The legal dispute between the Cape and Islands D.A. and two sheriffs continued in the state’s highest court on Friday, as both the Dukes and Barnstable County Sheriffs filed to dismiss the D.A.’s attempt to obtain deputy sheriff disciplinary records through the courts.
Dukes County Sheriff Bob Ogden and Barnstable County Sheriff Donna Buckley have filed separate motions in Massachusetts Supreme Judicial Court. They argue that the District Attorney cannot order them to submit 20 years of Brady materials, a type of officer disciplinary record. Ogden also stated in filings that the D.A.’s office has rejected his efforts to set up a mutually agreeable policy going forward.
Ogden filed his motion to dismiss the D.A.’s complaint on Friday, June 28, and Barnstable County Sheriff Donna Buckley filed a similar motion to dismiss a week before.
The dispute centers on a policy instituted by D.A. Robert Galibois II upon taking office, in which he asked each of the district’s 24 law enforcement agencies for officer Brady materials from the past 20 years.
These Brady materials, named for a 1963 Supreme Court ruling, refer to potentially exculpatory information that prosecutors are legally required to provide criminal defendants before trial. Defense lawyers must be informed, for example, if a law enforcement officer in a case has been found to use racial profiling or excessive force, or engaged in sexual harassment.
After being rebuffed by the local sheriffs over a period of months, Galibois filed complaints in the form of mandamus on June 10 asking the Supreme Judicial Court to determine whether Sheriffs Ogden and Buckley had refused to perform their lawful duties, and, if so, to order them to provide deputies’ disciplinary files.
In Friday’s legal filing, Ogden’s motion states that the Sheriff’s office has never failed to provide Brady material to a prosecutor when requested for a pending case, nor does the office intend to withhold such material from prosecutors in pending cases going forward. Providing 20 years of records is also not required by statute, Ogden wrote.
“The Sheriff, as are all law enforcement agencies on the Vineyard and across the state, is experiencing great difficulty in attracting and retaining qualified staff,” the legal filing reads. “Although the Sheriff’s Office has complied, and intends to comply, with case-specific requests for Brady information involving members of a prosecution team, even broader disclosure of information concerning all officers over a twenty-year period, without regard to whether they were involved in an arrest or members of a prosecution team, could have a chilling effect.”
The argument adds, “to call into question a staff member’s bias, integrity, or fitness in the broad circumstances required by the D.A.’s Brady policy is wholly inconsistent with the legitimate goals of Brady and its progeny.”
Ogden also argues that the District Attorney has rejected his efforts to resolve the disagreement outside of the courts.
“At my suggestion,” Ogden wrote in an affidavit attached to his motion to dismiss, “our General Counsel contacted the D.A.’s Office to suggest we work together to develop a mutually agreeable Brady Policy. This offer was not accepted.”
Ogden also wrote that his decision on whether to provide all requested information is discretionary, and cited from the Ardon v. Comm. for Public Counsel Servs. decision that “mandamus cannot be used to compel a public agency to perform a discretionary act.”
The Sheriff’s motion also stated that his staff, of around 50 individuals, typically have no involvement with making arrests or conducting law enforcement investigations, and instead keep at the County House of Correction people arrested by local police departments
Ogden adds that a similar demand for a 20-year look back was not not made to the head of the Massachusetts State Police barracks on the Vineyard.
The D.A.’s office declined to comment to The Times on Monday.
Sheriff Buckley, in her motion to dismiss, stated her position that “the law does not support demands for potential Brady information unrelated to identified cases and prosecution team members or ‘countenance … an agency-wide, twenty-year ‘look back’ in search of any and all [potential] “Brady-related issues.’”
Both Sheriffs cited Graham v. District Attorney for the Hamden District, stating that “A prosecutor’s duty is simply to inquire ‘about the existence of potentially exculpatory information.’”
On Monday, Supreme Judicial Court associate justice Frank Gaziano transferred both cases to their respective county courts.
