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Federal prosecutors investigating contested MBTA Transit Police case

Globe report sparks federal probe into a police coverup, as well as prosecutors’ handling of the matter.

The episode has dogged Suffolk District Attorney Kevin Hayden since last summer.Erin Clark/Globe Staff

Federal prosecutors have opened a grand jury investigation into the events surrounding a coverup of MBTA Transit Police misconduct, an episode that has dogged Suffolk District Attorney Kevin Hayden since last summer, when police officials accused his office of trying to kill the case.

The federal investigation comes amid an extraordinary public schism between Hayden and Transit Police officials, who pushed for the prosecution of their own officers and were dismayed by Hayden’s handling of the matter.

Following a Globe investigation, Transit Police officials vowed never to bring another public corruption case to the Suffolk DA’s. This month, a special state prosecutor appointed by Hayden announced he would not seek state criminal charges in the case.

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Federal prosecutors are interested in the circumstances of an April 2021 spat in which an off-duty transit officer allegedly pulled his gun on another driver and later issued him a citation. James Witzgall, a former Transit Police lieutenant, told the Globe that he was subpoenaed to testify before a federal grand jury in Boston this week about his role in the case.

Meanwhile, Robert Griffin, a former attorney for one of the accused officers, also said a federal prosecutor contacted him to request an interview about his communication with Hayden’s office surrounding the case.

Neither Witzgall nor Griffin said they knew whether federal prosecutors were focused on police misconduct, or on the actions taken by Hayden’s office as the case worked its way through the courts. It’s unclear whether Griffin and Witzgall were contacted as part of the same federal probe.

Witzgall said he was summonsed to testify in Boston, but Griffin said the prosecutor who contacted him was out of New Hampshire. Massachusetts US Attorney Rachael Rollins would be recused from any investigation into Hayden’s office, because Rollins served as Suffolk DA before Hayden. When one state’s federal prosecutor has a potential conflict of interest, a US attorney’s office from a different state can step in.

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Federal prosecutors in both jurisdictions refused to confirm or deny the existence of an investigation, and declined to answer questions.

James Borghesani, a spokesman for Hayden’s office, declined to comment on whether the office was aware of a federal probe, but said they had not received any subpoenas or requests for information from federal authorities.

The controversial case has been a headache for Hayden since his appointment last January as district attorney. Transit Police officials had sought criminal charges against their own officers — Jacob Green, who was accused of pulling his gun, and Kevin Davis, who was accused of helping to cover up the incident. But by June, Hayden’s office appeared poised to drop the case, according to court records.

In August, the Globe published an investigation that revealed the DA’s top deputy told Green’s defense attorney, Griffin, that the office wasn’t going to prosecute. Griffin and Green soon after donated to Hayden’s election campaign. (Hayden later won the November election and remained in office.)

Hayden’s office has denied to the Globe that it had ever tried to drop the Transit Police case, but has offered a shifting set of explanations for what had happened and returned the donations.

In the wake of the Globe story, Hayden took the unprecedented step of publicly announcing he was convening a state grand jury to determine whether Green or Davis should be criminally charged.

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After a Transit Police official tweeted that Hayden was “inept” and “lacks the integrity to serve as DA,” Hayden appointed a special prosecutor, tapping Glenn Cunha, a former state inspector general who worked with Hayden years ago when they were young prosecutors in the Suffolk DA’s office.

Earlier this month, Cunha announced that he had withdrawn the case from consideration by a state grand jury, because he did not believe either Green or Davis should face criminal charges at the state level.

Cunha wrote that though Green had pulled his gun without identifying himself as an officer, he felt threatened by the alleged victim, who got out of his car during the traffic dispute. Green’s actions fell “below the expectations we have for law enforcement officers,” but did not violate state law, Cunha said.

And while Cunha called it “suspicious” that Green and Davis had deleted the dozens of text messages they exchanged after the incident — actions that Transit Police officials believe were part of a coverup — Cunha said that the content of the messages could not be retrieved and that “people delete messages on their cellphones often.”

Now, federal prosecutors are examining the facts of the case.

Witzgall, the former Transit Police lieutenant, said he was ordered to appear as a witness before the grand jury. Witzgall said he was a supervisor that day and took a phone call from Green when he reported the traffic spat.

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“I took a phone call. That’s it,” Witzgall said. “Then I passed that information on to the next lieutenant because it was shift change. My testimony is pretty vanilla.”

Griffin, who previously represented Green, said a federal prosecutor from New Hampshire called him sometime around November to request an interview about his dealings with Hayden’s office. Griffin said he denied the request, but e-mailed the attorney an affidavit he had filed in Suffolk County in June about a conversation he had with Hayden’s first assistant, Kevin Mullen, in which he said Mullen told him the DA’s office would not pursue criminal charges against his client.

Griffin said it was his impression that federal prosecutors were less interested in the details of the Green case itself, and more focused on the actions of Hayden’s office.

Attorneys for Green and Davis, as well as Transit Police Chief Kenneth Green, declined to comment.


Evan Allen can be reached at evan.allen@globe.com. Follow her on Twitter @evanmallen. Andrew Ryan can be reached at andrew.ryan@globe.com Follow him on Twitter @globeandrewryan.