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Judge dismisses 'qualified immunity' claim in suit against ex-prosecutor in drug lab scandal

Former Massachusetts assistant attorney general Anne Kaczmarek prosecuted Farak in 2013. (Courtesy Shawn Musgrave)
Courtesy of Shawn Musgrave
Former Massachusetts Assistant Attorney General Anne Kaczmarek prosecuted Farak in 2013.

A federal judge has rejected claims from an embattled former state prosecutor that she is protected from liability in the fallout over a Massachusetts drug lab scandal.

The civil lawsuit was one of the last tied to prosecutors’ disputed handling of the case against disgraced ex-chemist Sonja Farak, who was convicted in 2014 of ingesting drug samples she was supposed to test at the Amherst state drug lab.

In her June 17 ruling, U.S. Magistrate Judge Katherine Robertson dismissed former Assistant Attorney General Anne Kaczmarek’s claims of qualified immunity — a doctrine that gives legal immunity to some public officials accused of misconduct. Kaczmarek is one of three former prosecutors whose role in the prosecution of Farak later became the focus of several lawsuits and disciplinary hearings.

“No reasonable individual could have failed to appreciate the unlawfulness of [Kaczmarek’s] actions in these circumstances,” Robertson wrote in her ruling.

Kaczmarek argued for qualified immunity after she was sued by Rolando Penate, who spent five years in prison on drug charges in which the evidence in his case was tested by Farak. The charges against Penate were dismissed after Farak’s conviction.

Penate’s suit said Kaczmarek withheld evidence that Farak used drugs at the lab for longer than the Massachusetts attorney general’s office first claimed, and that he would not have been imprisoned based on tainted evidence.

After Farak’s arrest in 2013, police found pages of mental health worksheets in her car indicating she’d struggled with drug addiction since at least 2011.

Investigators gave that information to Kaczmarek and the state AG’s office, according to hearings before the state board that disciplines attorneys. When Farak was arrested, former Attorney General Martha Coakley told the public investigators believed Farak tampered with drugs at the lab for only a few months.

“The mental health worksheets constituted admissions by the state lab chemist assigned to analyze the samples seized in Plaintiff’s case that she was stealing and using lab samples to feed a drug addiction at the time she was testing and certifying the samples in Plaintiff’s case, including, in one instance, on the very day that she certified a sample,” Robertson’s ruling reads. “No reasonable jury could conclude that this evidence is not favorable.”

Kaczmarek has repeatedly testified she did not act intentionally and that she thought the worksheets had been turned over to the district attorneys who prosecuted the cases involved. Penate alleged Kaczmarek’s actions violated his “Brady rights,” which require prosecutors to turn over potentially exculpatory evidence to defense counsel.

“All Defendant had to do to honor the Plaintiff’s Brady rights was to turn over copies of documents that were obviously exculpatory as to the Farak defendants or accede to one of the repeated requests from counsel, including Plaintiff’s counsel, that they be permitted to inspect the evidence seized from Farak’s car,” Robertson wrote in her ruling. “As the gatekeeper to this evidence, she failed to turn over documents, and she adamantly opposed the requests for access. Because she did so, Plaintiff served more than five years in a state prison.”

The Board of Bar Overseers (BBO) is reviewing the actions of three prosecutors in the investigation of the scandal to determine whether any of them deliberately withheld potentially exculpatory evidence. Kaczmarek, along with former assistant attorneys general Kris Foster and John Verner, all face possible sanctions.

After weeks of hearings, a “special hearing officer” selected by the board recommended potential sanctions against them all. The special hearing officer found Kaczmarek “displayed no remorse” and was “not candid” during the disciplinary proceedings. He recommended she lose her law license for two years; the Office of Bar Counsel later argued Kaczmarek should be disbarred. A final decision is still pending and must be approved by the state Supreme Judicial Court.

Magistrate Judge Robertson denied a request in Penate’s lawsuit that Kaczmarek be prohibited from contesting the special hearing officer’s findings. Penate argued the court should follow those findings. Kaczmarek argued the findings are subject to appeal.

Kaczmarek argued before the BBO, and in response to Penate’s lawsuit, that she was focused on prosecuting Farak and not defendants, like Penate, whose criminal cases were affected by Farak’s misconduct. Robinson rejected Kaczmarek’s claims she should not be held responsible for the turning over of exculpatory evidence because she was not part of the “prosecution team” in Penate’s case.

“It was Defendant who had the responsibility within the AGO [attorney general’s office] to see that the Farak investigation materials were disseminated to the DAOs [district attorneys’ offices],” Robertson wrote, adding there is no evidence anyone from the attorney general’s office sent the potentially exculpatory evidence to those offices.”

Penate’s lawsuit, which seeks $5.7 million in damages, is believed to be one of the last remaining suits tied to the scandals; the statute of limitations to file such suits has expired. The lawsuit names Kaczmarek, Farak and three members of the state police. A status hearing on Penate’s suit, which was filed in 2017, is scheduled for July.

The Farak scandal came as the state grappled with another drug lab crisis. Former chemist Annie Dookhan was convicted in 2013 on charges of improperly testing drug evidence at a drug lab in Boston. Kaczmarek also oversaw the prosecution for the attorney general’s office in that case.

Tens of thousands of criminal drug cases were dismissed as a result of misconduct by Dookhan and Farak.

The state and attorneys for some of the defendants agreed to a $14 million settlement to reimburse 31,000 defendants for post conviction-related costs, such as probation and parole fees, drug analysis and GPS monitoring. That settlement awaits approval by a judge.

This article was originally published on WBUR.org.
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