Lawyers: State police who made illegal recordings should be subject to criminal charges

Recordings dozens of state troopers made using a smartphone application in violation of the state’s wiretap statute warrant systemic review and possible criminal charges, defense lawyers told the Telegram & Gazette.

“This situation is pretty outrageous, to say the least,” Shira M. Diner, president of the Massachusetts Association of Criminal Defense Lawyers, said of the news that troopers, in hundreds of cases dating back years, failed to disclose recordings in criminal cases.

“They’re putting a black cloud over the whole system,” said Barry Bisson, a Boston criminal defense lawyer who chairs the Massachusetts Bar Association’s Criminal Justice Section Council.

Diner and Bisson said they believe troopers ought to be held civilly and criminally liable, and that an extensive review of what happened and how to prevent it in the future is warranted.

“If they don’t disclose (information like this) to defendants, the whole system falls apart,” said Diner.

The union that represents state police, and the association that represents district attorneys, declined to comment for this story.

Illegal recordings made, withheld from prosecutors, defendants

Documents the T&G obtained last month show state police acknowledged troopers have for years made recordings in criminal cases “outside of legal parameters governing surreptitious audio recordings in Massachusetts” that were never disclosed to prosecutors.

Many of the recordings appear to have been made in undercover drug investigations where troopers were using a suite of cellphone applications, Callyo, to audio and/or video record without being detected.

Some troopers questioned over the issue have blamed state police for not having a policy on the new technology, and testified they weren't aware of the extent of the apps' recording capability.

Several people who were criminally charged after being recorded filed a federal lawsuit Feb. 23 seeking unspecified damages and asking for a judge to certify the filing as a class-action suit.

Diner and Bisson said taxpayer money and resources will now be expended as fallout from the issue continues, and records show tens of thousands in public dollars have already been approved to relitigate cases in Fitchburg District Court.

Public defenders and prosecutors paid by the state will spend time and money grappling with the issue, Diner said - perhaps two or three times as much as if the cases had been brought properly in the first place.

The lawyers said there is also an intangible cost to clients who were arrested and had their lives impacted, and who were improperly deprived of information to which they were legally entitled.

“If the defendant is saying something, you know you have to turn that over,” Bisson said of police. “This is not new.”

Lawyers: systemic, criminal probes warranted

Massachusetts’ wiretap laws are more strict than those in many other states, and troopers, documents indicate, often failed to get warrants they would have needed to legally make the recordings they withheld from prosecutors.

State police records show the department informed local, state and federal prosecutors that undisclosed recordings existed in at least 260 cases dating to 2013, with the bulk of those – 181 – being made in cases that ended with a conviction or similar result.

A judge in Worcester County, where prosecutors first flagged the issue in 2023, has been asking pointed questions of troopers during hearings aimed at determining whether defendants convicted in a Fitchburg drug sweep deserve new trials.

Like other scandals involving state police, Diner and Bisson said, the Callyo issue has the potential to widen as more cases are unearthed, and to lead to civil and criminal liability for officers.

Violation of the Massachusetts wiretap statute is a felony, Bisson noted. He said he sees no reason why officers, who are sworn to uphold the law, should not be held criminally liable.

“I’ve had clients charged with violating the (wiretap) law,” Bisson said.

Diner said in addition to possible criminal and civil liability, a working group involving the defense bar should be created to scrutinize the scope and import of the problem.

“There needs to be a global and very broad review of what cases could have been touched by this,” she said.

Broader implications?

Diner, a Massachusetts Sentencing Commission member and former longtime public defender who now teaches at Boston University School of Law, said the issue highlights broader problems in the criminal justice system that also need addressing.

The fact that so many officers felt able to make such recordings illegally, she argued, is proof that it is too difficult to hold police officers accountable for misconduct.

Diner said there needs to be larger discussions about how to ensure police face liability for disregarding laws and civil rights, including re-examination of the controversial topic of qualified immunity.

Diner said it seems likely to her that the federal lawsuit names Callyo's owner, Motorola, in addition to state police in part because of the difficulty of holding police liable, a state of affairs she said should change.

“I’d like to think there are better uses of taxpayer money than having to fix the mistakes, or bad conduct, of state police,” she said, adding until that happens, there's little disincentive for change.

Diner said as a public defender, she often suspected police were not turning over evidence to prosecutors to ensure defendants never saw it.

“This is a really big problem that goes beyond recordings of defendants,” she said. “It’s fundamentally not right, and it really calls into question the integrity of the system.”

A trooper who failed to disclose recordings testified in Fitchburg District Court in November that he generally relied on requests from prosecutors before disclosing evidence.

The trooper, Justin Burd, when asked whether it was his “training” to wait to turn over evidence to prosecutors until “asked” for things specifically, replied: “Typically, the way that – I don’t want to say trained, but culturally examined, would be that I would wait until I was asked.”

Diner said she believes it needs to be made clear to police and prosecutors that there will be consequences for failure to turn over evidence.

“Police shouldn’t be able to not turn over (evidence) to the prosecutors just so it doesn’t get turned over to the defense,” she said. “It needs to be clear they have an obligation to not just sit on things.”

Bisson said the undisclosed recordings will make the public – and especially defense lawyers – wonder what else police might be hiding.

“They’re already knowingly violating the law,” he said. “If they’re willing to do this, what else are they willing to do that we don’t know about?” he asked.

'Pandora's box'

Bisson said he has many friends in state police that he believes would not countenance or participate in such behavior. But the revelations, he said, will cast a cloud of suspicion over other troopers who act within the bounds of the law.

“It makes my heart break for them, because their job is already hard as it is,” he said.

Bisson said he anticipates the Criminal Justice Section of the Massachusetts Bar Association, which he chairs, to be discussing the Callyo issue and determining what steps or recommendations to make.

“From a defense perspective, it is extremely disturbing. … It’s a Pandora’s box,” he said, opining that officers who made illegal records should, at a minimum, be placed on so-called “Brady” lists of officers with credibility concerns.

Bisson said the issue cuts to the heart of the legal system: the obligation to turn over potentially exculpatory information. It’s possible, he said, that recordings could contradict written police reports, or otherwise help a person’s defense lawyer in court.

“But I would never know that unless it gets turned over,” he said.

Bisson said he believes judges should grant new trials in all affected cases, and that prosecutors should closely look at all cases “touched” by officers who made illegal recordings.

Bisson, noting that the penalties for violation of the wiretap statute include fines, asked why officers found to have violated the law shouldn’t at least be fined.

As to testimony some troopers have offered that they did not know the apps were recording, or how they worked, Bisson was not sympathetic.

“If you don’t know what their purpose is, or what it can do, you’re taking a chance,” he said. “People take chances. Sometimes they’re defendants.”

Troopers, prosecutors mum

State troopers have testified in Fitchburg that they were concerned about officer safety when using the smartphone applications involved.

The apps, they testified, have supplanted physical wires – essentially making a phone into a bug that other officers can listen to or watch in real time.

There are provisions in the state’s wiretap law that contemplate exempting officers from liability if recordings were made for officer safety, though some officers in Fitchburg appeared to admit they were also using the recordings for investigatory purposes.

Lawyers representing state troopers have been present in the courtroom in Fitchburg during testimony, transcripts indicate, as have internal affairs investigators from state police.

The State Police Association of Massachusetts, the union that represents troopers, declined a request for comment this week.

The Massachusetts District Attorneys Association, the association for the state’s county prosecutors, did not respond to a request for comment on whether whether inquests into criminal liability are warranted.

The office of Attorney General Andrea Campbell also declined to comment on whether officers should face criminal liability.

Bisson said he believes that if any criminal inquest was made, it would make sense for a special prosecutor or single entity to handle it so that potential charges would be considered evenly.

In the meantime, he said, he expects a flurry of motions from defense lawyers asking whether officers in their cases – including those being prosecuted by municipal departments – use or have used Callyo.

“We don’t know how far this extends,” he said. “My fear is we’re only seeing the tip of the iceberg.”

Diner agreed, and said she believes the withholding of the recordings should prompt judges to dismiss all affected cases.

“I’m truly at a loss of words for how horrendous this is,” she said. “Our entire criminal legal system is based on the idea that the commonwealth, the government, is going to turn over to the defendant any exculpatory information that it has.”

This article originally appeared on Telegram & Gazette: Lawyers: Mass. state troopers in Callyo case should face consequences