Transit police officials blast DA Hayden for dismissing misconduct charge against their own officer

For more than three years, the Suffolk District Attorney’s Office was steadfast in asserting that Transit Police Sergeant David Finnerty had committed a crime by doctoring a police report to cover up an officer’s beating of a homeless man.

But this month, on the eve of trial, Suffolk District Attorney Kevin Hayden abruptly reversed course. He dropped the charges against Finnerty, saying prosecutors had learned of new evidence and were acting “in the interest of justice.”

The question at the heart of the case is whether Finnerty broke the law by helping an officer write a false police report justifying his use of force. The Globe obtained video and audio surveillance footage as well as draft reports that, taken together, portray an unprovoked beating and, later, an attempted coverup.

The DA’s decision has renewed scrutiny of Hayden’s handling of police prosecutions, and pitched his office into a high-stakes standoff with top transit officials, who suggested Hayden tanked the Finnerty case in retaliation for their previous criticism of Hayden’s administration.

Though police and prosecutors usually work together in lockstep, in this case, police leaders have challenged the county’s chief law enforcement officer for allegedly failing to aggressively prosecute their own officers. The animus is so bitter that Transit Police Chief Kenneth Green vowed never to again refer police corruption cases to Hayden’s office.

“DA Hayden holds all the power, he wields all the influence, and calls all the shots. We accept and acknowledge that,” Green said in a statement to the Globe. “As a chief of police I have an obligation and duty to speak out regardless of the consequences.”

Images from surveillance videos collected by Transit Police were part of an officer misconduct investigation. Transit police

Green called the explanation that Hayden’s office gave for dropping the Finnerty case “simply not true.” What Hayden has done, he said, “is tantamount to condoning egregious police misconduct.”

Hayden pushed back against Green’s criticism, saying the Transit Police were at fault for providing evidence late in the prosecution of the case.

Hayden said he found it “disheartening, both as a Black man and a prosecutor deeply aware of the harms caused by withholding exculpatory evidence,” that Green would suggest his office was motivated by anything other than justice.

“I have no wish to engage in unproductive dialogue, but neither I nor my office will ever pursue prosecutions unsupported by sufficient evidence,” Hayden said.

Transit Police officials first squared off against Hayden late this summer, when Hayden’s office appeared poised to dismiss a different misconduct case. At the time, Hayden was the DA, and he was locked in a bruising primary election for the post. A Globe investigation into that misconduct case led to public blowback and prompted Hayden to appoint a special prosecutor to handle the matter.

Hayden won the Sept. 6 primary and is running unopposed in the Nov. 8 general election. But the waning of the political contest has done nothing to mend the relationship between Hayden and transit officials.

Transit Police Superintendent Richard Sullivan, Green’s second in command, said Transit Police leadership can draw only one conclusion from Hayden’s decision to dismiss the Finnerty case.

“Disturbingly, we have grave concerns of the possibility this may be motivated by retaliation and retribution,” Sullivan said in a statement. Hayden said that his office’s decision was neither, and that to move forward with the case would have been prosecutorial misconduct.

Civil rights advocates have long contended that district attorneys’ offices have an inherent conflict of interest in police misconduct investigations because prosecutors work so closely with officers to solve crimes. In recognition of that unavoidable bias, police misconduct cases should be handled by an impartial third party, said Sophia Hall, deputy litigation director for Lawyers for Civil Rights.

In Finnerty’s case, “it seems really problematic that it’s the district attorney pushing back,” Hall said. “You have a police department that’s actually advocating for accountability and a district attorney’s office telling them ‘no.’”

Three transit officers, including Finnerty, were charged in 2019 with various crimes related to the beating and coverup. Dorston Bartlett, who repeatedly struck the homeless man with a baton, pleaded guilty in July to assault and battery charges in exchange for two years of probation. Charges against Sergeant Kenny Orcel, who approved Bartlett’s false report, were dropped in 2020 because T police had not properly advised Orcel of his right not to incriminate himself before he spoke with an investigator.

The case against Finnerty – who faced two counts of filing a false report and one count of being an accessory after the fact to assault and battery – was the last to be resolved. The current controversy centers on different interpretations of evidence.

The Globe obtained much of that evidence, which has never been made public. Reporters reviewed surveillance footage of the beating; video and audio recordings of Bartlett, Finnerty, and the homeless man Anthony Watson in the booking area; draft police reports written by Bartlett and Finnerty; and an FBI analysis of Finnerty’s computer, among other evidence.

On July 27, 2018, Bartlett was captured on surveillance video rousting 31-year-old Watson from a train car at Ashmont Station, hitting him three times with his baton, then throwing him out of the station. The video shows Watson resisting Bartlett, but not acting violent or aggressive. Police are not allowed to strike people simply for resisting. Watson asked a bystander to call 911 to report the beating, Bartlett returned, arrested him, and drove him back to Transit Police headquarters for booking.

That is when Finnerty, the sergeant in charge that night, got involved.

Surveillance video shows Finnerty walking in a little after 2 a.m. and talking to Watson. “Once y’all see these cameras,” Watson says, pointing at Bartlett, who has since retired, “he’s gonna lose his job.”

Watson tells Finnerty that Bartlett assaulted him, threw him out of the station, then wrongly arrested him. He shows Finnerty his injured leg and asks him to watch the video himself.

An image from surveillance videos collected by Transit Police as part of an officer misconduct investigation. Transit police

Three other transit officers told prosecutors that Finnerty left the booking area and watched the surveillance video, records show. One of the officers told the grand jury that as Finnerty watched, he “had a shocked look on his face.”

Then, however, Bartlett asked Finnerty to “take a look at” his police report, according to a recorded phone call reviewed by the Globe.

An FBI analysis of Finnerty’s desktop computer, reviewed by the Globe, showed that after printing Bartlett’s draft of the report, Finnerty opened up a Microsoft Word document on his own computer and started typing. As he worked, the analysis showed he accessed the department’s use of force policy. At around 5:30 a.m., he printed the draft he was working on and closed the file without saving it.

Finnerty may not have realized the program auto-saves documents, and the record of the report he created didn’t vanish when he exited the file. Transit Police sent his computer to the FBI for help seeing exactly what Finnerty had written, and an analyst extracted the deleted document.

Computer records show that after Finnerty printed his draft, Bartlett began adding Finnerty’s edits into his report on his own computer. Bartlett’s final draft was nearly identical to the unsaved version that Finnerty printed.

In Finnerty’s new version of events retrieved from his computer, Watson’s behavior was so “assaultive” that Bartlett “perceived a threat to [his] physical safety” and struck him with a baton.

Finnerty didn’t mention that footage showed Bartlett shoving Watson out the door of the station. Finnerty’s draft said instead that Bartlett tried to arrest Watson, but that Watson “jerked away” from him, dropped his backpack, and threatened to fight him, before fleeing.

Shortly after editing Bartlett’s report, Finnerty wrote up a briefing to send to his supervisors, court documents show. In it, he again justified Bartlett’s use of force.

Around this time, Deputy Superintendent Sean Reynolds arrived at the station and asked how the night had gone. According to prosecutors, Finnerty told him a different story.

“There was an issue last night with Officer Bartlett with excessive force,” Finnerty told Reynolds, according to prosecutors.

Reynolds viewed the briefing, report, and video, and saw they didn’t match. He alerted Sullivan, the superintendent, and within hours, Watson was freed and an investigation into the officers had begun.

Suffolk District Attorney Kevin Hayden denied his dropping of the case was in any way a retribution for past criticism.Erin Clark/Globe Staff

The case against Finnerty, who pleaded not guilty, was moving toward trial this fall. But then, prosecutors say, two days before trial, Transit Police turned over new evidence that changed everything: the “initial draft” of Bartlett’s false police report, which Finnerty was accused of editing.

The date that prosecutors received that draft – and its meaning – is a matter of sharp disagreement between prosecutors and police.

Hayden’s office believes it shows Finnerty’s additions were more minor than they previously understood, and not knowingly fabricated. In fact, the office said in a statement to the Globe that Finnerty’s additions made the use of force appear “less justified than Bartlett’s original report.”

Transit Police, however, say the draft was not new evidence – prosecutors already had a version of it in the analysis from the FBI.

Ultimately, Transit Police say, the new draft doesn’t matter: Regardless of how heavily Finnerty edited the report, they say, he knew that the report itself was false, and he added embellishments to statements he knew were lies.

“We strongly feel that the version of the report which they hang their hat on is not exculpatory and is irrelevant,” Green said.

Finnerty’s attorney, Brad Bailey, said that his client had always maintained his innocence and that the new evidence exonerated him completely.

“Had I had that [evidence] at the start,” Bailey said, “the case would, in my opinion, not have survived.”

Legal authorities, who viewed the material at the request of the Globe, offered mixed opinions.

John Bandler, a lecturer at John Jay College of Criminal Justice, didn’t “see a compelling criminal case” against the sergeant.

“It is not a slam dunk that he should be prosecuted,” said Bandler, a former New York state trooper and prosecutor. “I can see strong arguments of reasonable doubt.”

Professor Chris Dearborn of Suffolk University Law School noted that district attorney’s offices have “a great deal of discretion in deciding when and why to stop a prosecution.”

“However I can understand why this decision would give the leadership at the MBTA pause because the explanation for not prosecuting invites as many questions as it answers,” Dearborn said.