Fitchburg judge: State police broke law, gave testimony that was 'not credible' under oath

Members of the Massachusetts State Police violated criminal law by making secret recordings during a Fitchburg-area drug sweep, and later gave unreliable testimony about their conduct under oath, a judge ruled Monday.

“This case represents a failure on the part of the MSP on many levels,” Christopher P. LoConto, the first justice of Fitchburg District Court, wrote in a 34-page ruling in which he found the testimony of multiple troopers, including supervisors, to not be credible.

“The court would characterize much of the testimony by members of the MSP to have been a denial of responsibility, attempts to shift responsibility, an inability to recall salient details, parsed answers, and a general lack of acknowledgment as to the gravity of the situation,” LoConto wrote.

The judge, citing misconduct in the case he found to meet a legal standard of “egregious,” granted requests for new trials to eight defendants swept up in a 2022 drug sting that he opined was disorganized and coercive.

LoConto ruled that troopers, despite testimony they gave indicating otherwise, did not make secret audio and video recordings of defendants during undercover drug purchases for the legally permissible purpose of protecting officer safety.

“The recordings in these cases were not made for ‘officer safety’ but rather for evidentiary purposes and to induce the cooperation of individuals suffering from addiction,” LoConto wrote.

Wiretap laws

LoConto found the recordings violated the state’s wiretap act. He did not opine on whether officers should face prosecution for such violations.

Multiple defense lawyers told the Telegram & Gazette earlier this year they believe police should face criminal and civil liability, and that authorities also need to conduct a larger probe of other recordings police have acknowledged were made illegally.

Prosecutors from Worcester District Attorney Joseph D. Early Jr.’s office discovered the Fitchburg recordings when one of the troopers mentioned them in 2023, and state police concluded in an audit that followed that dozens of troopers made similar undisclosed recordings in more than 250 cases statewide.

State police concluded in internal documents that “many” recordings were made “outside of legal parameters governing surreptitious audio recordings in Massachusetts.”

The recordings were made with Motorola smartphone applications popular with police nationwide that are marketed as tools for officer safety —essentially replacing physical wires for undercover work — as well as evidence collection.

2-party consent

But the application's recording function risks violating Massachusetts’ strict two-party consent wiretapping law absent the “safety” exception — something LoConto said state police should have, and appeared to be, aware of when using them.

LoConto found that a supervisor of the state police unit that conducted the Fitchburg drug sweep was aware recordings were being made, and aware of legal obligations to disclose the recordings to prosecutors, but did nothing.

He called the inaction an “abdication” of duty and wrote that state police failed at an organizational, managerial and operational level.

LoConto wrote that he did not find it coincidental that none of the police reports filed in connection with the Fitchburg cases mentioned the existence of the recordings — recordings he found were used to help “coerce” people addicted to drugs, under threat of prosecution, to become informants.

“The court finds that this operation took advantage of individuals' addiction by offering ‘tips’" — money to set up drug purchases — that were, LoConto said, in most cases not disclosed to prosecutors or defense lawyers.

“This money, given to persons suffering from addiction, was very likely used to support their addiction,” LoConto wrote.

LoConto opined that the failure to inform prosecutors — and in turn defense lawyers — about the videos could have eliminated two lines of defense the defendants could have used had they been aware of the recordings.

Defense strategy

He said it appeared some of the identifications of the defendants appeared to have been made from the videos — making identification a possible issue — and that the undisclosed “tips” could make entrapment a possible defense lawyers could have explored.

LoConto ordered that defendants are entitled to evidentiary hearings on those issues, and noted that some of the state’s witnesses might accordingly have a Fifth Amendment privilege against self-incrimination to invoke.

LoConto said that if the state does pursue new trials, and such trials were to be conducted, he would propose, subject to argument by lawyers, that jurors be given instructions along the lines of: “Members of the jury, the court has found certain testimony regarding the collection and production of certain evidence in this case, which the court has excluded, to not be credible.

“You may consider this when evaluating the credibility of the Commonwealth’s witnesses,” the judge wrote.

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