Prosecutors are declining to offer comment on a Fitchburg judge’s ruling last week that state troopers intentionally violated criminal law and took advantage of people battling substance abuse during a local drug investigation.
In a 34-page decision July 8, Fitchburg District Court's First Justice, Christopher P. LoConto, found that troopers broke the state’s wiretapping laws during an undercover drug investigation and gave unreliable testimony about it under oath.
The state agency that defends indigent people last week said the ruling underscored the ongoing need for reforms within state police , while defense lawyers have opined authorities have an obligation to consider criminal charges.
Attorney General Andrea Campbell and Worcester District Attorney Joseph D. Early Jr. declined requests for comment on the ruling this week, while the Massachusetts District Attorneys Association has yet to return an inquiry.
Gov. Maura Healey, who served as AG prior to assuming office, also declined comment, with a spokesperson deferring to state police.
State police, in a lengthy statement, detailed reforms and provided copies of policies they created last year after Early’s office discovered the recordings and requested an accounting.
Three internal inquiries
“We will continue to collaborate with prosecutors and the defense bar to ensure they receive all the evidence critical to the fair adjudication of their cases,” agency spokesman Timothy McGuirk wrote.
McGuirk, citing the ongoing litigation and three open internal inquiries into trooper conduct, declined to answer specific questions about whether Interim Col. John Mawn Jr. agreed with LoConto’s seminal findings.
LoConto ruled that troopers intentionally recorded interactions with people during undercover drug buys without a warrant in violation of the state’s criminal wiretap act.
Troopers testified they were unfamiliar with all the recording capabilities of a cellphone application, Callyo, used to monitor the interactions for officer safety; LoConto did not credit their testimony, finding they purposefully used the videos for investigative purposes.
LoConto was highly critical of the investigation, pointing out that the half-dozen or so defendants were all people suffering from drug addiction and noting that some were given “tips” to buy drugs that police didn't disclose.
LoConto wrote it appeared police tried to “coerce” substance-addicted people into becoming informants, and, in approving their motions for new trials, suggested entrapment might have been a legal defense their lawyers might have pursued in light of the withheld evidence. He ruled the state police misconduct met an "egregious" legal standard.
Early has not signaled whether he might appeal the ruling or retry the cases.
Worcester DA: Cases under review
“The decision is still being reviewed by our appeals section, and all of the cases it affects are being reviewed, as well,” Lindsay Corcoran, the DA's director of communications, wrote in an email.
Early’s office declined to comment on LoConto’s specific findings that criminal law was broken and people suffering addiction taken advantage of, citing rules of professional conduct restricting out-of-court statements.
Early has been vocal with his support for people struggling with addiction ; his office offers drug diversion programs and he cited concern for a person struggling with addiction when he successfully defended himself in a high-profile ethics case.
LoConto in his ruling noted that Early’s office acted swiftly once it found out about the recordings in 2023 , and said he credited the entirety of the testimony of a prosecutor who testified under oath about her actions.
The undisclosed recordings were not confined to the Fitchburg drug cases, as police have acknowledged that more than 60 troopers made undisclosed recordings with the Callyo phone applications across the state.
State police wrote in their statement that they combed through 64,000 recordings and more than 47,000 texts to identify every recording subject to discovery across the state, and provided prosecutors with all relevant records and messages related to 181 closed and 88 open cases.
“It is important to note that in the time since the Department advised district attorneys of the docket numbers of all adjudicated cases in which recordings were not produced, neither the Department nor the prosecuting agencies or any defense counsel have identified any video that would exonerate a previously convicted defendant or a defendant whose case was continued without a finding,” state police wrote.
The statement included a line that “department members utilizing Callyo were unaware of the application’s default setting to record,” a statement that contradicted LoConto’s voluminous findings.
Asked about the discrepancy, McGuirk said the release should have stated that “some” users recorded inadvertently.
The statement also said that one of the main Callyo applications used, 10-21, recorded by default and could not be disabled. McGuirk said that the agency still uses 10-21, but now is also using a different, similar app in which recording can be disabled.
Training on app
State police said they’ve trained more than 320 sworn members on how to use the Callyo tools properly, and listed a number of policies they’ve instituted on the subject of covert recordings.
“Under the new policy, state police permits livestreaming of undercover interactions to surveillance officers with the condition that the livestream may not be recorded or captured for evidentiary purposes unless an appropriate warrant has been obtained in conjunction with the prosecuting agency,” police wrote.
In addition to scrutiny from the defense bar and possible ramification on criminal cases, the recording episode has led to an ongoing civil rights lawsuit filed by several of the Fitchburg drug defendants in federal court.
This article originally appeared on Telegram & Gazette: Prosecutors mum on Fitchburg judge’s ruling in 'egregious' state police recording case
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