BARNSTABLE, Mass. -- Prosecutors won't be able to use the words of a Sandwich High School football player against him because a police officer failed to record his alleged confession, a judge has ruled.
The judge also ruled that the teen wasn't given access to a lawyer, a violation of his Miranda rights.
At a hearing Thursday afternoon, Barnstable District Court Judge W. James O'Neill tossed out the alleged confession of Ty McGrath, 18, of Plymouth in the Nov. 7 alleged attack on a freshman in the Sandwich High School locker room. McGrath is charged with two counts of assault and battery with a dangerous weapon (his foot and a broom).
The hearing on the motion to suppress was brief. In fact, O'Neill stopped the hearing during Sandwich Officer Brian Bondarek's opening testimony. The judge said he had heard enough after the officer admitted under cross-examination that he did not offer McGrath the chance to have his interrogation recorded.
Officer criticized
Citing a 2004 Supreme Judicial Court ruling, O'Neill admonished Bondarek and the department for not doing either video or audio recordings when interviewing a suspect. Bondarek indicated the department never tapes its interviews.
"Police are compelled to offer video and audio recordings," O'Neill said, just before allowing attorney Terrance O'Connell's motion to suppress the alleged confession. "Without doing it, they are violating (the suspect's) rights."
In the 2004 decision, Commonwealth v. DiGiambattista, the state's highest court expressed a preference that "interrogations be recorded whenever practicable." If confessions are not recorded, a defendant can ask a judge to issue instructions to the jury saying they should take "great caution and care" in considering the confession as evidence, according to the SJC ruling.
According to the ruling, the court was seeking to reduce the number of motions to suppress confessions and minimize alleged police misconduct in the tactics used to gain interrogations. Another concern of the court is that confessions that aren't recorded are "the interrogator's abbreviated and highly selective recollection."
Police Chief Peter Wack did not respond to a call or email seeking comment Thursday on the judge's criticism of his department.
O'Neill said Bondarek made another mistake when he took McGrath into the booking room for questioning even after the boy's mother said that he should not answer any questions without a lawyer present.
In his questioning of Bondarek, O'Connell said the mother repeated herself three times as her emotional son was led away by the officer, but Bondarek only acknowledged hearing her once.
"She yelled, 'Don't say anything without a lawyer' while we were walking," Bondarek testified.
That was enough for the judge. Though he said McGrath is old enough to make the decision himself, O'Neill said the boy was obviously emotional.
"I can't overlook the fact that he's an 18-year-old high school kid who is crying," the judge said.
Bondarek testified that he read McGrath his Miranda rights and that the teen voluntarily signed a waiver. He also testified that no one witnessed McGrath sign the paper or being read his rights.
McGrath was not arrested until after giving his statement, Bondarek said.
"He went through the events and they matched up with what the victim had told me," he said.
According to the police, McGrath confronted the freshman in the locker room after practice. He prodded the boy with a broom handle and attempted to force-feed him a brownie out of the trash. A short time later, outside the school, McGrath allegedly confronted the boy again, pushed him to the ground and kicked him.
'Placed on notice'
O'Neill's decision deals a blow to the prosecution's case against McGrath. It now becomes the word of the two boys involved plus the witnesses in the locker room, who gave police conflicting accounts of what happened. Some witnesses said it appeared to be an attack, while others said it amounted to "horseplay."
No adult witnessed the alleged assault.
Reached by e-mail, Julianne McGrath called Thursday "a good day" in court.
"Officer Bondarek, rather than uphold the law as he has taken an oath to do, trampled upon my son's civil rights and did so with malicious intent to misrepresent the truth," she wrote. "Judge O'Neill saw this and I believe the Sandwich Police Department has been placed on notice that such blatant misconduct will no longer be tolerated."
McGrath's arrest and subsequent punishment have been rife with controversy. Julianne McGrath has said school officials punished her son in retaliation for questions she raised about favoritism on the high school football team.
McGrath was suspended from school for 10 days and was unable to play in his final two football games for the Blue Knights. He was also permanently removed from the football team, which made him ineligible for postseason awards, his mother has said.
Copyright 2012 - Cape Cod Times, Hyannis, Mass.
McClatchy-Tribune News Service
