Berkshire County District Attorney Andrea Harrington addresses a meeting of the Williamstown Select Board on Monday evening at Williamstown Elementary School.
Berkshire DA: Up to Towns to Handle Officers on 'Brady List'
WILLIAMSTOWN, Mass. — If Select Board members hoped the Berkshire County district attorney would offer direction on how the town should deal with the impact of having a police officer on her office's "Brady list," they were very disappointed.
Twice during an hourlong presentation at Monday's Select Board meeting, District Attorney Andrea Harrington said it was not her office's place to tell towns how to respond when the county's prosecutor decides one of the municipality's law enforcement officers has a history that needs to be revealed to defense attorneys or, worse, that an officer's history is so concerning that he or she cannot be used as a prosecution witness without approval of a supervisor.
The town currently has 11 full-time officers — including one on administrative leave since March and another pulling double duty as lieutenant and interim chief. A third has been placed on Harrington's "do not call" list, meaning the DA has determined the officer has "made misrepresentations about material facts in a criminal investigation," she said Monday in Williamstown Elementary School's gymnasium.
Some in the community have wondered whether having an officer on the do-not-call list, particularly when the department already is short-handed, creates an issue for the department's efficiency. Many residents have suggested that the town should remove the officer on the list and replace him with an officer who can be fully functional.
Harrington indicated those are issues on which her office takes no position.
"Our authority over police officers is Brady policy and also prosecuting police officers for crimes," Harrington said in answer to a question from the floor of Monday's meeting. "But we do not govern the conduct of police officers. That is something that is governed by the local municipality. We certainly want to be helpful in terms of providing training, and my office has provided training. And we're happy to continue to work to do that.
"I think the [commonwealth's Peace Officer Standards and Training commission] … is really going to be a godsend and really be incredibly helpful in taking some of the politicization and some of the hard feelings and difficult process and having volunteers weighing in on really hard decisions."
Later, resident Andrew Art asked about the potential impact on crime victims whose cases are investigated by an officer who ultimately won't be called to testify by the district attorney's office.
"It's up to your town and every municipality how you want to be policed," Harrington said.
"I will say that we've had an excellent working relationship with the Williamstown Police Department, and we're very happy to have that partnership. It is concerning for my office when victims of crime say that they are afraid or intimidated or don't feel comfortable reporting crimes to the police because we do rely on the police having strong relationships with communities so victims feel confident coming to them. … We want to support the Police Department in building those relationships."
Twice Monday, Harrington was asked about whether and how police unions play a role when individual officers are placed on Brady lists — in Berkshire County or nationwide.
"There has been some pushback against Brady lists from the officers' unions," Harrington said. "There was a case that came out nine months ago, now, that specifically said the Brady obligations are obligations of prosecutors and, by extension, police officers, to defendants. The unions do not have a legal standing to say we cannot have a Brady list because the defendant's constitutional rights supersede labor and employment rights."
The town might experience a different kind of pushback if it terminates an officer's employment based on their inclusion on the Brady list. But at least one bit of case law appears to indicate the town would have a case to do so.
A 2017 ruling by the Vermont Supreme Court in the case of Hubacz v. Village of Waterbury found that "a State's Attorney's unilateral decision to refuse to prosecute any cases investigated by a particular municipal police officer, alone, [is] a sufficient basis for termination of the officer."
Vermont high court decisions are not the law in Massachusetts. There does not appear to be a Massachusetts Supreme Judicial Court decision on this topic.
Harrington spent the majority of her time on Monday explaining the rationale behind the Brady list, which is used in many — by no means all — jurisdictions and is named for the landmark Supreme Court decision in Brady v. Maryland in 1963. That case established that prosecutors must turn over to defendants evidence that is exculpatory, i.e., that tends to support a not-guilty verdict.
The list is a tool prosecutors can use to track which law enforcement officers in their jurisdiction have issues on their records that rise to the level of disclosure under Brady.
Harrington said Monday that it is not a list of "bad cops" and that one of the officers on her office's list is one of her "favorite" police officers.
"The Brady disclosure list is our office acknowledging that we have an obligation to provide this information to the defense," Harrington said. "It doesn't mean that we agree that the information we're providing is relevant. It just means we recognize that we have an obligation to provide it to the defense.
"Then we have what is called a 'do not call' list."
Williamstown has an officer whose name appears on both lists.
"On that [do not call] list are officers that prosecutors are not allowed to rely on as witnesses without the approval of a supervisor," Harrington said. "So that is a more serious designation. The way that things have fallen in consideration of specific incidents is that, generally, officers who have been found to have been untruthful during the course of an internal affairs investigation we have put on our Brady disclosure list. And officers who have made misrepresentations about material facts during the course of a criminal investigation we have put on our 'do not call' list.
"We get our information from the police departments. We rely on their internal affairs investigations. We also will rely on if an officer is criminally prosecuted, we'll rely on those reports. We also do look at media reports, and if there's something in the media we don't know about, we will follow up with the local department to get more information."
Law enforcement officers placed on the Brady list are notified by Harrington's office and entitled to appeal the decision. In response to a question from Select Board member Andrew Hogeland, Harrington said her office has changed its decision at least once after an appeal.
Decisions about whether to include an officer on the Brady list are not made by an individual, Harrington said.
"In our policy, we have made the determination that we will honor determinations made by [former] District Attorney Capeless, and any individuals he sent out a Brady letter for, we will include on our Brady list," she said. "We also will honor determinations made from other jurisdictions in terms of who is on a Brady list. The Brady list is really just our obligation to disclose evidence to the defense. We're not necessarily agreeing we're not going to use that individual as a witness, but it's a disclosure obligation.
"In terms of politicization, I have found that having a very clear, formal policy and a process that articulates, 'This is how we do it, this the process we take,' has taken out those kinds of concerns of favoritism. We have a three-person panel. We have myself, the first assistant and the deputy district attorney. This is not a statement on what my office thinks about an officer. This is about our obligation to defendants.
If you would like to contribute information on this article, contact us at info@iberkshires.com.
Your Comments
iBerkshires.com welcomes critical, respectful dialogue. Name-calling, personal attacks, libel, slander or foul language is not allowed. All comments are reviewed before posting and will be deleted or edited as necessary.
No Comments
Williamstown Town Meeting Gets Short-Term Rental Bylaw
By Stephen DravisiBerkshires Staff
WILLIAMSTOWN, Mass. — After three years of talking about the issue, the Planning Board on Tuesday wrapped up its work on a short-term rental bylaw proposal.
Now, it is up to town meeting to decide whether to implement the local regulation.
On a vote of 5-0, the board sent its proposal to the May 22 meeting after making one amendment and considering feedback it received in the form of letters from constituents.
The amendment is a provision that would exempt military members or foreign service members deployed overseas from the local limit on the number of days a house can be used as an "Airbnb" during the time of their deployment.
That idea came to the board late in the process through its outreach meetings this winter and was first discussed by the body at its March meeting. All agreed on Tuesday that the exemptions made sense.
The main business for the board on Tuesday was its statutorily-required public hearing on the two zoning bylaw amendments it is proposing for the annual town meeting.
One of those proposals first came up last summer, when the town's public works director asked the body to look at a regulation on closed-loop ground source heat pump geothermal wells in the town's Water Resource districts.
The outage forced the closure of Sweetwood's commercial kitchen and forced residents to use alternatives to the showers in their apartments.
click for more
On Tuesday afternoon, the Prudential Committee ratified a contract to make Jeffrey Dias the successor to Chief Craig Pedercini, who retired from the post on Monday.
click for more
Some members of the community, including a member of the Select Board, say the district is choosing a course of action that is at odds with the environmental principles that the town espouses.
click for more
Mount Greylock graduate Noah Greenfield said participation in team sports continued to provide the benefits it offers tens of millions of kids across the country.
click for more
The Prudential Committee on Wednesday took a first look at a draft fiscal year 2026 budget that would increase the operating budget by 27 percent from the year that ends on June 30. click for more