A Vineyard police sergeant’s alleged misconduct ruined his value as a witness, and may have damaged the reputations of the two departments where he worked. Following a credibility attack by Edgartown defense attorney Ryan Searle, Tisbury Police Sgt. Jeff Day was found to be unusable as a prosecution witness last winter, records recently obtained by The Times show.
In the wake of the finding, Sgt. Day resigned from the Tisbury Police Department. The determination on Sgt. Day’s worthiness as a witness was made by Cape and Islands District Attorney Michael O’Keefe’s office, and spelled out to Tisbury Police Chief Chris Habekost on Feb. 17. The next day, Feb. 18, Sgt. Day was placed on paid leave. His resignation came in May. Searle’s legal criticisms, which were made in defense of a woman charged with OUI, weren’t limited to Sgt. Day. Records show Searle attacked the credibility of the Chilmark and Tisbury Police Departments too, for what she argued was a failure to report Day’s transgressions for roughly 10 years.
Records also show O’Keefe’s office tapped Laura Marshard, an assistant district attorney previously found culpable of prosecutorial misconduct by the Board of Bar Overseers, to help evaluate the merits of Sgt. Day’s internal investigation records. It’s unclear how comprehensively Marshard reviewed those records. In an opinion email, Marshard references only eight pages of a longer file, and suggests a court might prohibit Sgt. Day’s impeachment by means of internal investigation records because of the “confusing/inconclusive information” they contain, and because of the age of the events explored in the records. Records previously obtained by The Times show Sgt. Day was alleged to have used excessive force to kill a turkey, and to have allegedly stolen a gun while he was at the Chilmark Police Department (and allegedly lied to his chief about the gun), to have allegedly been untruthful in order to facilitate a vehicle search, to have allegedly lied to his chief at the Tisbury Police Department about the Chilmark gun matter, and alleged to have falsely identified and arrested a man.
Searle’s challenge to Sgt. Day’s credibility came in the OUI case of Donna Harris. As part of her defense of Harris, Searle filed a blistering motion on Nov. 30, 2021, in which she accused Sgt. Day of eight acts of misconduct and three criminal offenses. The main purpose of Searle’ motion was to counter a motion made by O’Keefe’s office meant to keep Sgt. Day’s past behavior out of court. Signed by ADA Elizabeth Sweeney, the prosecution’s motion encompassed a broader body of records than what was mentioned in Marshard’s email. Marshard’s email focused on a 2014 investigation by former Tisbury Police Lt. Eerik Meisner that concluded, based on the information available at the time — which largely stemmed from one person, Chilmark’s Chief Brian Cioffi — that the allegations against Sgt. Day regarding the gun and the vehicle search couldn’t be corroborated. Former Chief Cioffi declined comment for this story.
However, Tisbury’s Chief Daniel Hanavan conducted a further investigation in 2016, in the form of an administrative interview. Hanavan conducted that interview in pursuit of the theory that Sgt. Day (a patrol officer at the time) hadn’t been honest about circumstances regarding the gun in Chilmark, and hadn’t been honest about why he left the Chilmark Police Department.
ADA Sweeney made note of Hanavan’s findings in her motion: “Chief Hanavan found that after conducting an administrative interview with Officer Day and reviewing a statement from the owner of the firearm, Officer Day had been untruthful about the receipt of the firearm and his reasons for leaving Chilmark Police Department.”
Sweeney also wrote that the Chilmark Police Department “determined that Officer Jeff Day had been untruthful regarding his receipt of a firearm in 2008 for destruction from a private individual at the police station. The Chilmark Police Department also found him untruthful regarding the tow of a private individual’s car during a drug arrest in 2012.”
Sweeney suggested Chief Hanavan tried to prevent disclosure of the Day investigation.
“[The] Tisbury Police Department scheduled a disciplinary hearing before the board of selectmen,” the motion states. “Prior to the hearing, Hanavan questioned whether the internal affairs investigation should be disclosed to the District Attorney’s Office, and there is a note stating to hold off until the administrative hearing. Prior to the hearing, Officer Day agreed to a five-day suspension, and the hearing did not occur.”
Hanavan didn’t respond to a voice message seeking comment for this story.
In her motion, Sweeney argued that while the prosecution was disclosing exculpatory information to the defense “in order to meet — and possibly exceed — both federal and state ethical and constitutional requirements,” that information was nevertheless not admissible based on case law.
While pushing to exclude Sgt. Day’s prior conduct, Sweeney made it clear the prosecution didn’t excuse that conduct.
”The commonwealth does not condone or defend Officer Day’s untruthful conduct, which resulted in these internal affairs investigations,” the motion states.
ADA Tara Miltimore, a spokesperson for O’Keefe’s office, told The Times Monday neither Marshard nor Sweeney were available, as they were out of the office. Miltimore reached out to them via email, however, but has yet to indicate if they’ve responded. Day did not immediately respond to a voicemail seeking comment for this story and hasn’t responded to voicemails in the past for related stories.
In a Jan. 27 decision filed Feb. 10 in Edgartown District Court, Judge John Julian disallowed Sgt. Day to be examined regarding his internal investigation records. However, Judge Julian allowed those records to be admitted as exhibits in the Harris case.
On Feb. 15, O’Keefe’s office signaled it was done with Sgt. Day. In an email to Chief Habekost on that date, First Assistant District Attorney Michael Trudeau wrote, “Hi Chief, I have attached the court’s ruling on the Brady material involving Sgt. Day. Unfortunately, it appears that this is going to be an ongoing situation that will require litigation on each case that he is involved in. Please give me a call so that we can discuss it. Thanks, Mike”
“The Brady Rule, named after Brady v. Maryland, 373 U.S. 83 (1963), requires prosecutors to disclose materially exculpatory evidence in the government’s possession to the defense,” online material from Cornell University’s Legal Information Institute states. “‘Brady material,’ or evidence the prosecutor is required to disclose under this rule, includes any evidence favorable to the accused — evidence that goes towards negating a defendant’s guilt, that would reduce a defendant’s potential sentence, or evidence going to the credibility of a witness.”
Two days after Trudeau’s email, on Feb. 17, Chief Habekost emailed back, “Just to clarify from our conversation on Tuesday the 15th, that due to the situation where Sgt. Jeff Day’s credibility has been called into question regarding being untruthful during a previous internal affairs investigation, your office will not be able to use him as a witness for the prosecution in any future criminal proceedings, is that correct?”
Trudeau replied the same day, “Hi Chief, That is correct. After a review of the multiple findings that bear directly on Sgt. Day’s credibility and the court’s order holding that the internal affairs reports are admissible at an evidentiary hearing, our office has determined that it will not be utilizing Sgt. Day as a witness in any capacity at future hearings in any criminal matters. I will be drafting a more formal letter to that effect, and will forward it to you. Thanks, Mike”
In her motion, Sweeney had argued that Sgt. Day’s alleged misconduct was too old for the court to allow into evidence. Despite the events in question with Sgt. Day stretching back years, Searle argued in her motion that Sgt. Day’s alleged acts of misconduct weren’t disclosed to the defense until Nov. 1, 2021. Searle accused former Chief Hanavan and former Chief Cioffi of failing to inform O’Keefe’s office of Sgt. Day’s alleged misconduct.
“In this case, Sergeant Jeff Day’s credibility is a critical issue both at pretrial evidentiary hearings and at any trial that may occur,” Searle wrote. “He is the arresting officer and the sole commonwealth witness regarding the essential element of operation. The disclosures made by the commonwealth regarding Sergeant Day’s prior misconduct show a pattern of misconduct while in uniform from 2012 to May of 2021, while employed by the Chilmark Police Department and later the Tisbury Police Department. Sergeant Day’s acts of misconduct were not related to personal matters, but acts performed while on duty and in uniform. The commonwealth argues that Sergeant Day’s prior misconduct is too old to be relevant. However, as noted in the commonwealth’s Motion in Limine, both former Tisbury Chief of Police Hanavan and former Chilmark Chief of Police Cioffi failed to notify the Cape & Islands District Attorney’s Office of the acts of misconduct as they were discovered.”
In her motion, Searle accused Sgt. Day of eight acts of misconduct:
- Being disciplined and having to attend a “report writing” class and another class after a 2008 incident. Searle doesn’t describe the incident, but records obtained from the Chilmark Police Department show it was shooting an allegedly belligerent turkey with a department handgun.
- Receiving a firearm from somebody who wanted it destroyed and instead keeping it for himself. Searle described this as a felony. “Although the statute of limitations for larceny of a firearm is only six years,” the motion states, “the commonwealth should not benefit from the Chilmark and Tisbury Police Departments’ intentional withholding of this exculpatory evidence since 2012.”
- Lying to the West Tisbury Police to facilitate the search of a vehicle. “Day lied to the West Tisbury Police,” the motion states, “and said he did not know how to contact the vehicle’s registered owner, which led to an inventory search of the vehicle for investigatory purposes, thereby violating G.L. c. 268, § 13B. Again, the statute of limitations for a violation of the witness intimidation statute is six years, but the commonwealth should not benefit from the Chilmark and Tisbury Police Departments’ intentional withholding of exculpatory evidence for nearly a decade. This particular false statement is one that the Supreme Judicial Court noted as of the utmost concern, an example of law enforcement ‘high crimes and misdemeanors,’ because it was a false statement that may lead to an unjust conviction.”
- Lying to Chief Cioffi about the gun turned in for destruction.
- Lying to Chief Cioffi about lying to the West Tisbury Police.
- Lying in a “pre-employment interview” to the Tisbury Police Department after leaving the Chilmark Police Department, specifically lying about the firearm and about why he left Chilmark. “This misconduct was not discovered until long after Sergeant Day was hired by the Tisbury Police Department. In June 2014 the Tisbury Police Department conducted an internal investigation into Sergeant Day’s untruthfulness from 2012, where he told Lieutenant [Eerik] Meisner that he did not lie to Chief Cioffi. Due to lack of evidence at the time, this investigation was determined to be unfounded.”
- Lying to Chief Hanavan about the operability of the firearm and how he got it. Sgt. Day was ultimately suspended for five days based on those lying allegations.
- The false arrest of a man in 2021. “Sergeant Day was convinced that he was arresting an individual on outstanding warrants,” the motion states. “Despite the individual’s protestations and confusion, Sergeant Day failed to request or otherwise confirm the individual’s identity. When that individual was taken to the Dukes County Sheriff’s Department for booking, his mother, an employee at the jail, pointed out that the individual was not the individual with the warrants. By arresting the wrong individual without checking their identity, Sergeant Day at a minimum committed assault and battery in violation of G.L. c. 265, § 13A(a), and arrest on false pretense in violation of G.L. c. 263, § 2. This act of misconduct is less than one year old, and is in no way too old to be relevant. Sergeant Day was found to be in violation of Tisbury Police Department policies for job knowledge/competence and neglect of duty in connection to his false arrest of the unnamed private citizen on May 21, 2021.”
Chiefs and records
Emails and other records provided to The Times by the Chilmark Police Department show that O’Keefe’s office reached out via email on Sept. 22, 2021, seeking Brady material related to Jeff Day. The email indicated the material was needed for a Nov. 1, 2021, Edgartown District Court hearing on the Harris case. Chilmark Police Chief Jonathan Klaren emailed back on Sept. 24, 2021, to say he had nothing responsive. O’Keefe’s office reached out again by email on Oct. 18, 2021, with a second request. On Oct. 29, after an apparent discovery, Chief Klaren sent an email to ADA Matt Palazzolo to say he was sending responsive material.
“Please let me know if you would like to examine the entire file, or seek supporting docs that may not be contained in that file,” Chief Klaren emailed.
Chief Klaren told The Times twice by email in 2020, when presented with a public records request on Jeff Day’s IA file, that he could not locate those records.
In September, he explained to The Times he happened upon Day’s records back in October 2021 in his police station in a storage area, when he was hunting for a new citation book. When asked for some proof the department still had in evidence the gun Sgt. Day allegedly stole when he was at the Chilmark Police Department, the department emailed a photograph of the gun in a clear evidence bag. The bag was set against an issue of the Vineyard Gazette.
The Times was told Chief Klaren was unavailable when a call was placed to the department Friday. Chief Klaren didn’t respond to an email seeking comment.
Following a records fight adjudicated by the state’s Supervisor of Records, Tisbury, via town counsel, provided its internal investigation records of Sgt. Day to The Times on August 21, 2020. Day’s records came along with material on other officers. What Tisbury provided The Times back then doesn’t appear to be what Chief Habekost provided O’Keefe’s office, however. Based on a copy of Chief Habekost’s Sept. 23, 2021, email to O’Keefe’s office, and the attachments to that email, Chief Habekost didn’t share records on Hanavan’s administrative interview of Day, at least initially. O’Keefe’s office eventually appears to have received that interview transcript, however.
Chief Habekost didn’t respond to a voice message seeking comment.
In her motion, Searle argued the court should allow Day’s alleged misconduct to be used as evidence.
“Sergeant Day’s acts of misconduct from 2012 to 2021 are relevant and admissible in this matter because 1) his credibility is a critical issue in this case as he is the arresting officer and sole witness who can testify to the essential element of operation; 2) he has established a pattern of dishonesty and misconduct while employed by two Island police departments over the past decade; and 3) his misconduct occurred while performing his duties as a police officer. The acts of misconduct from 2008 and 2012 are not too old to be relevant, because the Chilmark and Tisbury Police Departments failed to notify the Cape & Islands District Attorney’s Office of the misconduct as it occurred, and instead withheld the information until defense counsel raised the issue at a pretrial hearing in this case in September 2021, despite local newspaper coverage on the issue in June 2021. The commonwealth should not benefit from the departments’ withholding of exculpatory information for nearly a decade. To preclude evidence or examination regarding Sergeant Day’s prior misconduct would be manifestly unjust, and would deny the defendant … her right to present a full defense in this matter.”
Searle eventually resolved the case with a dismissal of Harris’s OUI, and probation for a related charge. However, Harris is expected to appear for a probation violation hearing in early 2023.
Searle didn’t respond to a voice message seeking comment.
Searle’s motion was provided to The Times following a public records request made to O’Keefe’s office. The motion and a cover letter to the court clearly state “UNDER SEAL.” On Friday, despite the case being resolved, a court official told The Times the case remains under seal. When asked how a sealed court record could have been conveyed as part of a public records request, Miltimore said it was shared inadvertently.
