Dispute heats up between DA and sheriff

The Cape and Islands District Attorney’s office escalated its dispute with the Dukes County sheriff’s office Wednesday as two of the Island’s most powerful institutions fought over the prosecutor’s demands for disciplinary records from law enforcement agencies. 

The DA’s office filed motions in two additional criminal cases in Edgartown District Court, bringing the total to 10 pending cases in which it is asking judges to give the sheriff two weeks to supply so-called Brady material or hold a hearing that could potentially lead to cases being dismissed. 

One of the two cases, involving an alleged drunk driver, was dismissed in court later Wednesday when the prosecutor told the judge that sheriff’s deputies, who had administered the Breathalyzer tests and witnessed the defendant’s behavior, were necessary to proceed. 

Brady materials, named for a landmark 1963 Supreme Court ruling, refer to exculpatory or impeaching information that prosecutors are legally required to provide criminal defendants before trial. Defense lawyers must be informed if a police officer in a case has lied in official proceedings, for example, or been found to use racial profiling or excessive force.

In a telephone interview, the district attorney, Robert Galibois II, said he would file additional motions on a rolling basis as cases come to trial if the sheriff doesn’t turn over the personnel records he seeks. “We will continue to file until there is compliance with our request or we seek other remedies,” he told The Times. 

One of the motions filed Wednesday was in the case of Devante Santiago, who was charged for allegedly beating a man outside the Ritz Cafe in Oak Bluffs early Friday morning. The other case, involved a driving violation and intoxication, was dismissed after the motion was filed. 

An affidavit attached to each notice states that the DA’s office sent an updated Brady policy in January to each of the district’s 24 law enforcement agencies, requesting the past 20 years of Brady materials for law enforcement officers. 

Galibois told The Times that two sheriff’s offices, those of Dukes and Barnstable counties, have pushed back. He said he is seeking 20 years of records to address the lack of an established Brady policy for his office before he was elected in 2022. 

“We’re going back to review cases from the past, because historically there hasn’t been a policy in this office,” he said.

Sheriff Robert Ogden did not respond to several calls this week seeking his comment. In a letter to The Times on Monday, Ogden said the district attorney’s demands for records put an unreasonable burden on his office. 

“It is totally unfair to require making public every time my dedicated staff is targeted by disgruntled or vindictive individuals,” he wrote. “All records provided to his office can become public upon request by anyone. I have a hard enough time recruiting and retaining staff. On a small Island where nearly everyone knows one another, a false accusation can be troubling to a correction officer as well as their family.”

Galibois dismissed those concerns as unwarranted. “What we’re looking for are any records of any employee who was deemed untruthful or engaged in excessive force, or engaged in a sexual harassment,” he told The Times. “We have no interest in any allegations that are deemed to be false.”

Galibois’s office initially filed motions seeking the Brady material in 10 criminal cases last Thursday. That same day, Judge Benjamin Barnes dismissed one of the cases, however, after the alleged victim in a domestic abuse violation case did not appear in court. 

The two offices have been at odds for months over the demand for Brady materials. 

According to an affidavit filed in court last Thursday by Tara Cappola, second assistant district attorney and head of the unit that deals with Brady materials, Ogden responded to the request for 20 years of records by saying, “It would create an undue burden on them to comply with our request.” 

On May 22, sheriff’s counsel Jack Collins told the DA’s office that he would review a request for the list of current employees. His response a week later did not address the request for former employees, however.

“At this point, the commonwealth is unable to certify that we have complied with our ‘Brady’ obligations on this case because there are Sheriff’s Department witnesses involved,” Cappola wrote. 

Edgartown Police Chief Bruce McNamee told The Times that his department met the Brady policy with relative ease, but that the sheriff’s office is not comparable to his. 

“Compliance with [the Brady policy] isn’t a challenge for Edgartown Police,” he said. “However, we are a different agency. The sheriff’s department is a bigger one. It sees lots of turnover. Sometimes their department is a jump-off point for employees jump-starting their career … Our 20-year look back and his are very much apples and oranges.”