AG REVIEW CONTRADICTED
Judge: Drug-tainted cases mishandled
A review ordered up last year by Attorney General Maura Healey whitewashed two of her prosecutors for how they handled cases involving a drug-addled western Massachusetts state chemist — even though it revealed the same evidence that led a judge to accuse the two of gross misconduct this week.
As a result, thousands more convicted drug dealers could be freed on top of the 21,000 tainted cases tossed because of notorious Hinton Lab chemist Annie Dookhan. The May 2016 review — prepared for Healey by retired Judges Peter Velis and Thomas Merrigan, and written by two state troopers — concluded there was “no merit in any of the allegations of prosecutorial misconduct or obstruction of justice” against former assistant AGs Anne Kaczmarek and Kris Foster. The two were under fire for not turning over medical records to defense attorneys that proved chemist Sonja Farak was using drugs well before her January 2013 arrest. Prosecutors originally said Farak’s drug problems began a few months prior to her bust. In a ruling overturning seven Farak-tainted convictions Monday, Superior Court Judge Richard J. Carey skewered Kaczmarek and Foster for misleading and concealing evidence of Farak’s prior drug use. Yet evidence of their misconduct was spelled out in the 2016 report prepared for Healey, which cites an email Kaczmarek got from state police mentioning mental health worksheets that showed Farak was using drugs as early as 2011. That is significant because it widened the scope of drug cases that could be tossed due to Farak’s involvement.
Matthew Segal, legal director of the ACLU Foundation of Massachusetts, which has been pressing officials in the Farak cases, said the facts conveyed to Healey in the report did not justify a finding that nothing was amiss. “The conclusion reached in the letter authored by Judge Velis and Merrigan is not at all supported by the record that was in front of them at the time,” Segal told the Herald. Rebecca Jacobstein, who represented two of the defendants whose cases were dismissed, said Healey’s in-house review should have arrived at the same conclusions Carey did. “Should they have figured this out? Yes, yes they should have,” Jacobstein said. “And in fact, their conclusion was based on an incomplete and total failure to understand the evidence before them.” Emalie Gainey, a spokeswoman for Healey, acknowledged shortcomings in how the Farak case was handled, but stood by the findings of the report Healey commissioned. “Judge Velis and Judge Merrigan conducted a months-long, independent review of the Farak investigation. They issued a report to Judge Carey finding no evidence of prosecutorial misconduct by attorneys in the Attorney General’s Office,” Gainey said in a statement. Carey has dismissed the cases against seven drug defendants, and attorneys say there are potentially thousands, if not tens of thousands, more that could be jeopardized by the scandal. It could rival the fallout of the far more publicized crisis blamed on Dookhan.
The 2016 report called the Kaczmarek email “the most significant finding of the e-mail audit,” but concluded the prosecutor was right to resist turning it over because “there was a concern that these items may have been privileged.”
Yet Carey skewered Kaczmarek for “feigning that she forgot about the mental health worksheets and erroneously assumed that they had been turned over.”
“The mental health worksheets were the subject of repeated communications to which Kaczmarek was a party in 2013 and were the chief reason that she sought to block the defendants’ discovery,’ Carey writes.
“Kaczmarek knew that the mental health worksheets were exculpatory admissions by Farak, that the drug lab defendants were entitled to them, that the AGO had not turned them over to the drug lab defendants, and that it had no intention of doing so.”
Farak got an 18-month jail sentence for stealing and using drugs she was supposed to be testing at the state’s Amherst drug lab, where she also admitted to cooking crack.
Kaczmarek, now a $107,000-ayear assistant clerk magistrate in Suffolk County, has stood by her work in the AG’s office. Foster, now the state Alcoholic Beverages Control Commission’s $94,000-ayear general counsel, has not commented.