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Overtime probe could sink court cases

By Shaun Sutner and Jay Whearley TELEGRAM & GAZETTE STAFF

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WORCESTER- Criminal cases relying on the investigative work and testimony of seven Worcester police officers accused of fraudulently obtaining overtime payments for court appearances could be jeopardized if the fraud allegations are substantiated in an internal Police Department investigation under way.

Three prominent criminal defense and civil rights lawyers have told the Telegram & Gazette that the ramifications of such allegations, if verified, include opening the door to discrediting any court testimony by the seven. The impact almost certainly would be seen in upcoming criminal cases that rely on their testimony, according to the lawyers. Less clear is whether the allegations, if substantiated, could lead to reopening old cases.

The lawyers stressed that they were speaking in general terms about situations such as the Police Department probe into abuses of court overtime payments and that potential outcomes they foresee are predicated upon a formal finding that abuses are confirmed.

Asked if any determination of wrongdoing by the accused officers, be it administratively or before a judge, could be grounds for appeal of past criminal verdicts, Worcester lawyer Hector E. Pineiro said, "Of course they could."

Mr. Pineiro, an advisory board member of the National Police Accountability Project, a national nonprofit organization of defense lawyers, law students and legal aides, said a finding of wrongdoing in such situations would immediately undermine the reliability of an officer's testimony concerning his or her handling of an investigation and call into question their truthfulness on the witness stand.

"You can impeach the credibility of witnesses in various ways, and this is one of them," he said. "If criminal charges were filed (against the accused officers) … without a doubt it could impact every criminal case they were involved in," Mr. Pineiro said.

On July 22, Police Chief Gary J. Gemme said that evidence of possible "double-dipping" - claiming overtime for court appearances made when officers already were on scheduled duty - was uncovered during an audit of Police Department expenditures between Jan. 1 and June 30. The audit and internal investigation has since been expanded to include all court overtime payments made in 2007, and the chief has promised to go back even earlier if the situation warrants.

Police Department spokesman Sgt. Kerry F. Hazelhurst said Chief Gemme could not comment on the potential impact of the alleged overtime because the internal investigation isn't complete. The sergeant, noting that the seven have not been publicly identified by the department, said any speculation about the situation would be unfair and premature.

Sgt. Hazelhurst also noted that nearly all criminal cases that end up in court rely on investigative work and testimony by several police officers, not a single officer.

Worcester District Attorney Joseph D. Early, through a spokesman, declined to comment on the situation.

Through several sources, the T&G has learned that the seven are Lt. Timothy J. O'Connor; Sgts. Michael J. Coakley, Eric A. Boss and Faith A. Roche; and Officers James M. O'Rourke, Paul W. Noone and Darnell McGee. All are veteran officers who worked in various investigative bureaus within the Police Department.

Lt. O'Connor and Sgt. Coakley were placed on paid administrative leave for the remainder of the internal investigation, and Sgt. Coakley has since resigned from the department. The other five officers have been reassigned.

A review of news stories about criminal cases since January 2007 that the seven officers were involved with shows several dozen cases that have gone to court or are pending. Attempts by T&G reporters to obtain comment from the seven officers have been unsuccessful.

J.W. Carney Jr., a Boston criminal defense lawyer, said that in situations such as Worcester's, a distinction needs to be drawn between old investigations and "prospective" ones in which the officers could be called to the witness stand.

For cases that have been closed, Mr. Carney said, grounds to reopen them would likely require specific evidence of fabricated testimony by an officer. Much less likely, the lawyer believes, would be the reopening of a case based solely on a finding that an officer previously had lied in order to receive overtime pay.

In future cases though, Mr. Carney cautioned, officers determined to have committed such acts would almost certainly fare badly under cross-examination.

"It goes to the person's honesty," he said. "What I'm doing is testing the person's credibility."

Even more pronounced, the lawyer said, would be the impact on a judge and jury of the appearance on the witness stand of a police officer in the position of Lt. O'Connor. In addition to the current accusation against him, the officer was the subject of a 2003 case in which Superior Court Judge Ralph D. Gants ruled that he lied during a hearing on a defense motion to suppress evidence in a drug case.

Lt. O'Connor, then a sergeant, appealed the ruling and was vigorously defended by then-District Attorney John J. Conte and several police command officers, including then-Capt. Gary J. Gemme.

Earlier this month, the state Appeals Court rejected the appeal, stating that Judge Gants was within his authority to issue his ruling. The appellate court took no stance on the judge's determination that the officer lied.

Boston civil rights lawyer Howard Friedman, president of the National Police Accountability Project, said the potential impact of a situation such as the alleged overtime abuses is clear.

Even if the officers do not quit or are fired but never return to the detective bureau, their written reports and records of police work on everyday cases could be suspect, Mr. Friedman said.

"It is obvious that if there are findings that they lied, their credibility is at issue, just like any other witness who lies," he said. "With detectives, it can be a big problem because one of the biggest qualities is if you're trustworthy.

"As a lawyer, I can get them on the stand and say, 'You're a liar,' " he said.

In records supplied last month by the Police Department after the T&G filed a Freedom of Information Act request, there is no hint of potential violations of court overtime procedures or even concern that there might be a problem.

Between November 2003 and November 2005, then-Capt. Gemme, who oversaw the Police Department's vice and narcotics bureau, was asked to investigate various internal procedures that had been called into question or were areas of concern to top command officers. The then-captain's reports concerned the handling of confiscated evidence, including drugs and cash.

The documents show that, based on Capt. Gemme's recommendations, numerous steps to correct the potential problems were implemented. Those steps included the purchase of more secure safes to store evidence and revised requirements that detailed more effective accounting procedures.

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