Articles Posted in Police Misconduct

According 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.

Continue reading →

Few 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.

Continue reading →

I 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.

Continue reading →