With defendants' rights in mind, Berkshire DA releases list of 8 names on 'Brady list'

Berkshire District Attorney Andrea Harrington did not specify the conduct or allegations that led to each officer being added to the "Brady list," which represents information she said would be discussed in court at any relevant proceedings. She did say, though, that information her office already had on hand, like media reports and court proceedings, formed the basis for the officers' inclusion on the list.

PITTSFIELD — Berkshire District Attorney Andrea Harrington has released a list of eight current and former local police officers with events in their pasts that suggest or prove they have credibility issues that could be exculpatory to criminal defendants.

Harrington is among a few other district attorneys in Massachusetts to have released a roster of police with histories of wrongdoing or misconduct that could compromise their credibility if called to the witness stand. The rosters sometimes are known as "Brady lists," after the decades-old Supreme Court case that cemented prosecutors' duty to disclose all evidence to criminal defendants.

That includes evidence that a police officer involved in their case has been suspected of or found to have engaged in conduct that shows untruthfulness or bias, Harrington said. Prosecutors must fulfill their constitutional duty for evidence-sharing to prevent wrongful convictions and begin restoring trust in the legal system, she said.

"What we see right now is, we see a lot of public distrust of law enforcement, and I think it's my job to help build the community's faith in prosecution and in our work, and that we are acting in the best interest of the community," she said.

"My approach to doing that is by clearly stating our values, which are to follow the rules and make sure that we uphold a defendant's constitutional rights."

Prosecutors received the list Sept. 25, Harrington said Tuesday, and have been directed to notify defense attorneys if they have cases that involved a report from any of the officers.

The officers were or are employed in one of four police departments — Pittsfield, Great Barrington, Dalton and Williamstown. Harrington said she formed a "Brady Review Board," made up of First Assistant District Attorney Karen Bell and Deputy District Attorney Richard Dohoney, to gather information about potential witnesses for evidence subject to Brady disclosure.

Harrington did not specify the conduct or allegations that led to each officer being added to the list, which represents information she said would be discussed in court at any relevant proceedings. She did say, though, that information her office already had on hand, like media reports and court proceedings, formed the basis for the officers' inclusion on the list.

Whether it amounts to relevant and admissible exculpatory evidence would be adjudicated before a judge in many cases, she said.

"We're not agreeing or acquiescing that the information is relevant, but what we do recognize is that it's not appropriate for prosecutors to be the gatekeepers," she said. "So, a lot of these are determinations that will be argued in front of a judge as to what is actually going to be admissible at trial."

Eight officers

The officers on the Berkshire DA's Brady list are Miles Barber, Michael McHugh, Nicholas Cabral and Dale Eason, all formerly of the Pittsfield Police Department; Jonathan Finnerty and Daniel Bartini, both of the Great Barrington Police Department; John Marley, whose dismissal from the Dalton Police Department is in arbitration; and Williamstown Police Officer Craig Eichhammer.

Barber was disciplined a number of times for various incidents, including harassing a former girlfriend, performing unauthorized background checks and leaving unsecured his gun, which his daughter later used to shoot herself. He was indicted by a Superior Court grand jury last year for failing to secure his weapon near a minor. His daughter survived, but the severity of her injury was unclear.

Cabral was dismissed from the PPD last year, after an internal investigation turned up evidence he "engaged in a pattern of ... concerning behavior surrounding young women," including reports that he kissed a 17-year-old girl and sent explicit text messages to a 16-year-old girl.

The DA's Brady list specifies that prosecutors are not to call either Eason and McHugh as a witness "without prior approval." Eason was fired in 2016 for putting misleading information in an arrest report; he also was flagged by former Berkshire District Attorney David Capeless as an officer who was not to be called as a witness, according to Harrington.

Eason successfully challenged his dismissal from the department, reaching a $125,000 settlement with the city last year that allowed him to retire.

That McHugh has been untrustworthy was affirmed in a court of law, when a jury last year found him guilty of assaulting a man who suffered seven fractured ribs and a fractured vertebra, then lying to police about it. The judge who sentenced McHugh to jail in 2019 once framed McHugh's case broadly — saying, "If the public no longer believes law enforcement officers, we have chaos."

Finnerty, according to Chief William Walsh, still is on the job at the Great Barrington Police Department, after his state police arrest in April for allegedly driving drunk while off duty. Harrington has said she will appoint a special prosecutor to oversee Finnerty's case.

Bartini had been stopped by state police in 2019 for alleged drunken driving. His jury trial had been set for this summer but was delayed because of the coronavirus pandemic. Walsh confirmed that Bartini resigned after his April 27, 2019, arrest and "no longer wears the badge" of Great Barrington Police.

Marley is seeking to challenge his dismissal in May from the Dalton Police Department by the town's Select Board. Marley failed to immediately respond to a report of a despondent woman who later was found dead in her apartment of an apparent suicide.

Less is known about the events that led to Eichhammer's inclusion on the list of possibly problematic officers. Police Chief Kyle Johnson, after confirming Eichhammer still is a Police Department employee, declined further comment. Johnson himself is one of two top town officials named as defendants in a civil lawsuit pending in federal court that alleges sexual harassment and racial bias in the Police Department.

So far, Harrington's list is notably shorter than those released by district attorneys in other communities — the one released by Suffolk District Attorney Rachael Rollins on Friday had 136 names, and WBUR reported that the list kept by Middlesex District Attorney Marian Ryan had 124 officers and Norfolk District Attorney Michael Morrissey was tracking 38 officers.

Harrington, though, has asked police chiefs in Berkshire County to review their records, including officer personnel files, and report back to her office if any in their ranks have a misdemeanor or felony conviction in the past decade, pending charges, prior false statements, or have engaged in biased policing or racial profiling or other conduct that might be subject to disclosure.

Chiefs were asked to complete their reviews by the middle of October, she said.

It's possible the reviews could result in the addition of more law enforcement officials to her office's Brady list, though Harrington said she did not expect to receive reams of potentially disclosable information.

"It's entirely possible that the list will grow, but I think, overall, I have a very high regard for the officers here in our community," she said. "I have a high regard for our police chiefs that are conscientious about ensuring that their officers are credible. So, I don't expect to receive a ton of responsive information that is going to require a voluminous list, but we do feel that it is our obligation to be proactive in seeking information that could be exculpatory."

Amanda Burke can be reached at aburke@berkshireeagle.com, on Twitter @amandaburkec and 413-496-6296.