A judge has disqualified the entire York County District Attorney’s Office from prosecuting a contentious domestic violence case, and also ruled that Eliot police officers may be cross-examined by the defense, resurrecting allegations that a majority of them routinely falsified patrol reports.
Justice Nancy Mills issued the rulings last week in the criminal case against Paul Olsen of Eliot, finding that Assistant District Attorney Thomas Miscio knowingly intercepted confidential documents written by Olsen’s attorney that contained the defense’s trial plans and read them without informing the court of the breach as he is required to do.
Mills learned of Miscio’s actions on May 4, the day before the 34-year-old Olsen was due to stand trial for allegedly assaulting and raping his former girlfriend at her home in Eliot in 2012. Mills immediately called off the trial, and said in her follow-up order Thursday that either the Maine Attorney General’s Office or another district attorney’s office will have to take over prosecuting the case.
“In this case, the state’s attorney should have known the information in the documents was privileged,” Mills wrote in the five-page ruling. “The disclosure of the information cannot be undone.”
In another ruling in the same case, Mills rejected Miscio’s request to shield Eliot police officers from having to testify about their alleged professional misconduct on the job.
Mills ruled that Olsen’s attorney, Amy Fairfield, may cross-examine the officers about accusations made by the department’s former second-in-command, Lt. Kevin Cady, that four officers consistently falsified their patrol reports.
Although the reports had nothing to do with Olsen’s case, Fairfield is seeking to refer to those reports to challenge the officers’ credibility in their investigation of her client.
The town thought scrutiny of the inner workings of the police department had concluded with a ruling by a different judge in Olsen’s case in February. Cady and Eliot Police Chief Theodor Short had delivered conflicting testimony in York County Superior Court in Alfred, and Justice John O’Neil Jr. had upheld Short’s argument that Cady never finalized a report about his investigation into officers lying in their patrol reports.
Cady testified in February that he presented a 60-plus-page report to the chief documenting his discovery that the four patrol officers claimed they had patrolled areas in town, while GPS mapping data from their cruisers proved they hadn’t. The department’s former third-in-command, Detective Kevin Curran, said he, too, had seen Cady’s report and pressured the chief to do something about it.
O’Neil ruled in February that Cady’s documents were incomplete, consisting only of sheets of GPS data and handwritten notes. Those documents are lost and no final typewritten investigative report exists, so O’Neil said the prosecution was not required to turn it over to Fairfield to use in Olsen’s defense.
Justice Mills acknowledged O’Neil’s finding in her ruling and did not contradict it, but found that Fairfield should be allowed to question the officers about the accusations even if Cady’s report cannot be located.
“The state shall make a good-faith effort to determine whether the documents can be located and whether the GPS data can be replicated. The state will report to the court in writing by May 29, 2015 the results of that good-faith effort,” Mills wrote.
Miscio, reached by phone Friday, declined to comment on Mills’ rulings.
Attorney Asha Echeverria, who represents the town of Eliot, issued a single-sentence statement by email on Sunday and did not answer a question on whether the town can reproduce Cady’s GPS report.
“The town of Eliot and its police department will cooperate fully with the state and will follow any final order of the court,” Echeverria said in the statement.
Cady said he thinks that Mills “nailed it” in her ruling, finding his and Curran’s testimony credible and that the Eliot police should be questioned about their actions.
“I took no pleasure in taking the stand and answering questions under oath truthfully. I have always testified truthfully and I always will. My integrity, and that of Detective Curran, was called into question,” Cady said in an email Saturday.
In Mills’ rulings Thursday, she also denied a request by Fairfield that the indictment against Olsen be dismissed outright.
Fairfield filed motions Friday asking the judge to reconsider that denial, and that Olsen’s bail be amended to allow him to be freed.
Olsen has been jailed since his arrest on Sept. 19, 2012. He has pleaded not guilty to charges of burglary, aggravated assault, gross sexual assault, domestic violence assault, domestic violence stalking, criminal threatening and criminal mischief.
Fairfield said that although she is pleased with Mills’ rulings, it is hard for her to be happy because her client remains behind bars with no certain trial date.
“The big issue is my guy has been in custody for 32 months on Tuesday without being able to be heard,” Fairfield said. “It kind of puts us to square one about who is going to prosecute. How long will it take them to get up to speed? It’s a new situation I’ve never dealt with before.”
Fairfield said Mills’ ruling that she is allowed to cross-examine the Eliot police officers could have a wide-ranging impact not just on Olsen’s case, but all cases investigated during Short’s tenure as chief.
“I think the Eliot issue is wide open for cases investigated by the Eliot Police Department going forward, and for cases that have been resolved in the past based on newly discovered evidence that came to light,” Fairfield said.
Short, who has been Eliot’s police chief since 2004 and became Kittery’s police chief too in 2013, told the Portland Press Herald in January that he remembers discussing with Cady the possibility that officers lied in their patrol reports, but that he had never been given a report.
Cady testified that he looked into GPS data and officers’ patrol reports in 2009 after a patrolman’s ex-girlfriend accused the officer of domestic violence stalking while on duty.
Although Cady did not name that officer in court, news reports from the time describe former Eliot police Officer Matthew Raymond’s arrest on a stalking charge. Raymond ultimately pleaded guilty to a lesser charge of harassment, according to a 2010 news story.
Cady testified that to verify the accuracy of the GPS evidence in the stalking case, he checked data from other officers’ cruisers and found that it didn’t match what they had documented in their reports. He said the department had required officers to conduct checks at the homes of people who were out of town and record each time they conducted those checks.
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