Cape and Islands District Attorney Robert Galibois II is at odds again with Dukes County Sheriff Bob Ogden, this time about whether the sheriff’s department records its booking room in the Vineyard’s only jail.
If Ogden’s department has had such recordings and failed to provide them for criminal cases, many cases both pending and closed could be compromised.
The dispute comes after months of Galibois and Ogden butting heads about the DA’s Brady policy, for which the district attorney asked each law enforcement agency in the district to turn more than 20 years of Brady material — officer disciplinary records that the prosecutors are legally required to provide to defense attorneys, which Ogden has so far declined to do.
In the latest dispute, the sheriff’s office has been summoned to the local courthouse, a filing that it is pushing back against.
Cape and Islands Assistant District Attorney Tara Cappola explained this latest, separate clash over booking-room recordings in a July 19 letter to Ogden, filed in Edgartown District Court.
“It has recently come to my attention that the Dukes County Sheriff’s Office [DCSO] audio and video records the booking process of defendants,” Cappola wrote. “Any image, video, or audio of a defendant possessed by a member of the prosecution team must be provided to the commonwealth.”
Her letter cites Rule 14 of the Massachusetts Rules of Criminal Procedure — this rule states which materials prosecutors must disclose to defense attorneys, including materials that might exonerate a defendant.
For example, the case in which the recording dispute has taken place so far is Commonwealth vs. Jack R. Holmes, a case almost exactly one year old, in which a man, according to police reports, was allegedly driving a stolen moped while intoxicated. A video of the booking room in a case like this could, for example, show Holmes acting less intoxicated than a police report describes, which could be valuable evidence for a defense attorney.
And on the Island, the sheriff’s office is responsible for booking recent arrests, instead of any police department.
Cappola’s letter asks Ogden to provide six types of information: the exact date the sheriff’s department became able to record bookings; a list of every booking done since that date; copies of all such booking videos available; the name and title of the person responsible for the video system, as they would likely have to serve as a witness; anything posted in the booking room indicating that the suspect or defendant is being recorded; and confirmation that no other cameras automatically record the suspect or defendant.
The letter also states that if the videos were recorded and not preserved — for example, if they were automatically overwritten — many cases, even closed ones, could be impacted. “As you can imagine, the failure to preserve, and provide, this evidence is likely to compromise a significant amount of cases, both pending and closed, which have come through your Department,” Cappola wrote.
In a motion for an evidentiary hearing in the Holmes case, Cappola wrote that another recent case tipped the DA’s office off to the possibility of the sheriff recording the booking room.
“[A] Dukes County Sheriff’s Deputy testified that ‘There were cameras in the booking room, and that they may or may not record. The deputy was unclear.’ … Defense counsel stated further, ‘I have also received discovery in another case where Maj. Arpin at the DCSO states that the camera system in the jail does record, but they only keep recordings for internal affairs investigations,'” the assistant district attorney wrote.
Cappola then states that after receiving that information, the Commonwealth reached out to Ogden’s office for information about the camera system, and received a response that did not address whether cameras are present in the booking area.
Ogden did not find the assistant DA’s letter compelling, as is clear in his reply addressed to Galibois that same day: “The letter addressed to me and copied to all the Police Chiefs on Martha’s Vineyard was not only unprofessional, but another concerted effort to discredit this Office with our law enforcement partners on the Vineyard,” Ogden wrote.
His reply states that his department records no video or audio of booking defendants, and that Rule 14 does not require all booking recordings be submitted to defense attorneys.
Ogden’s affidavit, filed July 25, however, states that his office has recorded such videos for decades: “As the district attorney is aware, the video recording of the booking in this case was written over long ago,” he wrote. “Unless there is reason not to do so, this is the procedure that has been followed for decades.”
Ogden’s July 19 reply also wholly rejected Cappola’s statement that failure to preserve and provide such recordings would likely compromise a significant number of open and closed cases.
“The list of six items or actions that Atty. Coppola’s letter is ‘requesting’ of me are wholly out of line and have no basis in law … virtually every assertion in her letter is predicated on a misunderstanding of the law,” Ogden added.
“When properly needed and requested, this Office will cooperate, as always, with your Office and the police departments on the Vineyard. There has never been a case lost because of any improper handling of booking video by my staff,” he concluded.
The district attorney has responded by summoning the sheriff’s office to a hearing. In a July 23 court filing, Galibois’ office requested Sheriff Ogden, Special Sheriff James Neville, Capt. Michael Trance, and Lt. Nathan Vieira come before the court.
Ogden and Neville have filed in the Holmes case to quash the summonses, stating that they were served in retaliation for the dispute over Brady materials. “[T]he District Attorney has issued these Summonses in bad faith, knowing that neither the Sheriff or the Special Sheriff had anything to do with the Defendant in this case. Clearly the motivation was to annoy and embarrass the Sheriff and Special Sheriff in retaliation for the Sheriff’s refusing to comply with the District Attorney’s unlawful demand for employment records for all staff of the Sheriff’s Office over the past 20 years,” their filing states.
Ogden and Neville also stated that Galibois included neither of them in a list of witnesses the DA provided to defense attorneys, and that the defense requested no witnesses from the sheriff’s office, or copies of booking videos, or anything related to the sheriff’s department’s activities while Holmes was at the jail.
In a filing two days later, however, Holmes’ defense attorney, Robb Moriarty, requested that the court produce all digital recordings related to Holmes’ booking, among other related materials.
The Holmes case last appeared in court on August 12 for a hearing, though that was rescheduled to the 30th. A judge then might determine whether to order Ogden’s department to provide any recordings and related information.
Ogden did not respond to a request for comment, and Galibois declined to comment on the pending litigation.
Galibois is a bad apple as was evidenced by his own hit and run incident shortly after being elected.
Transpancey
What is being hidden? Why not provide the recordings?
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