COMMONWEALTH OF MASSACHUSETTS NORFOLK, SS. SUPERIOR CO! cer} 2382CRO3091:! COMMONWEALTH v. BRIAN WALSHE Commonwealth's Notice Regarding State Trooper Michael Proctor's Work Phone Duta 1 In January of 2023 Trooper Michael Proctor was designated as the cese officer ia the! missing person and murder investigetion of Ana Walshe by the Massachusetts State Police. The Cobasset Police designated Sargent Harrison Schmidt in an identical role, The Massachusetts State} Police and the Cohasset Police devoted dozens of additional officers to the investigation, | Indictments issued on March 31, 2023. As of the time of this filing, the Commonveat does not intend to call Miche! Proctor to testify in this matter. ‘The trial of Commonwealth v. Karen Read, No. 2282CR000117 began in Norfolk ‘Superior; Court on April 16, 2024 (Beverly J. Cannone, J., presiding). Trooper Proctor testified in that raatter on June 10 and 12, 2024 and was subject to cross-examination relating to alleged conflicts of, interest, communications with non-involved civilian persons regarding the Read case, and statements regarding the defendant ftom which defense counsel argued a bias could be found. 5 On August 14, 2024, the Commonwealth provided an unofficial transcript of Trooper! Proctor’s testimony in Read to counsel. Also, the Commonwealth provided counsel with a letter, disclosing the results of its inquiries pursuant to Graham and McFarlane which include! that! ‘Trooper Proctor had been suspended without pay. : On August 29, 2024, the Massachusetts State Police provided an extraction of Tiooper; Proctor’s work cell phone to the Norfolk District Attomey's Office. On September 4, 2024, the Massachusetts State Police provided content. from Trooper Proctor’s work cloud account to thé! Norfolk District Attomey’s Office. 'n Based on the Norfolk District Attomey’s ipticy ice’s preliminary review of the daia ang, because the extraction of the Proctor work photic nd cl6ul is expected to contain, among other things: information about open investigations, surveillance video from unrelated investigations! personal identifying information and/or medical‘ihfirndfion,gf individuals involved in um lated investigations, ___location data of Proctor and third partes, relensing the entire extraction report outside of law enforcement is anticipated {o jeopardize’ Spen investigations, compromise the 7Privacy and safety of civilians, and thus be contrary 1o the interests of justice.’ Accordingly, the | Norfolk District Attomey's Office is in the process of ascertaining how to determine whet if ! any—information on Trooper Proctor’s work phone or cloud account is discoverable in this on, A other cases? On September 6,2024, a Zoom hearing was held in Commonwealth v. Julius Hamm Desir (No. 2282CR00072) & Samantha Schwartz, (No, 2282CR00073). The Commonwsaithi reported that it was in possession of Trooper Michael Proctor’s work phone and cloud. ‘The, Commonwealth indicated it was exploring whether fo hire an independent firm to examin the! phone and cloud data. Both the Court (Peter Krupp, J.) and the defense indicated that it wos their Position thatthe Norfolk District Attorney's O/ice has the obligation to conduct a search of th’ Phone extraction, Accordingly in Commonwealth v. Julius Hammond-Desir (No. * __ The phone and cloud account may include sensitive and confidential communications and ! information regarding unrelated cases and active investigations. This information may include’ criminal offender record information ("CORI"); the names and contact information of confidential informants; names and contact information of civilian witnesses and victims, including minors; impounded search warrants: status updates of covert, ongoing investigations; information ebout ! ongoing grand jury proccedings; autopsy records and photographs; and other sensitive priv.lege ; information that if disclosed, would not only jeopardize law enforcement efforts but could pose as’! a physical safety risk to individuals and the public alike. See e-g., Bougas v. Chief of Polize of: Lexington, 371 Mass. 59, 62 (1976) (under public records law fiamework, purposes of ! investigatory exemption include "premature disclosure of the Commonwealth's case prior to hal, the prevention of the disclosure of confidential investigative techniques, procedures, or soure2s of. information, the encouragement of individual citizens to come forward and speak freely with:! police concerning matters under investigation, and the creation of initiative that police officers ; might be completely candid in recording their observations, hypotheses ind interim conclusios"); Globe Newspaper Co. v. Police Com'r of Boston, 419 Mass. 852, 866-67 (1995) (undisclosed : \witness information is confidential as to foster atmosphere where citizens can feel free to coopzrate'’ with police). A defendant's unrestrained access to these devices would also likely violate statutory privileges serving to protect unrelated cases, investigations, witnesses, and victims. See G.l., 41, §97D (reports of rape, sexual assault, and abuse perpetrated by family members, and all. communications between police officers and victims of such offense shall not be public reports and shall be maintained by police departments in manner that shall assure their confidentia ity); Commonwealth v. Prescott Pub. Co., 463 Mass. 258, 265 (2012) (G.L. c, 41, §97D requires reports and communications with police officers to be maintained as confidential); GL. c. 38, § 2; 505, CMR § | et. seq. (autopsy reports are not public records subject to disclosure); G.L. c. 6, § 167 (limiting public dissemination of CORI); GL. c. 119, §65 (juvenile records not subject to disclosure). Additionally, the professional device of a municipal or state employee could include sensitive personnel information about that person, such human resources documentation; payroll, information (ie., bank account numbers); personal identifying information such as social security." numbers and home addresses; and sensitive medica! information, all of which is statutorily ex:ampt from public disclosure, ° The Norfolk District Attomey’s Office is exploring hiring an outside firm to examine the p rone and cloud data to ascertain what information is discoverable.2282CR00072) & Samantha Schwartz, (No. 2282CRO0073), the Norfolk District Attoraey’s!! Office will follow the Court’s direction and search the data for bias and Rule 14 materials, ij ‘The Commonwealth would be willing to and able to conduct similar searches for this case. The! Norfolk District Attomey’s Office also intends to continue explore retaining an independent firm), to review and examine the materials. Respectfully submitted, MICHAEL W. MORRISSEY DISTR} ry ' Greg Connor Assistant District Attomey 45 Shawmut Road ' ‘Canton, MA 02021 : Séptember 6, 2024 (781) 830-4800 it Certificate of Service p I certify that this document was emailed to counsel for Brian Walshe, Larry Tipton, on September 6, 2024.NORFOLK, $5, It CEIVED & pyep epee ‘Uhilbvmenzes oF wassacuuserrs SEP 26 AH gs ahs SUPERIOR COURT DEPT. NO. 2382CR00091 RAE Y COMMONWEALTE ve BRIAN WALSK MOTION FOR DISCOVERY OF DOCUMENTS RELATED TO THE DISTRICT ATTORNEY ‘AND_LAW ENFORCEMENT Now comes counsel for the defendant, Brian Walshe, and respectfully requests that the Commonwealth (1) inquire and disclose the following information and (2) if such information contains what is considered confidential or protected information, that it be produced pursuant to a protective order, and (3) if after proper inquiry to acknowledge such inquiry for any category listed below where it was determined that no such information existed: 1. A complete copy of all data referred to in the Commonwealth's notice dated September 6, 2024, described as “an extraction of Trooper Proctor’s work cell phone” and “Trooper Proctor's work cloud account”; A complete copy of an estimated 3074 pages of materials and documents provided by the Department of Justice to the Norfolk County District Attorney's office regarding its investigation into the death of Officer John O'Keefe; A complete copy of all correspondence between the DOJ and the Norfolk County District Attorney’s office regarding its investigation into the death of Officer John 0’ Keefe; A complete copy of any documents, correspondence received from the United States Attorney or any other federal agency concerning the Norfolk County District Attorney's office's investigation into the death of Sendra Birchmore;10. A complete copy of any documents and materials regarding the policy, protocols or agreements, including any memorandum of understanding, between the Massachusetts State Police and the Norfolk County District Attorney’s office related to the assignment of state police to that office; Any and all notes, reports, memoranda or other documents related to the investigation of State Trooper Michael Proctor and his conduct in investigating the death of Officer John O'Keefe and the whereabouts of Ana Walshe, including but not limited to the following a. Notes, records, memoranca or other documents concerning Proctor’s job performance; b. Notes, records, memoranda or other documents concerning disciplinary actions, formal or informal, of Proctor; c. Notes, records, memoranda or other documents concerning complaints or any similar communication from any party concerning the conduct of Proctor; d. Notes, records, memoranda or other documents concerning the supervision of Proctor by the state police, the Commonwealth or any of its agents; e. Notes, record, memoranda or other documents containing information of any person, including state police, local police, investigator or forensic consultant supervised by or required to report directly to Proctor. Any and all internal affairs records, memoranda or other documents regarding Proctor. Any and all policies, protocols, directives or memorandum of understanding regarding the supervision of state police assigned to the Norfolk County District Attorney's office; Any and all notes of all state police and any member of the Cohasset Police Department involved in the investigation of this matter concerning the investigation of this matters Any and all notes, reports, memoranda or other documents containing information concerning the investigation of this matter that have not thus far been provided as of the filing of this motion;11. 12. 13. 14, 15 16. 17. 1s. Any and all notes, reports, memoranda or other documents concerning interviews or conversations with prospective grand jury witnesses regardless of whether the witness was in fact called to testify before the grand jury in this matter; Any and all notes, reports, memoranda or other documents from any victim advocate concerning any information concerning the investigation of this case or the disappearance of Ana Walshe; Any and ail notes, reports, memoranda of other documents containing any reference to leads arising in the investigation of this matter of persons who are or were considered as “targets”, “suspects” or “third-party culprits” regardless of the outcome of any investigation and regardless of whether such persons were ever investigated; Any and all notes, reports, memoranda or other documents concerning communications of the state police, any member of the Cohasset Police Department, any person at a different police department, federal law enforcement, and any agent of the Commonwealth and the District Attorney for Norfolk County concerning the investigation of this case; Any and all cellular telephone records in the possession of the Commonwealth or ite agents of any state police and any member of the Cohasset Police Department involved in the investigation of this matter; Any and all text messages in the possession of the Commonwealth or its agents of any state police and any member of the Cohasset Police Department involved in the investigation of this matter; and, Any and all social media records in the possession of the Commonwealth or its agents of any state police and any member of the Cohasset Police Department involved in the investigation of this matter. Finally, the defendant requests that if it is determined that no information in any of the above categories was deleted, destroyed or lost, the Commonwealth inform counsel of that conclusion including the time, place, manner and means and the circumstances of any deletion, destruction or loss of the information. As grounds therefore, the defendant asserts that the requestfor inguiry and disclosure as requested is necessary for the adequate preparation of the trial of this matter for the reasons set forth in the attached memorandum of law and fact. In summary here, these requests are based on the revelations of bias and a lack of proper supervision of the state police assigned to the Norfolk District Attorney’s office, the biased statements of ‘Trooper Michael Proctor, the DOJ investigation into the handling of the death 4 nvestigation of Officer John 0’ Keefe, the production of 3072 pages of documents produced to certain parties regarding that death investigation, the fact that portions of correspondence between the DOJ and the Norfolk County District Attorney's office has been released, that the Commonwealth has received di: al data regarding Trooper Michael Proctor, and the troubling emerging facts and circumstances regarding the Norfolk County District Attorney’s investigation into the death of Sandra Birchmore. The failure to produce this specific information requested herein results in a violation. of the defendant’s rights established by the 6% and 14 amendments to the Federal Constitution, art. 12 of the Massachusetts Declaration of Rights, establishing the defendant's rights to effective assistance of counsel, due process and a fair trial, Mass. R. Crim. P. 14, the rules of professional conduct concerning the duties and obligations of the prosecutor and the common law.DATED: September 24, 2024 BRIAN WALSHE By bis attorneys smsynen Larry Tipton smiserrtinin es Larry Tipton, BBO¢ 2557 TiptonLaw 100 Independence Drive Suite 7-780 Hyannis, MA 02601 (617) 947-6281 [email protected] Kelli Porges, BROY 659834 Iglehart & Porges LLC 55 Union Street, 3% Boston, MA 02108 (617) 335-3398 : [email protected]NORFOLK, 8. POLE, ge /? RECCIVED & yen Pe * FUSitconmearnn OF MassacHUsETTS PM SEP 24 avy gy AM Bug SUPERIOR COURT DEPT. THE cay; No. 2382cR00091 TRE Couiey K CBUNTY Near SL covmonmeantH vy. BRIAN WALSH AFFIDAVIT IN SUPPORT OF DEFENDANT’ S MOTION FOR PRODUCTION OF INFORMATION CONCERNING DISTRICT ATTORNEY AND LAW ENFORCEMENT i, Larry Tipton, state the following to be true to the best of my knowledge and belief: 1. I, along with Attorney Kelli Porges, represent Mr. Brian Walshe in this matter charging him with murder. Mr, Walshe's motion does not allege the Norfolk County District Attorney's office of any wrongdoing. The motion addresses what has been revealed as serious questions about the conduct, decisions and bias in its investigations, the bias and inadequate supervision of the state police assigned to the office and other police departments reporting to the office in its investigations, and is an effort to require production of any exculpatory evidence that raises questions about the investigation of Mr. Walshe. the zequests for the information set forth in the motion is based at least in part on the factual record now firmly established that the relationship between the state police and the District Attorney for Norfolk County (“DA”) is flawed, problematic and results in a lack of integrity, bias in investigative decisions, conclusions and opinions. It is clear that, based on the evolving factual record xegarding Trooper Michael Proctor (“Proctor”) that there exists a lack of supervision, that biased decisions, conclusions and opinions are allowed to flourish and that these biases infect the myriad of decisions made during the investigation and prosecutions handled by these law enforcement personnel and the DA. This observation is not the single opinion of defense counsel but shared by others:The Department of Justice initiated an investigation of the DA in its handling of the prosecution in the matter of Commonwealth v. Read. There appears to be either a similar investigation or at the very least, concerns for the lack of sufficient investigation into the matter involving the death of Sandra Birchmore. Furthermore, there is factual record evidence that Proctor was not properly supervised by his state police supervisors and was permitted to espouse biased and prejudicial comments regarding at the least the defendant in the aforementioned case and there is nothing to support a belief that other law enforcement personnel purportedly supervised by state police and reporting to the DA received adequate supervision; My experience as defense counsel indicates that the Proctor’s supervisor, Det. Lt. Tully, has either knowingly.or mistakenly misrepresented facts in the recent case of Commonwealth v. Lopes, misrepresentations that were litigated by way of extensive pleadings and in those instances, Tully had to aduit his mistakes made in reports and sorn testimony to the grand jury and at the first trial of the matter but only after confronted with defense pleadings demanding the truth. These instances include but are not limited to the following: i, misrepresenting to the grand jury that certain critical messages were in fact “read” by the defendant that if not corrected were to be used to establish the defendant's mental state and motive; ii. misrepresenting GPS ___location data that if not corrected would have been used to suggest the defendant's whereabouts at critical times immediately preceding the incident; and, ili. Notes ordered produced by way of motion that revealed that Tully's investigation reports submitted in the case did not include important details of the observations of the defendant's mental states by a critical witness at critical times immediately preceding the incident. Another example is a report submitted by other state10. a. 42. police investigators in that same case that were intended to support an argument that the defendant mocked the police on social media were eventually shown to be unreliable and upon motion by the defendant were eventually not used by the Commonwealth. At least one legal scholar has been quoted in the Boston Globe article regarding the emerging facts of the Birchmore investigation and the Proctor matter that “[t]he entire infrastructure is built so that prosecutors are able to protect officers, who are their star witnesses,” said Nicole Gonzalez Van Cleve, a Brown University associate professor of sociology who coauthored a 2020 report on the relationship between police and prosecutors. It is clear that in the Proctor debacle and based on experience of defense counsel, the biases and detrimental impact of such biases and flawed relationships appear historically to only be forthcoming when defense counsel, as was the case in Commonwealth v. Read and in Commonwealth v. Lopes, bring a court’s attention to what is believed to be exculpatory evidence of the professional negligence that otherwise would Have remained hidden from view. This cbservation is further supported by evolving case law cited in the attached memorandum of law and fact. it is for these reasons we seek on behalf of Mr. Walshe the Commonwealth be required to inguire and disclose and to do so consistent with the prevailing law of discovery. These requests are grounded in the belief that only due diligence and a review of the materials by experienced defense counsel well-versed in the relevant allegations of this case and information derived from its own ongoing investigation can determine whether inherent bias, professional negligence or a casual disregard for justice has permeated the investigation of Mr. Walshe. In my opinion, it would be ineffective assistance of counsel to not make the requests in this motion and to ignore the revelations summarily described above and to rely on what appears to be a failure of the DA’s office to properly supervise its investigating agents and the failure for those very agents to properly supervise themselves. What's more, Proctor, as “case officer” of the investigation of Mr. Walshe, as well as cther state police assigned to the13. 14. 15. 16. 17. 1s. is. DA's office, were in charge of and intricately involved in the investigation of Mr. Walshe resulting in the indictment charging him with murder. In this case, until he was suspended, Proctor was considered the lead or primary investigator, was involved in interviewing critical witnesses, was present for a majority of the grand jury presentations, reviewed other investigator reports and forensic reports, presumably interviewed and prepared grand jury witnesses, reviewed and “supervised” other agents of the Commonwealth, helped in the drafting of reports, determined what lead(s) to follow and not follow, made a decision or was instrumental in making a decision to target Mr. Walshe, and in summary, shaped the scope of the investigation leading to the indictment. Importantly, the investigation of Mr. Walshe was being conducted at or around the same time that Proctor, his supervisors and other agents of the Commonwealth, were investigating the aforementioned Read case and making biased and unprofessional remarks and decisions. The Proctor debacle resulted in Proctor being first suspended and then terminated from the State Police, but only after defense counsel exposed the serious issues. it is now clear that the Commonwealth has also determined not to call Proctor as a witness. This decision speaks volumes about the impact Proctor’s conduct has had on his investigation and lends substantial support for production of the information sought in this motion. The media reported that the parties in the Read case and the Commonwealth have been provided notice of its receipt of 3074 pages of records specific to the investigation of the death of Officer John O'Keefe. Additionally, on September 6, 2024, the Commonwealth notified the parties of its receipt of digital data regarding Proctor, that it has initiated its own review of that data, and that it is considering having someone purportedly independent to review those records, presumably for exculpatory information. A suggestion that someone independent of the DA's office is qualified to review documents in this manner under these attendant circumstances ignores the SJC’s reasoning, logic and decision to change the framework for evaluating20. ai. 22. 23. 24. 25. statutorily privileged records in Commonwealth v. Dwyer as discussed in the accompanying memorandum, doing away with in camera review--establishing a review process whereby defense counsel, with protections in place to ensure there is no disclosure of privileged information, review the privileged naterials. It is not an overstatement to simply state that defense counsel, knowing the allegations, relevant facts, circumstances, possible defenses and information not in the possession of the Commonwealth based on the defense investigation, is in a better position to determine what is potentially exculpatory evidence buried in the information requested. Importantly, the requested documents are not privileged by statute and even where there is heightened concern that sensitive information not be revealed, protective orders have long been used by the courts to guard against such disclosure. The bias and resulting damage may be intentional. It appears to be in many instances in (1) the Proctor matter, (2) in failing to include relevant and exculpatory information in final reports as described above, and (3) in the DA's office presumably being unaware of the Proctor’s negligence and bias and when made aware of the same, sought to diminish it and its impact on the prosecution in the Read matter. Apparently, that has now changed over time with Proctor being suspended and the Commonwealth belatedly determining they will not call him as a future witness. And it is critical to consider implicit bias and the resulting need for these requests in this case. Bias does not have to be intentional to result in damage and a biased investigation. The SUC has approved and recommended a preliminary and final instruction on “implicit bias.” This court snould not ignore the implications of implicit bias as it pertains to law enforcement: decisions made in the investigation of Mr. Walshe and other cases. For example, jurors are instructed in part to not rely on personal and “unsupported assumptions you may have” and to “do your best to resolve this case based upon the evidence and law, without sympathy, bias, or prejudice, to the best of your ability as human beings.” While the same admonition26. a7. should be applied by the DA's office and its agents, apparently it does not in all occasions. There is literature to support the effects of implicit bias on professionals such as police officers and prosecutors. In conclusion, the requested discovery should be ordered produced based in part or in whole on the established fact of Proctor’s conduct leading to his suspension and now the Commonwealth's decision to not call him as a witness and the other reasons stated in the defendant’s motion, including but not limited to the association between the DA’s office and Proctor and the state police wherein state police officers are specifically assigned to and provide investigation services to the DA’s office in the investigation of alleged crimes, the investigation of the Da’s office by the Department of Justice and the Boston office of the U.S. Attorney and the emerging information regarding the flawed investigation of the death of Sandra Birchmore. . thereat Larry Tipton eutimsnegmtzan, Sac nanauontanr cee Larry Tipton, BBO? 552557 DATED: September 24, 2024AO SENS & py gomvornchirn oF vassachuserrs Oe can NORFOLK, SUPERIOR COURT DEPT. NO, 2382cR00091 © COMMONWEALTH BRIAN WALSH ‘MEMORANDUM IN SUPPORT OF MOTION FOR DISCOVERY OF DOCUMENTS RELATING 10 THE DISTRICT ATTORNEY AND LAW ENFORCEMENT The defendant, Mr. Brian Walshe, has filed a motion seeking discovery of documents, digital data, records and’ materials concerning the Department of Justice ("DOJ") investigations involving the Norfolk County DA’s office (“DR”) and its handling of an investigation involving allegations of murder, documents and digital data regarding Proctor, a state police officer, and agents of the Commonwealth involved in the investigation of Mr. Walshe. “In January of 2023 Trooper Michael Proctor was designated as the case officer in the missing person and murder investigation of Ana Walshe by the Massachusetts state Police.” Commonwealth's Notice Regarding State Trooper Michael Proctor’ s Work ne Data (September 6, 2024). The Commonwealth has announced it will not call Proctor at the trial of Mr. Walshe. The fact Proctor was “case officer” in Mr. Walshe’s case and the Gisclosure that the DA's office has now chosen to not use him as @ witness are two important factors reinforcing rather than distracting the need for production of the requests made in Mr.