05.05.2023/Special Edition
Hundreds of Massachusetts police and other law enforcement employees charged with felonies, serious misconduct over past three decades, state records show
This story was produced as part of Boston University Professor Maggie Mulvihill’s Data Journalism class. In addition to conducting more than two dozen interviews, students obtained and analyzed thousands of pages of public records from state prosecutors and the Attorney General, revealing exculpatory evidence shared with criminal defendants, including disclosures made to defense counsel, police reports, Internal Affairs records, court filings, memoranda, investigative documents, emails, search warrant affidavits, policy statements and databases. Research and reporting was contributed by Mulvihill, Tanisha Bhat, Grace Donahue, Cassandra Dumay, Kajsa Kedefors, Sydney Ko, Amisha Kumar, Talia Lissauer, Katrina Liu, Aaron Michael, Chinanuekpele Okoli, Joe Pohoryles, Jewel Sanchez, David Simon, Barrett Walsh, Rachel Yi, Garrett Adamtsev, Walker Armstrong, Zhadyra Assetkyzy, Casey Choung, Kaninika Dey, Husan Ma, Mia Macaluso, Madison Mercado, Mandile Mpofu, Gabriela Romero and Sahika Aydinol.
Over 750 Massachusetts law enforcement employees engaged in misconduct or committed felonies and other crimes over the past three decades ranging from rape to possession of child pornography, deadly drunk driving and drug trafficking, as well as stealing evidence, filing false police reports and committing wiretap violations, records from state prosecutors show.
The incidents are detailed in over 2,300 pages of so-called “Brady disclosures,” which prosecutors are ethically obligated to provide to criminal defendants if the credibility of a law enforcement witness in their case could be challenged.
The disclosures are named after the landmark 1963 U.S. Supreme Court case, Brady v. Maryland (1963), which states prosecutors have a constitutional duty to provide any information to a defendant that might aid in his or her defense, more commonly known as “exculpatory evidence.”
The records from all 11 county prosecutors in Massachusetts and the state attorney general detail hundreds of serious crimes and misconduct committed by law enforcement personnel, including multiple department chiefs, commanders, and rank-and-file officers as well as State Police chemists and analysts, corrections officers and transit, college and university police.
It is unclear from the Brady disclosure materials, many of which are heavily redacted, the exact number of those who were terminated or resigned or are still employed by law enforcement agencies. District attorneys also only provided partial records in some counties.
State Police Milton Barracks (By Magicpiano)
Brady disclosures have become a controversial topic among prosecutors and police since a February ruling from the state appeals court prompted district attorney offices to more aggressively question their law enforcement witnesses about incidents of alleged misconduct. That includes any pending citizen or government agency complaints, internal affairs probes or civil court matters. Previously, prosecutors largely relied on police agencies to inform them if an employee who was a witness in a criminal case had been charged with a crime or found to have committed misconduct.
With over 283,000 criminal charges brought in state trial courts in 2022, prosecutors dealing with legions of police witnesses now must track and disclose any allegation raising credibility questions, even if ultimately meritless.
“I have to interview every single officer. A police officer could have an investigation on them today, but not have one the next time they testify,” said Norfolk County Assistant District Attorney Michael Connolly, who handles the office’s Brady disclosures in district court. “The only way you are going to maintain continuity is constantly live time asking the officers if they are subjects of investigations. I don't have the capacity to drill into any individual and search every imaginable database to determine if they're being sued.”
There are 438 law enforcement agencies in Massachusetts, according to the state’s Peace Officers Standards and Training Commission. POST has promised, since a sweeping criminal police reform law was passed in 2020, to create a public, statewide database of police misconduct. Executive Director Enrique Zuniga said, in an interview, it would be complete “very soon” but gave no specific date.
Police claim the questioning invades their privacy and that it is unfair and damaging to disclose unproven allegations about their character.
“I am concerned about beginning conversations about such sensitive subjects in the hallways of the busy district and municipal courts where the vast majority of your cases are prosecuted, because this is unlikely to engender trust,” wrote Boston attorney Patrick Hanley in a Feb. 23 letter to the attorney general and the state’s 11 district attorneys, on behalf of the State Police Association of Massachusetts.
Hanley said, in an interview, the lack of “precision” by the state appeals court leaves open what constitutes a complaint.
“Is it a complaint filed on a piece of paper or online that goes to the department, that says, ‘Hey, I can't believe you are giving me a ticket. I can't believe you pulled me over. All it is is I'm not wearing my seat belt.’” Hanley said. “Is that a complaint?”
Disclosing information about any type of complaint – even if unfounded - could also impact the struggle to hire law enforcement officers in this era of more intensive scrutiny of police.
“I talk to chiefs often. Their biggest challenge is recruitment and retention,” said Enrique Zuniga, executive director of POST.
Police misconduct by just one officer can stain an entire department, said Kenneth Mello, a defense attorney who practices in Bristol County, who worries how that affects police he deals with in his cases.
“Some really, really, really good cops are getting painted with that bad brush because of what their colleagues are doing, and they probably despise them, more than anybody else,” Mello said. “I think a lot of us fear that as it becomes more and more difficult to fill vacancies in police departments, the standards are going to get even lower.”
The February decision revolved around a Hampden County prosecutor’s failure to tell a defendant on trial for firearms charges that one of the arresting officers had been sued in federal court for false imprisonment and false arrest. Two weeks after Denzel McFarlane’s conviction in Hamden County, Springfield Police Officer Daniel Moynahan was found liable by a jury in U.S. District Court for false arrest and false imprisonment.
The appeals court stated it is “reasonable” for prosecutors to ask police witnesses for any “information (known or not known to the public) about any pending or proven allegation of misconduct.”
“Based on documented incidents of Brady violations, it is fair to say that across the country there are thousands of similar failures to comply with Brady on a yearly basis,” said University of Pennsylvania Law School Professor David Rudovsky, a national civil rights scholar.
“I think the court was right there,” he said of the McFarlane ruling, which is “developing a web of factors that a district attorney has to consider.”
Sixty years ago, the U.S. Supreme Court mandated in Brady v. Maryland (1963) and subsequent rulings that prosecutors must turn over to a criminal defendant any information about a law enforcement witness whose credibility is in question and which could aid in his or her defense.
Pivotal decision: The U.S. Supreme Court mandated in Brady v. Maryland (1963) that prosecutors must turn over to a criminal defendant any information about a law enforcement witness whose credibility is in question.
The state appeals court has faulted the Hampden County district attorney for its failure to provide the court with any policy regarding the disclosure of exculpatory evidence, even though three years ago the Massachusetts Supreme Judicial Court in 2020 recommended prosecutors have them. The SJC also in that case suggested that current state rules of criminal procedure should be amended to make clear what must be disclosed.
District Attorney Anthony D. Gulluni, who declined to be interviewed, has asked the SJC to review the McFarlane ruling.
DIFFERING CRITERIA FOR WHAT CONSTITUTES A BRADY DISCLOSURE IN MASSACHUSETTS
A four-month investigation by Boston University journalism students of prosecutors’ Brady disclosure materials reveals a fragmented system of differing criteria and flawed documentation for police witnesses with credibility issues whose names should have been turned over to defendants.
The prosecutors’ Brady disclosure materials, obtained through public records requests, reveal that Massachusetts prosecutors have varied criteria for what triggers a disclosure. Some require a criminal conviction or a sustained police internal affairs finding, while others will disclose if there are pending criminal cases or investigations. Some prosecutors, like Middlesex County District Attorney Marian Ryan, will also include adverse credibility findings by a court in matters like motion to suppress hearings.
But some prosecutors’ materials omit names of officers who have committed crimes in recent years. And though evidence tending to impeach the credibility of a witness - including the existence of internal investigations - has been determined by the state’s highest court to be exculpatory, the names of law enforcement witnesses who have sustained findings of misconduct do not appear in some district attorneys’ Brady disclosure materials.
Two district attorneys would not release the names of police witnesses they have disclosed to defendants, citing privacy and other state laws.
The varying approaches might mean a disclosure is made for a defendant in one county but not in another, leaving defense attorneys without information about police witness credibility.
“We have to rely on the prosecutors to offer it to us, which obviously causes problems,” said Tracy Walts, a former public defender in Essex County and a clinical instructor at Boston University Law School’s Criminal Justice Clinic.
“There’s not a lot of consistency throughout the Commonwealth,” Walts said.
Adam M. Gershowitz, a professor at the William & Mary Law School and an expert on prosecutorial misconduct, said that prosecutors should have a “set of standard rules” about Brady disclosures that defines how a law enforcement witness is included and the level of proof needed to be removed.
“There should be substantially uniform sets of standards,” Gershowitz said.
Some prosecutors’ offices agree, when it comes to public access of Brady disclosures, there are not clear rules.
Plymouth County, in its Brady disclosure policy, states it is awaiting “further guidance” from the state attorney general, the SJC and the POST Commission, before it would release the names of police witnesses included in Brady disclosures.
Becky Michaels, an assistant district attorney in Northwestern County in charge of Brady disclosures, said the office will not release the names due to a lack of cohesive "rules" guiding the public disclosure of Brady information. The district attorney this year has rebuffed several orders from state public records officials to reveal the names of law enforcement witnesses in its Brady disclosure materials, citing state privacy laws and the state Criminal Offender Record Information Act (CORI). The agency suggests the state attorney general step in and resolve what should be public.
The attorney general’s office, through a spokeswoman, did not respond to requests for comment.
The misconduct revealed in Northwestern County’s Brady disclosure letters ranges from arrests for drunk driving, possession of child pornography, theft, and other crimes, as well as alleged misconduct such as getting paid for hours not worked and being untruthful in incident reports that led to arrests.
The Northwestern County district attorney’s protocol for Brady disclosures, updated this year, states all information that identifies the subject of a Brady letter is confidential.
APPEALING INCLUSION ON A BRADY DISCLOSURE
The Berkshire and Middlesex County district attorney allow a law enforcement witness the ability to challenge their inclusion on a Brady disclosure, their policies state.
“When you’ve made a substantial commitment to this profession and you have all of a sudden this career-damaging mark put on your name and you don’t have a way to challenge it, it is unfair,” Hanley said.
Ryan’s office has the most robust and transparent Brady disclosure process. Its Brady list is available online and is constantly updated, she said.
Ryan believes transparency and fairness mandate the list should be public.
“In any profession, you have to call out the people who are doing something wrong,” she said.
There are dozens of federal agents whose misconduct in recent years would appear to necessitate their inclusion in the U.S. Attorney of Massachusetts’ Brady disclosure materials, according to the U.S. Department of Justice Brady policy. Law enforcement employees from the federal military police, the Internal Revenue Service, the U.S. Marshal’s Service, and others have been convicted of crimes ranging from overtime theft to drug trafficking to child pornography charges, records show.
Massachusetts U.S. Attorney Rachael S. Rollins has not responded to multiple requests for comment about her office's Brady disclosures.
MISSING BRADY DISCLOSURE INFORMATION
Some district attorneys provided Brady disclosure information that omitted the names of police witnesses who had been found responsible for misconduct or guilty of crimes in recent years, or who have been suspended or decertified by the POST Commission.
The newly elected district attorney for the Cape and Islands said the previous administration did not keep a Brady list, but, in February, provided six names of law enforcement witnesses who were included in disclosures to defendants.
But Boston University journalism students found at least eight additional officers whose misconduct or crimes in recent years would require their inclusion in a Brady disclosure, but they were not among the names the Cape and Islands’ district attorney provided.
The district attorney’s office did not respond when asked why those officers were not included in their Brady disclosure material.
INFORMATION CHALLENGES FOR DEFENDANTS
Beyond the required disclosure of exculpatory evidence, defense attorneys across the state said obtaining general information about the actions of law enforcement officers remains a challenge.
Boston attorney Howard Friedman recently won a public records battle against the Bristol County district attorney in which he was seeking information about a fatal Fall River Police Department officer-involved shooting.
“The Bristol DA has taken the very unusual position that the names of police officers performing their public duties are confidential. Not only did he not want to disclose the names of the two officers in the room, including the shooting officer, he also, in providing public records, edited out the names of every Fall River officer who responded to the scene,” Friedman said.
Pending before the SJC is a case brought by defense attorneys in Hampden County and two convicted individuals who claim the district attorney’s office for years has failed to turn over exculpatory evidence about law-breaking officers with the Springfield Police Department.
John Adams Courthouse, home to the Massachusetts Supreme Judicial Court
The lawsuit claims the district attorney did nothing to redress harm to defendants it prosecuted with evidence from the Springfield Police after a 24-month U.S. Justice Department investigation in 2020 found a longstanding pattern of false arrests and use of excessive force within the department.
The Springfield Police comprise the largest number of individuals on the Hampden County District Attorney’s “Brady list.”
“The (HCDAO) has routinely failed to disclose Brady evidence related to police misconduct,” the attorneys wrote in an April 18, 2023, brief.
Attorney Brian Murphy recalled a 2018 murder case in which Hampden County prosecutors failed to disclose that a key police witness had been caught on a state police wiretap buying drugs. The prosecution failed to tell Murphy that Pittsfield Police Officer David P. Kirchner had admitted to buying illegal steroids with his department-issued cell phone while a member of the force’s drug unit. Kirchner was suspended and demoted following an internal investigation, court records show.
“We discovered that on our own,” Murphy said. “There are inevitably failures to have full Brady disclosures on cops that are dirty.”
Prosecutors can turn a blind eye to the actions of their police witnesses, others said.
“I oftentimes feel like there’s a basic disinterest in finding this information in the first place, because if you don’t have it, you don’t have to turn it over,” said Christopher Todd, president of Hampden County Lawyers for Justice. “There’s a kind of ‘hear no evil, see no evil attitude.”
More problematic is when prosecutors are aware there are credibility challenges with their law enforcement witnesses.
“I’ve had situations where the assistant district attorney knows the police report is false, absolutely false, without any doubt,” Mello said.
But Mello also had high praise for a prosecutor in a cocaine possession case years ago in Fall River District Court who would not move forward with a dishonest police witness. Mello represented the defendant.
“I had a district attorney say, ‘this particular officer has no credibility with me’ - actually stood up in the courtroom,” Mello said. “(He) looked at the judge and said ‘The Commonwealth is dismissing the case. The officer has no credibility. Wow. That was amazing.”
CONFLICT OF INTEREST? NEW SYSTEM NEEDED
Because of the inherent conflict in the prosecutor-police relationship, a higher authority than district attorneys should track Brady list disclosures, defense attorneys and legal scholars said.
“One of the hurdles is that they get to decide what information is exculpatory and what's not, so I would say it's a conflict of interest for them,” said Walts. “Because what we're asking them to do is hand over something that might make their case weak.”
“Their role is to seek justice. It should not be for them about getting a conviction. It should be about getting justice, “Walts said.
Gershowitz said prosecutors are not ethically qualified to keep and publicize Brady lists, especially when they fail to adhere to their own constitutional obligation to turn over exculpatory information.
“It’s the fox guarding the hen house,” Gershowitz said. “We trust the prosecutors, who are often the violators of (the Brady rule), to be the one who keep the list and turn it over,” Gershowitz said.
An independent entity should maintain Brady lists to ensure transparency and that state legislatures should pass laws requiring prosecutors to maintain the information and make it public, he said.
Some feel that Massachusetts should also have a public, statewide Brady “list” or database to build trust in the criminal justice system.
Defense attorneys and legal scholars who study prosecutorial and police misconduct think, as a rule, Brady disclosures should be public.
“I think there should be a statewide Brady list and, of course, I think district attorneys should publicize their Brady lists. It is critical,” Murphy said.
They also hope the attorney general or the SJC will take action to make it clear what information must be disclosed to criminal defendants and how much of it is public.
“Even if prosecutors want to do the right thing and want to hand over stuff, can you make it easier for them to know what is the stuff they should be handing over? And that just hasn’t happened,” Walts said.
Hanley said he believes district attorney offices honor their ethical obligations, but clearer guidance is needed.
“We need the SJC to help us,” Hanley said.