DA Joseph Early's & lawyer on state Ethics Commission case: 'Much ado about nothing'
BOSTON — Lawyers gave opening statements and heard from the first witness Wednesday in a contentious first day of state Ethics Commission hearings regarding the 2017 “Troopergate” scandal.
During a hearing in which the commission’s presiding officer at one point threatened to entertain sanctions against his agency’s own lawyers, counselors argued myriad topics, from the schedule of events to the merits of the case.
“(This case is) much ado about nothing,” Meredith Fierro, a lawyer for Worcester District Attorney Joseph D. Early Jr., said in her opening statement, sentiment counsel representing other defendants largely echoed.
Early and three other public officials — Senior First Assistant District Attorney Jeffrey Travers, former State Police Col. Richard D. McKeon Jr. and former State Police Maj. Susan Anderson — are accused of breaking civil ethics laws by trying to improperly remove statements police attributed to an arrested judge’s daughter from the public record.
Commission lawyers allege Early directed Travers to swap a sanitized version of a police report that Early urged McKeon to create with an original version that had been impounded in a court file in violation of law.
“This is a case about preferential treatment,” Ethics Commission lawyer Candies Pruitt said Wednesday to begin her opening statement, going on to allege that officials’ alleged actions were taken because the woman arrested was a local judge’s daughter.
The judge, Westborough District Court Judge Timothy M. Bibaud, has not been accused of wrongdoing in the case. But Pruitt and other commission lawyer allege Early and others would not have tried to scrub sexually explicit comments the daughter allegedly made to a state trooper following an Oct. 16, 2017, highway crash out of public record had she not had the familial tie.
“All this activity by high-ranking state officials about a misdemeanor (OUI case),” Pruitt mused near the end of her brief opening.
Lawyers for the defendants offered lengthier opening statements to the presiding officer, a retired appeals court judge, and to members of the public watching the proceedings live-streamed online.
Fierro, one of two lawyers representing Early, said commission lawyers will not hear testimony that the DA directed Travers to do anything other than approach a clerk with a revised report in his hand for guidance.
She and other lawyers for the defendants, who have not conceded that any plot to swap reports existed, argued the case has been a media-driven distortion of honorable actions undertaken to prevent the needless stigmatization of a young woman fighting addiction. “Nothing improper, nothing unethical, nothing unusual (happened),” Fierro said. “District Attorney Early did what he thought was right and proper.”
Michael Rusconi, McKeon’s lawyer, said the colonel, who retired in the wake of the scandal, also acted in accordance with his ethical beliefs.
The colonel had seen firsthand the pain opioid addiction causes people and their families, he said, and did not believe statements included in the trooper’s report about the woman's impaired driving arrest reflected proper professional judgment.
Roy A. Bourgeois, Travers’ lawyer, argued that his client had an ethical obligation to ensure the woman faced a fair trial.
The fact that the woman’s father was a judge, he argued, inherently increased the risk of adverse pretrial publicity, underpinning the need to take action.
Timothy Burke, a lawyer for Anderson, said his client was away from work during the timeframe in which most of the alleged wrongdoing took place. Anderson, who was ordered to command the state trooper who filed the report to change it, was merely doing her job in a paramilitary organization, he said.
Pruitt anticipated some of the defendants’ arguments in her opening, saying that arguments about pretrial publicity, or empathy toward those struggling from addiction, did not hold water.
She said the presiding officer will not hear any rationale for why public officials took action on a report that was already impounded from public view in a case that was going to be transferred to another county.
The presiding officer, state ethics commissioner and retired Appeals Court Judge R. Marc Kantrowitz, is hearing the case, which he will ultimately decide along with his four other colleagues on the commission.
If found to have violated civil ethics laws, the defendants face fines of up to $20,000.
Kantrowitz heard from one witness Wednesday, a former state police trooper and trainer who testified about the report at issue in the case.
The man, Jamie J. Magarian, now an employee of the state’s Municipal Police Training Committee, testified that the trooper’s report, including sexually explicit statements attributed to the judge's daughter, was in line with training he offered at the State Police academy.
Magarian testified officers are generally taught to include pertinent information verbatim in police reports, and said he had seen similar explicit language in “several” reports, including ones he had authored.
Magarian testified he had never before heard of a police report, as happened in this case, being altered after it had been filed with the court.
On cross-examination, Magarian agreed that officers have discretion on whether to quote statements directly in their reports. He agreed that some of the statements Early and McKeon took issue with in the report did not directly relate to the offenses with which the woman was charged.
Burke alleged in his opening statement that the trooper who wrote the report, Ryan Sceviour, included some of those statements as a result of a disagreement he alleged occurred between Sceviour and a bail officer prior to the woman’s release from custody.
Sceviour is slated to testify later in the hearing.
At one point during his testimony, Magarian was asked by commission lawyer John C. McDonald about how he learned he would be testifying.
The lawyer, following objections, explained to Kantrowitz that he understood Early had contacted Magarian’s brother, who he said was a Worcester police officer, about Magarian's upcoming testimony.
McDonald implied the communication was improper, but Kantrowitz did not allow the line of questioning to extend into very much detail.
Thomas Kiley, Early’s second lawyer, argued Early did not do anything improper.
“Nobody owns a witness,” he said.
Burke objected to the line of questioning, calling it nothing but an attempt to “dirty up” Early “with some phone call he allegedly made.”
Lawyers on opposing sides have, in the two years since the commission filed its allegations, cast aspersions multiple times, something Kantrowitz alluded to at one point Wednesday.
“I recognize there’s been some antipathy between the parties to this point,” he said, adding the hoped that might change.
Wednesday’s proceedings had several tense exchanges, however, most of which centered on scheduling.
Kantrowitz expressed frustration with Pruitt and other commission lawyers at only having one witness ready to go Wednesday. Commissioners said the dearth of witnesses occurred because of a ruling Kantrowitz made regarding the trial schedule last Friday, and then rescinded Tuesday.
Kantrowitz had originally ordered commission lawyers Friday to confine their first witnesses to one legal point in the case to start, a decision they at the time said would interfere with their witness plan.
Kantrowitz reversed the order Tuesday and ordered the hearing to proceed as originally scheduled, but by that time, Pruitt said, witnesses had been told they no longer needed to appear those days they'd been scheduled.
During several terse exchanges, Kantrowitz said he did not believe the commission’s lawyers had tried hard enough to bring the witnesses in. At one point, he threatened to entertain motions for sanctions against the lawyers if they were unable to present multiple witnesses Thursday.
Commission lawyers at day’s end Wednesday said they were working to get more witnesses lined up in short order.
The hearing will resume Thursday at 10:15 a.m., and can be viewed streaming online through a link on the commission’s website.
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