In an email sent to public defenders across the Commonwealth, CPCS Special Projects Unit Staff Counsel Ben Leatherman wrote that the State Police regularly used covert surveillance technology, sometimes without a wiretap warrant, in their criminal investigations.
"CPCS has learned that the Massachusetts State Police has regularly been using covert surveillance technology resulting in audio and/or video to be recorded, even in cases where there was no wiretap warrant," Leatherman wrote. "The MSP has identified more than 250 cases where recordings exist and may not have been turned over."
Leatherman wrote that the agency would notify all public counsel involved in the 250 cases individually, but encouraged all public defenders to alter their discovery practices in case other police departments had used similar investigative tactics.
"We suspect that the use of covert surveillance and recording may go beyond the cases currently identified by MSP and to other police agencies," Leatherman wrote. "Therefore, we are recommending that attorneys make it standard discovery practice to ask in their Rule 14 motions if any application transmitting audio and/or video from one officer's phone to another was used in the investigation in your case, whether any recordings were made of said transmission and, if so, to ask for production of those recordings."
Dave Procopio, a spokesperson for the State Police, said the department conducted a thorough review of its electronic recordings of undercover operations to ensure the recordings are turned over to prosecutors in the future.
"Upon determining that some recordings of undercover encounters may not have been properly disclosed, the department immediately notified prosecuting agencies and began the process of providing the recordings. The department also took action to ensure that all such recordings going forward are provided as required," Procopio told The Item in a written statement.
Procopio added that surveillance technology can be essential to the safety of undercover officers, and, when properly disclosed, the video or audio recordings produced by this technology are often permissible as evidence.
"Officer safety and investigative integrity is of paramount importance during interactions between undercover officers and suspects involved in narcotics sales or other street crimes. These interactions carry great risk to the officer and can turn violent at a moment's notice," Procopio said. "Electronic monitoring of such interactions for officer safety purposes is always permissible, and the recording of them for investigative purposes is often permissible, with the condition that any resulting evidence is appropriately disclosed. The State Police are committed to that process."
Leatherman, in an email to The Item, said the State Police informed district attorneys' offices and the attorney general's office of these recordings in June. Since then, some of these recordings have been provided to defense counsel.
The approximately 250 superior- and district-level cases, Leatherman said, comprise both pending cases as well as cases in which the defendant has been convicted.
"All the cases that we are aware of involved Massachusetts State Police investigators. It is vital that defendants have access to all relevant discovery in their cases. We understand this is an ongoing situation and we do not know if more cases may be impacted," Leatherman said.
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