Few Mass. DAs Keep Police Watch Lists. Constitutional Questions Exist For Those Who Don’t

Aug 18, 2020
Originally published on August 18, 2020 5:46 am

In 2016, the Lowell Police Department opened an internal investigation into officer David Pender, after he was accused of using “unnecessary force” against a 16-year-old boy.

The department found him guilty and put him on a six-month unpaid suspension, ordered him to complete anger management training, give up his position as a school resource officer, and serve a two-year probation. Pender was sued earlier this year by another man alleging he punched him during a traffic stop.

A city spokesperson said he remains on active duty. Pender did not respond to a request for comment through his lawyer.

Pender is one of dozens of officers named on a prosecutorial watch list kept by the Middlesex district attorney’s office. Known as a “Brady list,” the DA’s document currently tracks more than 100 officers. All were flagged by prosecutors as either having engaged in or been accused of misconduct that the DA’s office might legally need to disclose to the defense as the information could speak to officers’ credibility.

WBUR found at least three of the state’s 11 district attorneys maintain some form of their own Brady list.

Sometimes called “disclosure” or “do-not-call” lists, the records aid prosecutors in adhering to constitutional requirements under the 1963 U.S. Supreme Court decision, Brady v. Maryland. The landmark ruling demands prosecutors turn over any material that might be favorable for the defense — including relevant information about police witnesses set to testify in a case.

Records requests sent by WBUR to all 11 district attorney offices in Massachusetts reveal a patchwork of Brady policies. The Middlesex DA’s list appeared to be the longest and most up-to-date. Five DA offices said they do not keep any such officer list at all.

The two Brady lists WBUR obtained from the Norfolk and Middlesex district attorneys’ offices reveal officers were named for a variety of reasons. According to a WBUR data analysis, 51 officers on the DAs’ Brady lists were flagged for overtime or detail abuses. Sixty-three others were named because of internal affairs investigations into issues that include lying, larceny, excessive force, sexual harassment and assault. Thirty-eight made the list because of criminal charges, like assault, rape, larceny, operating under the influence and embezzlement.

The inconsistency of prosecutors’ Brady practices raises questions about how those that don’t organize information about police misconduct comply with their constitutional requirements in court.

“Police officer honesty during their testimony — when they’re writing police reports — is really the irreducible core of our criminal system of justice,” said Randy Gioia, who oversees the public defender division of the Committee for Public Counsel Services.

Gioia said he and many other defense attorneys believe officers who previously have been disciplined for lying are routinely allowed to testify as state witnesses because prosecutors fail to track police misconduct.

“If you don’t have that list, you’re basically starting from scratch in every case, and you’re not going to uncover [anything] unless it’s the most obvious, the high-profile cases,” he explained. “You’re not going to uncover the instances of dishonesty, or misconduct of another type, like police brutality.”

“I think any person who’s accused of a crime would want to know that.”

The 124 Officers On Middlesex’s List

Under the Brady doctrine and as court representatives of the state, prosecutors have a two-pronged duty: first to find any damaging information about their own witnesses they may need to disclose to defense, and then to try to win their case, which may mean using those same witnesses.

Much of the onus for investigating the credibility of police witnesses falls on local DA offices.

As of Aug. 3, Middlesex DA Marian Ryan’s Brady list included 124 officers from 37 different departments. She started the document after taking office in 2013. She said her office removes names whenever an officer is cleared of allegations or exonerated.

“We are ensuring the integrity of our prosecutions,” Ryan told WBUR. “This is serious work that we’re doing. We’re sometimes taking people’s liberty away — taking some of their resources. We need to be certain that we are doing that in a way that is substantiated.”

A group of staff lawyers, appellate attorneys and district court representatives follow media reports, as well as arrests and prosecutions of officers. The office also asks police departments to notify it of internal affairs investigations.

These in-house probes — often shielded from the public — can reveal a lot about possible credibility issues of individual officers.

For example, court disclosures kept by the Middlesex DA’s office and obtained by WBUR show Westford Officer William Luppold, Jr. was the subject of three internal affairs investigations between 1997 and 2016: one after he was “found to have been untruthful” about a civilian in his cruiser during an active investigation; one after he violated police rules around the handling of evidence; and one after money went missing from the station’s evidence room.

The department found Luppold guilty of the first two; he resigned in 2017 during the third investigation, after 29 years on the force.

In 2016, Medford police opened an internal investigation into Officer Robert Richard.

In a 44-page report, the department found Richard had “filed a false police report, manipulated a crime scene, misled the police in an investigation into a breaking and entering and larceny at a Medford residence, and improperly stored his gun in his personal motor vehicle.”

The department placed Richard on administrative leave in May of that year. By September, he resigned.

Reached by phone, Richard did not dispute the information in the DA’s disclosure, but said he struggled as an officer after returning from the military. He said he’s no longer in law enforcement, and trying to move on with his life.

In Melrose, an internal affairs inquiry was launched into whether Officer Kevin Stanton improperly destroyed drug evidence, consumed drug evidence and was dishonest about it to investigators. The city of Melrose made a criminal case referral to the DA’s office in 2006, but prosecutors decided not to issue charges. Stanton was fired — but reinstated three years later after a settlement with the city.

Stanton remains on active duty today — answering 911 calls at dispatch.

“It was my choice about where he was placed,” Melrose Police Chief Michael Lyle told WBUR. “He’s done a good job since he’s been back.”

Stanton is not alone — of the 124 officers on the list, 66 were confirmed to still be employed by their departments.

WBUR attempted to reach all of the officers named in this story. Luppold and Stanton did not return requests for comment.

DA Ryan said the conduct of officers on the list has led her to drop several cases entirely; as the Lowell Sun first reported last March, Ryan dropped over a dozen cases after officers in the Lowell special investigations unit were caught falsifying records related to a drug bust, and concealing a wiretap.

Some officers on Ryan’s Brady list have been accused or convicted of more minor offenses, like driving drunk or violating a department rule like “exhibiting conduct unbecoming of an officer.”

That can frustrate police chiefs. Malden Chief Kevin Molis told WBUR he believes the list exists “for good reason,” to allow defendants “access to information that relates to the honesty, veracity, and integrity of police officers.” But he said the misconduct of some cops is so inconsequential that including their names doesn’t serve the interests of justice — it only tarnishes their reputations.

“If there’s someone who’s on that list for reasons that might not meet the standard, I think there should be a mechanism where they have an opportunity to be heard,” he said.

Ryan said she’s sympathetic to these complaints. She said she frequently speaks with police chiefs about her Brady policy, and provides training on it for police in her jurisdiction twice a year.

She said not everything the prosecution turns over becomes admissible in court, and her attorneys often argue against its admissibility.

“It is all aimed at the defense having the opportunity to know the information at the time they’re going to trial, and make whatever their best arguments are about what they can do with it,” she said.

DAs With No Brady Lists, Or Ones In Progress

Ryan’s Brady list appears to be the exception — not the rule — in Massachusetts.

Nearly half of the state’s district attorneys offices — Bristol, Essex, Plymouth, Worcester and the Cape and Islands — each said they had no documents related to officer disclosure lists requested by WBUR.

The Northwestern DA’s office in Northampton responded they formed a “Brady Committee” in 2019 that oversees the office’s disclosure protocols. In an email, a spokesperson said, “the Committee has not yet finalized decisions” on which officers will make the list.

The Berkshire DA’s office recently put a Brady policy into place. In a July 28 press release, District Attorney Andrea Harrington said her office will request that police departments provide documents related to officers facing criminal charges and other allegations of questionable behavior, like “dishonesty” or “racial profiling.”

Her team will also create a “do-not-call” list, for officers whose “credibility is so tainted as to disqualify that person from testifying on behalf of the Commonwealth,” the new policy states.

Norfolk County maintains a disclosure list of 38 officers. All but four are state police troopers publicly known for their involvement in high-profile misconduct, like the embattled agency’s recent overtime pay scandal. The Norfolk County District Attorney’s office originally provided the list to WBUR last September; a spokesperson said in June it has not been added to since.

Of the 38 officers on the list, eight are still employed by their departments.

The Hampden County DA’s office said it did not maintain an officer disclosure list, “per se.” A spokesperson wrote that assistant district attorneys vet law enforcement witnesses on a case-by-case basis, but also review certain internal records. For example, the office keeps a file of 13 Springfield officers who were named in federal grand jury minutes about police drinking alcohol at headquarters. Prosecutors also track the names of 14 other Springfield officers charged by the state attorney general in connection with an assault on four Black men near a bar, and an attempt to cover it up.

The Springfield Police Department was recently cited in a Justice Department probe because the agency found its “Narcotics Bureau officers engage in uses of excessive force without accountability.” The July report found officers routinely used excessive force by punching people in the face unnecessarily during arrests, and often faced no discipline for their misconduct.

The Suffolk County DA’s office declined to provide its list to WBUR, citing the attorney work product exemption to the state public records law. WBUR is appealing that rejection.

In an interview with WBUR, Suffolk County District Attorney Rachael Rollins said she “inherited” a Brady list when she took office last year, and that her team is now updating it.

“There were some people on that list that haven’t worked in the Boston Police Department in years, if not decades,” Rollins said.

Rollins said her team was gathering and reviewing documents on police from Boston, Chelsea, Revere and Winthrop. She hoped to soon add “dozens” of names to the disclosure list.

Defense Attorneys Push For Brady Policies

Randy Gioia, the head of the state’s public defenders offices said, in his experience, it’s rare to see Brady disclosures about officers in court.

“I can tell you there are very few times in my career that I received information from a prosecutor’s office about credibility problems with their police officers,” he said.

It is impossible to know how many people have been convicted based on the testimony of police whose standing could have been impeached by past evidence of lying. The National Registry of Exonerations found that 45 people in Massachusetts have been exonerated since 1989 for violations of the Brady rule or other misconduct by government officials during trial.

One of them is Sean Ellis. At age 19, he was accused of killing a Boston police detective and convicted in 1993. A Superior Court Judge ordered a new trial in 2015 because several of the officers who investigated and testified against Ellis had a “conflict of interest.”

It was later discovered the officers were robbing drug dealers — and had a personal interest in solving the murder as quickly as possible to prevent other officers from discovering what they were doing. The judge said prosecutors missed several warning signs in their “rush to judgement.” As Rollins was preparing to take her post, the Suffolk DA’s office said it would not seek to retry the case.

Rosemary Scapicchio, a Boston-based attorney who represented Ellis, said while she can’t say for certain the outcome would have changed Ellis’ case had the DA kept a Brady list at the time, she said her team and the public would have had more information.

“If the jury could have understood what the Boston Police Department knew about these officers … it would have opened up a whole new area of investigation, in cross-examination for Ellis,” she said in an interview.

In her 29 years as a defense attorney, Scapicchio said prosecutors turned over just two police witness disclosures to her. She and Gioia both said databases or Brady lists should be maintained by every district attorney’s office.

“Right now, it seems as if you can follow a list if you feel like it, or if the DA who’s running your office tells you it’s appropriate,” Scapicchio said. “And if you don’t, there’s no regulation out there that says you have to compile this list.”

“You can be willfully blind and pretend that you don’t know. And what happens is exactly what happened in Sean’s case.”

With reporting and data analysis from WBUR’s Ally Jarmanning

This article was originally published on WBUR.org.

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