-: SJC13360, in the Matter of Kris C. Foster and others.
-: Okay, we'll start with Mr. Makalusky.
-: Good morning, may it please the court.
I'm Assistant Bar Counsel, Joe Makalusky,
appearing on behalf of Bar Counsel.
You have before you today
three consolidated bar discipline cases
of monumental importance,
and I do not say that lightly.
The prosecutors formerly of the Attorney General's Office,
Anne Kaczmarek, John Verner, and Kris Foster,
individually and collectively exacerbated the misconduct
of the state chemist, Sonja Farak.
They violated the rules professional conduct
as lawyers and as prosecutors.
Consequently, this court was obliged
to vacate thousands of criminal convictions.
Those criminal cases represent real people
for whom the criminal justice system
was systematically unjust.
As this court explained in Matter of Curry,
the disciplinary rules in accompanying proceedings are,
the purpose of those is to protect the public
and to maintain its confidence in the integrity of the Bar
and the fairness and impartiality of the legal system.
The prosecutors before you shattered that confidence.
Again in Matter of Curry,
this court warned that without the public's trust
that lawyers and judges will act in good faith
and strictly within the bounds
of our laws and professional norms,
the rule of law has little practical force.
And so, the decision you make in these cases
will send a direct message to those members of the public
and it will send a warning to the Bar.
For a profession that has the privilege to police itself,
that message should loudly and clearly state
that this type of prosecutorial misconduct
is utterly unacceptable.
-: Okay, let, let's focus for a moment
on Attorney Kaczmarek.
And your, the point is their findings,
that this is intentional, correct?
Makalusky: Yes.
-: Can you tell me what those findings are based on?
I know we're deferring to them,
but just for the context of the case.
-: Sure.
Ms. Kaczmarek and Mr. Verner
had four pieces of exculpatory evidence
very early on in the case.
They had evidence of a so-called light 2005 cocaine case.
They had evidence of a 2012 Oxycodone case
that appeared to be tampered with.
They had evidence of Ms. Farak's urinalysis
shortly ever after her arrest,
proving that she had taken drugs.
And most importantly, and most significantly,
as we've all heard in this case,
there are the mental health worksheets.
On February 13th, February 14th, 2013,
Sergeant Ballou emailed those mental health-
-: I think we understand about the mental health worksheets.
Makalusky: Okay.
-: What I'm trying to understand, and I have more difficulty,
is differentiating responsibility.
Because the AG's Office, in total,
had these four pieces of evidence, right?
Makalusky: Correct.
-: So everyone,
I mean everyone in some respect has them, so,
but you draw distinctions,
and I particularly have some issues with how,
why is Mr. Verner responsible for certain things,
but there are three or four other supervisors
who aren't even reprimanded there?
There's no issue even though
they're involved in this discovery, too.
So why is, why is what he did inappropriate?
Help me out there. -: Sure.
-: Because, let me summarize what my understanding is.
-: Well, maybe, maybe it would help
if you finished telling me what the intentional evidence is
with regard to Ms. Kaczmarek
and then you can explain how the supervisory role
implicate, is implicated for Justice Kafker.
-: Sure.
So again,
back to the Valentine's Day email that Ballou sent.
The subject line was "Farak Admissions."
So any prosecutor,
and I know many of you were former prosecutors,
would know that admissions in a case are quite significant.
They opened and looked at these mental health worksheets.
They immediately recognized
the significance of the mental health worksheets.
By the way, the mental health worksheets
are attached to the hearing report.
They discussed, Mr. Verner and Ms. Kaczmarek discussed them.
On March 27th, 2013, Ms. Kaczmarek penned a prosecution memo
that referenced the mental health worksheets.
Mr. Verner did a footnote
concerning the mental health worksheets.
That same day they sent a disclosure letter
to the District Attorney's Office.
They did not include the mental health worksheets.
-: And there's a note on that memo, isn't there?
That this was not sent- -: Yet.
-: And so what was the point of that note?
-: Well, according to Mr. Verner,
the point of that note was direction to Ms. Kaczmarek
to send them at some point.
-: Okay, so now you've told, we know that they know about it.
Makalusky: Yes.
-: We, we totally understand that.
Makalusky: Great.
-: I'm just looking for the explicit evidence
that the Hearing Officers used
to find that this was intentional.
And I know we're deferring to it,
but I just want you to point me to the intent,
where the evidence is that this was intentional
rather than just a colossal, colossal oversight.
-: Because he found repeatedly that Ms. Kaczmarek
lied to different people about the evidence.
She lied to ADA Bossi, she lied to another ADA.
She penned two other disclosure letters
of June 26th and July 12th,
neither of which had the mental health worksheets
or the other three pieces of exculpatory evidence.
So it was a combination
of not only did she know about this information,
but she repeatedly had opportunities
and an obligation to disclose that information
and she didn't.
Beyond that, she lied about it.
She lied to different people
about what had been turned over.
And Ms. Foster had testified that Ms. Kaczmarek
told her on September 10th
that everything had been turned over.
-: Okay, so now can you place that in context for,
just in terms of Attorney Verner?
-: Verner, sure, sure.
So under rule 5.1b,
a supervisor has an obligation
to ensure that their subordinates comply
with the rules of professional conduct.
-: Let me, let me,
before you go into generalities,
on March 27th, right, he writes, he signs this letter.
Makalusky: Yes.
-: And that letter talks about their obligation to disclose.
Is there anything inaccurate in the letter?
I understand they don't attach the mental health in those,
but, and, and do they reference this
as a continuing obligation in that letter or not?
Because I, I'm just, again,
I get that there's some affirmative acts here,
but I'm trying to understand with,
particularly with Mr. Verner,
he, again, he's a signatory,
and I understand signatories to court documents
or people arguing in court are different
from people in the back room supervising
who don't sign anything.
But he signs this letter,
but I don't know if there's anything
inaccurate about the letter.
Is there, is there anything?
Makalusky: No, there's nothing inaccurate.
-: Okay.
-: It's just under inclusive.
It's woefully under inclusive.
-: But, but-
-: The letter says "We have a continuing duty to-"
Makalusky: I don't believe the first letter-
-: You gotta, you've gotta wait
till I finish asking the question before you answer it.
Makalusky: Sure.
-: The letter says "We have a continuing obligation"
"to disclose exculpatory information," correct?
Makalusky: That is correct.
-: Verner sets out a protocol
that they used in the Dookhan case
under which all the evidence goes to the DA's
for them to be disseminated,
which worked in Dookhan, to the individual lawyers, correct?
-: That is correct.
-: Then there's a pros memo when Verna says
"It hasn't been disclosed yet."
The clear inference being it will be disclosed.
And then months later,
during the hearings in front of Judge Kinder,
there's a dispute about the Ballou file
and what's in there in Vernon's emails.
And there's a, an agreement to turn over the Ballou file.
And in the emails it says
that the worksheets are in the Ballou file, right?
-: That is correct.
-: So what did he do that was wrong?
-: Multiple things.
First of all, he testified and as all prosecutors know,
and as the court is well aware,
when you have exculpatory evidence,
you immediately turn it over.
You don't wait.
He was asked by the, now first of all-
-: What's, what's, all right,
what's that rule of criminal procedure
that says you have to do it right then
when as soon as you get it.
-: In timely fashion, timely fashion.
Brady, it's progeny in the rules,
in the rules of professional conduct, 3.8.
You also have to remember that Mr. Verner
denied opening the mental health worksheets.
At paragraph 74.
-: That, that's his testimony.
You still haven't- -: Yes and it was-
-: That's his testimony in this hearing.
You need to tell me what he did at the time that was wrong.
-: He did not disclose the mental health worksheets.
He did not disclose the urinalysis.
He did not disclose the 2005 cocaine case.
He did not disclose the 2012 case.
After that, he then received-
-: He's a sup, he's a supervisor and his subordinate said,
"I'm going to disclose these things."
-: He did not direct her to do that.
-: Did he need to? -: He says, he says,
"Are are you going to disclose it?"
"Yes."
And then he has to say, "Are you sure?"
-: No, that's, that's not, that's not what the record is.
The record is is that he wrote in the pros memo
"It has not been turned over yet."
Look at his testimony that is put in, in the reply brief.
His test, when he was asked at the,
by the Special Hearing Officer,
"Can you explain to me"
"why you did not disclose the urinalysis"
"in the March 27th letter?"
Now he couldn't be asked about the mental health worksheets
because he testified
that he hadn't opened them or seen them.
When he was asked about the urinalysis, he said,
"Well, Ms. Kaczmarek's secretary did that."
"I had nothing to do with what was put into the letter."
He's the supervisor
who is supposed to ensure that his subordinate
is following the rules of professional conduct,
and he abdicates that responsibility
to Anne Kaczmarek's secretary.
More than that, more than that-
-: Hold on, but she's a prosecutor with 15,
10, 15 years of experience.
He's the head of the Criminal Bureau, right?
Makalusky: Correct.
-: He's supervising how many people at this time?
-: Between 105 and 110.
-: So he's got 105 reports.
I understand this is a huge case.
-: Yes. -: But he, he's, he's,
the thing he signed says,
"We got a duty to turn over everything we're supposed to."
She's the one who attaches the documents, right?
She's not a kid.
She's, she's been a prosecutor for a long time.
What, he really has to, you know,
bird dog her on every, I mean, by the way,
there are other, other supervisors, right, in this case?
Are, do they have the same, like with Foster,
someone supervising her letters
asking has she looked at things,
but we don't have them here.
Makalusky: Okay.
-: I, I'm just, I,
I don't understand why this guy's different.
-: I can explain. -: Go ahead.
-: So first of all,
the fact that others aren't prosecuted is irrelevant.
-: Well it's, it is. -: Well.
-: It's relevant in the sense
of you don't think it's worth pursuing
for any kind of reprimand but you're disbarring,
you're suspending someone for three months.
That's gotta be relevant, doesn't it?
We want to treat people equally.
-: Justice Kafker, nobody has alleged,
and they couldn't properly allege,
that there was selective prosecution in this case.
-: Well, but- -: To answer your question, no.
-: You're talking about a duty to follow up.
Makalusky: So let me ask you that question.
Kafker: But let me answer that question.
-: Sure.
-: You have a duty to follow up.
I get it.
What is it?
When you're dealing with something radioactive, you know,
you trust but verify, right?
I get that. -: Mm-hm.
-: But it's, you also have limits, you know?
You've got capable people following your instructions.
I just don't know, I don't get it here yet.
-: All right, so the, the,
the answer that you, Justice Kafker
and you Justice Graziano, may be-
Gaziano: It's Ga, it's Gaziano.
-: Gaziano, I apologize.
With somebody with a name like Makalusky,
you think about, I'd be able to pronounce all last names,
but I don't have that ability, I apologize.
The answer you're looking for
is paragraph 244 of the hearing report.
That's the answer you're looking for.
-: But what does it say? -: And what it says,
is that the Special Hearing Officer said
that Anne Kaczmarek's September 10th email
concerning the mental health worksheets quote,
"Should have prompted Verner"
"to ensure that they had been turned over"
"to the District Attorney's Office."
It would, should not have assuaged his concerns.
It should have sent up a red flag.
And all he had to-
-: And what did the email say, sorry.
What was the September email?
-: The September 10th email.
She referenced the mental health worksheets
and said they were in the file.
And the Special Hearing Officer indicated
that her reference to the mental health worksheets,
given the significance of them,
given that they were referenced in the pros memo,
should have prompted Verner
to ensure that they had been turned over,
and all he had to do, all he had to do.
-: He said this is a continuing obligation.
He puts a note in there
that says it's not been turned over yet,
and he doesn't write
the following two discovery letters, right?
Kaczmarek writes them herself, right?
Makalusky: Yes.
-: So, and he's supervising 101 other people.
It, it just, it's- -: So here's, here's-
-: It's a lot to ask that he's,
I get that he may have made a mistake,
but suspending him from the practice of the law
for something like that's a different order of magnitude.
-: How onerous would it have been?
What, what should he have done as a supervisor?
It was the most high, high profile case.
You are bound with the Special Hearing Officer's finding
that it should have prompted him to do something more.
What should he have done?
-: The Special Hearing Officer's finding
was that Verna reasonably relied
on Kaczmarek's representation
that all documents were produced, correct?
-: Paragraph 244 says.
-: Answer that question.
-: He, it, it does not conflict with paragraph 244.
It says that the September-
-: Okay, so, all right, so that's a yes.
And then the ABA opinion that you cite
says it's the duty of the prosecutor's supervisor
to be informed of the status
and participate in major decisions
like identifying Brady information,
which was done in this case, correct?
-: No, not correct. -: All right.
-: So that's ABA formal opinion 467.
So that's what, that's, that's the heart of it,
Justice Gaziano, is that he should have been involved
in the identifying the Brady material.
Gaziano: Right.
-: You combine that with 244 of the hearing report
that said the email should have prompted him to do more.
In a high profile case, what more should he have done?
How onerous would it have been?
Looked at two pieces of paper, two.
Kafker: Well, but he, but remember-
-: Her June 26th disclosure.
-: Two piece, gotta remember he's got a big job.
These are not the only two pieces of paper before him.
He's, he's supervising a hundred other people.
I get it, it's a big case,
and, and he, he could have followed up.
Maybe he should have followed up.
But is it of the order of magnitude?
Again, he's got a 15 year prosecutor
who's done the Dookhan case,
who's responsible for the subsequent discovery.
You know, it just,
it seems like you're coming down awfully hard
on maybe a mistake, but, you know, go ahead.
-: Sure.
You know what else he didn't do that's in the record,
that the Special Hearing Officer found?
He didn't ask her,
"Did you turn over the mental health worksheets?"
Was that too onerous?
Given the 110 people had to a supervise?
All he had to do was ask her,
"Did you turn over the mental health worksheets"
"that we've been talking about for months?"
"Did you turn over the Oxycodone case?"
"Did you turn over?"
-: I, I thought the Ballou hearings in front of Kinder,
the representation was that, "Yep,"
because that was what Foss represented,
was that all the Ballou file was turned over?
In the, in the email,
said that the worksheets are in the Ballou file.
-: That's right.
244 of the Special Hearing Officer's report.
That email should have prompted Verner to ensure
that the mental health worksheets had been turned over.
-: There's an email that says "What's in the Ballou file?"
The answer is all these things, including the worksheets.
And then the representation is,
"Yep, I turned over the Ballou file."
And then the response should have been,
"Well, did you turn over the Ballou file?"
-: Would that have been too onerous to ask her?
"Did you turn over the mental health worksheets?"
And by the way, let's not forget something, okay?
Common sense.
The mental health worksheets
were called the smoking gun for a reason.
-: I, I, I don't think we disagree that Kaczmarek
had a an obligation to turn over those things.
The question is-
-: We, we kind of,
we kind of reversed or dismissed 30,000 cases
based upon the worksheets.
We're aware of the significance, certainly are.
-: Well then, then if-
-: Let me ask you another question on Foster.
-: Sure.
-: Judge Carey found there was deception.
Based on the Judge Carey findings,
I wrote in the CPCS decision there was deception.
Makalusky: Yes.
-: The Hearing Officer doesn't find that.
The Hearing Officer finds a mistake.
Are you bound by the Hearing Officer's determination
that it was negligence and not intentional deception?
-: No, because he did not find that it was,
he did not make a,
an explicit finding about in intent of deceit.
But let me just jump back and I'll get back,
back to Foster because this is important.
You all know how important
the mental health worksheets were?
-: Yes. -: Okay, so did John Verner.
If they had been disclosed, what would've happened?
What would've happened- -: I think we're going back.
-: What happened after they were disclosed.
-: Can we go back to Justice Gaziano's question, which is,
are you bound by the Hearing Officer's finding
that this was a mistake?
We have Judge Carey on one hand doing some other proceeding.
Where, where Kaczmarek and Foster
and Verner are not parties. -: Right.
-: He makes his findings that they did this intentionally.
But your Hearing Officer says it's a mistake.
Which, are you bound by that?
-: He made no finding
that she did not have an intent to deceit.
His prob, what the problem-
-: So he didn't find an absence of deceit?
Makalusky: Correct.
-: Is that the same thing as finding deceit?
-: No, no, it's not, right.
But here's, here's the problem with, with what,
the reason that he did not find an 8.4c violation
is because he conflated the elements of 3.3 and 8.4c.
That was the first problem.
The second problem is he never considered
the willful blindness doctrine.
Then when it got to the board,
the problem there is they thought that an intent to deceive
was a sine qua non of an 8.4c violation.
It's not, it's not.
There were two ways to prove an 8.4c violation,
either an intent to deceive or knowledge of the falsity
and understanding that somebody's going to rely on it.
-: Can you help me out? -: Sure.
-: What we're talking about is the letter to Kinder that says
"Hope everything's okay." -: Yes.
-: It's, it was reviewed.
And then the cuteness that I think I wrote about in CPCS
was the passive voice, it was reviewed.
A judge might say,
"Well, I got this letter, she reviewed it."
Is that what we're talking about?
Makalusky: That is exactly what we're talking about.
-: And for that you recommend a year suspension?
-: It's not, it's not be just because of that.
It's the aggravating factors are the problem.
Is the, the monumental harm that occurred.
And she was found to be a particularly deceitful witness.
When you combined all of that,
the board concluded that the normal sanction for her,
given all of those aggravating factors,
would be between 18 and 24 months.
But they gave her credit
for being an inexperienced prosecutor
when it came to subpoenas.
By the way,
she was not an inexperienced prosecutor
when it came to the letter.
She was an experienced appellate attorney,
and the Special Hearing Officer
found that words were her stock and trade.
She knew what she was doing.
So they gave her credit for inexperience for the subpoena,
dropped it from 18 to 24 months to a year and a day.
-: I think the neg,
the negligence or the gross negligence or willful blindness,
however we want to put it in the continuum,
was not personally looking at the Ballou file.
It's taken the representations from others, correct?
That everything was turned over.
Makalusky: That, that is part of it, yes.
-: What, what do you mean part of it?
What else is there?
-: Well, she had an obligation to take a look and she,
she had never talked to Ballou.
She had never looked at the file.
So there were false, there,
it's clear there were false representations in the letter.
All right?
And it's clear that she was intentionally vague.
Why was she intentionally vague?
Justice: Oh, cause she hadn't done it herself.
Makalusky: Exactly, exactly.
-: Yeah, and so, so for that, I guess I'm wondering why,
you know, as Verner could rely perhaps on the,
a prosecutor that the Assistant Attorney General
that he had appointed for the matter,
why she could not also rely on those representations
that the whole thing had been turned over?
-: She, for two reasons.
One, she had an independent professional duty to do more
given the task that she had.
She was supposed to respond to subpoenas.
She was supposed to be responded to discovery quest-
-: But, but, so you're saying that a lawyer cannot rely
in response to a subpoena on,
on somebody else who's affirmatively telling them
it's all been turned over?
-: Not solely, no.
Not if you,
you cannot abdicate your professional responsibility
onto somebody else.
The other reason is because under rule 3.-
-: What, what, what rule of professional responsibility
says that you personally need to review
every piece of paper in response to a document request?
-: 1.1 And 1.3.
You have to be competent and diligent, okay?
-: Right, and so the question is
where in competent and diligent does it mean
that you personally need to review these documents?
-: Take a look at the McDonald case.
-: Because I gotta tell you,
in civil litigation where you have,
I mean just gigabytes of information,
are you suggesting that you cannot
delegate that to somebody else?
That you have to do it yourself, personally,
when you show up in court in response to a subpoena,
that you yourself have to review gigabytes of information?
-: I would ask you to take a look
at the Matter of McDonald case.
-: And that case says that?
-: It's a civil litigation case.
-: It says that?
-: It's a civil litigation case that says
an attorney was relying on his co-counsel and friend
to follow up on a civil case.
The co-counsel and friend gave him repeated assurances
that he was following up on the case.
The attorney did nothing to confirm that
and was found in violation of the rule.
If you have an independent-
-: So, so, so there would be some sort of requirement of,
and I'm not disagreeing with you, I'm just asking question.
Makalusky: I know, sure.
-: I mean some sort of requirement
of doing sort of tests, samples, right?
You know, "Was this thing that I've now looked at,"
"was that turned over?"
Is that what you're suggesting?
-: What I'm suggesting is- -: Would be a reasonable rule.
-: First of all, the sky is not falling.
That, nobody has to micromanage anybody, okay?
That's the first thing. -: Whoa, whoa.
I thought.
-: I thought that's what you had-
-: That was.
-: I thought that's what you said about Verner.
-: Micromanage?
Ask her whether she turned over the evidence?
I don't think that's micromanaging.
Looking at two pieces of pager
in one of the most major cases that the office ever had.
I don't think that's micromanaging.
When you have the exculpatory evidence
in your hand yourself and you don't turn it over.
-: Someone wants to turn something over,
okay, but you continue your answer.
-: Okay, so what you need is policies, procedures,
or some sort of mechanism
to ensure compliance and detect disobedience.
So it's all going to be a sliding scale.
It's a reasonableness standard.
-: So you're saying Attorney Foster
should have implemented some sort of control mechanism
over what she was being told was turned over.
-: No, so that's, so that's different.
So that, that gets to whether she can rely
on 5.2b as a defense.
And we both agree,
we all agree as to when does that defense come into play?
It only comes into play in two instances.
When there's a, a reasonable question,
an arguable question of professional duty,
and then there's a reasonable resolution of that.
Here there was no arguable question of professional duty.
That's what the Special Hearing Officer found.
A matter of competence
and a matter of being prepared for court
and a matter of not misleading a judge
is something expected of all attorneys.
-: When she, when she talks,
when she says that there's no smoking gun,
does she say that Kaczmarek
has assured me there's no smoking gun?
Or does she say herself there's been,
there's no smoking gun in that file?
-: So she uses, it's her, her words are the smoking gun.
But she she's relying on Kaczmarek.
-: Does she, I'm just trying,
I'm focused on what she says in court.
-: Sure. -: What she writes in court.
-: Yep. -: And I,
I look at her a little differently because Kinder,
Justice Kinder has told her,
he's sort of surprised she hasn't read the file
the first time around.
And then the second time around
she makes this no smoking gun comment.
How does she exactly phrase that?
Because to me, if she says Kaczmarek has assured me
there's no smoking gun is different from saying,
"Judge, there's no smoking gun."
-: The smoking gun are Foster's words.
They never came out of Ms. Kaczmarek's mouth.
-: No, I, but I understand.
Does she attribute,
does she tell Judge Kinder "There's no smoking gun"
"because Kaczmarek has assured me there's no smoking gun,"
or does she just tell Judge Kinder
"back off, because there's no smoking gun?"
-: Ms. Foster said, not under oath,
but she said during the October 2nd hearing,
I have spoken with Ms. Kaczmarek
and I have spoken with Mr. Ballou, Sergeant Ballou,
by the way, a Special Hearing Officer found
that she had never spoken to Sergeant Ballou.
"I have spoken to them"
"and they assured me that there's nothing else"
"that the smoking gun that he's looking for"
"is just not there." -: Okay.
-: If I could ask you,
you started out your presentation
by talking about how important this case is and the,
and the implications for the bar.
In the dissent in the board memorandum,
there's a lot of emphasis on this is a unique case and,
and Verner needed to do more because it's a unique case
and you keep on pointing out that,
well, this is a unique case, this is different.
So when we are looking at some very important decision
about what the responsibilities are of supervisors,
is this the case to have huge implications
about what the responsibility of supervisors are?
And before you answer that question, I want to add,
you know, the, there's all sorts of issues going on with,
with lawyer wellbeing that are, that are understandable.
The expense of litigation and practice of law
is moving more and more people to mediation and arbitration.
Is this the case to figure out whether the senior partner
has to go check and vet everything
that the first year associate did
in the document production?
Or put different tests in place
or otherwise is going to be disciplinary procedures?
Is this the case with these unique situations
to be building exactly what the responsibility is
of the supervisor?
-: So there's a, there's a lot to that.
What I will say is that the supervisor's responsibilities
under 5.1b require reasonable efforts, okay?
So as we said in our brief,
it shrinks expands in different cases.
And so each case
is going to have to be looked at differently.
With respect to this case in particular,
first of all, and I can't emphasize enough,
this was not an onerous thing that Mr. Verner had to do.
He literally had to look at two pieces of paper.
He just had to ask, "Did you turn this over?"
It's not like he didn't know about this.
He had it and he knew it wasn't turned over
because if it had been, all kinds of things would happen.
-: He knew it wasn't turned over in the,
maybe in the first document production,
but do we have any findings that he reviewed
the second and third ones that Kaczmarek did herself?
Makalusky: Right, he did not review those.
-: Okay, but again, he's managing 101 people.
She's a, how many, she's not a first year associate.
-: I know -: She's a senior partner.
-: What, what happened when these came out in October, 2014?
It was monumental shift in what happened.
He knew these hadn't been disclosed because if they had,
everybody and their uncle would've been filing motion.
-: He's shocked, he's shocked that they're not disclosed.
So is Foster.
They're both like, oh my God, look what we've done.
-: Common sense tells you that he had these.
He knew how devastating they were
if they had been turned over.
Everybody, like they did in October, 2014,
would've come rushing into court.
-: We have findings by the Hearing Officer-
Makalusky: There were no findings.
-: That he knew that they weren't,
that Kaczmarek didn't turn it over?
We don't have those findings.
We have the opposite, right?
He may have dropped the ball but he didn't throw the ball.
-: Well he, he didn't throw the ball
because he didn't turn them over on March 27th.
And there's no explanation for why he didn't turn them over,
or the other pieces of exculpatory evidence.
Why didn't he turn over the urinalysis
or the 2005 cocaine or the 2012 cocaine case?
But to answer Justice Lowy's question.
Back to the supervisor,
I'd ask you to take a look at Matter of Goldberg.
So in Matter of Goldberg,
and that's the one that the case that the,
the dissent focused on,
the supervisor failed to supervise a subordinate
who embezzled client funds.
The supervisor was suspended for one year and one day.
What Bar Counsel suggests,
is that the message to the public and to the Bar
is that a prosecutor's failure to ensure
that his subordinate turned over exculpatory evidence
is not going to be treated less severely than client money.
That our profession consider,
considers personal liberty more important than money,
or at least not less than.
So each case will have to be decided independently,
but this case should not be treated less severely than money
because thousands of people spent time in jail
because they didn't turn over exculpatory evidence.
And the purpose of bar discipline is to protect the public
and their confidence in the legal system.
That confidence was shaken.
We are a profession that polices itself.
If we're going to send-
-: I'm sorry, I heard that before.
-: So what- -: I have one quick question
that I'm sure you can answer.
Makalusky: I hope so.
-: And that is that, I'm sure,
the, the board, the Hearing Officer below.
-: Yes. -: They're,
they recommended a suspension for Kaczmarek.
-: Yes, well, disbarment, yes.
-: No, well, who recommended it?
-: Oh, the special counsel, yes.
-: The board recommended it.
So I wanna know, what is the justification?
Why do we have a recommendation for total disbarment
and or why isn't the,
the other proceeding recommendation the better choice?
-: Sure.
Because this is the first time in Massachusetts history
where a prosecutor has been disciplined
for failing to disclose exculpatory evidence.
If this is not the worst that you're going to see
as far as failing to disclose exculpatory evidence
and something's going to rise above it,
that's a scary proposition.
This should be the ceiling.
This, the disbarment should be the ceiling.
If two years is the most that Ms. Kaczmarek gets,
then other cases of failing to disclose exculpatory evidence
would never rise beyond that,
because you're never gonna get worse than this, hopefully.
And so the message to the Bar should be,
when it gets this bad, you have to have a disbarment.
Just like in Curry.
-: And our choice is just between those two things?
-: Well, you're supposed to give
substantial deference to the board,
and the board recommended disbarment.
-: Okay, thank you very much. -: Thank you very much.
-: Okay, next we have Attorney David.
-: Good morning, my name is Allen David.
I'm here with my colleague, Kristyn St. George.
We represent Kris Foster,
and I need to clarify one thing that Mr. Makalusky said.
Of the three respondents here,
Kris Foster is the only one
who was not acting as a prosecutor.
She had no direct obligation
to turn over exculpatory evidence.
-: But her obligation was to respond to the subpoena
and be candid with Judge Kinder.
Isn't that correct?
-: She was, that was her, her job, to respond to subpoenas.
-: So lets stick to what her, her responsibilities were.
Why is the year suspension not warranted?
-: For a number of reasons.
The first is that the conduct
of which she was found responsible
was essentially negligent misconduct.
And you can characterize that in any number of ways.
-: Should she have looked at the file?
-: But you could characterize it as reckless
after the judge tells you "Go ahead and review the file,"
and then you represent in some sort of odd way
that it has been reviewed.
-: The, if Your Honor reads the transcript of that hearing,
there was no order that she review the file.
-: Well, I mean,
a Superior Court judge kind of rises from his seat
a kind of mild mannered great judge and says,
"What do you mean you haven't reviewed that file?"
"Go back and do it."
-: Yeah, I, I'm not, I'm not gonna disagree with that.
-: But the fact- -: It seems to me
that the tenor is there that you best go review that file.
-: One, in, in hindsight, of course.
-: Of course this is all hindsight, but yeah.
-: The request that the judge, Judge Kinder made, the order,
was "Tell me if anything is being withheld"
"on grounds of privilege."
The answer to that then and now has always been no.
-: Well, but he's, there's two parts.
He's also being assured that everything's being turned over
except for the privileged material.
So it's,
I mean it's pretty clear that Judge Kinder's
being completely misled on this, isn't he?
I mean, he may be able to blame it on Kaczmarek,
but she is telling him there's no smoking gun
and everything's been turned over.
So what's he to do?
And also she's in court, you know?
She's not in a back room somewhere, you know?
She's in court making representation.
She's got real responsibility, doesn't she?
She, she's the face of the Attorney General's Office
on this issue.
-: She is indeed.
And, and she is at the opposite end of the hierarchy
from John Verner here.
-: But she's in court,
so she's no longer some person in a back room
doing discovery for some person who's gonna argue in court.
She's front and center and a judge is nervous
whether everything's been turned over
and she goes that extra distance
and tells him there's nothing there.
It isn't that really problematic?
-: It would depend on the basis she had
for making that representation.
And this raises the issue of 5.2.
-: But once, but once Judge Kinder says
"You haven't read the file?"
Doesn't she go back and say, "Well, okay,"
"I'm talking to Judge Kinder directly."
"I better read the file."
I mean that, there are,
isn't she on high notice that she's gotta do that?
-: As I said, in retrospect,
it would've been the wiser course to do that.
But what would that have revealed?
She gets an email from Anne Kaczmarek
saying everything has been turned over.
There's another email from Anne Kaczmarek
where Mr. Verner asks, "What's in Joe Ballou's file?"
And she says, "Search warrants, returns, inventories,"
"photographs, assorted paperwork"
"and mental health worksheets."
That's all in the file.
Kris Foster gets that email.
So let's assume she reviews the file.
She sees search warrants, returns, inventories, photographs,
assorted paperwork and mental health worksheets.
There is no reason she would attach
any more or less significance
to the mental health worksheets than to the search warrants.
She had been told by her client, Joe Ballou,
who testified under oath,
that everything had been turned over.
She had been told by her colleague, Anne Kaczmarek,
that everything had been turned over.
And then she was told by her supervisor, Randy Ravitz,
that everything had been turned over.
At some point you have to ask,
can you hypothesize a case
in which Reliance is more reasonable than this?
And of course she could have looked at the file.
It wouldn't have changed the outcome.
She would've seen the mental health worksheets.
Of course she would've, they were there.
But the result would've been the same.
There is nothing she could have done
having been told by these people
that everything had been turned over
to somehow see that these documents-
-: I haven't,
I haven't read the whole hearing with Judge Kinder yet.
But isn't the whole,
the whole focus is when she's taking drugs, right?
When is Farak taking drugs?
-: Isn't this- -: Timing and scope.
-: And, and so,
when, if you look at that, those mental health sheets,
you're gonna know that that's all being blown up, right?
Is that gonna,
are you really gonna read the mental health sheets
knowing the way you've been arguing to Judge Kinder
that nothing before 2000, whatever the date is, is relevant.
Wouldn't you know, "Oh my God,"
"I better double check whether that was turned over"
"because none of this makes sense anymore."
-: I don't know why you would think that
"I have to check specifically"
"on the mental health worksheets"
"when I am told that everything has been turned over."
And if Your Honor looks at the mental health worksheets
that are attached to the Hearing Officer's report,
they're undated and rather cryptic.
And unless you're a Patriots fan
and know that the Patriots played
on Christmas Eve in 2011 rather than 2012,
there's no way to date them.
And I don't think anyone is suggesting
that someone responding to a subpoena
has to review the documents that closely.
But she had been told they had been turned over.
If the, if the rule is that a junior lawyer
can't rely on client's, supervisor's, colleagues,
ever for anything, the Bar needs to know that.
I don't think that's the rule.
But it comes close to the position Bar Counsel is taking
and just as a supervisor really can't be expected
to micromanage a junior lawyer,
and Kris Foster was probably literally
the most junior lawyer in the AG's Office
responding to a subpoena for the first time.
She sought advice, she got advice.
The advice was "Talk to Anne Kaczmarek and Joe Ballou"
"and find out what has been produced."
She did that.
If 5.2 has any meaning, and this notion that it,
it only applies to reasonable resolutions
of debatable issues,
no one gets disciplined
for a reasonable resolution of a debatable issue.
It has to mean something more than that.
-: What, what do you take of the letter
and the cryptic "Has been reviewed."
-: The letter is vague.
She assumed- -: That was concern,
it was concerning into Judge Carey.
It was concerning to this court.
-: Pardon me?
-: It was concerning into Judge Carey
and it was concerned, vicariously, to this court.
-: I, I understand that.
It was very concerning to Judge Carey and the circumstances
under which that testimony was elicited from Ms. Foster
at that hearing are problematic.
She was represented by a lawyer
who had a gross conflict of interest
and did not protect her in that hearing.
-: But we're bound by this record, so.
-: I, I understand that, too.
The letter at worst is vague.
The letter went beyond the direct scope of the order,
which was "Tell me if anything is being withheld."
It added, it says "Everything has been turned over"
"after review of the file."
The board noted that she assumed, as did Mr. Verner,
that Anne Kaczmarek had reviewed the file.
-: Do you think if you were putting yourself
in Judge Kinder's position,
that when you got the letter
you would assume that the lawyer who wrote the letter
reviewed the file?
David: I'm not sure what assumption-
-: After sending her a way to read the file?
David: You know, I, I know it's, it's hard to put your,
get into the head of a judge
and we're not supposed to do that.
A reasonable judge looking at this,
if he or she had concerns-
-: This goes to whether or not the,
this goes to whether or not the letter is deceptive.
-: Pardon me?
-: This goes to whether or not the letter is deceptive.
-: It, it was vague,
and vagueness is different from deception.
Vagueness is apparent on the face of the letter.
If there is vagueness, the troubles a judge,
the judge can ask that it be clarified.
Deception is not apparent on the face of the letter.
-: Well, having been a judge in the trial court,
I can tell you if I blew a gasket as I want to do,
and told a lawyer, "Go review the file"
and then they came back to me and said,
"Nope, we're all set."
I would assume they reviewed the file.
-: If that were the order,
if the order were "Go review the file and come back to me"
and there was a statement that the file has been reviewed,
I would make that assumption.
In the transcript of the September 9th hearing,
that was not the order.
The order was what is being withheld.
And Ms. Foster had him clarify it.
"What is the universe of documents you're talking about?"
"Is it everything the AG has or is it Ballou's file?"
And the clarification was,
"We're talking about Ballou's file."
And she was under the impression
that everything in there had been turned over.
And I, I'm not gonna stand here
and say she had no obligation to look at the file.
Of course it would've been better
had she looked at the file,
but it wouldn't have made a difference.
-: Aren't there findings
that she knew there was more outside the file?
I thought there's findings from the Hearing Officer
that Ms. Foster knew there was the separate collection
of materials at the police department.
-: There, there was evidence
in the State Police evidence locker in Springfield.
-: And she knew about that?
-: She did know that.
-: So when she's writing again to Judge Kinder,
isn't that fudged or blurred by her response?
-: No.
In light of, of the clarification that Judge Kinder issued,
Ms. Foster was genuinely confused
over what she was supposed to look at or what she would the,
what the response was supposed to be based on.
-: This is a, this is a subpoena request.
Ballou shows up in court with a Redweld, right?
And then the question is- -: Well, yeah,
he showed up on the witness stand with his file.
-: The file, and the question is,
was it that file or is it the file writ large,
which is the entire case?
David: And, and she asked about that.
Do you mean everything the AG has
or do you mean Ballou's file.
-: And I thought Kinder said Ballou.
David: The answer's Ballou's file.
-: Right.
-: And on that she had a representation
from three different sources that it had been turned over.
If I could, I'd just like to talk about the sanction.
The recommendation was that Ms. Foster
be suspended for year and a day.
Under the Cane case and under the ABA standards,
when you're dealing with negligent conduct that causes harm,
and we can assume for the moment that it did here,
the presumptive sanction is a reprimand, not a suspension.
-: Where, where do we take,
or how do we take the magnitude of harm?
Because when we deal with bar discipline,
we come down harder on people who fleece,
you know, vulnerable victims.
So we do take into account the magnitude of the harm.
So aren't we supposed to do that here?
-: I have two responses to that.
First on this record, harm has not been established.
-: Well there- -: There would not have been.
-: I think we can take judicial notice of the harm.
David: Pardon me?
-: I think we, I think we understand the harm that was,
-: There's no question- -: Was engendered by this.
-: Sure. -: And you read,
and I'm sure you did, you read the CPCS decision,
you saw the reason why we dismissed the cases
as opposed to imposing the Dookhan protocol
was because of the attorney misconduct, right?
So I think harm is pretty tough row for you to hold
and say there was no harm, or lesser harm.
-: Harm is not disputed.
What is disputed
and I think not established on this record is causation.
Under, under whatever causation test the court wants to use.
Had she looked at the file,
she would've assumed everything had been produced,
nothing would have changed.
Suspensions are reserved for what we call serial neglect.
Many cases over a long period of time.
And this isn't that.
Bar Counsel tries to divide up what happened
on September 9th and September 10th in the letter
into multiple parts.
It's very artificial.
This is one task.
And if there is negligence involved with it,
and I'll concede there is,
it's one piece of negligence involving one legal task.
It's not repeated, serial neglect.
And under those circumstances, the appropriate sanction,
depending on whether there is harm or not,
is an admonition or a reprimand.
-: The, the issue of causation that you raised,
was that addressed by the Hearing Officer?
-: He did not.
It was, it was an assumption he made,
sort of an ipse dixit, that there was harm,
and he cited the published cases from this court.
No question there was harm,
there were no specific findings on causation.
-: I go back to your point about the reliance on supervisors.
If you go into court
in response to a subpoena for documents,
do you have, as an attorney,
an independent duty to review the documents
responsive to the subpoena?
-: I think the answer to that is case specific,
but as a general proposition, I would say probably not.
And it's getting less so as the,
the massive amounts of documents
in electronic discovery get produced,
it's impossible to do it.
It can be done.
I think that is a subject for expert testimony,
which Bar Counsel did not offer
what the standard of care is.
Ms. Foster offered expert testimony
that said it's appropriate to rely on clients
and colleagues and supervisors
unless you have a reason to distrust them,
which didn't exist here.
So if you're looking at this record,
the only expert testimony on the standard of care
supports what she did,
that there is no independent obligation
to review the actual documents.
-: You have a sense of how voluminous Ballou's file was?
-: Pardon me?
-: Is there anything in the record
as to the volume of Ballou's file?
-: Was it, for example- -: We do know-
-: As Justice Gaziano says, a Redweld,
or was it gigabytes of information?
-: We know what was in it
and we know app the approximate size
because he brought it up to the witness stand with him.
-: And what was that approximate size?
So it was something that could be handheld,
is that what you're saying?
-: Pardon me? -: It was a handheld folder?
-: It was, that he brought up to the witness stand.
-: How does that factor into our,
our analysis as to what your client did
was reasonable or not?
-: If you're asking is it possible,
is it feasible to have reviewed that file?
-: Oh, I guess I'm asking the opposite question.
David: The answer to that is yes.
-: Not only was it not negligent,
was it reckless given the, the volume of the file?
-: No, it was not reckless.
I, I'm not even sure it was negligent
if in light of the representations
that everything in it had been produced.
-: But why, why not? -: They told her nothing.
-: Because I'm just trying, focus,
following up on Justice Gaziano
and Justice Wendlandt's point,
though this is a manageable amount.
I mean this is not gigabytes, it's literally two,
it's a file that he carried up to the bench
and how much stuff in the police department?
It's, it's not a room of documents, right?
-: There, there was,
I mean there were document production
subsequent to the three disclosure letters
that were in the thousands of pages.
It's exhibit 138 in this record.
-: There are thousands of pages
in the police department back there.
-: I'm not sure back then
whether those thousands of pages existed.
I believe they did because I think the production
was in the summer of 2013 of that.
-: Because I thought Mr. Verner goes
and does it himself in the day, right?
Afterwards, when.
Lowy: There's 239 pages or so.
-: So it's not that much.
It's, it's, doesn't that impact, this is not, again,
you know, it's not General Motors in a layoff where you're,
you know, they bring in the documents with trucks
or now with electronic, you know, gigabytes.
This was literally a manageable amount of material
to walk over and look at
after you've been lectured by a Superior Court judge
to go look at it.
-: It was a manageable amount. -: Yeah.
-: Can I just make sure I understand that you said it's not,
it would not have made a difference
had she looked at the file.
Did you say that?
-: I, when?
-: I thought you said that there's no causation.
That had she looked at the file,
it wouldn't have made a difference anyway.
Is that what you said?
-: That is, yes.
There is no finding of causation
and had she looked at it,
having been told that everything she's seeing in there
has been turned over,
nothing would've registered differently.
-: Yes, but weren't the mental health worksheets
back at the office, the police department in Springfield?
-: Presumably they were in Sergeant Ballou's file
because Anne Kaczmarek said they were in there.
-: But they did indicate, other than the Patriots game,
they did indicate drug abuse going way back.
You didn't have to be a Patriots fan.
They, they indicated that her drug habit
had gone back years.
-: That's what they ultimately showed, yes.
-: On the face.
-: Went back at least a year earlier than thought.
-: Right, on the face of the worksheets.
David: Yeah.
-: Okay, thank you.
-: Thank you.
-: Okay and attorney Kylie.
Oh, sorry, Hanley.
-: Good morning.
Attorney Pat Hanley, with me is attorney Tom Butters
on behalf of John Verner who is in the audience.
May it please the court,
with respect to John Verner,
the question that this,
that is before the court as you already discussed,
is the sanction.
As the board stated,
the presumptive sanction for a lack of diligence
in supervision case where there was harm,
we're not disputing that there wasn't harm,
is a public reprimand.
Neither Bar Counsel nor I have found a case or cited a case
in which a supervisor has been suspended
for lack of diligence, supervision-
-: What do we do with a lot of harm, Mr. Hanley?
Because it's supposed to balance things and in this case,
you know, harm is,
is tough to quantify when there's prosecutor misconduct
because you could have a case
where someone doesn't give up
a piece of exculpatory evidence and someone goes to jail,
is wrongfully convicted of murder.
So that's a lot of harm, of course.
Here we have something that was frankly an insult
to the criminal justice system.
So if we have negligence
and then we have an incredible amount of harm
that is caused by prosecutorial misconduct,
how does that figure into these norms of sanctions?
-: Sure.
In cases where there is minimal or or no harm,
this would be a, not this,
a case with lack of diligence of supervision
would be an an admonition.
It does become more difficult
when there's not a dollar value attached to it.
I'm thinking of the Peroni case, 2007,
case in which a,
a bookkeeper embezzled I think $1.9 million
over the course of six years.
That lawyer remediated immediately
and received a public reprimand.
And so, is the lives of these,
what have been called Farak defendants worth $2 million?
I'd suggest that it's more, right?
But an important factor, as you consider how to,
how to quantify this harm,
I'd suggest that the harm is meaningful and serious
and that's, and that's really as far as it goes.
And then I think it's,
I'd suggested it's important
that the Special Hearing Officer found,
and the board was not at liberty to change it,
that John Verner did not cause the harm.
That he did not know and did reasonably believe
and had given the appropriate directives
that mental health worksheets and everything else,
we're focused on mental health worksheets
because they were in his email,
but on everything else, needed to be disclosed
and that he didn't in fact know
until the email that came in from Luke Ryan,
I think on October 30th or 31st of 2014.
And I'd suggest that the distinction
between causation of the harm is,
is something that the court should consider,
and- -: He does.
-: Sure.
-: I mean he does, he's a but-for cause of the harm.
Because had he, had he told Kaczmarek to turn it over,
he's her boss, he could, he thought she was gonna do it.
That's your better argument, isn't it?
But had he told her
"This is important, we know it's important, turn it over,"
she would've turned it over, right.
So it's,
it's hard to say that he didn't cause it in that sense.
He's, he's one of the causes of the harm.
It may be that he has a right,
a reasonable right to expect her to, you know,
when he writes "yet" that she's gonna turn it over.
But he, I don't think you can argue
that he's not contributing,
a contributing cause of the harm.
-: Well, I'd argue that he, I'd suggest that,
that it's a legal distinction.
I'd say Brum versus Dartmouth,
which is not in my brief, 428 Mass 684,
the legal distinction between failing to prevent harm
and causing the harm.
And the Hearing Officer was very clear
that he failed to prevent the harm.
And so if he had,
if he had done the things that, like Bar Counsel said,
would it have been onerous to say,
"Did you in fact turn over the mental health worksheets"
"or did you in fact turn over everything?"
Well, he did ask that in an email
and he did get the confirmatory answer.
But if, sorry.
-: I, I'm sorry.
Finish your, I got a question,
but please finish your, your answer.
-: Sure, that, that's a meaningful distinction
between failing to prevent and,
I'd suggest lack of causation.
-: There's been a focus on the mental health worksheets
because they indicate that her drug abuse went way back.
But what's lost, I think,
and I think was what Bar Counsel started with
as far as negligence or, or misconduct rather,
is the Springfield case with the four grams of cocaine
that was light and also the Oxycontin use,
which were to shown widespread misuse of drugs.
Where is the indication
that that was supervised, those disclosures?
I don't see it.
-: The,
one of the, one of the, the drug case,
I can't remember if it's the cocaine of the Oxycodone case,
but in any event,
he, Anne Kaczmarek and Joe Ballou had asked about it.
John was, "We should look into this."
And ultimately one of them was disclosed
prior to the Judge Kinder hearing.
But I'd suggest that the reason we're focused
on the mental health work worksheets is, is twofold.
One that they,
that they provided a link for attorneys
to go backwards in time
to show the length of the misconduct.
-: I, I missed that from the record.
So you think that either the Oxycontins or the,
or the the Springfield case were disclosed?
-: Yes.
There's an email from Anne Kaczmarek
to now Justice Frank Flannery about that.
And it was disclosed, I think right before the hearing.
So I want to say late August or early September.
I, I, I can't quote a page right now.
But just getting back to those other pieces of evidence,
Mr. Verner, the instruction and the template
from the Dookhan case,
and there are by my count in the record,
six disclosures from the Attorney General's office
in the Dookhan case
and three disclosures from the Attorney General's Office
in the Farak case.
And there's a little bit of overlap
on when those cases existed, but there,
there are these rolling disclosures
with the continuing obligations of,
continuing obligation articulated in the letters
of exculpatory information going to the district attorneys
of all different types
that aren't focused on mental health worksheets
or aren't focused on any particular type of evidence
and so it was Mr. Verna's expectation
that these rolling disclosures would,
would include mental health worksheets,
as indicated in the pros memo,
but whatever other evidence-
-: Why wouldn't,
why wasn't it turned over the first time though?
I mean, I, I get that it may not have to be,
but if it's explosive and exculpatory, why,
why isn't it in the first run?
Is it, I,
I know there's some reference to a HIPAA issue at one point,
but also then people saying they,
they didn't think there was any merit to that,
but was there any reason
why it wasn't turned over the first time?
Was it still being reviewed for some legal issue?
-: There, there's nothing that addresses that in the,
in the record as to why it wasn't in the first disclosure.
I can, the record does reflect
that the disclosure letter was being drafted,
I think as early as March 21st, 2017.
There's an email about it,
and then there was a question
of whether or not it should say
"obligation or continuing obligation."
-: That's part of the pros memo
where Ms. Kaczmarek expresses concern that the,
the information could be privileged
and Ms. Farak's lawyer says, "Don't turn that over."
Correct?
-: That is true.
That is in the pros memo and it is true
that Farak's lawyer said that, but I,
I don't think there's evidence that those factors
played into it being in the March 27th letter or not.
Just to sort of finish, finish what, what I began with,
there are no facts here that warrant an upward departure
from the, from the presumptive sanction.
I would suggest though
that the affirmative steps that John Verner took
constituted some reasonable efforts
to ensure that his subordinates, including-
-: Is that right?
Because,
and back to Justice Gaziano's magnitude point though,
because it's not just the magnitude of the harm,
but it's the magnitude of, I mean,
it's a, these things are time bombs, right?
They're, and you know, we've got experienced prosecutors,
they know these are time bombs, right?
So does that, not just that,
that's the harm of not turning them over,
but I mean they're just, they're so dramatically important.
I just don't, I'm just not sure we,
we don't treat this differently than an ordinary case.
-: I'd answer it by, by what you're saying, Your Honor,
by saying John Verner didn't treat this as an ordinary case.
It is not the ordinary case
that letters from the Attorney General's Office
go out to all the district attorneys and say,
"We have exculpatory evidence."
"We don't know who the defendants are,"
"but we know they're out there."
And so John Verner recognized,
I think what, what you're saying, Justice Kafker,
which is that this is an extraordinary case.
It requires an extraordinary system
that is totally countered to the usual
and I don't know that there's other cases that have-
-: But wasn't the overall feel that you get from this case
is that, "Oh boy, we, we better not have another Dookhan,"
"and don't worry, we don't, this is confined."
Which obviously turned out not to be the case.
But isn't that what we're getting from this,
and it feeds into the non-disclosures?
And in fact,
that's what the Attorney General said herself to the press.
-: John Vernon never said it.
-: That's what the Attorney General said though, right?
Hanley: Yes.
-: But isn't the problem
is that John Verner knew it was another Dookhan,
in fact worse.
And, and, that in light of that,
perhaps a sanction that is larger
than the garden variety sanction
for something like this is in order.
-: I, I, I agree with, with the premise of your question,
which is this is another Dookhan
and that's why it was treated like Dookhan
in terms of the affirmative disclosures.
That's why that the most knowledgeable lawyer
about drug lab cases was assigned to the case.
That's why Mr. Verner gave the, gave it important attention.
-: And that's why Mr. Verner is,
merits an extraordinary remedy
not in line with the other garden variety cases,
I guess is the conclusion.
And tell me why I'm wrong.
-: I'd suggested a public reprimand in a case
where 10 years since the, the actions at issue,
where this is obviously a case
that has gained great notoriety, rightly so, is not,
it just suggests it's not garden variety
and is a meaningful sanction under under the rules.
-: What is?
What is a meaningful example? -: A public reprimand.
A public reprimand is a meaningful sanction and does,
and the, on the facts of this case,
particularly where Mr. Verner took reasonable steps.
Where Mr. Verna was found by the hearing office to,
to be able to reasonably rely on AG Kaczmarek.
-: Pat, on that issue,
I'm trying to figure out why he should get special credit
for relying on Attorney Kaczmarek,
if this was such a big deal
and should be handled so carefully.
Why does he get special credit as opposed to not going back
and making sure that it's done?
-: I'm sure Mr. Verner wishes he went back
and made sure it was done.
-: I'm sure he does. -: Right.
But the, the steps that he took to,
to model the Dookhan process that was adopted in Farak,
he was more involved in Dookhan.
He was more comfortable with AG Kaczmarek by that time.
That was reasonable.
And, and the Hearing Officer concluded it was reasonable.
The board concluded that it was reasonable
and although maybe perhaps it wouldn't have been onerous
to go back and audit the file or to ask one more question,
that, unfortunately those aren't the facts.
But what he did was reasonable under the circumstances,
not only in the organization that he was working in,
I mean, he was the Chief of the Criminal Bureau, but the,
this Hearing Officer concluded he would,
for the purpose of these disclosures,
he was Anne Kaczmarek's direct supervisor.
That's meaningful, that's why he gets here.
But it's also meaningful because
as the Chief of the Criminal Bureau,
he recognized this is a big case.
These, these drug lab cases are big cases
and "I need to get down in the weeds"
"in order to make sure that these disclosures go out"
and he communicate and,
and that he's communicating directly
with the AG handling the case
and she had direct access to him as,
as I think it's shown by the emails that are in the record.
-: What, what, you're disputing the sanction.
What was the negligence that your client violated,
in this case?
-: The, he did not-
-: What did he do with that was negligent in your view?
-: What we did not dispute
is that he should have followed up.
The Special Hearing Officer said he should have followed up
on, on, on what?
He should have followed up to make sure
that the mental health worksheets were disclosed
and other exculpatory evidence.
That's the finding that we didn't dispute and that,
you know, has us here today.
-: Yeah, so but why,
I think the Special Hearing Officer
gave a special mitigating circumstance
to Attorney Verner relying on Attorney Kaczmarek.
Hanley: Yes.
-: Why should he get special credit for relying on,
on his, on his direct report?
-: What, what the Special Hearing Officer
in connection with that found
was that he had good reason to rely,
it was reasonable for him to rely, and so-
-: Isn't it usually reasonable to rely, isn't it usual?
I mean, that's what you do.
You rely, you tell somebody to do something
and you expect them to do it and that's what happened here.
Why is that a special case for a mitigating circumstance?
-: I, I, I, as in my brief, I think,
I think tiptoed around the word
special mitigating or just mitigating,
because the scope provisions of the rule say the,
the extenuating circumstances of the case
need to be factored in.
And so what a special mitigating factor
I sort of think of based on the, the case law,
from this court and from the board,
is something unconnected with the case
that should reduce- -: But you're saying it's not.
-: It's, it's not,
not in the way that it's normally conceived.
Budd: Okay.
-: But it is, whether it's conceived that way
or it is thought of as the extenuating factors of the case,
it's clearly an extenuating factor of the case.
-: How is it extenuating?
He relied on her just as he relied on her
in every other instance, and, you know,
it worked out well all the other times.
-: Right and, and like you said,
and had good reason to rely and the board found
that AG Kaczmarek had performed well in the Dookhan case
and Mr. Verner knew her well,
that she's very experienced
and so had good reason to rely and-
-: But, but then it wouldn't be negligent.
It, it seems like it's all or nothing.
Either he was negligent or he wasn't negligent.
You've conceded he was negligent.
So if he really reasonably relied on Kaczmarek,
then he did his job and he shouldn't be sanctioned.
But, but we're here because,
and you concede he was negligent in performing his task.
-: It, we have agreed that he should,
that he should have followed up.
We have, or not challenged that he should have followed up.
And this, this is a case where, you know,
as you might imagine, we just,
we had to make a choice that we live with
as to whether to challenge that or not.
But we did it and I think it reflects
where Mr. Verner's head is
that this happened on his watch as he testified.
He blamed himself first when he took responsibility
for what happened in this matter.
And I'd suggest that reflects who he is
when this court is thinking about
"How do we protect the public from Mr. Verner?"
"Do we suspend him to better protect the public?"
And I'd suggest there's no need to do that.
Mr. Verner has been a lawyer
and a public servant for 23 years, which is in the record.
And I'd suggest that there is no further need
for protection of the public with him.
-: Thank you. -: Thank you, Your Honor.
-: Okay, Attorney Kiley.
-: Thank you, Your Honor.
I'm Kiley, for the respondent in Anne Kaczmarek.
Budd: Oh.
-: I have much to say and not much time to say it.
I want to start with the mental health worksheets.
When you get to look at the mental health worksheets,
and I ask that you do that,
you will not find anything in it
that is date, in them, that is date dispositive.
They were exhibit five in the hearing.
The record appendix site, excuse me,
I have to get to my glasses.
They begin at 08, 06829.
There was other material in the,
in the documents before the Hearing Officer
and in the documents that Luke Ryan ultimately found
that he brought to the attention of the court
that led to all of your great efforts to address the issue,
that did pertain to dates.
One of the material, one of those documents
is a bill that was a part of Exhibit 5.
But the mental health worksheets,
also referred to in the pros memo
that you have been talking about,
which also refers to them as emotional worksheets
and also talks about them as writings.
Did not,
none of those mental health worksheets were date specific.
Why were they not disclosed at the beginning?
Quite a very pertinent question.
What was disclosed in the original discovery letters
is exactly what was disclosed in the Dookhan proceedings.
Largely grand jury minutes
and exhibits from the grand jury minutes.
That's all that was provided, I guess in,
in the second and third productions.
Those production letters
are attached to Mr. Makalusky's brief
and the second and third letters,
they are indeed signed by my client, Anne Kaczmarek.
The first production that was made in this case
was not just confined as, as we're suggesting.
It also included,
Judge Kinder wanted not just to get to the timing and scope,
but he also wanted to get at the audit
that had been done of the state labs processes
and that material was also provided.
So when you look at that first letter,
the first discovery letter,
it is going to contain police reports,
as did the reports in Dookhan,
and it is also going to include transcripts
that would've been relevant
to the determination of drug labs and drug certificates
that would've been issued.
The material that was disclosed to the,
to the district attorneys did include
evidence with respect to the timing and scope
of the activities of Ms. Farak.
I think pronounced Farrick.
It included a newspaper,
newspaper articles dated back in 2011,
the operative date where people wanted to get back to.
It included testimony from Ms. Farak's wife,
the information that attorney Pourinski
later sought to oppose
with respect to drug usage back to 2000.
So the question of timing and scope
is addressed in the last two paragraphs
of the prosecution memorandum that we've talked about today.
The last two paragraphs
deal with the most significant issue.
And that, those two paragraphs end with a suggestion
that after there is a disposition of the case,
a proffer will be the most productive way of ascertaining
the scope and timing of the, of the matter.
That was Anne Kaczmarek's suggestion.
Fast forward, if you will, well, I didn't,
you don't have to fast forward yet.
-: No. -: No.
-: So, so let's, let's set the timeframe for you.
I think it might be helpful.
We're here on the first, first Monday in April, 2023.
The indictment in this case of Sonja Farak
was the first Monday in April, 10 years ago.
The arrest followed Martin Luther King holiday.
The email with the admissions is Valentine's Day.
As you think about timing,
those things will enable you as you think about it in 2023,
to keep things in perspective of how they go.
The, the first disclosure letter goes out on March 27th.
The pros memo hasn't even yet been approved.
Whether it come,
the presumption is it came back
and the Hearing Officer does decide
that it came back at some point,
not before it was indicted the following Monday,
but at some point, and then there is,
you're gonna see a gap
with respect to the things that matter in this case.
The things heat up come September.
Judge Kinder is going to have a hearing
designed to get at the,
the audit with all of that drug certificate stuff
that you read in my brief, I hope you all read my brief.
And, as the court noted, the Attorney General,
who has argued Melendez-Diaz in many forums,
comes out and says,
"There's no problem with our drug certificates."
And I ask you to consider that that's the context
in which those statements were made
and as they were not made by Mr. Verner,
they were not made by Ms. Kaczmarek.
As the Kinder hearing approaches,
there are, there are subpoenas.
They're put out by Mr. Olanoff.
Mr. Olanoff is representing the, the defendants,
the respondents, the claimants,
I should call them, in that case.
All of them are post-conviction.
You are dealing with a post-conviction matter today.
You know what materiality is.
Timing sometimes is, is everything.
Ms. Kaczmarek suggests "Why don't we just have Joe go?"
Joe goes.
Joe brings his file.
His file is not the evidence.
His file, everybody knew, everybody knew that there,
the evidence seized from the car
was far beyond what was in Joe Ballou's file.
-: So, Counsel, so Ballou did not have in his file
the mental health worksheets?
-: Well, frankly,
I can't make that representation because this testimony
has been different to Judge Wendlandt, Justice Wendlandt.
But you started off with a question about,
to, to Mr. Makalusky about getting a sense,
I think it was to Mr. Makalusky, a sense of what was there.
That's exactly what the question was
that Mr. Verner asked of Ms. Kaczmarek.
"Can you get a sense of what's in the file?"
And within minutes there's a response
and she lays out the things that in my mind
she would understand to be in the file.
That's, that is on September 10th, little after Labor Day.
She does three things on September 10th
when this question arises that you should bear in mind,
and I think these are circumstances that matter
as you're evaluating the sanctions you impose.
First, she, let me, let me not do it first.
She reiterates her proffer concerns
by communicating directly with Elaine Pourinski,
the lawyer for Ms. Farak,
and asks if she'll consider a proffer.
She asks Joe Ballou to bring his file to Boston
so that we/I can look at it,
and that we/I construction is in the letter.
And she calls the evidence lawyer,
the person in charge of, the Evidence Officer at the lab,
to see what they can do about all of the retesting
because things are starting to heat up.
That's what Anne Kaczmarek does on September 10th.
She never disclosed the mental health worksheets.
There was a concern about the mental health worksheets.
The Special Hearing Officer did not credit her testimony
that she had forgotten about them over the course of time.
But the, but the Dookhan protocol, if you will,
is also shaped by significant events
that are in this record.
And they are the letters that are Exhibits 1, 2, 3, and 4,
that are in the record here
that deal with the investigation
that was to be conducted of the lab.
And what those letters indicate
is that the Attorney General and the Governor
agreed to a methodology
to determine what the underlying problems were
with the labs and the drug certificates.
-: Mr. Kiley, that has to do with systemic issues in the lab,
but with respect to the September emails
where there's a representation
that the worksheets are in the Ballou file
and then the subsequent Foster representation of Ballou
and the impression as found by the Hearing Officer
that Ms. Kaczmarek said,
"All that stuff has been, Ballou's file has been disclosed."
What do you do with that?
That's the problem here.
-: I get it, sure.
What do I do with it?
Again, it's a, what's there is a direct response first.
-: Because I get- -: In a sense.
Then the next, then the next, very next thing is,
is that everything misspelled he's got,
and the response is "No."
That's the, think, think working file.
"The evidence is in the locker in Springfield."
That's the direct response.
Now again, I,
there are findings by the Hearing Officer
that are based on credibility and intent,
and I can do nothing with those.
-: Because Judge Carey, in a different proceeding and,
and Ms. Kaczmarek had said,
"Well, I had issues about privilege,"
and Judge Carey dismissed those.
And that's what led obviously to the-
-: But I raised my hand earlier.
I don't, I don't agree with that.
-: Right, right, right.
No, but, but that's exactly,
but that's what we had and that's what just Carey found.
In this case,
we have this Special Hearing Officer's findings,
which are a akin to Judge Carey's findings
that we are bound by.
So I'm asking you, what do we do with those,
with those findings of, of intentional non-disclosure?
-: So, there's a reason that I did not appeal
and that I'm talking about the sanction
and the reasons was,
with respect to those findings of intent, your,
not Judge Carey's but the Hearing Officer's,
the fact, they're, they're binding.
I have, we have to accept responsibility,'
Bar Counsel suggests that we've accepted no responsibility.
The fact that there was no appeal taken is as,
is as sound a reflection as I can make
in terms of ownership with respect to the,
the expression of the ownership.
It's at page 6662 of the record appendix.
-: Well, it was really important to the board though,
as we're looking at suspension or disbarment.
It was, it seemed really important to the board
that they had the sense she just didn't get it.
She didn't appreciate or understand the gravity of it
and there was a concern about the lack of appreciation of,
of the role of defense counsel.
-: That's because- -: Her role in the controversy.
You, Im I know I'm bringing up two things,
but her role in the controversy
and her understanding of her role in the controversy
seemed to matter to the board.
-: Did, it did.
-: So why don't you talk about, about that.
-: Well, here,
first I want, in this circumstance,
where you re reserved and reported, your review is de novo,
with a substantial degree of deference
to the board on sanction.
But in terms of seeking sanction, your job,
and it is maybe your burden,
but your job is to fashion things
that work to restore public faith in the Bar and the system,
but also to do the most appropriate thing
with respect to the lawyer that is before you.
And all of these circumstances that I'm talking about
in terms of what my client did matter.
That, that's the short answer.
With respect to, monumental is the word of the day,
this court, you have done the lions share.
You've done all that,
all that the court can do to remedy the problems
that existed prior to 2013.
The legislature has done a lot
in terms of relocating the responsibilities for testing.
The transfer of functions
within the Executive Branch are real.
You do not have to sacrifice the careers of three lawyers.
I, I think I speak for all of them now,
on the alter to, to vindicate a set of interests.
I also want to point out-
-: Can I push you a little bit on that last point?
Because- -: Please.
-: So, you know, we have, as you say, monumental harm,
and we have findings of intentional non-disclosure
by your client.
And you know,
today we're dealing with sort of
how do we prevent lawyers from doing this again, right?
So it is different from what we've done in the CPCS case
and other things.
It's, it's how do we send a message to lawyers
about their responsibility of supervising others or,
you know, what they represent in court.
So it's a, a different problem, right?
We do have to address it separately.
-: Can can I answer the question with a question?
Kafker: Yeah, sorry.
-: Didn't you do that
when you adopted the amendments to rule 3.8?
-: And, and let me follow up.
And that is,
is that what you were saying was not in place before,
that the board applied but wasn't in place yet,
it hadn't been voted on?
Are those the rules you say in your?
-: I have to admit, Justice Cypher,
I don't remember what I said all the time.
-: Oh, okay.
Well there, there's a, you're saying that the court was,
we're being asked to retroactively apply standards
to your client. -: Yes, yes that's-
-: With a presumptive sanction of this disbarment and they,
it's justified by relying
on a policy of the Attorney General.
So is that what you're referring to with Justice Kafker?
-: That's, that's part of it.
And the pol, and policy, policy, you know,
as you've read my material carefully,
lawyers don't get disbarred for violating policy.
They get, they get,
they get sanctioned for violating ethical rules
and the sanctions should fit.
Now, again, when you look at 6662, 6662,
what you, what you're going to see is that Ms. Kaczmarek
did not understand her job to be telling,
giving all information to everybody else.
She didn't think it was her job
and if it was her job, she didn't do it.
-: Well, she knew why the case, she knew,
she understood why the discovery was going to the DA.
Kiley: Yes, yes, yes, yes.
-: But I wanna, I wanna focus on, I'm trying to understand,
there's a disbarment and there's a two year suspension that,
and understanding the difference.
Again, to the board, it mattered that,
that she didn't understand or she didn't seem to be able
to recognize and accept the scope of all of this.
And then there's the Demoulas case and the,
and the comparison.
I'm not saying one way or the other.
I'm giving you a chance to respond
to the difference between disbarment
and the two year recommendation.
I'd like to hear what you have to say
on behalf of your client in that regard.
-: Disbarment is wholly inappropriate.
The two year term suspension,
10 years after the fact, albeit,
is, as I suggested in my filing,
a ceiling for what you should do.
When you are,
the word was unprecedented below
before the board, not monumental.
What's unprecedented here
is the corrective action that was required
because of the collective responsibility,
if I may, of the government, which you addressed.
A two year term suspension
as considered by the Hearing Officer.
And when you,
when you look at the Hearing Officer's findings,
he went through how he arrived at that sanction.
In our submission to,
I'm gonna ask you to read in particular
because I don't have time to.
I wanna make sure that you read the sanction memorandums,
the memorandum that I filed
that are at record appendix 0068 662 to 680
and 945 to, I'm sorry, 545 to 567.
I address them there.
I don't need to take your time doing it.
I identified in that document,
the latter doc, the earlier doc,
I identified in those documents
a series of cases where prosecutors withheld directly,
real prosecutors in the cases,
withheld exculpatory information
and no sanctions were imposed.
The, the prosecutor,
the courtroom prosecutor in this case
with respect to these matters
was none of these three individuals.
These three individuals were prosecutors of Sonja Farak.
The cases that were being handled in other,
by the district attorneys in other offices
were prosecuted by different individuals.
-: Who were relying on your client
to give them the information
they needed to comply with their Brady obligations.
I guess I'm not sure how that's helpful to you.
-: Well, I, I might,
I might suggest that the duty, Your Honor,
to, to in make inquiry that existed in 2013,
lay on the prosecutor in the case and that at the,
and at the time of these actions,
no obligation as such
was imposed on individuals in other offices.
Timing I say is everything.
In days of old when I was in the Attorney General's Office,
Kent Smith was, was it.
The mantle passed in 2013.
I have the, the volume that includes the supplement.
If a lawyer in the Attorney General's Office
did what it is that they would've done years before that,
the first place they would've gone
would've been to Kent Smith's book.
They would've found information about grand jury secrecy.
And in this case,
before disclosures were made
of what occurred in the grand jury,
there was a request made of the court
to approve dissemination of information to the DA's
because they were not parties involved.
If one had picked up the book,
one would've found reference to the Dwyer protocol
with specific reference to 233 20b
and psychotherapist materials.
It wouldn't have found,
there would've been no suggestion in the book
about what a prosecutor should do-
-: Excuse me, Attorney Kiley,
you're not suggesting that she purposely did not disclose?
-: No, no, I'm, I'm, my point is simple.
Maybe I'm making it more complex, Your Honor.
The world changed.
It's not, the world changed because the lawyers at CPS
and the private lawyers did a very good job
going at materials that there was no obligation imposed on,
on these three individuals to provide, none.
-: But they meant, but they meant to provide.
I mean, they would have provided them, correct?
Had they not been negligent or reckless, they would have.
It's not as if they were going by that rule,
the rules of old.
It's not, that was,
I just wanna make sure that's not your argument.
-: I would argue it. -: But you're not.
-: What, what I, what I would,
what I am arguing is that a violation of policy,
if there were a policy, and I don't frankly think there was,
that would not be a basis for a rules violation.
But again, I am, I'm bound in that, in that regard.
I simply want you to consider that
as you are evaluating the discipline that would be imposed,
if any, in this case.
And I want to make one other point about what everything is.
One, one.
If, when you look at this record as it comes to you finally,
it includes material that was not submitted by Bar Counsel
in their initial submission.
It includes the testimony,
large scale testimony of my client and Joseph Ballou.
I am sure when, when, if,
when Bar Counsel was submitting their original material,
if Bar Counsel had asked Mr. Makalusky
if everything was in the record appendix
being filed with you,
the answer would've been yes.
Everything is indefinite, everything.
It was never the commitment to the office
to turn everything over.
And that, and on that note, I thank you for your indulgence.
-: Okay, thank you.