Articles Posted in Police Misconduct

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glasgow-police-1241195According to a recent article in The Patriot Ledger, proof of major errors made in the Braintree Police Department’s evidence room is continuing to mount. The article states that a recently released audit of the department’s evidence room indicated that thousands of items have gone missing, or are unaccounted for. Such items include drugs, money, and guns, all seized in relation to criminal cases. The audit also indicates that the evidence room’s record keeping was unquestionably sub-par.

Problems related to the keeping of the evidence have already resulted in the dismissal of a number of Braintree cases and the article states that hundreds of additional cases may have been similarly compromised. Specifically, the article states that 4,709 pieces of drug related evidence “could not be accounted for” and that “38 pieces had been compromised” – the audit found that the 38 items were “opened, left unpackaged, or found to have items missing.” The article further noted that “much of the missing drugs” were “bags of cocaine.”

In addition to the missing drug related evidence, the article states that the audit found that 2,490 pieces of property evidence was found to be missing. Additionally, the audit found that various videos being stored in the evidence room were unlabeled, which will lead to significant practical challenges in connecting such videos to specific cases, not to mention evidentiary challenges in terms of documenting chain of custody and authenticity. The article also notes that the test kits from sexual assault cases were stored outside the police station in a trailer, again raising questions as to chain of custody issues and whether such evidence can be successfully linked to a specific case.

The audit also found that approximately $400,000 in seized money was missing and that some of the bags containing such money were “ripped open in the back or cut open at the bottom, with cash missing.” The article states that the audit found that much of the missing money came from cases brought in 2001, 2002, 2012 and 2013, noting that the audit lists $82,074.96 missing from 2001.

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questions-1308019According to an article in The Patriot Ledger, questions have arisen about the Braintree Police Department’s oversight of evidence held in their custody. While town officials have been relatively quiet about what is happening, the article states that the town has hired an outside investigator to conduct an audit of all evidence held by the police department. Braintree’s mayor, Joseph Sullivan, issued a short statement earlier this week in response to an inquiry from The Patriot Ledger, saying that “[t]he evidence review is active and ongoing.” The mayor further stated that upon the completion of the review, “all findings will be communicated to the Norfolk County [D]istrict [A]ttorney’s office and at the appropriate time released to the public.” The mayor made no indication as to what triggered the audit and his statement said that he would have no additional comments. Braintree’s chief of police likewise declined to provide any information, stating that he was “not in a position to elaborate.”

The article further states that the Norfolk County District Attorney is aware of the review. The DA made his own statement saying that he has “been made aware of the ongoing internal investigation at the Braintree Police Department” and that, “[a]t this time, [the DA’s] office is not involved in the internal investigation. Although the mayor, the police, and the DA’s office appear to be in the know, other town officials do not appear to be as well informed. The Patriot Ledger reached out to the town council president shortly after the mayor issued his statement and he said that he was unaware of the audit and the mayor’s statement was “the first [he’s] heard of it.” The town council president added that the council will likely have “to wait until the investigation is completed” before taking any action. Continue reading →

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An Ashland police sergeant was recently indicted in Middlesex Superior Court after he allegedly destroyed drugs in an open 2011 case, and then allegedly tried to intimidate a fellow officer who reported it. The sergeant was specifically charged with two counts of obstruction of justice and one count of wanton destruction of evidence.

According to an article in the MetroWest Daily News, a woman charged with an OUI in 2012 is now seeking the sergeant’s personnel file as part of her defense. The woman crashed her car in Ashland in 2012 and was reportedly under the influence of alcohol at the time of the collision. The sergeant investigated the case. The woman filed a motion seeking the sergeant’s internal affairs reports, arguing that the records are relevant to his reputation for truth and veracity. The town of Ashland, however, has objected to the request, arguing that public records laws protect against disclosure of the information, and claiming that the records have nothing to do with the woman’s case and do not contain exculpatory information.

Under Rule 17 of the Massachusetts Rules of Criminal Procedure, a party may file a motion seeking third party records (i.e., records that are not in the custody of either the Commonwealth or the defendant). The standard for obtaining such records, however, is not whether they definitively contain exculpatory information. Rather, under the rule, the moving party must show that: (1) the records are relevant (i.e., tending to make a fact in the case more or less likely to be true); (2) the records are not otherwise procurable in advance of trial; (3) the party cannot properly prepare for trial without the records; and (4) the request for the records is made in good faith and is not intended as a general fishing expedition.

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Police_Duty_Belt.jpgNew decision from the MA Appellate Court today in Commonwealth v. Kevin Feeney is utterly depressing. The facts involve a crash where a gun is found, but nobody is present in the vehicle when police arrive. The defendant was found about a block away from the car with a fresh cut to his forehead and generally looking like a guy who was just in a car crash. However despite his condition he denied being in the crash. Now you might think to yourself, “hey the police already had a pretty good case here tying Mr. Feeney to the crash.” After all Feeney was only a block away minutes after the crash, wearing only a t-shirt and jeans at 1:30 in the morning in January, with fresh injuries to his forehead, and smelling of a mixture of alcohol and deployed airbag. Of course by thinking this I can assure you that you are not Massachusetts State Police material.

This apparently was not a strong enough case for the Massachusetts State Police. In addition to these observations they felt the need to go the extra mile. So after Mr. Feeney was arrested and booked a ruse was devised to get him to tie himself to the scene of the crime.

For those who don’t know a “ruse” is the polite legal word police, prosecutors, and sometimes judges use to soften the fact that the police told a citizen a big fat lie. Saying the police “used a ruse” sounds a lot better than saying “the police told a big fat lie” In this case the big fat lie was telling Mr. Feeney that he was required to fill out a hand written inventory as part of the booking process related to certain property. It just so happened the property the police were referring to were items that were found inside the crashed car. Of course there was absolutely no such policy requiring this kind of hand written inventory, and even if there had been these items were not on Mr. Feeney at the time of his arrest, and therefore should not have been part of any booking inventory, let alone a fake one. Mr. Feeney complyied with what he believed was a required booking procedure and identified some of the property from the car as his own.

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5109947532_9585586489.jpgFew situations are as frustrating for criminal defense attorneys as when the police lose or destroy evidence that may be helpful to a client. Yesterday the Springfield Republican reported on a case where a young man is alleged to have attempted to take a police officer’s weapon from him. The young man was then arrested in what he contends was a violent arrest where he was kicked, punched and choked by police. (for more on the young man’s side of the story visit the website his supporters started) He also contends the police made up the allegations that he attempted to take an officer’s weapon to justify the violent way in which he was arrested.

A bystander who witnessed the violent arrest took some video of the altercation on her cell phone. The police confiscated the cell phone, and when it was eventually returned to the bystander, the video she had taken of the incident had been erased. This presents an enormous challenge for the defense in the case. Evidence that could help the defense convince a jury the arrest involved excessive force is now lost forever.

Although the fact the police lost or destroyed this evidence is damaging to the prosecution’s case, it does not in any way guarantee that the young man will get his chages dismissed. In Massachusetts when the police lose or destroy evidence the court is supposed to engage in a lengthy analysis of what, if any sanction is required. Before the court will even entertain a sanction the defendant has to make a showing to the court that the evidence lost was reasonably likely to be helpful to his case. It is not enough merely to speculate the lost evidence might be helpful, rather there must be a basis to believe it may be helpful from other evidence. This requirement in and of itself poses a major problem to the defense because when a videotape is destroyed its awfully difficult to prove to the court it would have been helpful, since the police deprived the defense of the opportunity to view it.

Even if the defense can show the destroyed evidence would have been helpful then dismissal is still unlikely unless a judge finds that the police acted in bad faith by losing or destroying the evidence. In the case of Commonwealth v. Sassville the Court did find that gross negligence on the part of police in destroying or losing evidence could be enough to warrant dismissal. In that case the defendant was charged with rape, and the Commonwealth had ordered the aborted fetus of the alleged victim destroyed without giving the opportunity to the defense to test that fetus and see if the defendant was the father. The court ruled the gross negligence of the Commonwealth combined with the irreplaceable nature of the evidence warranted dismissal.

It will be interesting to see how the Springfield court rules in this particular case. Although it seems clear the judge was troubled by the manner in which this video evidence was lost or destroyed, it is not at all clear that he will find that the case should be dismissed as a result.

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video camera.jpgI recently came across an interesting article about the almost 5 year fallout between one man and the Boston Police over the actions of the Boston Police Department Back in 2007.

According to the article the trouble for the man started when he was on the Boston Common and saw another man being placed under arrest. When the man heard a witness state that the police were hurting the individual they were arresting he pulled out his cell phone which was equipped with a video camera and began to record the actions of the police.

These two officers, apparently unaware that we live in a free country, ordered the man to stop his perfectly legal recording. The officers were apparently stunned that the man chose not to abandon his constitutional rights in the face of their orders and arrested him for violating the Commonwealth of Massachusetts wiretapping statute.

The arrest on its face was more or less absurd. The Massachusetts wiretapping statute (G.L> c. 272, Section 99) is directed at preventing people from secretly recording one and other without consent. While the police may not have liked the man’s decision to record them there was no suggestion that he made any secret of the fact that he was doing it. Apparently he actually did the opposite as the police were able ascertain quite readily that they were being recorded, and in fact arrested the man as a result.

If the police had even a passing familiarity with this issue they would not have made this arrest. In 2001 the Commonwealth of Massachusetts’ highest court addressed this issue in the case of Commonwealth v. Hyde. In that case the SJC actually upheld the conviction of a man for taping the police that pulled him over, but they made it clear in their decision that they conviction was only allowed to stand because the man made the recording in secret. In making that decision the court stated:

The problem here could have been avoided if, at the outset of the traffic stop, the defendant had simply informed the police of his intention to tape record the encounter, or even held the tape recorder in plain sight.[12] Had he done so, his recording would not have been secret, and so would not have violated G. L. c. 272, § 99.

It’s a shame the man had to go through all the trouble that he did, and an even greater shame that the Boston Police Department has taken this long to admit the mistake that was made by its officers back in 2007.

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