Judge, lawyers: State dragging feet on Amherst drug lab scandal

Even as prosecutors scramble to address state drug laboratory misconduct that could undermine upwards of 18,000 cases statewide, a judge has lambasted law enforcement officials for their handling of the case

September 2, 2017

AMHERST — Even as prosecutors scramble to address state drug laboratory misconduct that could undermine upwards of 18,000 cases statewide, a judge has lambasted law enforcement officials for their handling of the case, going so far as to say some officials committed "a fraud upon the court."

As a result, defense lawyers say, an untold number of defendants may have been wrongfully convicted, imprisoned and left to languish "in limbo."

Amherst Drug Lab chemist Sonja Farak was arrested in January 2013 and charged with stealing drugs to feed her own addiction. Farak was convicted of drug theft and evidence tampering and, in the scandal that ensued, flaws in state procedures emerged and defense attorneys asked judges to re-examine cases of clients tried on drug lab evidence.

A recent ruling on eight appeal cases by Hampden Superior Court Judge Richard Carey blasted not only Farak but also the Massachusetts attorney general's office. In his 127-page ruling, Carey said one former assistant attorney general intentionally misrepresented facts and deliberately misled defense lawyers, prosecutors and the court. Another, he said, "lacked a moral compass."

He wrote that the two prosecutors committed a "fraud upon the court."

The Amherst Drug Lab, run by the Department of Public Health until 2012, was shuttered in 2013 after news broke of Farak's drug thefts. According to the judge, the facts that emerged revealed not only the lab's lax security measures but also evidence that the attorney general's office intentionally withheld evidence that would have established the full breadth of Farak's misconduct. In light of the revelations, Carey dismissed convictions for seven Pioneer Valley defendants, and allowed another to withdraw a guilty plea.

The damage goes far beyond those cases. Prosecutors say the revelations have forced them to examine thousands of cases, which could result in dismissing some pending ones, reopening others or reversing convictions in ones that have sent defendants to prison or probation.

More than four years after Farak's arrest, officials have yet to document the extent of the wrongdoing, and to identify all the affected defendants — including ones who might be able to win their freedom.

But that's not to say it can't be done. In the case of Annie Dookhan, a drug chemist for the state lab in Jamaica Plain arrested in 2012 and convicted of evidence tampering, then-Gov. Deval Patrick hired Boston attorney David Meier to compile a list of the affected cases so they could be identified for reassessment. The Supreme Judicial Court dismissed an unprecedented 20,000 cases in April as a result of that inquiry.

No comprehensive process has begun in the Farak matter. Instead, individual prosecutors are taking stock on their own.

In response to questions from the Gazette, Northwestern District Attorney David Sullivan said his office was still determining the total number of drug cases handled by Farak. He said it's a slow process, requiring painstaking database work.

"Our office will likely be dismissing a substantial portion of cases," said Sullivan, whose district covers Hampshire and Franklin counties. "The integrity of our justice system depends upon ethical public servants. Sonja Farak's conduct has undermined the pillars of trust required for the prosecution of these cases."

Christopher Post, an attorney for the drug lab crisis litigation unit of the Committee for Public Counsel Services, estimated in a 2016 legal filing that the Amherst scandal could affect as many as 18,303 cases.

Judge Carey concluded that Anne Kaczmarek and Kris Foster, two former assistant attorneys general, withheld evidence requested many times by judges and prosecutors alike — evidence that, for many cases, could have changed the outcome.

The evidence Carey says the two intentionally withheld were mental health worksheets Farak filled out for her therapist, which show her drug tampering began much earlier than was revealed in court proceedings. In the order, Carey documents months of back-and-forth in 2013 in which Kaczmarek and Foster assured regional prosecutors the office had handed over all pertinent evidence.

They had not, Carey ruled. He wrote that Foster's refusal to acknowledge her wrongdoing when later confronted with the facts betrayed a fundamental lack of responsibility.

"Foster's denial in December 2016 of having made any mistakes underscores her lack of a moral compass," Carey wrote.

In the same 2016 hearing Carey cites, Kaczmarek conceded "there was a breakdown" within the AG's office when it came to fulfilling its duty to disclose evidence that could have undercut the reliability of a larger number of criminal prosecutions.

Had they handed over the evidence in a timely and complete way, Carey wrote, many defendants could have sought relief from the government misconduct and avoided or gotten out of jail.

"The ramifications from their misconduct are nothing short of systemic," Carey wrote of the former prosecutors.

In response to questions from the Gazette, a spokeswoman for the Massachusetts attorney general's office said Foster and Kaczmarek left the office voluntarily to pursue other job opportunities with the state. The spokeswoman asserted that the office's failings were unintentional.

The AG's office has not appealed Carey's June 26 decision, and does not plan to.

"Farak's crimes were serious and her actions undermined the integrity of our system of justice," said Jillian Fennimore, spokeswoman for Attorney General Maura Healey, who took office in 2015, after the alleged misconduct outlined in the court ruling. "Since taking office, Attorney General Healey has been focused on making sure that the mistakes of the past never happen again. We believe it is time to move forward and close this troubling chapter for Massachusetts. The Attorney General will be working with our partners in law enforcement to resolve all of these cases appropriately and as quickly as possible."

The American Civil Liberties Union of Massachusetts, the New England Innocence Project and others filed a brief in March urging the court to "make findings on prosecutorial misconduct and fashion a substantial judicial remedy."

"Any other approach to this scandal would, unfortunately, invite a new one," the brief concluded.

While the judge's order resolved the cases before him, it offered no broader remedy or mandate for comprehensive investigation.

Authors of the brief also asked the state Office of Bar Counsel in a July 20 complaint to investigate Foster and Kaczmarek and consider punishing their alleged misconduct.

Matthew Segal, legal director for the ACLU of Massachusetts, said each and every one of the cases tainted by the misconduct outlined in Carey's ruling should be dismissed.

"When we and CPCS (Committee for Public Counsel Services) sued in the Dookhan case, it resulted in the largest single dismissal of wrongful convictions in the history of the U.S.," he said. "It would be nice to see the commonwealth learn from that experience."

Kaczmarek, now an assistant clerk magistrate for the state, did not respond to requests for comment. Foster, who serves as general counsel for the state Alcoholic Beverages Control Commission, declined to speak with the Gazette.

"I have no comment," Foster said when reached by phone.

Luke Ryan, a Northampton lawyer who represented multiple defendants potentially affected by the lab woes, said the lack of funding, protocol and supervision at the drug lab — deficits corroborated in Carey's ruling and documented previously in a 2002 state study — set the stage for someone like Farak to abuse access to drugs confiscated during criminal investigations. Given the opioid epidemic, he called the fact that Farak was often the only person in the Amherst lab an invitation for abuse.

Farak's defense attorney, Elaine Pourinski, said her client was blamed for problems that reached well beyond her to systemic failings, including a lack of adequate staffing and safeguards.

"It's easy to blame one person for everything," she said.

Ryan said the government's failure to disclose pertinent information to its district attorneys "shakes you to the core."

"It's kind of all of our worst nightmare," he said. "It's really hard to put your faith in that in any case when you see something like this."

District attorneys were quick to condemn Farak's actions, but all declined to comment on the role the attorney general's office played in what Carey described as systemic failings.

"The Hampden district attorney's office is committed to the integrity of its prosecutions both current and past," said office spokesman Jim Leydon. "The issues surrounding Sonja Farak's malfeasance is something this office has been proactively preparing for by assigning the appropriate staff to review and attend to the issues this misconduct has caused. Judge Carey's recent decision has allowed this office to proceed with an objective and thorough review process of potentially several thousand cases. We will not know for certain an exact number until the review is complete."

Berkshire District Attorney David Capeless said there were about 600 cases associated with his office on which Farak signed the lab test report. He said his office is currently looking at how to handle those compromised cases.

"We're in the process right now of finalizing the protocol that we're going to follow. We're very near completing that process," he said. "This is going to be an administrative headache for a lot of people."

Asked for more details, Capeless said, "since these are pending cases I don't want to make any further comment."

Legislators allocated $30 million in a reserve fund for the Dookhan fallout, but officials say so far no state dollars have gone toward addressing the Farak aftermath.

"We have exercised Yankee frugality in handling this drug lab fiasco," Sullivan said. "It really won't come down to spending a boatload of taxpayer money but doing the right thing and dismissing every case where the integrity of evidence and prosecution has been compromised."

Carey noted another systemic failure on the commonwealth's part: the inspector general's office should have investigated the government's handling of the Farak case, as it did after Dookhan's wrongdoing came to light.

"The record is silent as to whether the Office of the Inspector General conducted an investigation into Farak or the Amherst drug lab," Carey wrote. "Kaczmarek improperly discouraged such an investigation."

In an email to the senior counsel at the IG's office, which was cited in Carey's ruling, Kaczmarek advised the attorney — her friend Audrey Mark — to say no if asked to investigate the Amherst scandal.

"I should have" declined, Kaczmarek wrote. "It's pretty far."

In 2012, the inspector general's office began investigating the Dookhan case at the request of former Gov. Patrick. As part of the investigation, the Legislature conducted hearings and ultimately passed a budget that included the $30 million "Hinton Lab Reserve Fund" to help pay for the Dookhan aftermath, according to the inspector general's report.

Over the course of the 15-month investigation, the office found that Dookhan was the sole bad actor, but also that Department of Public Health Commissioner John Auerbach and his staff had "failed to respond appropriately to the report of Dookhan's breach of protocol," according to the report. Auerbach resigned from his post in September 2012 amid the drug lab scandal in Jamaica Plain, acknowledging that there was "insufficient quality monitoring, reporting and investigating on the part of supervisors and managers" in that case.

There was no evidence Dookhan stole drugs for her own use, but rather that she intentionally tampered with and mishandled samples.

A total of 609 samples were retested by an outside agency. The testing showed that 58 had bad results, either showing there were no controlled drugs in the samples or ones that had been improperly identified.

Did such an investigation occur in the Farak case? Jack Meyers, a spokesman for the inspector general's office, said he's unable to answer.

"We take our confidentiality requirement very seriously," he said.

Meyers said the reason the office investigated the Dookhan case was because of the request from the governor. Asked if Gov. Charlie Baker had issued any such request in the Farak case, Meyers declined to say.

Billy Pitman, press secretary for Baker, issued a statement in response to questions from the Gazette.

"Through the Executive Office of Public Safety and Massachusetts State Police, the administration continues to ensure proper protocols and standards are in place at the labs going forward, but does not generally comment on matters being actively litigated before the courts," he wrote.

Judge Carey's decision affects cases not only in western Massachusetts but also across the state, given that the now-defunct Amherst lab took on testing of backlogged samples from the commonwealth's main drug lab in Jamaica Plain.

Although the Amherst Drug Lab was less than 100 miles west of the commonwealth's main lab, the two were far apart in the way state officials handled evidence of trouble at each, the judge concluded.

"In contrast to what transpired with respect to Dookhan and the Hinton lab, which were the subject of broad investigations, no full-fledged investigation into the scope of Farak's misconduct began until long after her conviction," Carey wrote.

Defense attorneys have argued the Amherst lab's distance from Boston played a role in the lack of follow-through by the attorney general's office' employees.

In addition to the aforementioned email in which Kaczmarek tells a friend at the IG's office the Amherst was "pretty far," Kaczmarek further displayed her distaste for looking into the western Massachusetts matter in an email sent among various office employees with the subject line "(for your viewing pleasure. And an advisement against moving to western Mass.)" Carey didn't cite this email thread in his ruling, but defense attorneys interviewed for this story said it was part of the court file, and provided it to reporters.

Even as officers began uncovering evidence of tampering in 2013, Carey wrote, Kaczmarek was reluctant to broaden the scope of the investigation lest it lead to "an avalanche of work."

While the AG's office declined to respond to allegations of any bias against western Massachusetts, two attorneys representing people affected by the scandal said bias definitely played a role.

"You have someone just completely inexperienced handling this situation because the Boston brass didn't think they needed to put someone with slightly more experience on the case and that turned out to be fatal," attorney Jared Olanoff said, referring to Foster.

Olanoff served as an attorney for about a dozen defendants affected by the Farak scandal. He was also appointed lead counsel for an October 2013 consolidated hearing for the more than a dozen individuals who had filed motions for new trials.

Comparing the state's response to both the Dookhan and Farak cases, Olanoff said "western Mass. was a lot different."

Instead of a widespread investigation into Farak's entire career with the Amherst lab, Olanoff said, state police found that four samples were affected and stopped there.

"That is all that happened. No one really went in and tried to figure out how long this had been going on and how many samples had been affected," he said. "In the end, Sonja Farak was only charged with tampering with or stealing four samples. That is all they really wanted to focus on. That is all they really wanted to do.

"The problem is that no one really cared that hundreds of people were in jail or state prison based on this scandal."

When asked why the responses to the two scandals varied, Sullivan said in a statement that both cases were handled with the available people and resources.

"It has been a difficult task reviewing thousands of cases, but we'll continue to manage," Sullivan said.

Sullivan said despite a 2015 request for $103,000 from the state to address the fallout, his office has so far absorbed all related costs.

Baker's spokespeople said the Hinton Lab Reserve Fund was established with $30 million in 2013 as a mechanism to reimburse officials for spending related to issues at the Hinton lab. In a supplemental budget for fiscal 2017 signed in March, they said, language was added so the reserve fund could be used to address investigations at both labs.

Since that date, they said, the Executive Office of Administration and Finance has not received any requests for reimbursements. Pending legislative approval, some $1.9 million in new money will be available in the fund this fiscal year for addressing scandals at the two state labs.

While most of Carey's decision focuses on what happened after officials caught wind of Farak's theft, he also wrote about how lack of proper protocols at the lab left the door open — literally — for this type of abuse.

There were no audits of drugs onsite until July 2012, Carey wrote, and drug lab employees enjoyed unrestricted access to the vault that contained them. Employees also had access to the lab via keycard and officials kept no record of who came in and out or when, nor did any security cameras provide vigilance.

Carey also found that Farak received "no continuing education, proficiency testing, or real supervision."

"The complete lack of security at the Amherst lab was a fundamental flaw which enabled Farak to tamper with drugs without detection," Carey wrote.

Now, defense attorneys assert, the system is doubling down on the damages by continuing to make drug lab defendants wait for justice.

"You have all these people in limbo," said defense attorney Ryan. He said it's likely that many of the defendants affected by the commonwealth's misconduct — many of whom are serving or have completed prison terms — don't even know they can appeal or reopen their cases. He said others likely lack the resources and the faith in the system that's required to pursue such claims.

He said those prosecuted for drug crimes often have their lives dismantled in the process.

"It renders people second-class citizens," he said, adding the lab scandal just adds another layer of injustice to a system that already treats drug addiction as a crime rather than a disease. "Our whole approach to drugs — it's really pretty twisted."

As the five-year mark of Farak's arrest approaches, Olanoff said it would be nice for defense lawyers and prosecutors to come to some sort of understanding on how to deal with the case in a way that's prompt and comprehensive.

"I've always, always asked for that — some sort of global solution and it's always been met with resistance," he said. "At the end of the day, everybody's goal should be to make this right, make sure no person is in prison wrongfully or unnecessarily."

Amanda Drane can be contacted at adrane@gazettenet.com. Emily Cutts can be contacted at ecutts@gazettenet.com.