Broken door, broken promise: Police renege on pledge to ask judges for permission in no-knock raids
WORCESTER – After a 2015 “no-knock” SWAT raid that found a shaken
family at gunpoint instead of the targeted criminal, state police vowed
to seek approval for raids from a judge instead of a clerk-magistrate.
With
one exception, that critical judicial oversight is not being done in
Worcester County, a review of court records by the Telegram &
Gazette shows.
“Clerks are extremely experienced and competent,” Col. Richard D.
McKeon replied April 15 when asked why the change, announced in a 2016
press release, was not made. In a statement Thursday, the agency did not
answer detailed questions and made no reference to the initial pledge.
State
Police assert that their protocols are now “among the most rigorous of
any law-enforcement agency in the country,” adding that Col. McKeon, the
superintendent, reviews the warrants before they are executed.
“There
is a heightened sense of review on these types of warrants now,” Col.
McKeon said April 15, noting all warrants are forwarded to the district
attorney’s office for review.
Bringing the warrants to a judge,
however, would have ensured that the ultimate arbiter of their legality
scrutinized them before their execution. State police declined to say
why they reversed course on the external control, and also declined to
discuss an apparently ongoing practice of securing no-knock warrants to
seize marijuana, which voters legalized last November.
The policy
changes were prompted by an August 2015 SWAT raid in which police broke
down the doors of an apartment in Worcester looking for a man and two
illegal guns, but instead found a frightened family. It was the same
type of high-risk raid that, according to a recent investigation by The
New York Times, has led to the deaths of at least 81 civilians and 13
law enforcement officers since 2010.
“I was encouraged that
something good would come out of this horrible thing,” Marianne Diaz,
who was roused nude from her bed at gunpoint, said Wednesday. “I’m
really afraid that someone is going to get hurt worse than us by the
raids they’re doing.”
Impetus for change
Ms. Diaz was 23 when a Worcester SWAT team, serving a warrant
obtained by state police, burst into her Hillside Street apartment on a
steamy August morning. The target of the raid had moved months ago, but
police were apparently unaware.
Ms. Diaz, who has filed a
lawsuit, maintains Worcester SWAT, who made the initial entry, treated
her harshly during the raid, swearing and waiting minutes before
allowing her to cover up. They left without an apology, she says,
leaving behind mental scars for her and her young daughters that
outlasted the physical mess.
In the days after the raid, the
warrant that authorized it came under scrutiny. It was approved by an
assistant clerk despite the fact that its applicant, Trooper Nicholas E.
Nason did not conduct surveillance on the home or attempt to explain in
his affidavit why his research showed that Ms. Diaz, who he noted had
no record, was listed as living at the address in both RMV records and
electricity bills.
The warrant relied primarily on the word of a
confidential informant to establish the target’s residency, along with
noting relatives of the man were found there during a separate raid 11
months earlier.
Experts told the T&G the warrant, although
not comprehensive, was legally sufficient. A state police review of the
process released in January 2016 found Trooper Nason broke no policies,
but suggested a number of policy changes that could be “implemented
quickly across the agency to avoid situations such as the one under
review here.”
One of the most prominent changes, announced in a
state police press release in January 2016, was a requirement that any
no-knock warrant be approved by a judge instead of a clerk-magistrate.
The American Civil Liberties Union opined that while the changes did not
go far enough, they were a step in the right direction.
“Many
clerk-magistrates, although talented, are not necessarily attorneys,”
Peter Elikann, a Newton criminal defense attorney who serves on the
criminal justice section of the Massachusetts Bar Association, noted at
the time.
A quiet reversal
Yet a T&G review of
no-knock warrants in all 10 courts in Worcester County shows that of the
10 no-knock warrants issued to state police since 2016, only one was
reviewed by a judge.
Brendan T. Keenan, first assistant
clerk-magistrate in Worcester’s Central District Court, said last week
he was never asked to accommodate the change.
“I read that in the paper,” he said of the pledge. “That’s the only place I heard it.”
Clerk-magistrates
in Fitchburg and Leominster, the only other two courts that have issued
no-knock warrants to state police since 2016, said they also had never
been asked to kick the warrants up to a judge.
“I can’t answer questions on behalf of the trial court,” Patrick J. Malone of Fitchburg said.
The
Trial Court, which oversees the courts, did not answer questions about
whether it had anything to do with the publicly announced change getting
scrapped. Spokeswoman Erika Gulley-Santiago confirmed state police met
last year with the Trial Court to discuss the issue, but declined to say
the outcome.
“By law, search warrants (no-knock or otherwise) may be issued by
judges, clerks, or assistant clerk-magistrates,” noted the office, which
does not track no-knock search warrants or who signs them.
The
law also allows temporary assistant clerks to issue search warrants.
Rahsaan D. Hall, director of the ACLU of Massachusetts’ Racial Justice
Program, said it was concerning that such a shift in policy would be
shelved without explanation.
“The fact that an assistant
clerk-magistrate can sign off on a no-knock warrant doesn’t negate the
fact that there was a perception that there would be a higher level of
scrutiny given to these warrants by the judge,” he said. “There’s
obviously a reason why they felt it was an appropriate thing to do, so
to turn back on that without a determination as to why leaves a lot of
questions.
“Sometimes,” he added, “people say things because of political expediency.”
But
Daniel J. Hogan, clerk-magistrate of the Boston Municipal Court and
head of the state professional association for magistrates and assistant
clerks, said police did give the idea real consideration.
“They
did make some efforts, but I think, after they had an opportunity to
reflect, they said, ‘Maybe that’s not the best course of action for the
purposes of public safety.’ ”
Mr. Hogan made a spirited case for
why clerk-magistrates are just as qualified, if not more so, than judges
to approve search warrants. He noted that assistant clerks, in
particular, deal with warrants every day, as opposed to judges -
particularly on-call judges - who might not deal with search warrants
frequently.
“At night, some of the on-call judges might be someone who is in land
court every day,” he said. “Wouldn’t you want someone who does this
every day looking at these?”
Mr. Hogan said logistics may also
come into play. Getting a warrant to a judge takes longer, he said, and
at night, could require detectives to travel long distances to an
available judge’s home.
“It took an arrow out of their quiver,” Mr. Hogan said of the shift.
Mr.
Hogan said state police always have the discretion to go to a judge for
a warrant if they wish; it’s not a decision up to the Trial Court.
Two judges in Worcester’s Central District Court did not return calls on the subject this week.
Isaac
Borenstein, a retired Superior Court judge of 16 years, pushed back
against the idea that clerks would be more qualified than judges to
review search warrants.
“This is the day-to-day bread and water
of judges,” said Mr. Borenstein, adding that it is not unusual for
police to eschew judicial review.
“There have been major studies done over the years, and one
consistent thing about the studies is that police like to avoid judges,”
he said. “They’d rather go to magistrates.”
Mr. Borenstein said
he could see logistical concerns as the cause, recalling times an
officer would show up at his home and he’d tell them to get comfortable.
“Have a seat. Have some tea,” he would say, because he intended to scrutinize the affidavit as long as it took.
Mr.
Borenstein also said there are judges who are on call 24/7, and that if
a judge didn’t feel qualified to review a search warrant, there are
other options that judge can call.
“For something this important,
it makes sense for the state police to say, ‘We’re going to go to
judges,’ ” he said. “Why they aren’t doing it, I have no clue.”
“When they change, we’ll change”
Nine
of the 10 no-knock warrants examined by the T&G were signed by
assistant clerk-magistrates; in six of the cases, that person had no law
degree.
The one case in which a judge was used was for a warrant related to a
probe of the slaying of Auburn Officer Ronald Tarentino Jr. Judge’s
names appear on the bottom left of each warrant, but that is a legal
technicality, the trial court said, and not an indication that a judge
reviewed the document or even saw the warrant.
Mr. Keenan, who
oversees Central District Court, said the clerks who touch search
warrants in his court are trained and qualified.
“If I thought someone didn’t know how to do a search warrant properly, they wouldn’t be doing it,” he said.
Mr.
Keenan said he did not go back and examine the Hillside Street
affidavit but maintained his clerks follow the law. There are no
requirements that police conduct surveillance on a home or determine
whether children live there prior to serving a no-knock warrant.
“We just follow the court rules and the law,” he said. “When they change, we’ll change.”
Brenda
Seaver, the assistant clerk who signed the Hillside Street warrant,
declined a request for comment through a Trial Court spokesperson. Ms.
Seaver has a law degree.
Edward W. McIntyre, a Clinton attorney
and former president of the Massachusetts Bar Association, said he
believes change in public policy is sorely needed.
“This is a community issue,” Mr. McIntyre said, noting an errant raid
can impact anybody and has, in fact, lead to loss of life and property
throughout the country.
Most of the 10 no-knock raids conducted
by state police in the county since 2016 sought drugs. Mr. McIntyre said
he is against the idea of SWAT raids to net drugs because he does not
believe the ends – getting contraband or dealers off the street – are
worth the risks.
“Do we put good people’s lives – and I’m talking about blue lives –
at risk for some suspected drugs in an apartment?” he asked. “It’s not
hypothetical, it’s a real issue across the country.
“We have dead
police officers, we have ruined lives, we have widows, we have children
without mothers and fathers ... because of some imprudent decision made
by somebody who may be conditioned by the war on drugs.
“They haven’t stepped back and said, ‘What’s worked and what hasn’t worked?’ ”
Worth the risk?
Three
of the 81 deceased civilians in the Times report were from
Massachusetts, including Eurie Stamps Sr., a 68-year-old grandfather
killed accidentally during a 2011 Framingham SWAT raid in which he was
not the target. Framingham disbanded its SWAT team in 2013 and agreed to
a $3.75 million settlement last September with Mr. Stamps’ family.
Im just hoping it is not painful to the taxpayers, detrimental to the towns near term future and that maybe, just maybe, we learn from mistakes made and come up with a workable small town financial plan to maintain the expected quality of life citizens deserve.
Who in our local government is looking out for all the citizenry. Is anyone looking into the makeup of boards/committees/commissions to verify that no "appearance" of improper relationships/terms/conditions are occurring. Many last names seem to multiply in our little government and has anyone looked into the entire structure of our town government?