In re A Grand Jury Investigation

485 Mass. 641

152 N.E.3d 65

In the MATTER OF a GRAND JURY INVESTIGATION.

SJC-12869

Supreme Judicial Court of Massachusetts, Suffolk..

Argued April 7, 2020.

Decided September 8, 2020.

William T. Harrington, Hingham, (Edward P. Harrington also present) for the petitioners.

Shoshana E. Stern, Assistant District Attorney, for the Commonwealth.

Scott P. Lewis, Samuel B. Dinning, Matthew R. Segal, Jessica J. Lewis, & Daniel L. McFadden, Boston, for American Civil Liberties Union of Massachusetts, Inc., & another, amici curiae, submitted a brief.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

GANTS, C.J.

In 2019, the district attorney learned through immunized grand jury testimony that two police officers, the petitioners in this case, knowingly made false statements in their police reports that concealed the unlawful use of force by a fellow officer against an arrestee and supported a bogus criminal charge of resisting arrest against the arrestee. The district attorney, to his credit, prepared a discovery letter describing the petitioners' misconduct and asked a Superior Court judge to authorize its disclosure to defense counsel as potentially exculpatory information in unrelated criminal cases where the petitioners might be witnesses. The judge authorized the disclosure. The petitioners appealed, claiming that the information should not be disclosed to defense counsel in unrelated cases because disclosure is not constitutionally required and would reveal information obtained from immunized testimony before a grand jury. We affirm the judge's order of disclosure.¹

Background. We recite the facts of this case based upon the information contained in the G. L. c. 211, § 3, petition and the parties' agreed upon statement of facts. The petitioners are Fall River police officers who were present when fellow police officer, Michael Pessoa, used force while arresting an individual (arrestee) on February 12, 2019. Pessoa submitted an arrest report concerning the arrest; the petitioners did not. A few hours after the arrest, the petitioners were ordered by their superiors to each complete the police department's Use of Defensive Tactics Report (use-of-force report) because the arrestee was observed to have a bloody lip while being booked at the police station. The petitioners are not themselves alleged to have used force during this incident.

The use-of-force report is a preprinted two-page form that a police officer must complete after using force on a suspect or arrestee. The kinds of use-of-force range from the use of a firearm or pepper spray, to the use of certain hands-on force, such as an "arm bar take down". A use-of-force report is not an incident report or an arrest report; rather, it is an internal police department report generated to memorialize an officer's use of force during an encounter with an individual. Each of the petitioners executed a use-of-force report that, in essence, adopted Pessoa's version of events as set forth in his incident report -- namely, that the arrestee was noncompliant, threatened to punch the officers, and was then taken to the ground by Pessoa in making the arrest.²

After the arrestee was charged with various offenses, including resisting arrest, his defense attorney provided the district attorney for the Bristol district with a videotape of surveillance footage that showed the arrest and Pessoa's use of force on the arrestee.³ The footage of the incident was inconsistent with the descriptions the petitioners provided in their use-of-force reports.⁴ Specifically, the footage showed that the arrestee was physically compliant when one of the petitioners removed his handcuffs, and that Pessoa then struck the arrestee on the left side of his head-shoulder area, causing the arrestee, according to the agreed upon statement of facts, "to be taken to the ground in a violent manner."⁵

Prompted by the videotape, the district attorney initiated a criminal investigation into Pessoa's conduct. This investigation resulted in a grand jury returning fifteen indictments against Pessoa for crimes involving four separate arrestees, including charges for assault and battery by means of a dangerous weapon causing serious bodily injury, assault and battery, civil rights violations, witness intimidation, filing false police reports, and malicious destruction of property.⁶

During the criminal investigation of Pessoa, the district attorney subpoenaed the petitioners to testify before the grand jury. In light of the apparent inconsistencies between their use-of-force reports and the videotape, the petitioners each asserted his privilege against self-incrimination under the Fifth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights. The district attorney then sought and obtained orders of immunity pursuant to G. L. c. 233, §§ 20C - 20G, from a Superior Court judge. The judge found that each petitioner "did validly refuse to answer questions or produce evidence on the grounds that such testimony or such evidence might tend to incriminate him." The immunity orders provided that the petitioners

"be granted immunity from prosecution, and not be subjected to any penalty or forfeiture with respect to the transaction, matter or thing concerning which he is compelled to testify or produce evidence, and no testimony concerning said crimes shall be used as evidence against the witness in any Court of the Commonwealth, except in a prosecution for perjury or contempt committed while giving testimony or producing evidence under compulsion of this order."

The grant of immunity compelled the petitioners to "give testimony and produce evidence" before a "jury in these proceedings." During interviews prior to their grand jury testimony and during their grand jury testimony, the petitioners admitted that their use-of-force reports were false.

On August 13, 2019, the district attorney's office filed two motions in the Superior Court. A Superior Court judge ordered both motions impounded, and they were not served on the petitioners. In the first motion, the district attorney sought authority to disclose information from a petitioner's grand jury testimony to defense counsel for criminal defendants in cases unrelated to the prosecution of Pessoa where the petitioner was "a potential witness," asserting that it was obligated to make such disclosures under Brady v. Maryland, 373 U.S. 83, 87-88, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and Giglio v. United States, 405 U.S. 150, 155, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) ( Brady disclosure motion). Attached to the motion was a proposed discovery letter that identified the relevant petitioners and stated that each is a police officer with the Fall River police department who "has been given a grant of immunity as part of the Pessoa grand jury investigation," and who "admitted to filing a false police report" as part of that case.⁷

In the second motion, the district attorney sought an order authorizing the disclosure of information concerning the petitioners' grand jury testimony to their municipal employer, the Fall River police department (employer disclosure motion). Attached to the employer disclosure motion was a proposed letter to the Fall River police chief, setting forth the same statements in the proposed Brady disclosure letter.

On or about August 16, 2019, counsel for the petitioners learned that the district attorney's office had filed an internal affairs complaint against the petitioners with the Fall River police department, and learned of the employer disclosure motion. Shortly thereafter, the petitioners filed a motion in the Superior Court seeking standing to oppose the employer disclosure motion. Petitioners subsequently learned of, and sought to object to, the Brady disclosure motion.

The Superior Court judge allowed the petitioners to oppose both motions.⁸ After oral argument, the judge allowed the district attorney's motion to make the Brady disclosure but denied the employer disclosure motion. In allowing the Brady disclosure motion, the judge concluded that the proposed discovery letter "is potentially exculpatory evidence as it may tend to negate the guilt of criminal defendants against whom the officers may be witnesses at trial." The judge ordered the Commonwealth to "notify by means of the proposed discovery letter, all defendants of cases not yet tried and cases now disposed that were tried after the date of the filing of the false police reports, for which the identified officer either prepared a report or is expected to be a witness at trial."

In denying the employer disclosure motion, the judge concluded that the Commonwealth had not "shown that the need for disclosure outweigh[ed] the need for continued secrecy." The judge noted:

"It is apparent from the public nature of the indictments against Michael Pessoa, the public statements of the Fall River [p]olice [c]hief, and the media coverage on the topic, that the department has substantial information on which to commence disciplinary proceedings, and that the proposed statement the Commonwealth seeks to disclose to the department will provide no additional material information."

The petitioners sought and were granted a stay with respect to the allowance of the Brady disclosure motion, enabling them to seek relief from a single justice of this court pursuant to G. L. c. 211, § 3. The Commonwealth did not petition for relief from the denial of the employer disclosure motion. After a hearing, the single justice reserved and reported the case to the full court. The single justice directed the parties to address the following questions: (1) whether there is a Brady obligation in these circumstances to disclose information to unrelated defendants; (2) whether, if there is a Brady obligation, the Commonwealth may disclose the information even if it was obtained as a result of a judicial order of immunity or in the course of the petitioners' grand...