Sixteen months after an off-duty MBTA transit police officer allegedly pointed his gun at a Hispanic Black man during a traffic dispute, then enlisted a fellow officer to cover up the incident, no criminal charges have been brought against either officer. Transit Police Superintendent Richard Sullivan is calling for the appointment of a special prosecutor to take over the case from Suffolk District Attorney Kevin Hayden after a Boston Globe report that raised questions about whether his office had tried to quash it.
Hayden, who has defended his handling of the case and declined to relinquish it, said Wednesday that his office will open a grand jury investigation into the April 2021 incident.
Transit officials want criminal charges filed against the two officers and initially brought the case to former district attorney Rachael Rollins, who launched an investigation. But after Hayden became district attorney, transit officials and a lawyer for one of the officers allege that Hayden’s top deputy, Kevin Mullen, said no charges would be brought. In a statement earlier this week, Hayden insisted the case “has always remained open and active.”
“In this case, it’s an unusual situation where the police department is calling on the prosecutor to recuse himself or have someone else assigned to the case,” said John Amabile, an attorney and president of the Massachusetts Association of Criminal Defense Lawyers. Typically, it’s those who represent victims who worry that a district attorney’s working relationship with police departments might taint their impartiality.
The case illustrates a broader debate over whether local prosecutors can fairly handle cases involving police officers, and when independent oversight — such as appointing a special prosecutor — is necessary to foster public confidence.
As Hayden is being urged to appoint a special prosecutor, here’s how the process works in Massachusetts:
What is a special prosecutor?
Someone who is licensed to practice law and does not work for the district attorney’s office with jurisdiction over a case. The person is appointed to provide an independent review, generally to avoid a conflict of interest or its appearance.
Who decides whether a special prosecutor should take over a criminal case being investigated by a district attorney’s office?
State law “puts the power to make these decisions in the hands of the district attorneys,” Norfolk District Attorney Michael Morrissey said. While outside groups may lobby for an independent prosecutor, the ultimate decision is made by the district attorney with jurisdiction.
What factors should a district attorney consider in deciding whether to hand a case off to a special prosecutor?
The law requires prosecutors to be fair and impartial when deciding whether to pursue charges against someone. It’s left to district attorneys to use their own discretion when deciding when they should recuse themselves or have a conflict of interest. “You try to avoid conflicts and the appearance of conflicts,” said Morrissey, adding that some of the easiest decisions involve cases in which someone facing charges is related to someone who works in the district attorney’s office. District attorneys are often urged to appoint special prosecutors to investigate shootings or other incidents involving police officers. Middlesex County District Attorney Marian Ryan, for example, currently seeks a judicial inquest into every fatal police shooting.
“I think we all try to do the best we can and be fair and open about what we do,” Morrissey said.
Who appoints a special prosecutor?
The district attorney who decides whether to appoint a special prosecutor must also decide who that will be.
Amabile said it is “problematic” that the district attorney not only decides whether there’s a conflict but also has the authority to choose a special prosecutor. He said there should be a systematic approach outlined either through regulation or law.
What are the qualifications for the job?
A special prosecutor must be independent and offer unbiased oversight. It could be a district attorney from another county, a lawyer, former prosecutor, retired judge, or law professor.
What authority does the special prosecutor have?
A special prosecutor has sole authority over the case and assumes the role of the district attorney in deciding whether to pursue charges and handling any prosecution. “I pick the special prosecutor, but once I pick that person my hands are off,” Morrissey said. “That person acts in my stead and makes decisions without my knowledge or consent.”
How common is it in Massachusetts for a special prosecutor to take over a case?
It’s fairly common, according to Morrissey, who estimates he appoints a special prosecutor about once a month. They are usually misdemeanor cases involving someone with ties to an employee in his office. “We trade cases with other counties,” Morrissey said. This allows district attorneys to swap cases without incurring the expense of paying for a special prosecutor who works in private practice.
What are some cases where a special prosecutor was appointed?
Two years ago, Essex County District Attorney Jonathon Blodgett appointed a special prosecutor to investigate allegations that a white Lynn police officer beat a Black man while he was in custody. It led to charges against the former officer, who later admitted to the assault.
Morrissey said he appointed a special prosecutor to handle a manslaughter case against two brothers accused of killing a man outside an American Legion Hall in Quincy in 2019 because he knew the victim and the father of the suspects who was a retired police officer.
“I couldn’t walk into a store without seeing a witness” or someone else connected to the case, Morrissey said.
He appointed Daniel Bennett, a former state secretary of public safety, as a special prosecutor. Bennett won a manslaughter conviction against Matthew Potter for the death of Chris McCallum. Steven Potter pleaded guilty to assault.
If a district attorney declines to appoint a special prosecutor, is there an appeals process?
District attorneys have the final say on whether to hand off a case to a special prosecutor, but the attorney general’s office has the authority to step in and conduct its own investigation. That seldom happens, Amabile said.