Massachusetts Supreme Court issues a potentially career-ending decision
The court ordered the disclosure of secret immunized officer grand jury testimony to defense lawyers and police chiefs
On September 8, 2020, the Massachusetts Supreme Judicial Court (SJC) issued a unanimous decision entitled “In the Matter of A Grand Jury Investigation.” 
The SJC decision revealed that in 2019, the Bristol County Massachusetts District Attorney (DA) learned from immunized grand jury testimony that two Fall River, Massachusetts police officers made knowingly false statements in their police use of defensive tactics reports.  The false statements concealed the use of excessive force upon an arrested subject by a fellow officer and supported a bogus criminal charge of resisting arrest against the arrestee.
The SJC’s opinion explained that the two officers filed reports that adopted officer Michael Pessoa’s version of the facts of the subject’s arrest as set forth in his arrest report. A lawyer for Pessoa’s arrestee subsequently obtained a video that showed Pessoa’s misuse of force on the victim. The video revealed that the victim was physically compliant when his handcuffs were removed and that Pessoa struck the victim on the left side of his head and shoulder area causing him to be taken to the ground in a violent manner.
After reviewing the video, the DA initiated a criminal investigation and convened a grand jury. The grand jury returned 15 indictments against Pessoa involving four separate victims that alleged several crimes including assault and battery with a dangerous weapon causing bodily injury.
The two officers involved in the instant litigation were subpoenaed to testify before the Pessoa grand jury, and each asserted their privilege against self-incrimination pursuant to both the Fifth Amendment and Article 12 of the Massachusetts constitution. The DA obtained an immunity order pursuant to state law that required both officers to testify before the grand jury. The order stated that their testimony cannot be used against them in “any Court of the Commonwealth, except in a prosecution for perjury or contempt.” Both officers subsequently admitted in grand jury testimony that their use of force reports was false.
The DA prepared a discovery letter describing the officers’ misconduct and requested a Superior Court judge to authorize the disclosure of their grand jury testimony to defense counsel. The DA believed that this was necessary because the information involved potential exculpatory information in unrelated criminal cases in which the two officers might be witnesses. The DA also prepared a second letter to the Fall River Police Chief containing the same misconduct facts and petitioned the court to authorize disclosure to the Chief. The Superior Court ordered disclosure to defense counsel in unrelated cases but denied disclosure to the Police Chief.
The decision of the Massachusetts Supreme Judicial Court
The officers appealed the order of disclosure to defense counsel, arguing that disclosure is not constitutionally required and would violate grand jury secrecy requirements. The SJC affirmed the Superior Court’s order of disclosure to defense lawyers. The court also decided to review the issue of disclosure to the police chief and likewise ruled that disclosure to the Fall River Chief of Police was appropriate.  The SJC explained its decision to approve of disclosure as follows:
- The SJC stated that in Massachusetts a prosecutor’s Brady obligation  is not limited to their constitutional duty  to disclose exculpatory information but also includes the broad obligation under the Massachusetts Rules of Criminal Procedure  to disclose any facts that would tend to exculpate the defendant or diminish culpability.
- The court stated that the prosecutor’s constitutional duty to disclose exculpatory information to the defense pre-trial is much broader under both federal and state law than the standards used by reviewing courts to examine the prosecutor’s disclosure decision after the fact, by looking backward.  For example, in United States v. Agurs,  the U.S. Supreme Court stated, “There is a significant practical difference between the pretrial decision of the prosecutor and the post-trial decision of the judge” regarding proper disclosure of exculpatory evidence. The Agurs court further stated, “[T]he prudent prosecutor will resolve doubtful questions in favor of disclosure.”
- Likewise, the SJC in the instant matter concluded, “[O]nce the information is determined to be exculpatory; it should be disclosed – period.” Further, the SJC ruled that where a prosecutor is uncertain about disclosure, he/she “should err on the side of caution and disclose it.”
- The SJC ruled that “Concealing police brutality against an arrestee, whether by the officer or a fellow officer, or making false statements that might lead to an unjust conviction are for law enforcement officers the equivalent of high crimes and misdemeanors. We conclude … that the information should be disclosed to unrelated defendants so that the trial judge may rule on its admissibility.”
- The SJC further stated, “Once disclosed, the immunized testimony may be used [in future unrelated cases] to impeach the immunized … [officer], provided that the testimony is not being used against the … [officer] in a criminal or civil prosecution other than perjury.” The court also ruled that prosecutorial disclosure to defense counsel of immunized officer statements can be made without prior judicial approval and grand jury secrecy rules will not bar such disclosure.
- The SJC also examined the United States Department of Justice so-called “Giglio” policy, which permits federal prosecutors to request that federal agencies conduct a review of agency files and disciplinary records to determine if they contain any impeachment material for prospective federal agent witnesses in criminal trials. The SJC strongly recommended that all Massachusetts district attorneys and the state attorney general create similar policies for state and local officers who may testify in Massachusetts criminal cases.
- The SJC ruled that as long as the misconduct information pertaining to the officers involves potential exculpatory information required to be disclosed to defense counsel in unrelated criminal cases, it is also permissible for the prosecutor to disclose the same information to the affected chief of police.
- Conversely, if officer misconduct is revealed to a prosecutor during a grand jury investigation that is not considered exculpatory material, prior judicial approval must be obtained prior to disclosure to a police chief.
This case confirms that law enforcement officers who make the choice to submit false official reports in connection to their official duties face serious potential negative consequences. In this case, two officers made a disastrous decision to cover up the official wrongdoing of a fellow officer who stepped over the line and used excessive force upon an arrestee. According to the later indictment of that officer, it was not the first time that the officer engaged in the use of excessive force.
The cover-up decision eventually brought them before a grand jury where they were forced to assert their privilege against self-incrimination instead of committing perjury. This resulted in an immunity order for their testimony and subsequent admissions under oath that they filed false police reports.
Their journey down this winding road did not end there. After the SJC decision in this case, they will never be able to appear as witnesses in future criminal cases without the revelation to defense counsel that they lied in official police reports. Prosecutors will be hesitant to call them as witnesses. This damages, if not destroys, their ability to serve as effective law enforcement officers. Moreover, the SJC decision authorizes prosecutorial disclosure of their misconduct to their police chief, with likely administrative disciplinary action to follow, including possible job termination.
Police officers who face the decision to cover for a rogue officer should remember what happened here and avoid choosing to go down this tortuous road. A misguided decision to walk down this uncharted road may be career-ending and could result in criminal prosecution.
1. (SJC-12869) (9/8/20).
2. Officer Michael Pessoa, who allegedly engaged in the use of excessive force, filed his police report but the two officers involved in this litigation did not file official reports. The other two officers were ordered to file the “use of defensive tactics” report after superiors noticed the arrestee bleeding from the lip.
3. The District Attorney did not appeal the denial of his request for the court to order disclosure of his letter to the police chief but the SJC decided it was important to review the issue on its own.
4. Brady v Maryland, 373 U.S. 83 (1963). Brady is a landmark decision of the United States Supreme Court that required prosecutors to turn over to defense counsel all evidence in their possession that would tend to exonerate a criminal defendant.
5. The court noted that there is a difference between the U.S. constitutional standard for exculpatory information disclosure and the Massachusetts constitutional disclosure standard. The federal standard involves a prosecutor’s withholding of exculpatory material that rises to the level of “reasonable probability” that if the material had been disclosed the defendant would have been found not guilty. See United States v. Bagley, 473 U.S. 667, 676 (1985). Under, the Massachusetts Constitution, the standard for disclosure is more stringent. After a specific defense request, a prosecutor’s failure to disclose exculpatory material would require a new trial if the failure to disclose might have affected the outcome of the trial. See Commonwealth v. Tucceri, 412 Mass. 401,406 (1992). The court further explained that in Massachusetts the constitutional standard for reversal of a conviction for withholding exculpatory material differs yet again in situations where the defense makes no specific request for particular exculpatory material. In this situation, the Massachusetts state constitutional standard requires reversal only when the withheld material would create a reasonable doubt in the validity of the conviction. See, Tucceri, id.
6. Mass. R. Crim. P. 14 (a)(1)(i.i.i.).
7. The SJC observed that federal and state constitutional disclosure standards for exculpatory evidence were created to permit reviewing courts to look backward at prosecutorial decisions to determine whether a prosecutor failed to properly disclose exculpatory material. (See, federal and state constitutional standards set forth in footnote five.)
8. United States v. Agurs, 427 U.S. 97 (1976).