Farak prosecutor loses bid for immunity in 1983 suit.

Byline: Pat Murphy

The state prosecutor who obtained Sonja Farak's conviction for misconduct at the Amherst Drug Laboratory could be sued for withholding exculpatory evidence from a criminal defendant whose case was tainted by Farak's work, the 1st U.S. Circuit Court of Appeals has ruled.

In Penate v. Kaczmarek, Assistant Attorney General Anne Kaczmarek claimed she was entitled to absolute prosecutorial immunity in a 1983 suit brought by Rolando Penate, who in December 2013 was convicted of distributing a Class A substance and was sentenced to five to seven years in prison.

The plaintiff claimed Kaczmarek withheld mental health worksheets showing that Farak had been battling drug addiction and had tampered with samples she was assigned to test around the time she tested the drug samples in Penate's case.

Writing for the unanimous 1st Circuit panel, Judge Sandra L. Lynch acknowledged that Penate's case raised "novel questions" about the scope of absolute prosecutorial and government attorney immunity from claims asserted under 1983.

But the court, following the "functional approach" dictated by U.S. Supreme Court precedent, concluded Kaczmarek did not enjoy absolute prosecutorial immunity because she was not "functioning as Farak's prosecutor" at the time she withheld evidence from the plaintiff's criminal proceeding

"The most significant fact is that Kaczmarek turned over the mental health worksheets to Farak's defense," wrote Lynch in the June 26 ruling. "This shows that, when Kaczmarek orchestrated the withholding of that very same evidence in Penate's case, she did not do so because keeping the evidence under wraps was helpful to her prosecution of Farak."

The...

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