For almost a year, Boston prosecutors and police have been fighting a court order to disclose police reports that advocates say could expose a pattern of racially discriminatory policing practices.
In January, Superior Court Judge Robert Ullmann ruled that the police department must provide Boston defense attorney Josh Raisler Cohn with reports from Aug. 1, 2017 to July 31, 2018, for any case in which a charge was filed as a result of law enforcement surveillance of Snapchat accounts. Ullmann excluded sexual assault, murder, and human trafficking cases.
Last year, one of Cohn’s clients, who is Black, was charged with several gun violations, including possessing firearms without a license; he has not yet gone to trial. A Boston police officer had sent Cohn’s client a friend request on Snapchat, which he accepted, according to court documents. The officer did not identify himself as law enforcement. Officers claimed to have seen eight Snapchat videos of Cohn’s client with what appeared to be firearms. He was arrested on Jan. 11, 2018. He was released, then allegedly posted another Snapchat video with a gun in May and was arrested again.
Cohn conducted an informal survey of Suffolk County defense attorneys and identified 20 cases in which law enforcement surreptitiously used Snapchat. Eighty-five percent of those targeted were Black and 15 percent were Latinx. None were white. More data is needed, he argued, to determine if there is a pattern and practice of using Snapchat to target people of color. The judge agreed.
“When there is an investigation that explicitly targets people of a particular demographic, that is unconstitutional and the information that they gather should not be allowed to be used against people in criminal proceedings,” Cohn told The Appeal.
Suffolk County District Attorney Rachael Rollins’s office and the Boston Police Department appealed Ullmann’s order, but their petition was denied in June. The commonwealth appealed again, and the case is now with the state Supreme Court. On Monday, the police and DA were scheduled to file their briefs. Yesterday, the DA’s office filed a motion with the court to request an extension until Jan. 3, 2020.
“The matter you are asking about, like most of what we deal with, is complicated,” Rollins’s office said in a statement to The Appeal. “It will be reviewed by the DA and she is committed to make sure she gets it right.”
The Boston Police Department did not respond to a request for comment.
“None of the discovery has been turned over,” said Cohn. “It’s been ordered by two different judges. One in the trial court and one at the Supreme Court and at every step of the way there’s been this relentless opposition by the district attorney’s office.”
The DA’s office and police department have balked at the court’s oversight. Disclosing the reports, “impermissibly intrudes into the Commonwealth’s use of proper investigative tools and enmeshes the court in evaluating and assessing the Commonwealth’s discretionary choice among investigative tools,” assistant DA Erin Knight and Boston Police Department legal counsel David Fredette wrote in a joint petition filed in May.
Rollins took office in January, after running as a reformer who would work to increase transparency, address racial disparities, and reduce incarceration rates. The position her office is taking, advocates say, is contradictory to the spirit of her 2018 campaign, and the policy memo that Rollins released in March.
“We must also look back and consider relief for all persons who may have been charged and convicted at higher rates due to poverty, race, religion, sex, gender, or identity,” Rollins wrote in her policy memo. Data, she wrote, should be used to identify “investigatory and prosecutorial disparities, vigorously and honestly interrogate the reasons for them, and swiftly eliminate them.”
Earlier this week, the Boston-based community group Families for Justice as Healing sent Rollins a letter, urging her to deliver on her campaign promises and drop the appeal.
“We have a progressive DA who we as a community supported and fought for and she ran on a platform of transparency,” Andrea James, the group’s founder, told The Appeal. “The Suffolk County district attorney’s office at this time should have no role in protecting police data from disclosure nor shielding the Boston police department from legal or public scrutiny of ongoing racial bias and racial profiling.”