By Gayla Cawley | gcawley@bostonherald.com | Boston Herald
A Boston City Council subpoena for the police commissioner to testify on body camera footage release protocols after a fatal cop shooting led to a manslaughter charge was withdrawn following pressure from the mayor, the Herald has learned.
Councilor Miniard Culpepper went forward with his 17F, or public records request, for body camera footage tied to fatal police-involved shootings over the last five years at Wednesday’s meeting, and received unanimous approval. The mayor now has a week to respond.
But Culpepper then withdrew a more contentious and specific request that, if approved by the Council, would have compelled Police Commissioner Michael Cox to testify and produce “relevant information” tied to the March 11 fatal officer-involved shooting in Roxbury.
The wording of the order, co-sponsored by Brian Worrell, indicates that the summons was not only calling for testimony but for the release of body cam footage tied to that shooting, which Suffolk District Attorney Kevin Hayden is withholding. Culpepper said he withdrew the subpoena after speaking with Cox.
“I’ve had conversations with Commissioner Cox,” Culpepper said. “He’s assured me that he’s ready, willing, and able to work with us to set a date to come before the Council to provide the testimony that we need in this case.”
Cox agreed to appear at a future Council hearing on body camera release protocols, in exchange for dropping the summons request, but there was more going on behind the scenes to set that deal into motion, a City Hall source told the Herald.
Mayor Michelle Wu called city councilors on Tuesday night and Wednesday ahead of the noon Council meeting to request that councilors vote against the proposed order to subpoena the police commissioner, a City Hall source said.
The mayor’s calls to councilors put pressure on Culpepper to withdraw the subpoena request, the source said.
The City Council’s “power to summons and subpoena” residents, effectively treating them like witnesses compelled to testify in court who are subject to the same fines and penalties for defaults, is enshrined in state law and among its strongest tools.
The subpoena authority is spelled out in both the Boston City Charter and City Council rules.
Culpepper and Worrell filed the summons request after expressing disappointment that Cox and other Boston Police leadership did not accept the Council’s invitation to testify at a hearing held last week on the department’s protocols for releasing body camera footage.
“In the aftermath of fatal Boston Police Department officer encounters, elected officials, oversight bodies, and the public have a vested (interest) in viewing this footage,” the withdrawn summons order stated. “The Boston Police Department at the discretion of the Boston police commissioner, maintains custody and control over body camera footage and related records that are essential to understanding the circumstances surrounding incidents involving the use of deadly force.
“The public deserves to see body camera footage related to the Roxbury incident in order to protect transparency, support community healing, and ensure accountability in the administration of justice. Given the seriousness of this matter, the impact on public trust, and the failure of the Boston Police Department to appear before the Council, it is necessary to compel testimony and the production of relevant information,” the withdrawn order stated.
BPD sent its attorney, Dave Fredette, to last week’s hearing. Fredette said release of the footage is within Suffolk DA Kevin Hayden’s jurisdiction, rather than the police commissioner, due to it being a death investigation. Fredette also said all public records requests for the footage, including from the Council, would be denied by BPD, due to an investigatory exemption under the public records law.
“This particular case, (Suffolk DA Kevin Hayden) came out and he said in public that this case is going to go before a grand jury and no body camera video is going to be released prior to that,” Fredette said. “We need to abide by that.”
Culpepper disagreed, arguing that under BPD rules that govern the department’s body-worn camera program and state statute, the police commissioner is not required “to follow the direction of the district attorney” as it relates to releasing footage tied to public or Council records requests.
The 17F request and withdrawn summons were sparked by a March 11 police-involved shooting that led to the death of Stephenson King, a carjacking suspect, and a rare manslaughter charge filed against the involved officer, Nicholas O’Malley.
Hayden has been criticized by O’Malley’s attorney for charging the officer before waiting for a grand jury indictment, and has faced blowback from the local police community.
After King’s family held a press conference last week calling for the footage to be released, Hayden and Cox both said the video would be released but not at this point in time.
Cox said he would defer to the DA. With the case before a grand jury, Hayden said withholding the footage is a choice “in accordance with making sure that rights and due processes are preserved.”
Wu added last week, “Whenever there is a death investigation such as this one, the district attorney’s office has jurisdiction over that process, and they have determined that releasing the footage prematurely could have the potential to undermine the grand jury process or next steps.”
“We, at the city level, are always complying with public records law … but in this case, because of the active investigation, statements that this would potentially undermine and compromise that process, we are respecting that,” Wu said. “That’s why at this point the footage hasn’t been released, but it certainly will be.”
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