In an unusual move, an Edgartown district court judge dismissed a criminal case Thursday after the Dukes County Sheriff’s Office failed to provide prosecutors with the disciplinary records of deputy sheriffs involved in the case.
Nine other criminal prosecutions in Dukes County may now be in jeopardy because of the dispute over disclosing potentially exculpatory information, known as Brady material, that state prosecutors are legally required to provide criminal defendants before trial.
The high-stakes legal battle spilled into the public Thursday after the office of Cape and Islands District Attorney Robert Galibois II filed identical motions in 10 criminal cases in Edgartown District Court, asking judges to order compliance with Brady requirements within two weeks or else hold a hearing about the delay.
Judge Benjamin Barnes separately dismissed one of the 10 cases, which involved an Edgartown man, Paulo Kinaki, who was charged in October 2022 with violating an abuse prevention order.
The Access Massachusetts Court Cases database, which provides access to court dockets and records, states that the case was dismissed “upon commonwealth request and without prejudice,” but the district attorney’s office said that was inaccurate.
Court documents show that the district attorney’s office told the court it “is unable to comply with its discovery obligations,” and asked the court to set a two-week deadline “for the commonwealth to comply with its discovery obligations.” If there was no compliance, it asked the judge to order a show-cause hearing.
The judge also acted to dismiss the charges after the alleged victim in the case did not appear in court.
Prosecutors are relying on the sheriff’s office to provide the materials in the other nine cases. Defense lawyers must be informed, for example, if an officer in a case has been dishonest, or used excessive force, racial profiling, sexual harassment, or otherwise violated official policy.
Galibois launched an effort to obtain Brady materials after he took office in February 2023. The district had no previous Brady policy, which is named for a landmark Supreme Court ruling in 1963.
In an affidavit filed to the court Thursday, Galibois’ office said it had sent the new policy to every county law enforcement agency, including the sheriff’s office, in spring 2023. That August, it sent another letter requesting any damaging or exculpatory material on officers that his office was legally required to provide to defendants.
The district attorney’s office wrote Ogden again in September “highlighting the need for ‘Brady’ material and indicating that if we do not receive a response, we will be forced to file a notice with the court on each case” explaining the lapse, Tara Cappola, the second assistant Cape and Islands district attorney, said in the affidavit.
According to the affidavit, Ogden then told the district attorney’s office that he had reviewed material for all current deputy sheriffs, and that there was no Brady material in his files.
In January this year, Galibois sent another request to law enforcement agencies in the county, this time requesting Brady materials over the past 20 years.
In his response, Ogden “essentially [notified] the commonwealth that it would create an undue burden on them to comply with our request,” Cappola wrote.
She added that Special Sheriff James Neville later said no current department employees would meet the District Attorney office’s criteria for disclosing Brady information.
Cappola said that sheriff’s counsel Jack Collins responded on May 22 that he would review a request for the list of current employees and get back to her. A week later, she says, she received a response from him that did not address the request for former employees.
“At this point, the commonwealth is unable to certify that we have complied with our ‘Brady’ obligations on this case because there are Sheriff’s Department witnesses involved,” Cappola wrote in her affidavit for the nine additional cases.
Ogden could not be reached by The Times on Friday.
When does the faithful public servant, Sheriff Bob Ogden , come up for re-election again?
Anyone know?
This is a very tricky topic because employees employment files contain all kinds of very sensitive materials most of which is protected from disclosure and much of which contain opinions of supervisors who may or May not have been fair in evaluations. In responding to such a broad request, former employees may have to also be notified and be given rights to contest info in their file that they may not even know is in the file! Tough spot for a Sheriff to look back at 20 years of records to a time pre-dating his election. But the defendant does have a right to know about employment actions taken against Sheriff’s deputies and police officers in a case in general…
What wasn’t tough was to comply with the court order to produce that information.
Apparently Ogden feels he is a law onto himself.
Neil Maciel should have been voted in, not this contemptuous sheriff.
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