By Andrew Ford Published September 20, 2018 by the Asbury Park Press and USA Today Network – New Jersey
Eileen Cassidy, a Spring Lake Heights mother of three, spent 22 days in jail because New Jersey hid a State Police sergeant’s misconduct for nearly a year, her attorney argued.
She pleaded guilty in 2016 to a drunken driving charge without knowing that the breath-testing machine used in her case was unreliable, her attorney claimed in a brief filed in June before the state Supreme Court.
A State Police sergeant responsible for certifying breath-testing machines as accurate was indicted by a state grand jury on charges he falsified documents to show a machine had been properly tested when he had actually skipped a step Cassidy’s attorney called “extremely vital” in his brief. The sergeant pleaded not guilty and his case is pending.
The alleged fabrication throws into doubt the validity of breath samples in more than 20,000 DWI cases involving machines certified by the sergeant – including Cassidy’s. The state attorney general’s office knew about the skipped steps but failed to tell Cassidy and others about the problem for 11 months before Cassidy pleaded guilty, Cassidy’s lawyer claims. The state has argued that the step improves confidence in the tests, but doesn’t affect scientific reliability.
The breath testing machine debacle highlights the damage done to cases involving thousands of defendants when New Jersey fails to catch police misconduct or tell the public about bad officers.
In most other states, an officer who breaks a rule can be banned from wearing a badge, some even without a criminal conviction.
But New Jersey is different. It stands nearly alone in the nation for its lack of state oversight of police officers.
New Jersey is one of just four states that does not license police officers, a basic safeguard used nationwide to ensure bad cops don’t skirt the rules or move from town to town. Licensing is a practice common to dozens of other professions, from doctors to massage therapists, and even other public employees, such as municipal finance officers. Licensing helps ensure professional standards are uniform, upheld and bad actors are banned.
Yet in New Jersey, the police oversight system is in such disarray that officials cannot track a wayward officer’s untoward conduct. Moreover, the state has no clear rules for when – or even if – a problem cop’s past has to be disclosed to those he or she arrests.
Next time you’re in a traffic stop, a cop previously accused of dishonesty can arrest you, but there will likely be no way to know about his past, the Asbury Park Press and USA TODAY NETWORK New Jersey found.
Network reviewed thousands of pages of police records and court documents to find:
- Dozens arrested by a cop a prosecutor’s office thought to be on desk duty – At least 43 people have been arrested by a Manchester officer after his town fired him – though he was later reinstated – and Ocean County Prosecutor’s Office told a court he would “undermine confidence” in prosecutions. A court, however, brushed off the prosecutor’s claim and found in favor of the officer in all but one issue. Top officials in the prosecutor’s office said they thought the officer was not on patrol until the Network showed them he was making arrests.
- $1.9 million in police salaries keeps 20 questionable cops on duty – Eight cops known to have been untruthful, a cop who made bigoted social media posts and another accused of trying to fix a ticket for his cousin are among 20 officers still on duty and collecting salaries and benefits.
- $1.6 million to settle claim after beating and cover-up – In June, Bloomfield agreed to a $1.6 million settlement of allegations related to an incident in which a man was beaten during a 2012 traffic stop and two cops falsified police reports. Former officers Sean Courter and Orlando Trinidad are still in prison serving a five-year sentence after they were convicted of crimes connected to that incident. Claims of police abuse cost New Jersey taxpayers more than $51 million since 2010, the Network found in a review of lawsuit settlements. That includes 24 deaths and 136 injuries.
NJ’s bad cop blind spots
No licensing for NJ cops
New Jersey can’t ban a bad officer in the way a rogue lawyer is disbarred. Officers in Pennsylvania and Florida, for example, can lose their licenses for less than criminal activity, like lying on an application. Lists of officers banned from serving in those two states are publicly accessible.
The Garden State is now one of four without a way to ban bad cops – Hawaii passed a police oversight overhaul in July.
“There’s a lot of professions that are licensed to a minimum standard and I think law enforcement officers should be held to a minimum standard of conduct and job performance,” Hawaii Rep. Scott Y. Nishimoto said.
One of the nation’s top police standards groups – run by cops for cops – recommends police officers be certified and tracked the same way New Jersey licenses dozens of other professions. The International Association of Directors of Law Enforcement Standards and Training based in Idaho maintains a national database of more than 25,000 officer decertifications, intended to stop bad officers from jumping state lines to find new jobs in policing. With no system to ban bad cops, New Jersey can’t contribute to that list.
“Many times when they don’t license and don’t decertify officers, a bad officer that has committed serious misconduct seems to bounce from agency to agency and continue that misconduct,” Executive Director Michael Becar said. “That’s what we’re trying to prevent.”
The Network found that while state law bans convicted criminals from wearing a badge, cops who faced allegations in court as serious as official misconduct and witness tampering were able to secure deals that kept them on duty. In one case, a cop who agreed as part of a court sentence to never again work police or fire jobs then served as a volunteer firefighter and elected fire commissioner.
No standard for disclosing an officer’s checkered past
Based on a series of court decisions over decades, prosecutors have a duty to tell defense attorneys if a police officer has a tainted past – a lie here, a bad report there. That way, the logic goes, a defense lawyer can point out to a jury if an officer has a history of being untruthful. It’s sometimes called “Brady” material, named after a 1963 U.S. Supreme Court ruling.
New Jersey has no clear rules, however, that outline what prosecutors need to give up about an officer’s checkered past. A Network review of all 21 counties found that 17 don’t have a policy addressing the issue. Nineteen have no list of troubled officers.
Failing to make the right disclosures undermines a defendant’s right to fair treatment in court and can lead to complicated appeals.
Bad data on police employment
The best available data on police employment histories is limited and flawed.
Seventy-one working officers were previously removed from public safety jobs due to discipline, according to a review of New Jersey’s Civil Service Commission public employee records.
But the data only cover about a quarter of the public employees in the state. And in at least 22 cases, the Network found the data conflicted with municipal employment records or information about an officer’s employment history provided by police officers or chiefs.
In at least one case, sloppy coding was the cause for conflicting employment records. In another case, an officer’s history wasn’t accurately reflected in the data and applications filed by the officer revealed he didn’t disclose a past firing to one employer.
None of the 71 officers appear in Brady materials provided to the Network, calling into question whether prosecutors knew about those past issues or disclosed them to defendants.
Two law professors said the significance of a firing in court would depend on what the officer was fired for, but detailed records of an officer’s discipline history are hidden, by law, from public view.
Monmouth County Prosecutor’s Office couldn’t say if they’ve told defense attorneys about an Asbury Park cop with past issues. Before he was hired in 2001, he was fired as an Ocean County security guard, subject to one “force resignation” as a Lakewood police dispatcher, and once charged with criminal sexual contact, though the 1998 charge was dismissed, according to his employment application.
That officer’s background hasn’t affected the prosecution of any cases, prosecutor’s spokesman Charlie Webster wrote in an email. Webster declined to say whether the officer’s background will be disclosed to defendants in cases he is involved with, but said generally “information about police officers is routinely disclosed in court.”
Grappling with ‘dishonesty’ claims
At least 43 people have been arrested since 2015 by a cop whose testimony a top official in the Ocean County Prosecutor’s Office told the Network in May the office would never base a prosecution on.
The prosecutor’s office argued in court in 2014 that Manchester Patrolman Ryan Saul should remain fired following internal charges including “dishonesty.” Judges took Saul’s side and put him back on duty.
Ocean County Prosecutor Joseph Coronato brought up his office’s involvement in Saul’s litigation in an interview about police accountability practices with the Network in May, saying “I don’t think he’s out on patrol.”
Coronato’s second-in-command, First Assistant Prosecutor John R. Corson Jr., also said in that May interview the office “would never base a prosecution on the testimony of that particular officer.”
“…I’m inclined to believe… that he’s in a position with the department now which would not require him to interact with the public or ever become involved in a criminal matter or municipal court matter which would compel this officer’s testimony,” Corson said in the May interview. “I believe he’s probably riding a desk somewhere.”
Saul is not on desk duty. Saul is on patrol. Saul made an arrest as recently as June, according to police records.
At least four people arrested by Saul have pleaded guilty in Superior Court to crimes like theft, hindering apprehension and prowling to obtain drugs, according to court documents.
Ocean County Prosecutor’s officials are now in the position the office once called “untenable” in a brief to appellate judges. The office is relying on a police officer who it claimed would “undermine confidence” in the integrity of prosecutions.
Saul and another officer used force to make an arrest after responding to a domestic argument in September 2010, court records show.
A Manchester internal affairs report filed in court documents alleged Saul’s version of events that night didn’t match the accounts of a fellow officer and civilian witnesses.
The report stated Saul claimed he was tackled by the suspect the officers arrested. Two witnesses and Saul’s fellow officer said this didn’t happen, the report shows.
The report also raised other concerns with Saul’s past behavior, including an incident in which Saul “admitted that he lied…” about statements he made during a police response.
Saul’s department accused him of 20 internal charges, court documents show, in part connected to his account of that arrest.
Saul was examined by at least three psychologists, a court document shows. Two found him unfit for duty and one reported that he was fit to serve.
The township fired Saul, then Saul challenged the firing in Superior Court.
The judge acknowledged differing accounts of the arrest, but found Saul’s account to be consistent over time and consistent with his fellow officer.
Superior Court Judge Mark A. Troncone, who sits in Toms River, found charges that Saul was dishonest about the arrest to be “completely without merit.” He found the township didn’t meet its burden to prove 19 of the 20 claims of wrongdoing, finding only that Saul violated the department code of conduct by not immediately reporting a knee injury he suffered during the arrest. Troncone called the three psychologists’ findings about Saul’s fitness “inconclusive” and reinstated Saul in 2014.
Appellate judges upheld Troncone’s ruling. The township filed an appeal to the state Supreme Court, but settled with Saul for $190,000 in a 2016 taxpayer-funded settlement. The town agreed to leave adverse findings out of Saul’s internal file, aside from the reprimand for not reporting the knee injury.
In 2017, Saul was paid more than $133,000 as a patrolman, township records show.
Saul’s attorney, Peter Paris, sent an email to the Network threatening legal action, underscoring that a judge “exonerated” his client of allegations relating to dishonesty. Paris said in an email the prosecutor’s office statements about not basing a prosecution on Saul’s testimony and about Saul not being on patrol are “patently false.” Paris stated that Saul has never been untruthful on the job and described the incident in which Saul admitted “I lied” as “bull—.”
Paris answered some of the Network’s questions, his correspondence with a reporter is available here.
“Ryan performs his job the same way he always has: with integrity, diligence, intelligence, and appropriate restraint,” Paris wrote. “The false allegations against him from years ago have no bearing on Ryan’s performance as a police officer.”
Manchester Police Chief Lisa Parker told the Network in a letter that Saul “is an officer currently in good standing” with the department.
Should defendants know about Saul?
Courts have established that prosecutors must turn over information helpful to the defense, including material on issues with a police officer’s credibility.
But a prosecutor’s duty to help the defense remains a murky legal area.
“Different offices will make different determinations about how far that goes,” Thomas Schmid, an assistant prosecutor in Morris County, said of Brady requirements.
The Network found at least 17 county prosecutor’s offices had no policy addressing the issue, including Ocean County.
Presented with the fact that Saul was making arrests, prosecutor’s spokesman Al Della Fave wrote in a text message that “we never claimed to know exactly in what capacity he is being utilized.”
The office had no records of making “Brady” notifications related to Saul.
Della Fave said the office won’t tell defendants about Saul’s background going forward.
“The way we read it, the court has determined he is truthful,” Della Fave said.
Asked about Saul’s participation in Superior Court criminal prosecutions, Della Fave said in August “it would be taken on a case-by-case basis, depending upon what the case is, the facts of the case,” and as of that time, there hasn’t been “a single situation where we had to deal with that issue.”
Della Fave said in September that every case a police officer testifies in – not just Saul’s – is reviewed for anything that would impact the case. Della Fave said Saul may be called to testify in a criminal case.
In a statement issued by the prosecutor’s office after this story published online, Coronato stated that “Every time OCPO evaluates a potential criminal matter, the office considers whether and how to employ the testimony of law enforcement officers; no officer is the subject of a blanket determination as to the credibility of his testimony.”
Corson didn’t respond to a September request for further comment.
Saul’s past does qualify as material that should be turned over to defendants, according to four legal experts including two law professors and the director of training and communications for the state public defender’s office, which she estimated handles roughly 85 percent of the criminal cases in New Jersey superior courts.
“Well, no one can be 100% certain in the nether world of Brady but the fact that the prosecutor thought the officer would bring disrespect on the entire department is enough for me,” Rutgers law professor George Thomas wrote in an email.
While Saul’s past might not be admissible at trial, defense attorneys should know about it, according to Alex Shalom, senior staff attorney for the ACLU in New Jersey.
“The bottom line is that the (prosecutor’s office) told a court that they believed this officer was unreliable,” Shalom said in an email. “It is unfair to allow them to now tell a jury to trust that same officer without at least notifying defense counsel of that critical inconsistency.”
‘Brady’ cops on duty
Troubled cops stay on duty in New Jersey – even when a disclaimer on their credibility follows them to court.
In two cases, conflicting authorities have left police chiefs hamstrung at taxpayer expense – stuck with cops they can’t fire but they can’t use to make arrests. Both officers earn six-figure salaries.
Edison Officer David Pedana remains on the job after he faced administrative charges “relating to the fact that he made numerous statements to others demonstrating racial and other bias,” according to a 2014 letter from Middlesex County Prosecutor’s Office to Edison Police Chief Thomas Bryan.
The prosecutor’s office letter states the office is “compelled to dismiss any and all cases” that would rely on Pedana, the letter shows.
But chief Bryan told the Network in September a departmental hearing officer determined Pedana shouldn’t be terminated from employment.
Bryan wasn’t able to discuss what allegations the hearing officer sustained about Pedana’s conduct, but said in September the hearing officer did have a copy of the letter the prosecutor’s office issued about Pedana. The hearing officer determined termination was “too harsh” a penalty for Pedana’s conduct, according to Bryan. But, Bryan said, he can’t put Pedana out on the road, in a position to make an arrest.
So Pedana is assigned to the records bureau and paid a $126,740 salary, pension records show.
“I’m in a precarious situation…” Bryan told the Network.
Bryan said he didn’t have to create a position for Pedana and Pedana does a good job.
Pedana declined to comment.
The Network used public records to identify 20 working New Jersey police officers with documented credibility issues based on requests sent to all the county prosecutor’s offices and hundreds of municipal police departments. The issues with these officers have to be disclosed when they go to court. The Network contacted the departments for each of these officers, one officer and an attorney for another said they shouldn’t be on their county prosecutor’s office Brady list.
Four of those officers are still making arrests, their departments said.
Twelve of the officers with issues that must be disclosed in court collect six-figure salaries, according to state pension data, including:
- $133,370 – Clifton Gauthier, a Rockaway Township officer, was accused of official misconduct and witness tampering after he tried in 2012 to get a DWI ticket against his cousin dismissed. He struck a deal for pre-trial intervention that spared him a criminal conviction in exchange for 25 hours of community service and a year on probation.
- $142,709 – Michael LaRosa, a Lodi officer, made “bigoted comments on social media” and “negative comments about Muslims,” according to a letter from the local prosecutor’s office. He was booted from one criminal prosecution and marked by Bergen County Prosecutor’s Office as an officer whose participation in criminal cases would be made “on a case-by-case basis.”
- $101,000 – Police Chief Jacquelyn Ferentz of the West Wildwood Police Department was named on the Cape May County Prosecutor’s “Brady” list. Records provided to the Network don’t say why she’s on the list. Ferentz told the Network she had disciplinary charges dismissed, she was reinstated in good standing and she won a whistleblower lawsuitin 2017. She won a $1.7 million judgment in that suit, a court document shows. Ferentz said she should not be on the list, but in a follow-up call a captain in the prosecutor’s office said that the Brady list is accurate.
Brady gap statewide
There’s no state requirement to track Brady officers with records sometimes known as “Brady lists.” Nineteen of the 21 county prosecutors didn’t have a Brady list, the Network found.
The lack of record keeping on troubled officers can leave a prosecutor’s staff at a loss.
Monmouth County Assistant Prosecutor Jennifer Lipp wrote in response to a records request that the prosecutor’s office didn’t make a Brady notification during her three years in her current role.
Before that time, Lipp wrote of notifications: “there is no way for me to know – there is no way to research that.”
Existing state policy calls for police departments to tell prosecutors about credibility issues with an officer. Prosecutors aren’t obligated to actively scrutinize the background of an arresting officer.
“When a case comes in, nobody says, ‘wait a minute, this is a police officer, let me go back and take a look to see exactly what this guy’s history in the office (is),’” Ocean County Prosecutor Coronato said. “Nobody ever does that.”
Across New Jersey’s border, however, the Philadelphia District Attorney’s Office is proactive in keeping track of Brady records.
The office is working with the city’s police department to create a database of officers whose background requires disclosure to defense attorneys, according to Patricia Cummings, supervisor for a unit in the office that examines convictions.
“It goes to the very core of the integrity of our criminal justice system,” Cummings said.
She said New Jersey prosecutors should track those troubled officers.
“Absolutely they should,” she said. “I think they’ve got an obligation to do so.”
New Jersey needs more change
Following the Network’s January investigation into gaps in New Jersey police accountability, state lawmakers moved in May to impanel a task force to review training – and the state certification process – for cops and corrections officer.
In a statement Wednesday in response to the Network’s findings, Attorney General Gurbir Grewal pointed to his three directives this year, which followed Network reporting on police accountability: random drug testing for all police officers, a police early warning system, and an order to release video recordings of police using deadly force.
Grewal announced in September the creation of a unit in his office to combat public corruption that will handle internal affairs investigations and “allegations of civil rights violations involving law enforcement officers and agencies.”
In a May interview, Grewal said his office is reviewing the state’s guidelines for police internal affairs investigations and looking at the “viability” of a statewide plan to improve Brady disclosures.
But he stopped short of a licensing program.
“I think we have a fairly established regime here with the certification process that we have in place,” he said. Grewal said he didn’t think a central repository for officer history housed in his office was “called for.”
There is a secret database maintained by the state police – that was withheld in response to a 2015 request by the Network – that lists New Jersey cops who failed drug tests.
Could a similar list be made of officers otherwise deemed unfit to serve?
“I have not looked into that,” Grewal said in May. “That’s not on the drawing board right now. I’m not saying it wouldn’t be on the drawing board at some point.”
Grewal said law enforcement wants to root out “bad apples.”
“We want to get to the bottom of these problems,” he said. “We want to make the profession better.”