A special prosecutor announced Tuesday that two MBTA Transit Police officers should not be criminally charged in connection with an alleged coverup, closing a long-fraught case that pitched Suffolk District Attorney Kevin Hayden into open conflict with Transit police leadership.
Special prosecutor Glenn Cunha said he spent almost four months investigating the April 2021 incident, in which Transit Officer Jacob Green was accused of pulling a gun on a Hispanic Black man during a traffic spat. He then allegedly summoned other officers to pull the man over so he could issue him a citation, and allegedly conspired with Officer Kevin Davis to write false reports about the incident.
“While I concluded that no state criminal charges are warranted, the actions of Jacob Green and Kevin Davis fall below the expectations we have for law enforcement officers,” Cunha said in a report to Hayden’s office announcing his decision.
Davis was fired over the incident and Green resigned, but the alleged victim, Jason Leonor, said on Tuesday that he was upset with Cunha’s decision not to pursue criminal charges.
“It was just very unfair,” Leonor said. “I don’t think it was looked at from my point of view. It was just crooked cops, crooked lawyers. They all work together.”
The case has been the source of controversy between Transit police and Hayden’s office since last year.
Last summer, Suffolk County prosecutors appeared poised to drop the case without bringing charges even though Transit police leaders were pushing for criminal charges. Hayden’s office has denied that his office intended to drop the case, though has given shifting explanations for what happened.
After a Globe report on the controversy in August, Hayden announced that he was opening a grand jury, and, in September, after Transit Police Superintendent Richard Sullivan criticized Hayden’s office in a tweet, Hayden appointed Cunha to handle the case.
On Tuesday, Sullivan declined to comment on Cunha’s decision to withdraw the case, saying he and Chief Kenneth Green had not yet had “a meaningful opportunity to review and digest the special prosecutor’s report.”
A spokesman for Hayden’s office declined to answer questions about Cunha’s report, but did issue a statement defending Suffolk’s handling of the case.
“The Suffolk County District Attorney’s office was always committed to pursuing this case to its conclusion, and any assertion otherwise is demonstrably false,” said Hayden spokesman James Borghesani, who also said the media and public pressure played no role in Hayden’s handling of the case.
Hayden’s office has largely ignored record requests the Globe filed in September seeking e-mails among the district attorney’s top staffers that may offer insight into how the case was handled.
Cunha said in his report that his investigation focused primarily on whether to charge Jacob Green (who is not related to Chief Kenneth Green) with assault and battery with a dangerous weapon, though he also considered charges of misleading an investigation and filing a false official report.
Cunha said his investigation found that, when Green and alleged victim Leonor got into a traffic dispute on April 11, 2022, and Leonor approached Green’s car to ask why Green was taking his photograph, Green did point his gun at Leonor to scare him. At the time, Green was not on duty, not in uniform, and did not identify himself as a police officer. However, Cunha said that Green had a “reasonable concern for his safety,” because Leonor had deliberately boxed his car in with his own and approached him angrily. Leonor denied blocking Green in, and said he was not behaving aggressively.
After the initial encounter, Green was accused of calling and texting with Davis to falsely claim that he had witnessed the encounter. Both officers deleted their text messages from that time period.
Cunha said that while those deletions were “suspicious,” the content of the messages could not be recovered and so it was impossible to know what they were about. Cunha said that made it impossible to charge either officer with misleading an investigation.
He said that although Green’s decision to return to the scene and personally write Leonor a citation was “ill-advised,” it did not merit a charge of filing a false official report.
Finally, Cunha said that Green had previously been involved in an unrelated dispute with a Black bus driver, which “suggests a pattern of volatile conduct by Green.” However, that did not change Cunha’s evaluation of the evidence in the April 2021 case.
Cunha said he withdrew the case from consideration before members of the Grand Jury could vote on whether Green or Davis should be indicted. In an interview Tuesday, Cunha said he spent a decade as the Massachusetts Inspector General, and was used to making tough decisions.
“This decision had nothing to do with politics,” he said. “It was all about the evidence.”
Cunha said that he worked decades ago with Hayden and others from his office, but said they left him alone to handle this case independently.
Leonor, the alleged victim, said Cunha’s report was neither fair nor accurate. He said that Green pulled his gun on him without identifying himself, and later deleted his text messages — actions that, Leonor said, spoke for themselves.
“Under this district attorney, it’s obvious that white police officers will always get the benefit of the doubt and victims of color of such police misconduct will always be discounted,” Leonor said.