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Bar complaint filed against former MA Assistant Attorneys General in lab scandal

Bar complaint filed against former MA Assistant Attorneys General in lab scandal

Recently, a Massachusetts judge took two former prosecutors to task for attempting to cover-up the extent of a massive lab scandal that called into question thousands of drug convictions in the state.

Today, a lawyer from the Innocence Project and a Northeastern Law Professor took the rare step of filing bar complaints against those lawyers — Kris Foster and Anne Kaczmarek — previously from the Massachusetts Attorney General’s office. They have asked the State Bar to conduct a meaningful investigation into the breadth of the prosecutors’ misconduct, and to sanction them accordingly.

The trouble began in 2013, when law enforcement discovered that Amherst lab chemist Sonja Farak had used drugs daily while at work — drugs she stole from the lab. According to pleadings, she also “mishandled, contaminated, or fraudulently reported” results in lab paperwork. She pleaded guilty in 2014 to ten criminal counts, including illegal possession, tampering, and theft of narcotics from the lab.

At the time, defense attorneys believed that Farak’s misconduct only dated back to July of 2012 — about four months before her arrest.

That was false. Farak’s malfeasance dated back eight years and affected upwards of 8,000 cases. Foster and Kaczmarek, however, fought to keep the defense lawyers from uncovering this fact. Kaczmarek knew Farak’s misconduct began earlier, but decided not to turn over that exculpatory material to defense lawyers. And although the extent of Farak’s misconduct was apparent in police files, Foster didn’t review them. She did, however,repeatedly tell the court she had done so. Moreover, encouraged by Kaczmarek, she represented that nothing in those files was relevant to any of the defendants’ claims. This false statement meant defense lawyers remained unaware that their clients might have valid claims for new trials. Foster also accused the defense lawyers of engaging in a “fishing expedition.”

It was not until a year later that defense counsel learned that their clients had meritorious claims and should have their drug convictions vacated.

In June of this year, Superior Court Judge Carey lambasted the prosecutors in a written opinion. As described in a previous blog post, Carey ruled that the AG’s office engaged in “intentional, repeated, prolonged and deceptive withholding of evidence from defendants,” behavior that was “egregious and harmful to the administration of justice.” And because the two misrepresented facts to the court, Judge Carey accused them of committing a “fraud upon the Court.” He dismissed six of the indictments before him with prejudice — meaning the Commonwealth could not proceed with prosecutions in those cases.

But little else has happened to the prosecutors. Foster is currently the General Counsel for the Alcoholic Beverages Control Commission, where she has considerable responsibility. Kaczmarek is the Assistant Clerk Magistrate for the Suffolk Superior Criminal Clerk’s Office.

Nina Morrison from the Innocence Project and Daniel Medwed from Northeastern Law School hope that will change. They have asked the state bar to investigate their misconduct, alleging that they violated their duty of candor towards the court, fairness towards the opposing party, their obligation to disclose exculpatory evidence as prosecutors, and their obligation to be truthful in statements to others. The two prosecutors “denied justice and due process to thousands of potentially impacts defendants,” Morrison and Medwed allege, “many of whom remain[] incarcerated.”

Morrison and Medwed point out that prosecutors are rarely held responsible for their inappropriate behavior, even where, as here, a court specifically makes a misconduct finding: “[T]he Massachusetts Board of Bar Overseers has a chance to do what most other disciplinary agencies have largely failed to do: hold a government lawyer accountable for egregious misconduct.”

Baltimore lawmakers are eyeing potentially disastrous mandatory minimum sentences

Baltimore lawmakers are eyeing potentially disastrous mandatory minimum sentences

In response to an increase in violent crime, lawmakers, law enforcement, and various community members in Baltimore, Maryland are considering a plan that has proven ineffective at reducing crime for decades: mandatory minimum sentencing. Under a proposal announced last Friday, people caught in possession of an illegal firearm within 100 yards of a public space— including houses of worship, parks, and schools— would be imprisoned for no less than one year. Parole opportunities would automatically be off the table for offenders, as would sentence suspensions.

The murder rate in the city reached a record high early this year, and police Commissioner Kevin Davis attributes this to people in the streets carrying illegal firearms with the intent to kill. But there is no evidence that mandatory minimums have a meaningful impact.

Going as far back as the 1970s, states that have implemented such penalties have been unable to substantiate that punishment reduces violent crime. New York City is one of the only large U.S. cities with its own mandatory minimum sentencing law for illegal gun possession, but the city’s drastic decline in gun-related homicides beginning in 1990 occurred long before the penalty was implemented.

What mandatory minimums have done, instead of their intended effect, is ravage communities of color. Theoretically, these sentences are race-neutral, because imposing a uniform standard presumably eliminates room for bias during sentencing. And yet black and Latino defendants are hit with charges warranting mandatory minimum sentencing far more often than their white counterparts, who are charged differently or more likely to be diverted to rehabilitative programs.

Greg Newburn, director of state policy for Families Against Mandatory Minimums, a nonpartisan organization that advocates smart sentencing policy, says some studies have shown that gun crimes have dropped slightly when mandatory minimum sentencing goes into effect. But other types of crime will increase. When looking at the big picture of gun violence across the country, there is no one-size fits all solution to the problem.

“Each individual city has its own culture, its own people, history, structure, the relationships between the police and a community,” Newburn told the Fair Punishment Project. “We don’t know why crime has gone up in a lot of these cities, and why it’s gone down in others. To say in the abstract that [mandatory minimums are] the better solution is a fool’s errand.”

Even city council members know what impact Baltimore’s new proposal will have: additional imprisonment for black people in a city with rampant racial profiling by police.

“We know mandatory minimums have been specifically shown to overwhelmingly impact poor black people, and in Baltimore we know that we have an unfortunate abundance of poor black people, particularly poor black men who have already been impacted by mandatory minimums,” said Councilman and Public Safety Committee chairperson Brandon Scott. “We have to figure out how to make sure that those violent repeat offenders who feel comfortable carrying guns are being punished, but at the same time we cannot have things that are going to make things worse when you’re talking about the grand scheme of young poor black people in our city.”

But according to Baltimore criminal defense attorney Jason Downs, “legislators are voting to take an easy way out,” relying on incarceration instead of zooming in on the underlying cause of illegal gun ownership. “Creating different punishments doesn’t solve crime,” he said. That notion is backed by Baltimore public defender Todd Oppenheim, who recently pennedan op-ed slamming the proposal in the Baltimore Sun.

City leaders are already taking new precautions to tackle gun violence. In May, at the request of Mayor Catherine Pugh, federal authorities agreed to donate resources and manpower to the fight. Last September, State’s Attorney Marilyn Mosby created a special team of prosecutors and detectives to focus solely on prosecuting gun crimes to ensure cases don’t fall through the cracks and build more robust cases against offenders. All of these efforts signal that cracking down on repeat gun offenders is a priority.

Adding mandatory minimums to the mix isn’t the answer.

“We should be focused on solving the problem of how do these guns get into the street in the first place,” said Downs. “How are they getting into our city and who is flooding the city with [them]? That’s how you nip a problem in the bud.”

UPDATE: As a crowd of activists protested the bill inside and outside the Baltimore City Council building on Tuesday, a committee unanimously agreed to limit the scope of the legislation. Under the latest version, a mandatory minimum sentence would only be imposed if a defendant was convicted of being in possession of a gun “in connection” with another crime, or was determined to be a second-time offender. Despite the fact that her office created a special team of prosecutors and detectives to focus solely on prosecuting gun crimes, State’s Attorney Marilyn Mosby was absent from the committee hearing and did not provide written testimony on the subject.

Thanks to Josie Duffy Rice.

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Florida’s Attorney General fought to lock this lawyer up for representing his client

Florida Attorney General Pam Bondi

Florida’s Attorney General fought to lock this lawyer up for representing his client

A Jacksonville man previously accused by Florida Attorney General Pam Bondi of being the mastermind behind a $300 million racketeering and money laundering scheme has his law license back and all criminal charges dismissed after a four year battle with prosecutors. Bondi’s office announced it would dismiss all charges against former Jacksonville Bar Association president Kelly Mathis after the Fifth District Court of Appeal in Daytona Beach threw out Mathis’ convictions and the Florida Supreme Court declined to overturn that decision.

Mathis was arrested in 2013 and accused of being at the center an illegal gambling operation that took place at internet cafes. The Office of Statewide Prosecution, which is under Bondi, prosecuted the case.

As the lawyer for the internet cafes, Mathis argued that his clients were offering “sweepstakes,” which is allowed under Florida law, and not gambling, which is illegal. Prosecutors claimed that Mathis knew what was occurring was illegal, and his arguments to the contrary were just part of the criminal conspiracy he was involved in.

Police arrested 57 people in the case. Mathis was the only one to go on trial. The others had their cases dismissed or pleaded guilty in plea deals that involved no prison time.

At trial, Mathis sought to introduce evidence showing that before advising his client, Allied Veterans, that the internet cafes were legal, he had conducted extensive research and held meetings with government officials about the issue. Such evidence would have purportedly shown that he lacked the requisite mens rea — knowledge or intent — that his conduct was unlawful. He also tried to introduce evidence that various localities in question had ordinances that specifically permitted the operation of internet cafes.

State prosecutors filed multiple motions in a successful effort to prevent Mathis from presenting this evidence.

Mathis was subsequently convicted of one count of racketeering, 51 counts of conducting an illegal lottery and 51 counts of possessing an illegal slot machine. Circuit Judge Kenneth Lester sentenced Mathis to six years in prison but allowed him to remain out on bail while his conviction and sentence were appealed.

Mathis received the support of many lawyers who worried that Bondi’s office’s prosecution of Mathis’ conduct constituted a legal threat to any attorney who sought to provide good faith legal advice to a client.

As the National Association of Criminal Defense Lawyers (NACDL) wrote in its amicus brief filed in support of Mathis: “The respondent, an attorney, after having been approached by a client with a particular legal concern researched the question presented, consulted with colleagues — including law enforcement officers and public officials — and ultimately rendered advice to his client … He performed his duty as an attorney as countless others do on a daily basis in accordance with the tenets of the profession and was compensated. Where Mr. Mathis’s case deviates from this norm was in his subsequent prosecution for violating the RICO statute, as well as gambling offenses, based on the advice he provided to his client.”

“It seemed to most attorneys pretty outlandish that he could be criminally prosecuted,” said Tad Delegal, the current president of the Jacksonville Bar Association in an interview with the Florida Times-Union. “That was very troubling to me. It was troubling because you are alleging that there was this vast conspiracy to do very illegal things. And yet there were no consequences for the people who allegedly engaged the illegality, or no substantial consequences.”

The Fifth District Court of Appeal agreed, finding that the trial court was wrong when it prevented Mathis from arguing his own “good faith” with respect to the legal advice he offered. Bondi’s office appealed that ruling to the Florida Supreme Court, although it declined to reinstate the conviction.

Bondi’s office ultimately decided not to retry Mathis.

Perhaps further demonstrating its view of the underlying criminal prosecution, the Florida Supreme Court recently ordered that Mathis’ law license, which had been revoked after the criminal charges were first brought, be retroactively reinstated — meaning that technically Mathis never lost his license at all.

“It has been a long, long road and that was the absolute last piece of the puzzle to complete recovery,” Mathis said to the Florida Times-Union. “I’ve been vindicated. I’ve been re-instated. I think it’s huge that the Florida Bar and Florida Supreme Court agreed I should be reinstated retroactively to four years ago, recognizing that this was just wrong from the beginning.”

But Mathis, who worked as a paralegal while his case was pending, has lost a lot. His law practice had to shut down and all the people who worked for him lost their jobs. His marriage failed and his faith in the American system of justice was damaged.

Days after his conviction was thrown out in October 2016 Mathis acknowledged he would never be the same.

“It’s been devastating in every way,” Mathis said. “I’ve done what I can to make the best of it.”

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