Friday, February 6, 2015

Portsmouth lawyer joins fight for internal police reports


Portsmouth lawyer joins fight for internal police reports

Records vital for case involving cop's $2.7M inheritance, says McEachern

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    • By Elizabeth Dinan

      Posted Jan. 4, 2015 @ 2:01 am

      PORTSMOUTH – Efforts by city officials to shield two internal police investigation reports pertaining to an officer's disputed $2.7 million inheritance "do little to instill public confidence," according to a court filing by attorney Paul McEachern. 
      Representing four clients who contest the last will and trust of the late Geraldine Webber, who left most of her valuable assets to police Sgt. Aaron Goodwin, McEachern asks a judge to order release of the police reports, which allegedly describe internal investigations into the matter. In a motion filed with the Strafford County Probate Court, McEachern argues that the reports should be part of the public record, not only for what they say, but also to determine whether or not there was an investigation.
      The dispute is being litigated in the probate court where Goodwin denies allegations that he exerted undue influence over Webber, while she had dementia, before inheriting her waterfront home, stocks, bonds and a Cadillac.
      City Attorney Robert Sullivan is objecting to release of the investigatory reports and in a Dec. 22 court motion wrote that the law deems the reports confidential, that they are inadmissible in civil cases, and that they would likely be given to the media. Sullivan wrote that the internal police investigations pertain to complaints that Goodwin may have violated Police Department rules and regulations with regard to his contact with Webber, prior to her death in December of 2012 at age 94.
      The city attorney said internal police investigations may not be introduced as evidence in civil suits, other than disciplinary action, and he cites case law supporting his argument. McEachern counters that the reports are not private and that their release is independent of whether or not they are admissible during a pending trial.
      McEachern also reminded that a probate judge on Oct. 23, 2013 ruled that records pertaining to the case are public because "the matter of alleged impropriety of a Portsmouth Police Officer (a public official) is the matter of public concern ...  ." The 2013 court order also states that the party seeking to keep records private "bears the burden of proof and there is a presumption that court records are public."
      McEachern argues that the city has not met that burden with regard to the internal police reports. 
      "The records of the internal investigation should not be shielded either from discovery or public disclosure," he wrote.
      The city attorney argues that there are "important policy reasons" that support non-disclosure of internal police investigatory records including "instilling confidence in the public to report, without fear or reprisal, incidents of police misconduct of internal affairs." McEachern counters that  "if the report is credible, it would surely instill confidence in the public to report, without fear or reprisal, incidents of police misconduct of internal affairs."
      The initial demand for the police reports came from Concord attorney David Eby, who represents the Shriner's Hospital for Children and Memorial Sloan-Kettering Cancer Center, both of which also contest Webber's last will and trust. Goodwin's inheritance diminished bequests to Eby's clients and others, according to the terms of Webber's 2009 will and her final will and trust. It also diminished inheritances to the Portsmouth Police and Fire Departments, both of which were designated to receive one-quarter of Webber's estate in her 2009 will, but were each reduced to $25,000 beneficiaries in her final will and trust.
      Eby previously wrote to the court that the information in the police reports "is necessary to develop (his clients') claims and prepare this case for trial." 
      Sullivan's objection states that "every document" in the case involving Webber's disputed estate has been "released to the press immediately, sometimes prior to counsel of record receiving the documents." The city attorney also contends that if the city releases the internal investigation reports, without a court order, it could be subject to an invasion of privacy lawsuit by city employees, including those named in the reports.
      Sullivan asks the court to deny release of the reports, or in the alternative, that they be released only to lawyers involved in the case and with a court order barring them from giving them to anyone else. 
      When he was deposed on Nov. 14, as part of the ongoing estate case, police Capt. Mike Schwartz said there was no internal investigation, that no interviews were conducted and that Capt. Frank Warchol took some memos from police officials and put them into the department's internal affairs "format." 
      But when he was deposed on Nov. 18, former Police Chief Lou Ferland said there was an internal investigation conducted by Warchol into allegations that Goodwin was "inappropriately using a police vehicle to visit with" Webber.
      Retired police officer John Connors, also Webber's neighbor, told the Herald that he saw Goodwin visit Webber in a police vehicle more than 100 times. After granting that interview, Connors was served with a notice of complaint by the police department that accuses him of insubordination and malfeasance, as well as of violating the police department's media policy.
      In September 2012, the Portsmouth Herald wrote to police officials seeking comment about the allegations against Goodwin. In a response dated that same month, Chief Stephen DuBois said "the Department did conduct a thorough investigation" of the contacts between Webber and Goodwin, and concluded Goodwin's contact with Webber was minimal and largely off-duty.
      A judge will likely hear both sides of the argument regarding release of the investigatory records prior to a trial that is scheduled for May.
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