Late last month, Judge Richard J. Carey of Hampden County Superior Court decided on several defendants’ challenges to their criminal convictions, which were based on disgraced Amherst lab ex-employee Sonja Farak’s misconduct. Farak exploited her position as a chemist to use the lab as a supply of illicit drugs for personal consumption, feeding her drug addiction with a range of powerful narcotic substances. The central question that has been litigated since her criminal conduct came to light in 2013 is whether her behavior compromised the integrity of criminal convictions that relied upon her “work.” In what looks like the first step in remedying some major injustices perpetrated by Farak, Judge Carey dismissed the convictions of seven defendants and allowed another one to withdraw his guilty plea. His decision turned not only on Farak’s misconduct, but also the “fraud upon the court” committed by two Assistant Attorneys General handling the matter. Judge Carey did not hesitate to name names; indeed, he took to task Anne Kaczmarek and Kris Foster at length.

Before looking into the extensive prosecutorial misconduct, it is worth mentioning how this fiasco started. Dahlia Lithwick at Slate summarized Farak’s misconduct well:

Farak, who was addicted to drugs, not only stole her supply from the evidence room but also tampered with samples and performed tests under the influence, thus tainting as many as 10,000 or more prosecutions. Records show Farak used cocaine, crack, or methamphetamines daily or almost daily while she was at work, as well as ketamine, MDMA, ecstasy, phentermine, amphetamines, LSD, and marijuana. Farak pleaded guilty and served 18 months behind bars.

A coworker identified tampered samples in 2013, prompting Farak’s arrest and eventual conviction. Subsequent investigation revealed that she had started stealing drugs from the lab as early as 2004 or 2005.

The Massachusetts Attorney General’s office shouldered the responsibility to oversee the Farak investigation and prosecution, and also to determine whether her misconduct required inquiries into the many cases she touched as a lab employee. While it had no problem issuing a press release to highlight its role in obtaining Farak’s guilty plea, the AG’s office appeared to be less than vigilant in its efforts to sniff out her role in putting people in prison. That is where the prosecutorial misconduct began.

According to Judge Carey’s exhaustive 127-page opinion, Sergeant Joseph Ballou of the Massachusetts State Police executed a search warrant on Farak’s car in January of 2013 and located the evidence at the center of the defendants’ case: seven pages from Farak’s drug treatment program referred to as “mental health worksheets.” These worksheets contained handwritten notes by Farak and other information about the program, and they “disclosed [her] admission of drug use and theft of police-submitted samples while she was working at the lab” and “supported inferences that [her] misconduct occurred as early as 2011.” Ballou notified Kaczmarek about these worksheets, which he recognized had considerable evidentiary value, a few days before February 14, 2013. On February 14th, he emailed scanned copies of the worksheets he deemed most important to Kaczmarek.

In attempting to maintain convictions that may have been tainted by Farak’s misconduct, the AG’s office argued that there was no indication that anyone had evidence suggesting Farak engaged in malfeasance before her January 2013 arrest. Kaczmarek never disclosed the worksheets to the defendants. In September of 2013, Foster filed a pleading in which she represented that the AG’s office had turned over all of the relevant documents and none of them suggested third-party knowledge of Farak’s behavior. Based on the information the State presented at the time, the then-presiding judge found that Farak’s misconduct began in July of 2012. On that basis, he denied the motions for relief filed by defendants who had been convicted before that time.

In 2014, after Farak herself was convicted, one of the defendant’s lawyers finally obtained access to the evidence that had been seized from her car. (He had tried for several months to examine the evidence earlier, but Foster and Kaczmarek had persuaded the judge to preclude access by their misrepresentations that the items found in Farak’s car had no relevance to the defendants’ case.) With the worksheets in hand, the defendants now had proof that: (1) Farak’s misconduct began well before the summer of 2012; and (2) the prosecution had withheld critical exculpatory evidence.

The bottom line was that the AG’s office avoided doing a meaningful investigation, and materially misrepresented what it had actually learned. It took years for the scope of the scandal to become clear. In April of 2015, in dealing with an appeal from the denial of another defendant’s request for post-conviction discovery, the highest court in Massachusetts noted that the AG seemed oddly unmotivated to find out the truth:

As far as can be gleaned from the record, the Commonwealth never conducted a thorough investigation of the Amherst drug lab. The State police spent a few days looking for missing evidence, searching Farak’s vehicle, interviewing her colleagues, conducting an inventory of the facility, and searching a tote bag that had been seized from Farak’s work station. The inquiry appeared to end there, until it came to light several months later that Farak might have tampered with evidence in four more cases. Drug samples were retested in those additional cases, and the results indicated that at least some of the cocaine had been replaced with a counterfeit substance. It is apparent that the Commonwealth clearly had information suggesting that Farak had engaged in misconduct at the Amherst drug lab, but the magnitude and implications of the problem have not been ascertained.

In response to this call for further investigation, the AG’s office convened two grand juries and eventually published a report of its findings in April of 2016. Based on testimony it obtained from several witnesses, including Farak, the AG found that she began ingesting lab drugs as early as 2004. Remarkably, it took the AG over three years after Farak was arrested to determine the scandal’s depth and longevity. And, it only did so because the Supreme Judicial Court made the request.

Judge Carey was not happy with the role that assistant AGs Kaczmarek and Foster played in hiding the ball and prolonging injustices. He spared no ink in describing their obstructive efforts:

Despite the drug lab defendants’ diligent discovery efforts, Kaczmarek and Foster managed to withhold the mental health worksheets through deception. They tampered with the fair administration of justice by deceiving Judge Kinder and engaging in a pattern calculated to interfere with the court’s ability impartially to adjudicate discovery in the drug lab cases and to learn the scope of Farak’s misconduct. Kaczmarek’s and Foster’s misconduct improperly influenced and distorted Judge Kinder’s fact finding and legal conclusions and it unfairly hampered the defendants’ presentation of defenses. Their conduct constitutes a fraud upon the court (see page 69)

Further he went, explaining that “Foster’s denial in December 2016 of having made any mistakes underscores her lack of a moral compass” (see page 70). Moreover, Judge Carey found, “[a]s attorneys, officers of the court, and agents of the Commonwealth of Massachusetts, Kaczmarek’s and Foster’s conduct is reprehensible and magnified by the fact that it was not limited to an isolated incident, but a series of calculated misrepresentations. The ramifications from their misconduct are nothing short of systemic” (see page 70).

As disgusting as Farak’s conduct was, Judge Carey found that Kaczmarek and Foster’s conduct was “in many ways more damning.” Recognizing the deleterious effect that State misconduct has on public trust in institutions, Carey concluded that:

Their intentional and deceptive actions ensured that justice would certainly be delayed, if not outright denied, and in the process, they violated their oaths as assistant attorneys general and officers of the court. In another parallel to Farak, Kaczmarek and Foster’s betrayal of the public trust also dragged into suspicion their colleagues in the attorney general’s office, who, like Farak’s lab colleagues, the court finds to be committed and principled public servants.

Because of the repeated and calculated prosecutorial misconduct, the judge overturned convictions and guilty pleas in those cases in which Farak signed the drug certificate. While he directed his righteous frustration primarily at Kaczmarek and Foster, Judge Carey did make this observation about the legal position the AG’s office took: “The AGO offers patently baseless defenses for its withholding of exculpatory evidence. Most recently and surprisingly, in 2017, the AGO denies having had any legal obligation to turn over the mental health worksheets to district attorneys . . . That position is at odds with the fundamental principles of fairness” (see page 68).

If the various ways in which Massachusetts prosecutors have compounded a crime lab scandal strike a familiar chord, you may be thinking about the distinct (but just as embarrassing) Annie Dookhan debacle. We have covered that scandal in depth here and here. To make a long story short, Dookhan, a former employee in the Jamaica Plain crime lab, tampered with evidence and falsified test results for several years on the job. Like with Farak, after Dookhan’s misconduct came to light, the prosecutors had an obligation to see how much damage had been done and how many cases had been tainted. Rather than engaging in an honest and thorough investigation, prosecutors dragged their feet and basically obstructed the process for years until the courts finally came in to enforce a meaningful remedy. The result? Well over 20,000 overturned convictions.

The Dookhan and Farak scandals have revealed as much about prosecutors as they have about crime labs. Faced with undeniable proof that individuals who were meant to impartially analyze evidence that often deprived people of their liberty were lying, stealing, and tampering, prosecutors froze. They behaved as if they were unwilling to even entertain the possibility—the reality—that State employees had produced unreliable results that undermined defendants’ constitutional rights. Indeed, in Farak’s case, they stooped to the same lows, themselves lying, misleading, and suppressing. The AG has been so unable to admit law enforcement wrongdoing that she even issued a report claiming there was no merit to the claim that her prosecutors committed misconduct.

To be clear, this is only the beginning of the end of the Farak scandal. Judge Carey merely ruled on a handful of cases. How many more cases require attention and correction? (The number could be well into the thousands.) That question will continue to plague Massachusetts’s criminal justice system for the foreseeable future. How painful the process is will depend in large part on how willing prosecutors are to come clean, be responsive, and take responsibility for the law enforcement breakdowns that precipitated this crisis. Given what we’ve seen in both the Dookhan and Farak contexts, strong judicial oversight appears to be a necessity.

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