petitioners, based on the “remarkable record,” requested “relief beyond the case law this Court has already established.” On the scope of the class of defendants entitled to relief, they requested the dismissal of “the convictions of all defendants whose samples were processed by the Amherst Lab during Farak’s tenure” (not only those defendants whose samples Farak processed directly). On sanctions to be imposed, they requested two prophylactic remedies: “standing orders designed to prevent future scandals and reform the Commonwealth’s handling of wrongful convictions, and monetary sanctions designed to remedy the AGO’s misconduct and deter its recurrence.”

In its response, the AGO took a seemingly conciliatory approach. To start, it “accepted all of the factual findings in Judge Carey’s 127-page opinion.” The AGO also supported the dismissal with prejudice of 8,000-plus cases in which Farak signed the drug certificate for the Amherst Lab. It further agreed that all “defendants whose convictions rest upon drug evidence that was tested at the Amherst lab between June of 2012 and January of 2013” are also entitled to relief. As for the petitioners’ requested sanctions, the AGO seconded the request for standing orders. In its words: “The new AGO administration is committed to preventing future misconduct . . . To that end, [it] endorses petitioners’ proposal that this Court issue standing orders to protect defendants in criminal prosecutions.”

Looking at where the agreement ends and the disagreements begin, it is apparent that the prosecutors have an obstructive understanding of the wrongs for which they are responsible. Consider that the AGO argues that “[t]he remaining Amherst lab defendants, whose drug samples were neither tested nor tainted by Farak, are not entitled to relief. The record does not support that drastic outcome, which would be well beyond anything this Court has approved in prior cases.” This claim is strikingly problematic for a number of reasons.

Most damningly, it relies on Farak’s own version of events to draw lines between cases that arose before June of 2012—when Farak claims that she began tampering with other lab chemists’ samples. Asking the court to rely on Farak is a head-scratcher. For one, she was using drugs, stealing drugs, and tampering with evidence throughout her entire career at the Amherst Lab. Not only was she continuously deceitful, but she also was consuming mind-altering substances that rendered her memory, perception, and comprehension suspect at best. Yet, the State seems content to hang its hat on her word.

The justices should be cautious about embracing the State’s proposed limitation on the scope of the remedy because the AGO’s misconduct revealed that it had a clear incentive to make Farak’s crime appear less severe than it really was so that prosecutors could avoid the monumental amount of remedial administrative work that her crimes required (and that they now have been compelled to do after years of feet-dragging). One would not be surprised if the AGO wanted Farak to testify that she breached other samples in the Lab only beginning in 2012.

That gets to another key point: if the justices adopt the AGO’s suggested limitation, then the relief would not actually touch many cases in which Foster and Kaczmarek committed due process violations. The Court would be looking just to Farak’s conduct, not the prosecutors’ conduct. The petitioners’ brief explained why this is unfair: “Court-ordered dismissals based on misconduct by a government attorney should not be limited to cases where lab misconduct is undisputed. Instead, prosecutor misconduct should result in the dismissal of any case where the defendant has an actionable claim of relief that was delayed or impaired by prosecutor misconduct.” The AGO’s failure to disclose exculpatory information to defendants and its own investigative delays very well could have foreclosed any meaningful opportunity for a defendant to prove that Farak’s criminal conduct actually tainted evidence in that particular case. An amicus brief filed by the Innocence Project drives home that the prosecutorial misconduct here warrants widespread relief.

The AGO claims that its requested limitation on the class of defendants to which the Court should grant relief is also supported by non-Farak sources. But, those sources ultimately rely on other Lab employees: “both outside evaluators and those who worked in the lab were confident in the reliability of results produced by chemists other than Farak.” Setting aside the obviously self-serving nature of statements given by other Amherst Lab employees, the Court has objective evidence on which to base doubts. Farak spent some nine years stealing from the lab and tampering with evidence, and in that period nobody there discovered her crimes, raised questions about her behavior (though she was high or in withdrawal at work constantly), or verified her work. There were no audits, there was no meaningful oversight. It is that lab’s work that the prosecutors want to elevate and protect. The Court should resist the invitation to base its ruling on such unreliable evidence.

While the AGO agreed that the Court should issue the standing orders that the petitioners requested—and the Cato Institute and the Center on the Administration of Criminal Law supported in their joint amicus brief—the prosecution argued that monetary sanctions were inappropriate in this case. At bottom, the AGO basically claims that monetary sanctions are unnecessary because the office needs no further incentive to address its misconduct and because the responsible parties have already been punished sufficiently.

On the question of incentives, the Court should be quick to realize that the AGO’s very resistance to monetary sanctions suggests that they may indeed be a real deterrent. An amicus brief filed on behalf of several criminal law and legal ethics scholars makes a compelling case that monetary sanctions may be the best and only way to really provide accountability. After exploring how the commonly-invoked methods of promoting accountability so often fail, the brief explains, “To effectively deter prosecutorial misconduct, courts must hold not only individual prosecutors accountable for their bad acts, but also the institutions that employ them. . . . Holding institutional actors accountable through the imposition of monetary sanctions could meaningfully deter misconduct in a way that existing methods have not.”

During the oral argument, some justices seemed concerned that monetary sanctions would be a tax on the public, while others worried that it would be difficult to calibrate sanctions in a way that would send a message without really undermining the AGO’s ability to do its work. While these questions are legitimate, they also underscore the importance of sanctions. Indeed, a tax on the public raises problems, but thereby compels the Attorney General—an elected official—to answer to the public for  costly and unconstitutional practices. (The AGO has been quick to note that the current AG, Maura Healey, was not the AG when the Farak scandal broke and Foster and Kaczmarek committed misconduct.) Moreover, if the AGO is forced to confront sanctions that represent a real threat to its ability to fund its work, it will certainly implement changes needed to avoid such penalties in the future.

The AGO’s brief ends in a whimper. In claiming that the new administration is taking misconduct seriously, it points out that Healey now requires two hours of ethics courses for her prosecutors each year (rather than just making such courses available). As any lawyer who has slept or texted through a Continuing Legal Education requirement can tell you, this means very little.

The AGO tried to appear reasonable in its pleading, perhaps to curry as much credibility as possible in a fairly dire situation. But, in addition to the missteps pointed out above, it for some reason argued that Kaczmarek and Foster have been punished enough for their misconduct. After all, they were called out by the trial court judge, they have gotten bad press, and they have been referred to the bar. (Never mind that both lawyers continue to work for the state government, apparently in higher paying jobs.) If the AGO believes that these consequences are sufficient for two prosecutors responsible for misconduct that has infected some 10,000 criminal cases involving the lives and liberty of people all across Massachusetts, perhaps it should rethink its own ethics curriculum. And, that may give the justices on the high court in Massachusetts all the confidence they need to do the right thing and grant the petitioners what they have reasonably requested in this unprecedented case.

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