Cape Island Sheriffs Hit Back at Prosecutor

The legal dispute between the Cape and Islands district attorney and two sheriffs continued Friday in the state's highest court, as sheriffs from Dukes and Barnstable counties filed a motion to dismiss the district attorney's attempt to obtain the deputy sheriff's disciplinary records through the courts.

Dukes County Sheriff Bob Ogden and Barnstable County Sheriff Donna Buckley filed separate petitions with the Massachusetts Supreme Court. They argue that the district attorney cannot order them to submit 20 years of Brady documents, a kind of police disciplinary record. Ogden also said in his filings that the district attorney’s office rejected his efforts to establish a mutually agreeable policy for the future.

Ogden filed his motion to dismiss the prosecutor's complaint on Friday, June 28, and Barnstable County Sheriff Donna Buckley filed a similar motion to dismiss a week earlier.

The dispute centers on a policy instituted by District Attorney Robert Galibois II when he took office, in which he requested documents from each of the district's 24 law enforcement agencies on Officer Brady from the past 20 years.

These Brady documents, named after a 1963 Supreme Court decision, refer to potentially exculpatory information that prosecutors are legally required to provide to defendants before trial. Defense attorneys must be informed, for example, if a law enforcement officer in a case has been convicted of racial profiling or excessive use of force, or sexual harassment.

After being pushed back by local sheriffs for months, Galibois filed a complaint in the form of a mandamus on June 10 asking the Supreme Court to determine whether Sheriffs Ogden and Buckley refused to perform their lawful duties and, if so, to order them to produce the deputies' disciplinary records.

In the legal brief filed Friday, Ogden's motion states that the sheriff's office has never failed to provide records about Brady to a prosecutor when requested for a pending case, nor does the office intend to withhold such records from prosecutors in pending cases in the future. Providing 20 years of records is also not required by law, Ogden wrote.

“The Sheriff, like all law enforcement agencies in the Vineyard and throughout the state, has significant difficulty attracting and retaining qualified personnel,” the legal filing states. “While the Sheriff’s Office has complied, and intends to comply, with specific requests for information about Brady involving members of a pursuit team, an even broader disclosure of information about all officers over a twenty-year period, regardless of whether they were involved in an arrest or a member of a pursuit team, could have a chilling effect.”

The argument adds: “Questioning the bias, integrity or fitness of a staff member in the general circumstances required by the DA's Brady policy is wholly inconsistent with the legitimate goals of Brady and his descendants.”

Ogden also argues that the district attorney rejected his efforts to resolve the dispute out of court.

“At my suggestion,” Ogden wrote in a sworn statement attached to his motion to dismiss, “our legal counsel contacted the D.A.’s office to suggest that we work together to develop a mutually agreeable Brady policy. That offer was not accepted.”

Ogden also wrote that his decision whether or not to provide all the requested information is discretionary, and cited the Ardon v. Comm. for Public Counsel Servs. decision that “mandamus cannot be used to compel a public body to perform a discretionary act.”

The sheriff's motion also stipulated that his staff of about 50 people was generally not involved in arrests or conducting police investigations, and instead held people arrested by local police departments at the county correctional facility.

Ogden adds that a similar request for a 20-year rollback has not been made to the chief of the Massachusetts State Police barracks in Vineyard.

The prosecutor's office declined to comment to The Times on Monday.

Sheriff Buckley, in his motion to dismiss, stated that his position was that “the law does not support potential requests for information about Brady unrelated to the identified cases and members of the prosecution team or “authorizes… a twenty-year agency-wide 'look back' in search of all the [potential] “Brady issues.”

The two sheriffs mentioned Graham v. District Attorney for the District of Hamdenstating that “a prosecutor's duty is simply to inquire about the existence of potentially exculpatory information.”

On Monday, Supreme Court Associate Justice Frank Gaziano transferred both cases to their respective county courts.