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A former police officer in Penobscot County has sued the county’s top criminal prosecutor, claiming she relied on false information in putting him on a list of police officers who are potentially unreliable trial witnesses.
The officer, who is not identified in the 61-page complaint filed in U.S. District Court in Bangor, has demanded that District Attorney Marianne Lynch remove the information that incorrectly states he stole a knife from evidence and used excessive force as a police officer at a previous job out of state from a database she keeps of officers whose testimony at trial could be impeached by defense lawyers.
The officer claims that Lynch never investigated the allegations she received from his former supervisor, which the supervisor has since recanted. That violated the officer’s constitutional right to due process, according to the complaint.
Neither the police chief who allegedly gave Lynch the false information nor the Penobscot County department for which the former officer worked are identified in the complaint. As the district attorney for Penobscot County, she can only include officers who work in the county on the list.
Michael Cunniff, the Portland attorney who represents the former officer, is asking U.S. District Judge Lance Walker to issue a ruling that says Maine police officers are entitled to due process, including meaningful notice of the allegations, when prosecutors deem them potentially unreliable witnesses and decline to prosecute cases involving them. The least a prosecutor should do is give the officer a meaningful opportunity to dispute those allegations before determining that an officer’s alleged previous conduct could be used to impeach his or her testimony at a trial, said the complaint, which refers to the officer by the pseudonym Richard Roe.
Roe, who was hired in July 2018 by a previous police chief, also is asking that the judge order Lynch to rescind her statements about him because they were based on false information and are keeping him from working in law enforcement in Maine.
The information Lynch received and allegedly kept about Roe is referred to as a “Giglio file” after a 1972 U.S. Supreme Court decision that requires prosecutors to turn over “material and exculpatory evidence” to defense attorneys. That includes evidence affecting the credibility of a witness.
In the case of a police officer, that would include disciplinary actions, criminal convictions and anything else that could be used to challenge an officer’s credibility as a witness.
Lynch created a Giglio file about Roe that includes disciplinary actions based on what should have been confidential information obtained from a polygraph test performed as part of his job application. The polygraph included questions about his out-of-state job experience.
Information in Lynch’s file includes an excessive force allegation he was exonerated of and an allegation that he took a knife seized in evidence that officers were allowed to use, the complaint said.
Lynch informed the police chief on July 23 that she would no longer prosecute cases in which he would be a witness because his credibility could be challenged. The police chief fired Roe a week later.
On July 29, the chief sent a complaint to the Board of Directors of the Maine Criminal Justice Academy asking them to decertify Roe as a police officer for disqualifying conduct. The board essentially dismissed the case after Roe was given a chance to explain what had actually happened, the complaint said.
While Roe is certified to be a police officer, he would have to disclose to potential employers that Lynch has a Giglio file about him and that she had refused to prosecute cases in which he could be a witness.
Cunniff declined to discuss the case, other than to say Roe had no other recourse but to file a lawsuit.
Assistant Attorney General Jonathan Bolton, who is defending Lynch, declined Friday to comment on the lawsuit. It is the practice of the Maine attorney general’s office not to comment on pending litigation.
Originally filed last month in Penobscot County Superior Court, Bolton on Thursday moved the case to federal court because of the constitutional issues it raised.
Roe may have other legal actions pending against his former employer. He alleged in the complaint that the police chief subjected him to harassment and retaliation.
Cunniff declined to comment on possible employment actions his client may have filed.
Lynch, a Republican, was elected district attorney in Penobscot and Piscataquis counties in 2018 after R. Christopher Almy, a Democrat, decided not to run for re-election. Lynch beat Democrat Joseph Belisle of Bangor with nearly 58 percent of the vote.