The justices indicated during a hearing that it's more likely they would consider amendments to the rule governing discovery requirements rather than consider the sweeping investigation and notice to potentially hundreds of defendants, which is the global remedy being sought by a group of individuals previously convicted in cases brought by police in Springfield, Massachusetts, and their attorneys.
It was the second time this week the Massachusetts Supreme Judicial Court took up the issue of how far prosecutors need to go in order to satisfy their obligation under Brady v. Maryland
to disclose exculpatory evidence to the defense.This time, the plaintiffs — a coalition that includes the American Civil Liberties Union, the state's public defender agency Committee for Public Counsel Services, defendants and defense lawyers — have asked the court to order an investigation into all 30 of the officers and into the misconduct cited in a 2020 U.S. Department of Justice investigation into excessive force, and then provide that information to all defendants who have cases involving any of those Springfield officers.
The hearing on Wednesday stems from a request by the defense lawyers and defendants to the Supreme Judicial Court to intervene and order the Hampden District Attorney's Office to conduct an investigation into the officers who previously worked in the Springfield Police Department's narcotics unit as well as order the disclosure of documents related to the DOJ's investigation.
The defense lawyers and defendants said that to date, the Hampden District Attorney's Office has turned over just 712 of the approximately 100,000 documents the lawyers want to view. They said they will not get the remaining materials they seek without an order from the Supreme Judicial Court.
Justice Dalila A. Wendlandt reported the dispute to the full court in January after attempting to resolve it through the appointment of a special master, retired Superior Court Chief Justice Judith Fabricant.
The plaintiffs objected to some of Justice Fabricant's conclusions in a report completed last fall, however, leading to Wednesday's hearing.
The justices were hesitant to agree with the plaintiffs' investigation request, however.
"Is this another Dookhan, or is this 16 cases? We don't know," Justice Frank Gaziano said during the hearing, referring to the drug lab cases in which state lab chemists Annie Dookhan and Sonja Farak were found to have falsified evidence. Because of their tampering, the Supreme Judicial Court eventually ruled there was no way to be certain that the evidence in any of the drug cases handled by those chemists, as well as the labs they worked at, was not tainted, and ordered the dismissal of 30,000 related drug convictions.
"Why should we undertake some gigantic undertaking when we can do this case by case?" Justice Scott Kafker asked.
ACLU of Massachusetts' senior staff attorney Matthew Segal said statements by the district attorney's first assistant — to the effect that police officers themselves get to decide what is turned over in a case — suggest that "we don't know what we don't know."
For example, the Springfield Police Department doesn't turn over officer misconduct reports when it is not clear which officer was at fault, Segal told the justices.
"My ears perk up a bit when I hear prosecutors say they take Brady as a suggestion," Segal said.
Justice Kafker later said there is a difference between evidence that is an element of the crime — such as the drug lab scandal where Dookhan and Farak falsified evidence essential to cases — and evidence, if admissible, that could be used to impeach a police officer's credibility as a witness.
Justice Wendlandt said she was concerned about the court "overstepping" its authority based on a report of misconduct in a bureau that no longer exists.
"Why do we have to have, as we did with Farak, a global remedy, when we can see it case by case, as the court did on Monday?" Justice Wendlandt asked, referring to arguments in an appeal by Denzel McFarlane, who said his conviction was tainted by prosecutors' failure to disclose that the arresting officer had been named in a civil lawsuit alleging false arrest.
Segal said he believes a global remedy is the only way the disclosures will be made, adding that so far, the district attorney has turned over just 712 pages of the more than 100,000 documents reviewed by the DOJ.
"We're saying, at the very least, someone has to review these incidents," said Segal.
But Elizabeth Mulvey of Libby Hoopes Brooks & Mulvey PC, who is representing the Hampden District Attorney's Office, said the appellants have done nothing with the information they have been provided and that much of the damaging information about officers has actually been turned up by prosecutors, not defense investigators.
She accused defense lawyers of sitting on exculpatory information that has been turned over in individual cases in favor of seeking the same type of global resolution granted in the drug lab cases, which was the dismissal of the 30,000 drug convictions.
Even the most notorious of the police misconduct cases, that of Greg Bigda, an officer caught on tape threatening to plant drugs on one teenager and "crush the skull" of a second while they were in a holding cell, was discovered and disclosed by a district court line prosecutor listening to recordings prior to a trial, Mulvey said.
Mulvey also argued that much of the information that is being sought — the materials the DOJ looked at during its investigation as well as the results of the investigation the defense lawyers want the Hampden County District Attorney's Office to undertake — would not even be admissible and not worth the significant resources that would be required to obtain it, including re-interviewing officers. She called it a "huge administrative nightmare" of potentially limited value.
"It's a slippery slope when we're looking to make prosecutors responsible to find not just existing evidence, but to become the defense investigator," Mulvey told the court. "It's never been the law that they have to go investigate and make exculpatory evidence."
She said the assistant district attorneys, facing huge caseloads, are already "terrified" now of making an error in discovery as a result of recent cases, including that of assistant attorneys general Anne Kaczmarek and Kris Foster, and the arguments in McFarlane.
The policies in the Hampden District Attorney's Office have changed, and proposed updates to the discovery rule would address any lingering questions, Mulvey argued.
"I don't quite have the same confidence that everything is hunky-dory," Justice Kafker said, though he cautioned that he doesn't believe in a "global, gigantic" resolution.
Justice Serge Georges Jr. said the argument that the court consider the "reasonableness" of asking prosecutors to go back into old cases "gives me a bit of PTSD," recalling hearing daily as a Boston Municipal Court justice why discovery requests hadn't been fulfilled.
"This is what it is in district court practice," said Justice Georges. "You're going to have a lot of cases, you're going to be very busy, and the [U.S.] Constitution doesn't care."
The appellants are represented by Matthew R. Segal, Jessica J. Lewis, Daniel L. McFadden William C. Newman and Mary F. Brown of the American Civil Liberties Union Foundation, Rebecca Jacobstein of the Committee for Public Counsel Services, and Martin M. Fantozzi, Matthew P. Horvitz and Abigail Fletes of Goulston & Storrs PC.
The district attorney of Hampden County is represented by Elizabeth N. Mulvey and Thomas M. Hoopes of Libby Hoopes Brooks & Mulvey PC.
The case is Graham et al. v. District Attorney of Hampden County, case number SJC-13386, in the Supreme Judicial Court of Massachusetts.
--Additional reporting by Chris Villani. Editing by Lakshna Mehta.
Correction: An earlier version of this story included an outdated job title for Matthew Segal. The error has been corrected.