November 17, 2017
A Northampton County judge lit into the Pennsylvania State Police on Friday over its bid to suppress an upcoming grand jury report on trooper-involved shootings, accusing the agency of seeking to silence criticism.
In contentious questioning, President Judge Stephen Baratta repeatedly expressed exasperation over a request by state police: that the county’s grand jury be barred from issuing a report expected to pan the agency’s longtime practice of investigating its own when troopers fatally shoot suspects.
“You’re saying no one is allowed to tell the state police what to do,” Baratta told Richard Zack, the attorney for state police.
Though Zack repeatedly denied that state police were trying to stifle criticism, Baratta said there was no other reason for it to seek to prevent the grand jury from proceeding. Baratta said he was troubled that a panel made up of citizens would be silenced by a state agency.
“You’re upset about what the citizens are going to say about the investigation and that’s what this is all about,” Baratta told Zack.
“The state police are entirely transparent about their conduct and their investigations,” Zack replied.
“So they say,” Baratta shot back.
You’re upset about what the citizens are going to say about the investigation and that’s what this is all about. — President Judge Stephen Baratta, speaking to a state police lawyer
Baratta said the grand jury will continue to do its work, and he rejected a state police request that it be disbanded. Baratta did so as District Attorney John Morganelli accused state police of an “arrogant” and “outrageous” attempt to avoid scrutiny.
“We have a state police agency that wants to obstruct justice, to obstruct the administration of law,” Morganelli said. “A police agency.”
Morganelli and state police have clashed since May, when troopers fatally shot a suicidal Lower Mount Bethel Township man, but would not relinquish their probe to a detective from Morganelli’s office. Morganelli has been vocally critical of that policy, which he says risks public confidence at a time of national scrutiny of shootings involving police officers.
This summer, Morganelli cleared the two troopers involved in the shooting, Eddie Pagan and Jay Splain, announcing they were justified in opening fire on 47-year-old Anthony Paul Ardo. But Morganelli said the same grand jury that reached that conclusion would issue a second report containing recommendations on whether it was appropriate for state police to seek to keep their investigation in-house.
Morganelli has said the report would be advisory in nature, but could have influence on stakeholders such as the state Legislature or Gov. Tom Wolf.
State police insist the effort is improper and strays beyond the grand jury’s purview. The agency was asking Baratta to prevent the public filing of the report, or to discharge the grand jury altogether, arguing it is overstepping its bounds.
In a filing last month, the agency warned of a “potentially dangerous precedent” if district attorneys are allowed to tap grand juries “merely to pursue their own policy interests.” State police said the investigation should have ended with the decision to clear the two troopers of wrongdoing in Ardo’s death.
“The district attorney’s office is not permitted to misuse the grand jury by calling witnesses and issuing reports when he has already concluded that no criminal activity has occurred,” Zack told Baratta.
Friday’s arguments were held in open court, though they had initially been scheduled to be conducted behind closed doors. Morganelli petitioned for a hearing in public, and on Tuesday, The Morning Call and two other media companies sought to intervene in the legal battle to ensure the hearing was public.
The motions by The Morning Call, The Associated Press and PA Media Group of central Pennsylvania said the public has a constitutional right to open court proceedings, especially in a matter of such public interest. Baratta did not act on the media groups’ petition, but granted a public hearing based on Morganelli’s request, saying the dispute involved a question of law that didn’t implicate grand jury secrecy.
The brawl between Morganelli and state police erupted after Ardo’s May 20 shooting, when Morganelli said he wanted an independent investigation led by county detectives, only to be told by state police they were keeping it in-house.
Morganelli points to best practices endorsed last year by the Pennsylvania District Attorneys Association for how police-involved shootings should be handled. The guidelines said an independent agency should conduct the probes, though the local department may play a role “in supporting or coordinating” the effort.
State police have defended their approach, saying they have a breadth of resources and strict protocols in place to ensure the investigations are done thoroughly, transparently and fairly.
On Friday, Baratta repeatedly charged that state police were afraid the grand jury will say differently. Though Zack insisted that wasn’t the motive, Baratta accused him of being “so disingenuous.”
If that isn’t the motive, Baratta asked, “Why are you here?”