STATE OF OPACITY

Why Mass cops aren’t featured in the viral USA Today misconduct database

BY MAYA SHAFFER

In 2019, USA Today compiled a massive database of police misconduct records collected from almost all over the country. In light of calls for transparency and accountability in policing after the killing of George Floyd by a Minneapolis cop last month, the newspaper updated it for 2020.

However, like in the first installment of the data-driven series, Massachusetts officers are not included in the database.

It shouldn’t come as a surprise that our state is missing. The Commonwealth has virtually no transparency or oversight of any part of our government, and that’s especially true of our police departments.

In its latest article, USA Today noted that its project to collect misconduct information started in 2016. Despite having three-plus years to locate data on Mass, the gaping hole remains. That is the result of our demonstrably weak transparency law, which is largely unenforced. For anybody trying to get public information on police in Mass, there are several stumbling blocks, any number of which stymied USA Today (along with anyone else trying to obtain critical records, including this reporter).

One significant problem is that USA Today primarily relied on lists of decertified police. These are officers who have their licenses revoked, effectively barring them from continuing to work as law enforcement in that state. The process is designed to weed out bad apples, repeat offenders, or officers who do something so extreme that they become a liability to their departments. But according to the ACLU and Mass Police Reform, the Commonwealth is one of only four states that doesn't require certification or licensing. That despite our state requiring licenses for over 50 other professions. It now looks like Mass is about to take a step forward on this front, but we will be playing catch-up, and there’s no telling how long it will take for violent cops to lose their jobs, let alone for any related records to become public.

Another major source of records that the USA Today team harvested was Brady lists. Such compendiums draw their name from a 1963 US Supreme Court ruling establishing that prosecutors must disclose to defendants all evidence that might help their defense at trial, including information about police officers whose testimony could be impeached based on past lies or abuse. In 2014, I worked on a project attempting to get Brady lists from district attorneys around the state. We didn't get a single complete response, but instead received just two responses from DAs in Mass saying they do not keep these lists.

More recently, it appears that at least one DA has a Brady list, but after reviewing the list we noticed that it doesn’t even include Franicis Nobrega of the Lowell police. Nobrega was found by his own department to have purposely misled a Middlesex DA investigation into the in-custody death of Alyssa Brame, and two years ago he was suspended due to “irregularities in evidence.” Nobrega will earn $126,624 in 2020, and since the death of Brame, appears to have been promoted from sergeant to lieutenant, as he’s listed in this year’s budget.

Still, having an incomplete list of known bad apples is better than not having a list at all. Given that the Brady case established that failure to turn over this exculpatory evidence is basis for overturning a verdict, the lack of Brady lists in our state not only hurts efforts like the USA Today database, but also raises concerns that “justice” dispensed here is tainted by bad apples and prosecutorial neglect, if not outright misconduct.

Lastly, the ultimate hurdle is the Massachusetts public records law. Our transparency law was updated around the time that USA Today started its project, and effectively stripped the public of its right to access records in a timely manner. In some ways, the update removed the ability of the public to receive information at all. Before the change, the law was that records must be turned over without delay and within 10 calendar days of a request. That law was completely unenforced, but at least it mandated public access to records in a timely manner. The update, however, created a timeline for responses that grants agencies months or years of leeway and can result in indefinite delays. This has been especially true of police records.

The USA Today database also contains internal affairs files. In Mass, at least theoretically, such info should be available since a 2003 lawsuit established that the public has a right to see internal affairs files. But in practice this is seldom the case. Before the aforementioned legislative update, I was trying to obtain Massachusetts State Police (MSP) internal affairs files for some of the most frequently complained about officers. The department first generated a fee to determine what the fee would be, which is actually unlawful under state law. My team won an appeal, but then MSP came up with an obscene fee to obtain the records—almost $9,000—that they seem to have generated at random. As a result of this and other comparable behavior, MSP were awarded a golden padlock from Investigative Reporters and Editors (IRE) for being the most secretive government agency in the United States.

Things have not improved since the update to the records law. Two years ago, a scandal broke in which MSP troopers were falsifying shifts to collect overtime. At the time, I put in a records request for the internal affairs files of involved officers, since I realized that the scandal was bigger than the state was telling people. I had records showing that one trooper, for example, was cited for similar behavior years before the current scandal, but instead of replying to my request in a lawful manner, the department attempted to charge me $78,000 to provide a response. They were very clear that for my thousands of dollars, they would still not provide a single record, but instead would simply tell me if any records were responsive. Once again, they attempted to charge a fee to determine a fee, which is blatantly illegal. I've been appealing and winning appeals ever since; the matter was sent to the office of Attorney General Maura Healey months ago, but they have not contacted me since.

With no functional access to public records, incomplete Brady lists or none at all, and no police certification, Mass is simply behind the entire country in terms of transparency and accountability. It’s particularly noticeable, and all part of our deeply flawed criminal justice system. Perhaps the popularity of the USA Today series, along with protests and political action unfolding across the country including across the Bay State, will be a wake up call.

To support the author and to help fund future Crit.news coverage please become a donor.

This article was produced in collaboration with the Boston Institute for Nonprofit Journalism with CriticalMA. To see more reporting like this, please donate at givetobinj.org.