Judge to city: Turn over officers’ records
Order looks into past complaints against cops charged in 2019 killing
NEWPORT NEWS — A Circuit Court judge this week ordered the city of Newport News to turn over the unredacted records of any prior “use of force” investigations into two police officers charged in the killing of a 43-year-old man last year.
Judge Margaret Spencer said the documents could prove relevant in the prosecution of officers Albin T. Pearson and Dwight A. Pitterson in the shooting death of Henry K. “Hank” Berry III in his home on Dec. 27, 2019.
A prosecutor on the case said at one of two hearings on the issue this week that the Newport News
Police Department has already turned over documents showing that Pearson has filed incident reports that have triggered 17 automatic use of force investigations over a 12-year policing career — for such things as using pepper spray or putting hands on a suspect.
That’s not counting any separate reports stemming from complaints by citizens. It wasn’t immediately clear how many times Pitterson, a five-year veteran, has been similarly investigated.
Spencer sided with prosecutors in granting the detailed investigatory records into the officers, making the ruling over the objection of the city and the officers’ attorneys.
“This is not a case involving an automobile accident between two police cars that occurred on the parking lot,” she said in making her ruling Tuesday. “This is a case that involves the conduct of officers acting as employed law enforcement officers” interacting with a member of the public.
Past investigations into the officers’ actions on the job, she said, could prove important in the trial.
“Obviously any investigation involving the conduct of the officers while acting as law enforcement officers may bear on the
(defendant officers’) mental state,” Spencer said. “It may be relevant at sentencing, or it may be information that is exculpatory that the Commonwealth is required to disclose.”
Assistant Commonwealth’s Attorney Brandon T. Wrobleski asserted during Monday’s hearing that the city had “waived the confidentiality” of Pearson’s 17 past self-reported cases because of the documents police already turned over.
Deputy Newport News City Attorney Darlene Bradberry maintained that the city hadn’t waived that confidentiality.
She said the police department provided only routine “use of force reports and factual summaries” from those incidents, but not the detailed officer statements contained within those files.
Spencer, a Richmond judge appointed to the case after the Newport News judges recused themselves, ordered that all such records of past conduct — including the officer’s statements — be turned over under seal to the Newport News Circuit Court by the close of business Wednesday.
They won’t be publicly accessible, but will be available to the attorneys on the case.
Police say Pearson shot Berry as they tried to arrest him inside his Oyster Point home on a misdemeanor charge of falsely summoning police officers with a series of calls to 911.
Prosecutors say officers barged into Berry’s home without a warrant and assaulted him after Berry called police looking into the whereabouts of his 9-year-old son.
Pitterson first used a Taser on Berry, leading to a struggle over the weapon. Pearson was struck by the Taser in the knee before he shot Berry to death.
Pearson, 33, is charged with second-degree murder and other charges, while Pitterson, 31, is charged with malicious wounding and other counts. Trials are expected next year.
The Suffolk Commonwealth’s Attorney’s Office — handling the case after Newport News prosecutors recused themselves — asked for the city’s “full, unredacted personnel records”
into both officers.
The prosecutors also asked for any emails Pearson and Pitterson sent regarding the Berry shooting case.
Aside from the internal investigation records, prosecutors also sought any emails that Pearson and Pitterson sent to others after Berry’s killing. Pearson’s attorney, Timothy Clancy, didn’t object to those being released, nor did lawyers for the city. But Pitterson’s attorney, Shawn Overbey, objected to such emails being released.
Spencer granted the prosecution’s request, ordering the city to turn those over, too.
Both defense lawyers cast the prosecution’s push for the use of force investigations as an attempt to cast their clients in a bad light.
“I’ll leave it (to) the court how there could possibly be a cogent argument made by either the Commonwealth or the defense as to what the state of mind was — and whether malice did or didn’t exist — on Dec. 27th, 2019,” Clancy said. “They cannot — and the case law is clear — engage in a fishing expedition in the hope that they find something material that would assist them in their case.”
The city, meantime, contended the i nternal affairs investigations records are kept confidential for very good reasons.
Bradberry wrote that if the Newport News Police Department can’t “assure” officers that their statements are confidential, officers would be less likely to cooperate — causing the police department to “lose its ability ... to conduct a full investigation of officer conduct.”
“Discl os ure of t he requested materials would act as a wedge between the Newport News Police Department and its police officers, causing irreparable harm to the City ... impairing the City’s ability to uphold the public trust,” Bradberry wrote in a court filing.
Because officers are told they must cooperate with internal investigations — and can be fired if they don’t — any statements they make in such investigations can’t be used against them in court. Doing so would violate their protection against self-incrimination under the Fifth Amendment.
And Bradberry said that since many internal investigations are broad — such as an entire office team being investigated on a particular raid — many of the documents include other officers, too.
Pearson, for example, was on the tactical unit, where officers often respond to people barricaded inside homes.
“If force is ever used, the entire (tactical team) gets reviewed from every possible perspective to see if there’s anything we can do better, to train better,” Bradberry said.
But the Suffolk prosecutors on the case, Wrobleski and Almetia F. Hardman, said the city’s motion to defend the officers’ rights is “noble, but ultimately misplaced.”
“Neither the city, nor its City Attorney’s Office, are serving the city of Newport News by issuing such a fullthroated defense” of ex-police officers charged in the crimes.
“To the contrary, the citizens of Newport News will be irreparably harmed if this Court allows the City to maintain secrecy of (Pearson’s and Pitterson’s) personnel files,” the prosecutors said.
“The confidence of the citizens of the City of Newport News in this investigation will be irreparably diminished if the criminal investigators are prevented from acquiring all the material evidence in a case involving the alleged wounding and murder of a citizen of this city.”
With the indictments, the prosecutors said, “it should not follow that the city clamps down tighter” on the backgrounds of officers accused of violating their sworn duties.
While Spencer agreed with the city that much of what’s in the personnel files can’t be used in court, she said there might be other information — including information from third party citizens — that could prove useful.