The governor of Louisiana just signed 10 bills to overhaul their justice and corrections systems. Massachusetts sadly lags behind reform. We in Massachusetts must copy Louisiana, where grassroots activism, testifying at the statehouse and in the media, and direct, face-to-face contact with their elected officials fueled success.
CONTACT ME, emit [dot] susan [at] g mail if you live in Massachusetts and want EMIT to to assist you to take the most effective action: making a face-to-face visit with your state rep, near where you live. Find your state rep here. It’s your state rep’s JOB to listen to your concerns and requests.
We have held small group dialogues of constituents with with dozens of lawmakers from across the state, including Robert DeLeo, D-Winthrop, speaker of the House of Representatives.
To enact comprehensive reform similar to Louisiana, a series of bills is required. The sponsors of each bill insure they have support before asking Speaker DeLeo to bring a bill forward for a vote of the whole body.
We must capture the attention of every state representative this session, which runs from January 2017-July 2018. Take action today and contact EMIT — emit [dot] susan [at] g mail. We have a team of volunteers standing by to set up appointments and attend them with you and a small group of other registered voters from your district.
A poll out today from the policy group Mass INC is encouraging with 2-1 support for ending the long Mandatory Minimum sentences on drug convictions and for other reforms on CORI reform, felony theft threshold, reducing or ending fines and fees on ex-prisoners
WHEN IT COMES TO CRIMINAL JUSTICE REFORM, VOTERS WANT MORE — At least according to a new poll out this morning from MassINC Polling Group, which finds a bipartisan support for getting rid of mandatory minimum sentences and pursuing second chance reforms by a 2-1 margin.
Some 53 percent of voters believe incarceration currently does more harm than good – potentially opening the door for more aggressive reforms than are in the current criminal justice reform bill rolled out by Gov. Charlie Baker in February and backed by state House Speaker Robert DeLeo. State Senate President Stan Rosenberg, who supports the proposal, has also stated he wants to go further than Baker’s billto delve into sentencing policy and bail practices – things this poll indicates the public has more of an appetite to pursue.
The poll also reveals bipartisan interest in reform, which could provide cover for both chambers in the legislature to pursue more progressive policies, like getting rid of mandatory minimum sentences and an emphasis on rehabilitation and prevention of future crimes – two things specifically favored on both sides of the aisle. “You see an appetite for changing things around, for trying something new and changing the realities of the criminal justice system of Massachusetts,” MassINC Polling Group President Steve Koczela told POLITICO. – Check out the toplines. Click on “Check out the toplines” for details of the question and responses in the poll.
It’s important to organize meetings, calls, and letters to both your state representatives and senators that you support criminal justice reform and specifically name what that includes such as Ending Mandatory Minimum’s drug convictions and returning sentences to Judges, CORI Reform including reducing the number of years employers can see CORI’s to 7 years on felonies and 3 years on misdemeanors, reducing ending fines and fees like the $65 a month fee those on probation must pay, raising the threshold for what’s a felony from the 30 year old $250 level up to $1500, Diversion to Treatment, Juvenile Expungement and Raising the Age of Juvenile Court coverage.
–Thanks to Lew Finfer and Jobs not Jails for this update. Please submit YOUR post for this blog to email@example.com.
This article published in Mother Jones gives excellent insight into the job of a private prison guard. The book, “NewJack: Guarding Sing Sing” by Ted Conover, is another excellent accoung by an undercover journalist. I found “NewJack” at my public library. It is well-written, informative and interesting.
To succeed in our movement to reform our police, justice and corrections systems, we must reach out to those responsible for enforcing our policies — the correctional officers and departments of corrections. These are worth reading.
This blockbuster first-person piece details Bauer’s undercover job as a guard in a Louisiana penitentiary run by Corrections Corporation of America, the largest private prison company in the U.S. (It has since rebranded as CoreCivic.) Bauer witnessed violence and cost-cutting at every turn, and — as journalist Ted Conover did in his similar 2000 book, “New Jack” — examined his own evolving reaction to a job spent keeping other people locked up.
— submitted to The Marshall Project by Beth Schwarztapfel
Sign a petition to end the unfair Electoral Collegethat delivered Bush II and Trump, whose opponents won the popular vote. This antiquated tradition emanates from 1776 when our wealthy white founding fathers deemed that the people could not be trusted with the responsibility to directly elected the president.
If California had its proportional number of electoral college 200 votes, instead of a measly 50, we would be feeling less afraid today for America’s future. Click here to learn more and make others aware of the necessity to dump the Electoral College.
SAVE Monday, Dec. 12, 7-8 pm. Join a statewide EMIT conference call to hear updates on the Council of State Government’s process to evaluate our justice/corrections systems, AND what legislation they are proposing to Beacon Hill, based on their neutral research.
SAVE Tuesday, Dec. 13, 10 am, Boston. Join our allies, Jobs not Jails, at a rally/press conference across from the State House at 140 Bowdoin Street, Church of the New Jerusalem to call on the four state leaders filing the criminal justice reform to include the six proposals of the Jobs NOT Jails Coalition.
Make our votes count – other states give hope for 2018 election — in this article from The Nation. In Massachusetts, 14 district attorneys will be up for re-election. We need to support alternative candidates who do not intimidate the accused and force plea deals to avoid trials. We have the power to elect sane district attorneys who embrace restorative justice. Many Massachusetts sheriffs ran with no opponent for 6-year terms. We must levereage our power through voting and running for office.
Election Night Saw Victories in Local Criminal-Justice Reform—This Should Be the Beginning
Local prosecutor and sheriff races are winnable and build power.
For progressives, winter came early this year. It started around 8:30 pm on Tuesday, November 8 and has been growing steadily colder ever since. Republican control of the White House, the House of Representatives, and the Senate, does not bode well for a range of issues close to the heart of American progressivism, from health care to immigration to the environment.
But, amid a sea of bad news that evening, there emerged an island of hope. It came, of all unlikely places, in Jefferson County, Alabama, home to Birmingham. On Wednesday morning, Brandon Falls, the incumbent Republican district attorney, conceded that he lost his seat to Charles Todd Henderson, who became the first Democrat to be elected district attorney in over a decade. Henderson won his race in deep-red Alabama by promising to end “mass incarceration of those with drug addictions and mental illness,” and by revealing that he is “not supportive of the death penalty nor incarcerating our children in adult jails and prisons.”
Henderson’s victory in Birmingham is no fluke. Until last year, district-attorney races tended to fly under the public radar. Elected prosecutors were routinely reelected, often running unopposed and, as a result, served for decades. When they did bother to campaign, their slogans frequently highlighted a record of sending as many people to prison for as long as possible. But that recipe for electoral success is changing. And, with increased attention to these races from extraordinary faith-based groups, community advocates, and local journalists, as well as an influx of support from national donors such as George Soros, progressive challengers are gaining footholds in local races across the country.
In Harris County, Texas, which includes Houston, Republican Devon Anderson lost her seat to challenger Kim Ogg, who has promised to overhaul drug prosecutions and has criticized the DA’s office for seeking the death penalty too often. The same basic story emerged in Hillsborough County, Florida, which includes Tampa, where incumbent Republican Mark Ober lost to challenger Andrew Warren. Earlier this year, elected prosecutors lost their primary races to more progressive, reform-minded candidates in Albuquerque, Chicago, Denver, and Jacksonville. In Corpus Christi, Texas, Mark Gonzalez, a criminal-defense lawyer and Democrat with the words “NOT GUILTY” tattooed on his chest, became the district attorney–elect this week.
These local electoral victories are not limited to prosecutor races. In Maricopa County, Arizona, Sheriff Joe Arpaio, infamous for his fearmongering, cruel and degrading tactics, and barbaric crackdown on immigrants, lost his election. The Harris County sheriff was defeated as well. Nor does the momentum for reform within local district-attorney and sheriff offices exclusively revolve around elections. In Seattle, a partnership among community groups, the public defender, law enforcement, and the King County District Attorney’s Office led to the creation of the Law Enforcement Assisted Diversion program, which steers people arrested for drug offenses and prostitution away from prosecution and into services aimed at decreasing recidivism such as drug treatment and job training. LEAD, which began in Seattle in 2011, spread to Santa Fe, New Mexico, in 2014, and to Albany, New York, earlier this year.
These victories represent tangible progress in the ongoing struggle among a dedicated band of progressive advocates in the fight for a more humane and sensible justice system, one that strives to keep us safe while simultaneously treating people fairly and conserving taxpayer dollars.
More importantly, though, this string of successes shows the enormous promise of focusing on both criminal-justice reform and American progressivism more broadly at the local level. While significant advances in climate change and immigration reform require congressional action, criminal-justice reform is an entirely different beast. The center of gravity for meaningful reform tends to be local. Should police officers use stop and frisk tactics? Conduct invasive raids of homes while investigating nonviolent offenses? Use military style vehicles? Those are decisions made by individual police departments or city councils, and are influenced by community advocates. Should prosecutors ask for bail, and how much? Prosecute nonviolent drug possession cases? Prosecute homelessness related offenses, such as sit-sleep-lie bans? Transfer juveniles to adult court? Seek the death penalty? For those decisions, too, local politics matter.
Local criminal-justice reform also serves as a bulwark against the worst impulses of Trumpism. What happens when a Donald Trump Justice Department, perhaps led by Rudolph Giuliani, refuses to intervene when a local police chief suppresses the speech of citizens who are protesting? How about when law enforcement fails to address targeted attacks on our most vulnerable citizens, such as ripping off a Muslim woman’s hijab? Mayors appoint police chiefs. So, here, too, local politics matter. If Trump continues to say that the Central Park Five should be executed, advocate for a national stop-and-frisk program, or claim falsely that the murder rate is at a 45-year high (it is not; in fact, 2015 had one of the lowest rates in 45 years), this use of the bully pulpit may stir local law enforcement and prosecutors into retributive excess. Resources and attention at the local level are an antidote to this fearmongering, allowing advocates and journalists to douse the flames before they can commence a second age of mass incarceration.
The election of Donald Trump may send forth global tremors in many areas. But it changes very little on issues related to criminal-justice reform as practiced at the local level. Roughly 50 million people live in just 15 of the counties that Clinton won this week. Some of these counties voted for Clinton by a margin of 2-1. If disheartened citizens and advocates chose to refocus their resources and attention to pushing reforms in these places, they could quickly see significant gains in the battle to end mass incarceration and help secure relief for millions of Americans.
Moreover, in 2017, there will be district-attorney races in several progressive strongholds. We know that there are over 100 such races in 2018. And that number does not include sheriff races. Nor does it include city-council members and county commissioners who shape budgets and priorities or mayors who appoint police chiefs. Progressive power could be particularly potent in urban areas, where so many progressive advocates reside, and where the need for reform is profound. Unlike at the federal (and often state) level, the population most burdened by overzealous prosecution and policing also possesses the most power to influence local politics.
Criminal-justice reform is not among many progressives’ priorities, but this local analysis shows why it should be. First, in places like Durham, North Carolina, traditional Democratic strongholds with large black populations situated in swing states, investing in local criminal-justice reform could help with voter turnout in 2018 and 2020. Given the narrow margins that tend to accompany wins in states like North Carolina, voter mobilization in these locations is incredibly important for progressives. Investment in criminal-justice reform at the local level creates a strong infrastructure that includes organizers, church leaders and civil-rights organizations. Unlike “out-of-town swoop down” get out the vote efforts, local power in the criminal-justice space draws on strong preexisting relationships, communications channels, and mobilization infrastructure. Most importantly, though, creating the energy to mobilize around local races serves as an insurance policy against national candidates who are less than inspiring.
One reason Clinton lost Ohio, Michigan, Pennsylvania, and Wisconsin—all by relatively small margins—is a persistent inability to connect with working-class white voters. Criminal-justice reform is an issue that can bridge this divide. Most people—black, white, brown, and Asian—have a family member, a neighbor, or a friend who struggles with mental illness and addiction. For many of us, and especially for those who struggle financially, those addictions inevitably intersect with the criminal justice system. White people, too, and especially marginalized white people who feel that government has abandoned them, struggle to pay overly punitive fines and fees, languish in jail because they cannot afford unnecessarily high bail, and struggle to find employment after convictions for marijuana possession and other low-level offenses. White people, too, are treated as disposable by the criminal-justice system.
There is also an opportunity to connect the massive taxpayer investment in stop-and-frisk and other programs that do not reduce violent crime with overly intrusive government, overzealous and unaccountable public servants, and colossal misuses of resources. Indeed, these are exactly the rationales that have propelled conservatives and libertarians, such as Right on Crime and the Koch brothers, into criminal-justice reform.
Finally, focusing on criminal-justice reform, especially at the local level, helps to create a pipeline of future progressive leaders. First, as an issue, criminal-justice reform is particularly compelling and often very personal, especially among those who have watched our broken system destroy the lives of family members and neighbors. A strong, progressive local criminal-justice reform community is able to attract and recruit the next generation of prosecutors, sheriffs, and other local officials.
These local officials become powerful in statewide prosecutor and police associations, groups with enormous influence at the statehouse, and often become state legislators, judges, attorney generals, and governors. Kamala Harris, who was elected to the United States Senate this week, is a striking example. She started as the district attorney of San Francisco County, became California’s attorney general, and now she’s headed to Congress. Who knows, perhaps the pathway from criminal-justice reformer to progressive visionary will take her all the way to the White House.
The Medium Security Institution, also commonly called the City Workhouse, as seen on Tuesday, April 7, 2015. Photo by Roberto Rodriguez
The economic toll of incarceration in the U.S. tops $1 trillion, and more than half of that falls on the families and communities of the people incarcerated, according to a recent study by Washington University researchers.
“For every dollar in corrections spending, there’s another 10 dollars of other types of costs to families, children and communities that nobody sees because it doesn’t end up on a state budget,” said Michael McLaughlin, the doctoral student and certified public accountant who led the study. “Incarceration doesn’t happen in a vacuum.”
The study’s authors claim to be the first to assign an actual dollar amount to the societal costs of incarceration, not just the governmental costs of running corrections systems, which many experts estimate to be $80 billion.
That $80 billion number “considerably underestimates the true cost of incarceration by ignoring important social costs,” the researchers wrote.
The study was spearheaded by McLaughlin and Carrie Pettus-Davis, who as co-director of the Smart Decarceration Initiative advocates for the shrinking of the U.S. mass incarceration system, which is the largest in the world. Pettus-Davis is also director of the Concordance Institute for Advancing Social Justice, which like the initiative is based at Washington U.
Some of the societal costs of incarceration include the wages people no longer earn while imprisoned — $70.5 billion — and the amount of lifetime earnings they will likely lose out on — $230 billion — after they get out because of employment restrictions and discrimination against the formerly incarcerated, the study says.
The formerly incarcerated also have a mortality rate that is 3.5 times higher than people who were not incarcerated, according to the study, and researchers estimated the cost of their shortened lives to be $62.6 billion.
As for the communities where incarcerated people live, the researchers believe the biggest cost — $285.8 billion — is the criminogenic effect of prison, or the theory that prison reinforces criminal behaviors that carry over into a community.
Incarcerated people are 18 to 25 times more likely than those who have never been jailed to commit a crime in the future, Pettus-Davis says.
Jail and prison removes a person’s social ties to a community, so it’ll become harder for them to get a job, and they’ll be more likely to turn toward crime to fill that economic need, McLaughlin says. Because incarceration is so frequent in some communities, the social deterrent to not commit a crime may be weakened in those neighborhoods, McLaughlin added.
“We’re getting to a point in the U.S., in society, that we’ve incarcerated so many people that it’s kind of become a common thing in some communities,” McLaughlin said.
Children with incarcerated parents are also five times more likely to go to prison themselves and receive less education and wages, a total estimated cost of $166.6 billion.
Other costs include the increased likelihood of divorce, $17.7 billion, decreased property values, $11 billion and adverse health, $10.2 billion.
The study’s authors acknowledge that correlation does not always equal causation and that these costs may have already been likely to happen in the community independent of incarceration because of other associated phenomena, like poverty. The authors were careful to select research that controlled for factors like poverty and isolated the impact of incarceration as much as possible.
They also admit the study does not analyze the benefits of incarceration, but argue that “there is a point where the marginal cost of incarcerating an additional individual exceeds the marginal benefit.”
“If anything, we believe our study underestimates the true cost of incarceration,” McLaughlin added, because there are some costs like poor emotional health that can’t be quantified by a dollar amount.
BOSTON – The Massachusetts House passed a bill on Wednesday repealing the automatic license suspension of anyone convicted of a drug crime.
“Over time, we’ve come to realize … a driver’s license, for someone who’s been convicted, paid their price, is important if we also want them to get back into society, get a job, support their family and meet those responsibilities,” said state Rep. William Straus, D-Mattapoisett, chairman of the Joint Committee on Transportation.
The bill, H.4088, passed the House unanimously, by a vote of 156-0, with little discussion.
Both the House and the Senate passed similar bills earlier this session, but differences between the House and Senate versions had to be worked out by a team of negotiators. That conference committee released a final version of the bill last week.
The bill will now go to the Senate and then to Gov. Charlie Baker. Baker has said he supports the concept behind the bill.
Under current law, established in 1989, anyone convicted of a drug-related crime, whether or not it relates to a motor vehicle, has his license suspended for between six months and five years. The offender must pay a fine of at least $500 to have their license reinstated.
The law was put in place during the federal war on drugs, as part of a crackdown on illegal drug use. Advocates for prisoners have since argued that the license suspension is unrelated to the crime, and the suspension makes it harder for offenders to reintegrate into society after they served their sentence. Massachusetts Attorney General Maura Healey has backed the bill, along with several sheriffs and district attorneys.
The bill that passed the House would eliminate the license suspension for most drug crimes – including the possession and sale of drugs. It would keep a five-year license suspension in place for anyone convicted of trafficking in cocaine, fentanyl, heroin or other opiates – although someone convicted of these offenses can apply for a hardship license.
Anyone whose license was already suspended would have it reinstated within 30 days of the bill being signed into law. Records of suspensions would be shielded from public access. The bill would repeal the current $500 license reinstatement fine.
A judge could still suspend someone’s license for a crime related to driving.
We need to pay more attention to what is going on under our watch and on our dime, ignored because it doesn’t directly impact us. For example, Timothy Cruz, District Attorney for Plymouth County in Massachusetts, engages in some questionable practices, according to a July 4 Boston Globe article by Mike Resendes.
Thank you Mike Resendes for caring about a population most of the world has given up on, and for shining a light on the injustice in our courts, jails, policing, corrections system and cultural biases. I suspect most of us were too busy toasting American independence on July 4 when this article ran in the Globe.
Plymouth DA faces fire for witness deals
Critics cite ‘win at all costs’ ethic; Cruz defends his way
BROCKTON — District Attorney Timothy J. Cruz built his reputation as a tough-talking law-and-order Republican who doesn’t make deals with criminal defendants.
“We do not plea bargain in this office,” Cruz lectured his staff in 2011. “So if you are not comfortable or do not believe in my policies, then maybe you should not be working here.”
But a review of confidential court documents shows the Plymouth district attorney has repeatedly broken his own rule when it comes to cutting deals with career criminals who promise to help solve the many gang-related homicides that plague Brockton.
Although Cruz says his use of cooperating witnesses has been successful, it has come at a steep cost. Grand jury testimony, police interview transcripts, and other documents obtained by the Globe show a pattern of granting favors to violent criminals who continue to commit new crimes almost immediately after being granted leniency.
In one case, Cruz took the unusual step of using public funds to bail out a witness who had been captured after a high-speed police chase, only to see the witness rearrested for drug dealing and possession of an illegal firearm three months later. In another, Cruz agreed to reduce an illegal firearms charge against a cooperating witness to keep him out of prison, but the witness was rearrested on numerous other charges and eventually indicted for murder.
And, earlier this year, Cruz was forced to drop all charges in two high-profile murder cases after an essential witness whom Cruz had paid to relocate out of state refused to testify. The witness, Nilton Darosa, threatened to kill three officials if they forced him to return to Massachusetts, and was finally arrested for carrying an unlicensed handgun.
Cruz’s handling of cooperating witnesses has helped fuel an exodus from his staff amid charges from several critics that he has a “win at all costs” philosophy, and retaliates against those who question it. And Cruz’s top assistant abruptly resigned in April after allegations that he tried to smear the reputation of a former assistant district attorney who had questioned the office’s use of one cooperating witness.
“Cruz has been utterly reckless,” said former Plymouth prosecutor John E. Bradley Jr., who says that Cruz wrongly fired him in 2012 after he refused to make campaign contributions to Cruz, and complained about his use of potentially dangerous cooperating witnesses. “He seemed not to care what crimes the informant committed in the past or what crimes he might commit in the future.”
Bradley, now a prosecutor in Worcester County, has filed a federal civil rights lawsuit against Cruz and two top staff members.
Cruz declined to be interviewed, but in a lengthy written statement to the Globe he said that the deals with cooperating witnesses have helped solve numerous slayings, and noted that, overall, his office won convictions in 84 percent of the 147 homicide prosecutions brought to trial in Plymouth County from 2002 through 2014. He also insisted that he carefully reviews the records of cooperating witnesses before deciding which of them could be trusted to stay out of trouble.
“It’s a difficult decision to make when confronted with a cooperating witness who has credible information and yet brings with him or her a history of their own criminal conduct,” wrote Cruz, who referred to the informants only by number in his statement to protect their privacy. “We have had tremendous successes with cooperating witnesses in Plymouth County.”
Cruz also stands by his record as a manager in 14 years as district attorney. He attributed the numerous departures from his office — 16 senior prosecutors out of a staff of about 50 have left over the last three years — to the “natural course of attrition in a district attorney’s office.”
But some judges, too, have begun questioning the fairness of tactics employed by Cruz’s office.
In the last four months, three judges have separately rebuked Cruz’s office for its handling of cases before them, including the arrest of a crucial defense witness in a murder case moments before he was scheduled to testify. The witness was arrested in a courthouse hallway, with the approval of Cruz’s prosecutor, and hauled away in a police cruiser for an unpaid motor vehicle violation.
“There was absolutely no intention . . . to prevent a witness from testifying for the defense,” Cruz said in his statement to the Globe.
However, Judge Richard J. Chin concluded otherwise, finding that the courthouse arrest was “misconduct on the part of the government” and “intimidation of a witness.”
In a second case, Judge Cornelius J. Moriarty II scolded Cruz’s office for trying to portray a defense witness as dishonest and unreliable when it had previously allowed her to testify as a witness for the prosecution in another case.
The witness, former Plymouth prosecutor Karen H. O’Sullivan, had testified last year for the state in a perjury case. But when O’Sullivan was about to testify for the defense in a murder case this winter, Cruz’s top assistant, Frank J. Middleton Jr., attempted to discredit her by introducing caustic memos about her written by Middleton and other colleagues in the Plymouth DA’s office, along with racially charged e-mails that O’Sullivan had sent or received.
If O’Sullivan, now a first assistant DA in Bristol County, were so unreliable, Judge Moriarty asked, why had Cruz’s office ever relied on her as a witness?
“Frankly, sir, this bothers me,” Moriarty said to one of Cruz’s prosecutors during a March hearing.
A third judge, Mark S. Coven, faulted Cruz for something he failed to do: seek criminal charges against guards at Bridgewater State Hospital in the case of patient who died while being subdued. Cruz said charges were unwarranted despite a medical examiner’s finding that the guards’ rough treatment caused the death of Joshua K. Messier in 2009.
Coven, who reviewed the case this year, wrote that “any objectively reasonable person” would have seen that the actions of the guards “involved a high degree of likelihood that substantial harm would result.” The guards now face involuntary manslaughter charges, after a special prosecutor took Coven’s findings before a grand jury this spring.
GEORGE RIZER FOR THE BOSTON GLOBE
A 2009 murder occurred at this Hess gas station.
A witness with baggage
The bitter internal dispute over Cruz’s use of witnesses with criminal backgrounds began in November 2010 when a drug dealer eager to get out of jail called investigators with an offer.
Kashin Nembhard, who had just been arrested after a high-speed chase in a car littered with 30 bags of heroin and cocaine, told prosecutors he had witnessed the killing of 23-year-old Antonio Centeio during a wild shootout at a Hess gas station in Brockton in 2009. He could identify the shooter and help solve other crimes, too, he said — if they would help him with his $5,000 bail.
State Police troopers working for Cruz’s office negotiated Nembhard’s bail down to $350, then paid it with public funds and taped a statement by their new star witness, records show. Then they took Nembhard out for lunch.
R. Michael Cassidy, a Boston College Law School professor and former head of the state attorney general office’s criminal bureau, called the move to free Nembhard “an inappropriate use of public funds.” He said prosecutors frequently work with cooperating witnesses while they are still in custody, holding out the prospect of a reduced sentence after they cooperate. But posting bail for the likes of Nembhard is over the top, he said.
“You might need to use someone nefarious in a murder case because you don’t have witnesses who are fine, upstanding citizens,” Cassidy said. “But bailing out someone who was caught with 30 bags of heroin, I would say that’s highly unusual and a cause for real concern.”
Lewis A. Armistead Jr., a former Plymouth prosecutor who was briefly in charge of the Hess station case, said he resisted efforts to do favors for Nembhard and complained directly to Middleton about posting Nembhard’s bail.
“I nearly fell off my chair because at that point, I had been a prosecutor for probably 20 years and I’d never heard anything like that,” he said.
Nembhard quickly became a headache for Cruz’s office when he resumed his career as an armed drug dealer while still working as a government witness, records show. In February 2011, three months after state troopers bailed Nembhard out, police caught him selling crack cocaine. And when they searched his home they found an unlicensed handgun. By the time Nembhard testified about the Hess shooting before a grand jury in February 2012, he was behind bars facing federal charges and up to 15 years in prison.
Further undermining Nembhard’s credibility as a witness was the fact that his bail being paid by the DA’s office was not reported to the grand jury or, as court rules require, to the defense, according to the defense attorney in the case, Michael A. Bergeron.
Grand jury transcripts in the Hess shooting show that when Cruz’s investigator, Trooper Brian M. Galvin, was asked directly whether Nembhard had received “promises, rewards, or inducements” in exchange for his testimony, he said nothing about the bail money.
But in October 2012, O’Sullivan became concerned about the lack of disclosure. She privately told Bergeron, the lawyer for defendant Brian Price, who had been indicted on firearms charges, that Cruz’s office had paid Nembhard’s bail two years earlier.
Bergeron complained to the judge in the case. Two days later, Cruz dropped all charges.
The six-year-old murder of Antonio Centeio remains unsolved. But Cruz said his office did nothing wrong in its dealings with Nembhard, insisting his office dropped the case against Price because another witness had lied.
“We believed and we still believe that it was ethically appropriate to make the bail arrangements,” Cruz said in his statement, noting that a judge later cleared both Galvin and the lead prosecutor of withholding information about the bail payment, accepting their assertion that any failure to disclose information was inadvertent. Cruz also said that Nembhard subsequently helped the office obtain three murder convictions.
However, Bergeron is not persuaded that he and his client were properly informed about the bail arrangement.
“Were it not for O’Sullivan having the courage of her convictions I would never have found out,” Bergeron said.
Former Plymouth prosecutors and defense attorneys say Cruz has exercised poor judgment in several additional instances where he cut deals with criminals to help solve murder cases, inadvertently clearing the way for more violent crime.
Cruz was especially generous with cooperating witness Olivio Leverone, agreeing in 2010 to drop illegal firearm charges in exchange for Leverone’s help in several unsolved homicides, according to the signed agreement between Leverone and Cruz’s office. The DA’s office also agreed to relocate Leverone to a new local apartment at a cost of $2,500 to taxpayers.
Cruz said Leverone provided effective testimony, but just a year after the agreement to keep him out of prison, Leverone robbed a drug dealer, making off with approximately $225,000 in cash and several kilograms of cocaine, according to an affidavit by one of Cruz’s prosecutors.
The alleged theft triggered a feud that culminated in a New Year’s Eve 2011 shooting, after which Leverone was arrested for firing a gun.
Locked up and facing bail of $250,000, Leverone once again reached out to Cruz for help, in a handwritten letter.
“Hey Tim,” Leverone wrote in August 2012, “I know you need me to testify against several guys. Well I need you to, I want some help with my bail getting lower if not than I’m not testify.”
This time, Cruz did not come to the rescue. However, he still defends the use of Leverone as a witness, noting that he “provided important evidence on over a half-dozen violent felonies.”
Leverone is serving a three- to four-year prison sentence for assault with a dangerous weapon, and will serve additional time in a county jail for possession of an unlicensed firearm.
Persistent criminal behavior
A third cooperating witness, Linanel Brown-Madison, was indicted in the fatal shooting of Joshua LeClair during an attempted robbery on a residential street in Brockton in January 2013.
The Plymouth DA’s office worked with Brown-Madison for four years, starting in 2009, Cruz said, despite continuing bad behavior that included assaulting his girlfriend, impersonating a police officer, and having an unlicensed firearm in a motor vehicle — a charge that carries a mandatory prison term.
Brown-Madison provided grand jury testimony that helped prosecutors secure two indictments in a murder case, but the prosecutor who handled the case decided in August 2012 against using him as a witness during the trial. She was still able to obtain convictions.
“In my mind the witness had become a liability to my case because he was using his status as a cooperating witness as a license to commit crimes,” Tara Cappola told the Globe. Cappola left the office a year ago and is now in private practice.
Cruz, in his written comments to the Globe, said his office punished Brown-Madison appropriately when he broke the law, doing nothing to help him get out of jail after he was arrested on the unlicensed firearm charge. Brown-Madison remained in jail for 144 days until his girlfriend was able to post bail.
He acknowledged, however, that his office agreed to reduce the firearms charge to one that did not carry a mandatory prison term so that Brown-Madison could be sentenced to probation and “continue to work on investigations with law enforcement.”
Brown-Madison has pleaded not guilty to murder and attempted robbery charges in the LeClair slaying.
Fallout from reluctant witness
Cruz’s problems with a fourth cooperating witness, Nilton Darosa, began with Darosa not wanting to cooperate on a murder case at all. He agreed to testify only under threat of deportation, according to the transcript of a 2010 jailhouse interview. And Cruz had to relocate his new witness out of state for his safety, at public expense.
Darosa did testify against two accused murderers — a cousin, Joao Fernandes, and his alleged accomplice — in separate trials last winter.
But people who were there say his testimony against his cousin was lackluster, leading to a hung jury on the charge that Fernandes killed Manuel Rodrigues, who was gunned down after he testified before a grand jury about another murder.
“Nilton was a terrible witness,” said defense attorney Daniel S. Solomon. “He said different things at different times. And he kept adding to or taking away from his testimony.”
Darosa then tried to back out of further testimony against the alleged accomplice,threatening to kill a prosecutor and two others if they tried to make him return to Massachusetts.
Eventually, Darosa relented, but his testimony was even less convincing, according to defense attorney Rosemary C. Scapicchio, and resulted in yet another hung jury.
From there, his relationship with prosecutors deteriorated quickly. After Darosa’s disappointing testimony, Cruz’s office asked Brockton police to investigate him and he was charged with carrying an unlicensed firearm. At his arraignment, Darosa became extremely agitated and said he would no longer testify, undermining the murder cases against Fernandes and his alleged accomplice.
Prosecutors have dropped plans to retry both defendants, and the Rodrigues murder remains unsolved.
“If you solve cases with bad witnesses, you end up with acquittals and hung juries at the other end of the pipeline,” said Daniel J. Hourihan, a former Plymouth prosecutor now working in Bristol County.
Business as usual
Today, Cruz is managing his office as if nothing were amiss, despite the judicial admonitions, the public criticism from his former prosecutors, and the loss of Middleton, his longtime right-hand man, who abruptly resigned this spring after 23 years with the Plymouth district attorney’s office.
Middleton said he was resigning to enter private practice, but he stepped down amid criticism of his decision to use the racially charged e-mails linked to former colleague O’Sullivan in an attempt to discredit her testimony in one of the Rodrigues murder cases. Some, including the defense attorney in the case, said the e-mails raised questions about whether some of Cruz’s prosecutors are racially biased.
“It’s not a matter of who wrote what to whom,” said Scapicchio, the defense attorney in the case. “The issue is: Is there a problem in the Plymouth County DA’s office that needs to be investigated?”
Cruz has denied any bias in his office, but has called in an outside consultant to review the issue.
“I remain committed to ensuring that all people involved in court cases . . . be treated fairly and equally, regardless of race,” Cruz said this year.
Meanwhile, pretrial testimony is going forward in the lawsuit filed by former Plymouth prosecutor Bradley, who accused Cruz of wrongly firing him.
Robert W. Harnais, president-elect of the Massachusetts Bar Association, said the multiple controversies in Cruz’s office are echoing through the legal community.
“The office seems to have a win-at-all costs, ends-justify-the-means attitude, and it just doesn’t work,” said Harnais.