About two weeks later, Farak subsequently acknowledged, she spent the morning smoking crack in various bathrooms of her lab building, while also testing Penate’s drugs a second time. That same day, she found that police had submitted tablets of LSD. She took it, and “the sensation of colors in the wind left her unable to function for work,” court records show. Her actions would be discovered a year later, and Farak admitted she had been stealing and using drugs from the lab since 2004.
But when Penate’s lawyers asked for any information about Farak’s drug use during the time she was working in the lab, prosecutors with the Massachusetts attorney general’s office repeatedly refused to provide it. And so Penate was convicted and spent more than 5½ years in prison. A judge who investigated in 2016 called the prosecutors’ actions “intentional, repeated, prolonged and deceptive withholding of evidence from the defendants” and wrote that one of the prosecutors had a “lack of a moral compass.”
The actions by Farak and another Massachusetts lab technician, Annie Dookhan, led to the courts retroactively dismissing nearly 38,000 drug convictions dating back a decade. In Farak’s case, Massachusetts courts last year went so far as to throw out every case tested at the lab in Amherst, where Farak worked, even if other technicians did the testing.
Now, the prosecutors who handled the Farak case are facing their own legal troubles. The Massachusetts state bar has filed disciplinary charges against three of the assistant attorneys general who withheld evidence from Penate and others, and a federal judge has ruled that one of the prosecutors is not entitled to immunity and can be sued by Penate for violating his civil rights.
Both moves are highly unusual, because prosecutors enjoy broad immunity for their official actions, even “for the knowing suppression of exculpatory information,” the U.S. Supreme Court has ruled.
“Prosecutors tend to be unique as practicing attorneys,” said Luke Ryan, Penate’s lawyer and the man who discovered Farak’s long drug-use history after prosecutors withheld it, “in escaping consequences for ethical lapses. When a Board of Bar Overseers finds misconduct in a case like this, it’s significant.”
Since 1980, only two prosecutors in Massachusetts have been publicly disciplined by the state bar, according to a study by Shawn Musgrave at the New England Center for Investigative Reporting in 2017, though the Center found more than 140 cases where guilty verdicts were reversed or cases dismissed because of prosecutorial misconduct. Now three prosecutors are facing a public hearing and public discipline for their roles in the Farak case.
After Farak was arrested in January 2013, the Massachusetts attorney general took over the prosecution of her case. Assistant Attorney General Anne Kaczmarek was assigned the case. John Verner, the chief of the attorney general’s criminal bureau, was her supervisor. When drug defendants such as Penate began seeking information on Farak, Assistant Attorney General Kris Foster was assigned to fend them off, with help from Kaczmarek and Verner.
After Farak’s arrest, court records show, the Massachusetts State Police found reports that Farak had been suspected of stealing cocaine from a police case in 2005, and eight pages of mental health work sheets in her car indicated she had been struggling with drug addiction since at least 2011. Investigators provided that information to Kaczmarek and Verner within weeks of her arrest, the Petition for Discipline from the state bar shows.
Kaczmarek and Verner then sent a letter to Massachusetts’s district attorneys with information about Farak, to be shared with defense attorneys, but they didn’t mention any indication of drug use dating back to 2005 or the mental health work sheets.
When Ryan and other defense attorneys began filing subpoenas seeking Farak’s information from the attorney general’s office, Foster instead filed a motion to quash the subpoenas without ever reviewing her colleagues’ files to see what information was there, court records show. When a judge ordered Foster to produce the files to him for his review, Foster responded that there was no more information to provide. In her motion in Penate’s case, Foster wrote, “There is nothing to indicate that the allegations against Farak date back to the time she tested the drugs in the defendant’s case,” when in fact there were records of her getting high on the exact days she tested those drugs.
Ryan’s request to see the Farak documents was denied. Penate went on trial in December 2013, was convicted on one count of distributing a controlled substance and sentenced to five to seven years in prison. The following month, Farak pleaded guilty and was sentenced to 18 months in prison.
Ryan kept pushing to see the Farak evidence. Finally, in October 2014, after Kaczmarek had left the office to become a clerk-magistrate in Suffolk County, Ryan was granted access and found not only Farak’s notes indicating drug abuse dating to at least 2011 but also records showing that the machines used for testing in Farak’s lab were issuing faulty reports.
Investigations into the case followed, and then in December 2016 a superior court judge held a six-day hearing into the prosecutorial misconduct of Kaczmarek and Foster. “Foster and Kaczmarek piled misrepresentation upon misrepresentation,” Judge Richard J. Carey wrote, “to shield the mental health work sheets from disclosure to the drug lab defendants.”
Foster’s lawyer said that she had worked in the attorney general’s office for only six weeks when she was assigned to deal with Farak-related subpoenas and that she was merely following the direction of Kaczmarek.
“It is well settled," said George Berman, Foster’s attorney, “that a junior lawyer is entitled to follow the reasonable instructions of her supervisor and to rely upon the information provided by her client. This is exactly what Ms. Foster did and she did not violate any ethical rule by doing so. Law firms could not function if the rule were anything different.” He said Foster was filing her first-ever motion to quash a subpoena, that Kaczmarek told her there were no relevant documents for the drug defendants, and that Massachusetts’s rules of professional conduct for lawyers allow for subordinate lawyers to defer to the instructions of their supervisors.
Kaczmarek’s lawyer, Thomas Kiley, did not return a call seeking comment, but he told the Boston Globe that there were “a series of systemic failures in the way the state handled the drug lab scandals. Holding individual assistant attorneys general responsible for systemic failures is questionable public policy.” Kaczmarek no longer serves as a magistrate, public records show.
After Carey’s ruling, the Innocence Project stepped in and asked the state Bar of Board Overseers, which handles complaints against Massachusetts lawyers, to investigate Kaczmarek and Foster in 2017. Foster had moved on to become general counsel for the state alcoholic beverage commission.
Also in 2017, Ryan filed a federal civil rights lawsuit against Kaczmarek, Foster and various other police and lab officials involved in Penate’s case. Kaczmarek and Foster claimed they had prosecutorial immunity, and a federal magistrate agreed with Foster — but not Kaczmarek.
Kaczmarek appealed, and last month the U.S. Court of Appeals for the 1st Circuit rejected her appeal.
“Kaczmarek’s primary function was an administrative one,” Judge Sandra L. Lynch wrote, “not entitled to absolute government attorney immunity.” The court ruled Penate could proceed with his lawsuit against the former prosecutor, a highly unusual finding.
Then, two days after the federal court’s ruling, the bar counsel for the state Board of Bar Overseers issued a petition for discipline not only against Kaczmarek and Foster but also against Verner, who was not even named in the initial complaint. Verner is now a prosecutor in the Suffolk County district attorney’s office. The district attorney’s office declined to comment to The Washington Post, but a spokeswoman for the office told the Boston Globe that it would carefully review the allegations against Verner, and that Verner had served the district attorney’s office “with professionalism and integrity.”
Assistant Bar Counsel Stacey A. Best pointed out that Verner was repeatedly involved in the decisions that led Kaczmarek to withhold Farak documents from both district attorneys and defense attorneys handling drug cases across the state. Best said that all three prosecutors had violated numerous bar rules requiring honesty, diligence and fairness.
Best requested a five-day public hearing to put on evidence against the three former assistant attorneys general. The lawyers will be allowed to put on their own cases, and then a three-person panel from the bar overseers will write a report for the entire board to consider. When the board issues its decision on discipline, it can range from a private admonition, to a public reprimand, to a suspension of a law license for up to four years, or disbarment for a minimum of five years. The state supreme court will then decide whether to impose that recommendation.