PAX Centurion - September / October 2014

www.bppa.org PAX CENTURION • September/Octoberr 2014 • Page 31 Random October thoughts… From October Thoughts on page 25 Hospital. How could the VA be managed so poorly? Shouldn’t the Department of VeteranAffairs treat their own better than that? Then I began to consider how the Internal Affairs Division of the Boston Po- lice Department has been run over the years, and I think I understood how it could happen. As many of you may know, the Internal Affairs Division is now trying to “mop up” cases that were neglected for many years. Primar- ily these are complaints that were assigned to investigators in 2010 and 2011 that were never investigated, and then were not properly reassigned when the assigned investigator got transferred to another unit. I have received dozens of phone calls from officers telling me that they have to be interviewed about complaints made three or four years ago, and I received one phone call from a thirty-one year veteran of the Boston Police Department who got called up to be interviewed about a four year old case where the actual arrest had occurred eight years ago. This officer had been interviewed four years earlier, but Internal Affairs lost the recordings for that interview, so now he was being re-questioned about an incident that happened eight years earlier. If, perhaps, this officer had been found to have done something wrong, isn’t eight years a little too late to render discipline? If the officer needed retraining on something, can you imagine how many times he would have done the same thing incor- rectly in the intervening eight years? This officer had thirty-one years on the job, and the department was wasting resources to investigate something eight years old. What is the point? I understand the pressure the department can be under when of- ficers get sued and the plaintiffs’ attorneys learn that prior allegations of misconduct against an officer were not properly investigated. As I write this, I can think of one specific case where a shoddy Internal Affairs investigation and a police commissioner who was afraid of being deposed led to a multi-million dollar payout in a case where an officer had done nothing wrong. I get all that. It is not right, but I understand it. But seriously, what do you expect when Internal Affairs is run in the same manner as the VeteranAdministration hospitals? Supposedly once the old Internal Affairs cases get cleaned up, things will run smoothly at Internal Affairs. To continue the theme from my first paragraph, “the more things change, the more they remain the same.” Only time will tell, but until then I’ll remain a skeptic. BPD Legal Advisors Treat Police Officers As Second-Class Citizens F ollowing on the theme of treating your own poorly, the Boston Police Department Legal Advisor’s office continues to treat police officers as second-class citizens. In an ongoing criminal case where a Boston police officer is charged with assaulting his girl- friend, I filed a motion to get a copy of the Internal Affairs interview transcript of the complaining witness/ex-girlfriend. The case law is crystal clear on this matter: since the girlfriend is a “percipient witness,” the Supreme Judicial Court has held that her statement is “plainly relevant and maybe exculpatory (at least for impeachment)” and therefore, the Supreme Judicial Court saw “no reason generally to protect [the] statement from disclosure.” Commonwealth v. Wanis , 426 Mass. 639, 644 (1998). The Wanis decision goes on to state that if the prosecution is not in possession of the statements, “a defendant may obtain the statements of the percipient witness” by having a subpoena issued to the police department. In the present case, the Boston Police Department Legal Advisor’s office agreed to provide the witness’s interview transcript to the police officer’s lawyer, but only on the condition that the police officer cannot read the transcript and cannot be told what the transcript contains. That’s right. Any run- of-the-mill criminal who you arrest who files an Internal Affairs com- plaint against you can get a copy of your Internal Affairs interview, but when it comes to a police officer, he cannot get the statements that regular criminals can get. This position taken by the Legal Advisor’s office is in direct violation of the Rules of Professional Conduct for Lawyers which requires lawyers to “render candid advice” to their clients while expressing “the lawyer’s honest assessment.” How can a lawyer give candid, honest advice to his client about the strengths and weaknesses of a case if he cannot share information contained in the interview transcript of the complaining witness? Not only that, the Legal Advisor’s position is in direct violation to the SixthAmend- ment to the United States Constitution, which provides defendants with the right to counsel, the right to accurate legal advice, the right to be apprised of evidence against them, the right to prepare a defense, and the right to assist their lawyer in defending them. The Legal Advisor’s argument is that by giving the officer the transcript, he can then tailor his testimony to match what the complainant said in her interview. They claim that giving the officer the transcript will impair the integrity of the Internal Affairs investigation. While this argument is not without some merit, it is clear that the United States Constitu- tion and the SixthAmendment rights afforded therein trump any In- ternal Affairs investigation. It’s too bad the Boston Police Department can’t recognize this obvious fact. It’s too bad that they treat officers as second-class citizens. Video is Everywhere I don’t know how many times I have written about this in this col- umn, but in this day and age, every law enforcement officer has to know that almost everything they do is going to be captured by some sort of video footage. Between surveillance videos and cell phone videos, there is very little that occurs anywhere cannot be pieced to- gether at a later date with the help of technology. With all of the video and other technology open to investigators, we all have to realize that there are very few secrets anymore. Phone calls are made on recorded lines, radio calls are recorded, phones can be pinged from cell towers, and the list goes on and on. As a police officer, you have to be aware of this before you act, and you must remember this before you write a report or give a statement regarding your actions. Every day we see video of officers losing control of their emotions and doing things they should not do. Very frequently, I hear stories of officers around the country who wrote reports that are easily contradicted by some type of technology.Your reputation, your job, and even your liberty can be at stake as a police officer. The inherent nature of your job means that you will be put into stressful situations where you will have to make split second decisions. Please keep in mind that those decisions are almost always going to be recorded through some type of technology. Do your best to do the right thing, and when the lines get blurry, do not lie about it. The cover up is usually worse than the act itself. Please stay safe out there, and please watch each other’s backs. With an employer who can treat you as poorly as the veteran who requested to move his cancer treatment, your brother and sister of- ficers may be all you have.