Posted on 02/03/2009 7:30:23 AM PST by joeu01
Judge throws out $2 million worth of drugs, gun as evidence in case against Springfield man called 'big fish' drug trafficker
SPRINGFIELD - Saying the actions of a veteran state trooper and a Holyoke police detective amounted to "lawlessness," a judge has refused to allow close to $2 million worth of cocaine and a loaded handgun to be used as evidence to prosecute a Springfield man described as a "big fish" in drug trafficking.
The ruling by in Hampden Superior Court marks the third time in a month that judges have thrown out evidence in cases being prosecuted by the office of Hampden District Attorney William M. Bennett with conclusions that they didn't believe the testimony of police officers.
The previous two rulings involved testimony by Springfield police officers.
William M. Bennett It also marks the second case in the past two years in which Moriarty has raised questions about the credibility of Holyoke detective Paul C. Barkyoumb, a 13-year member of the force who has been involved in some of his department's major narcotics investigations over the past decade.
In reference to the recent case, Bennett said Monday, "The judge is dead wrong. The officers told the truth.
"We stand behind the investigation and the officers involved," Bennett said. "We will do all we can to appeal this unjust result.
"The police did a fabulous job in this case. It is frustrating to see all their hard work go down the drain," he said.
Holyoke Police Chief Anthony R. Scott said he would not comment until he had seen a copy of the ruling.
Paul C. Barkyoumb Brockton lawyer Joseph F. Krowski, who represents Jimmy Roman-Rosario, 41, filed a motion challenging the search warrant.
"It's extremely important for the judiciary to recognize that the integrity of the system has to be protected," Krowski said. "The integrity of the system has been protected in this case."
Krowski, who was assisted in the case by defense investigator Rich Williams, said he does not believe there is any issue in the decision that could be appealed.
In early 2007, Moriarty excluded evidence in a cocaine trafficking case against Luis Lopez and Juan Pagan, and the state Supreme Judicial Court upheld Moriarty's decision.
In the ruling in the Pagan and Lopez case, Moriarty, chiefly citing inconsistencies in Barkyoumb's testimony and sections of it which he did not believe, said there was no probable cause to search the defendants' vehicle.
In a 20-page ruling filed Friday in the case against Rosario, of Springfield, Moriarty said his conclusion "yields a regrettable but necessary result" - elimination of the drugs and gun as evidence - in the prosecution of "an apparent major narcotics trafficker."
Daniel J. Soto He cited the famous words of U.S. Supreme Court Justice Louis Brandeis from a 1928 case involving illegal search and seizure in which Brandeis wrote: "Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for the law; it invites every man to become a law unto himself; it invites anarchy."
Barkyoumb had "demonstrated an unhesitating willingness to offer false testimony," Moriarty wrote. And, Trooper Daniel Soto, a member of the Hampden Narcotics Task Force, "both deliberately and purposefully misrepresented and omitted material facts" in the sworn affidavit that he submitted to secure a District Court search warrant for Rosario's home on Putnam Circle in August 2006, according to the ruling.
It was at the Putnam Circle home that a team of state and city narcotics officers seized 38.5 pounds - or 17.5 kilograms - of cocaine with an estimated street value of $1.7 million and a loaded, .357-caliber handgun.
Bennett acknowledged that if the appeal is not successful, without the evidence there is no case against Rosario. He said that Moriarty's ruling will have no effect on past, present or future cases in which Barkyoumb and Soto are involved.
RELATED LINKS Jan. 19: Judge does not believe officer, throws out evidence Jan. 6: Narcotics evidence tossed for unlawful search The search came after Holyoke police conducted surveillance of drug sales in their city and Barkyoumb and Soto took into custody a suspect, Eugenio Negron, on Aug. 17, 2006. Negron told officers he bought drugs from Rosario.
"This foisting of falsehoods, subscribed to under oath, by a law enforcement officer upon a neutral and detached magistrate in an affidavit filed in support of an application for a warrant to search a private dwelling is precisely the type of egregious conduct that has been the target of the exclusionary rule since its inception," Moriarty wrote.
Moriarty said he believes Barkyoumb fabricated a story about surveilling Negron from Holyoke to Rosario's Springfield apartment. The surveillance was used to get the search warrant for Rosario's apartment.
It was Barkyoumb who initiated the investigation that led to Rosario's arrest, according to the ruling. Barkyoumb used information from an informant - "cooperating individual" - to track reported sales of crack cocaine by Negron to dealers on Newton Street. In the week prior to the arrests, several undercover purchases of cocaine were made before a search warrant was obtained for an apartment at 74 Newton St., the ruling explains.
Negron was taken into custody as he attempted to flee the scene where he had been due to deliver a quantity of drugs and was taken to the Holyoke police station where he was questioned for several hours by Barkyoumb and Soto, Moriarty wrote.
According to police, Negron said he had cocaine between his buttocks, and police said they retrieved it.
Hours of testimony at the hearings were devoted to following the path of that cocaine and asking why Negron was only booked for disorderly conduct.
Testimony was that Negron was not booked on drug charges because he gave good information about Rosario.
"While the Holyoke Police Department had in effect at all pertinent times a written policy regarding the handling of evidence, Barkyoumb violated this policy at least in respect to the evidence taken from Negron's person on Aug. 17, 2006," Moriarty wrote.
"There is no record verifying any quantity of crack cocaine was recovered from Negron on that day," Moriarty said.
Barkyoumb testified that 50 grams was seized from Negron.
Moriarty said he did not believe 50 grams was taken from Negron but he believes some amount was taken.
Rosario was arrested on Aug. 17, 2006, at the Putnam Circle address and charged with trafficking cocaine in the amount of over 200 grams, violation of a drug free school zone, and unlawful possession of a gun and ammunition.
Lengthy hearings were held in front of Moriarty on four dates in September and December. Krowski asked hours of questions to officers about what they did and in some cases, why there were no records to support what they said.
In the December hearing, Moriarty asked Barkyoumb if he should stop the hearing so Barkyoumb could get a lawyer.
When Barkyoumb declined, Moriarty asked Barkyoumb if he wished the court to appoint him a lawyer for the proceedings before he continued testifying. Barkyoumb said he would keep testifying without a lawyer.
Soto wrote that Negron was followed by surveillance officers to Springfield where he made several stops, including 50 Putnam Circle.
"I am convinced that, by the preponderant evidence, Negron did not travel to 50 Putnam Circle to purchase crack cocaine from Rosario on Aug. 17, 2006, between 5:30 and 6 p.m.," Moriarty wrote.
He said he found the trip and surveillance reported on Soto's affidavit "a fiction."
Sgt. John T. Michael, head of the Hampden County Narcotics Task Force, referred questions about Moriarty's findings about Soto to Bennett.
Two other recent rulings, one each by Hampden Superior Court Judges Constance M. Sweeney and Judd J. Carhart have thrown out evidence in drug cases, with judges saying they did not believe Springfield police.
Asked how his office can address these situations dealing with police credibility, Bennett said the cases of Rosario and the other two recent rulings are all different and he just wanted to speak about Rosario's case.
The Judge.
Judge and criminal.
The Judge: the cops should never be allowed to break the law when enforcing the law. Eternal vigilance against government is a necessity in a free society.
The judge - not the police.
Having dealt with narco-cops as a third-party, I believe the judge and the criminal over them.
Never seen a more corrupt bunch of thugs in my life -— future Obama Gestapo members, no doubt.
I don’t know who to believe. However, I now know how the term crack cocaine was derived.
One more case that would turn out differently if jurors really knew their rights.
The police are ADDICTED to the “War on Drugs”.
There.
I said it.
You just gotta LOVE that ol’ War on Drugs!
Good one!!
Allow the illegally obtained evidence ...
If and ONLY if all parties to obtaining it first plead guilty to FELONY charges for the illegal part of obtaining it ... and do the same amount of time as the criminal who was convicted based on the illegally obtained evidence.
According to police, Negron said he had cocaine between his buttocks, and police said they retrieved it.
Barkyoumb testified that 50 grams was seized from Negron.
OMG!!! 50 grams? Almost 2 ounces? His butt had to be as big as Michele Obama’s
Sounds like the Judge got his ‘cut’.
The fact that the drugs went missing while in police custody speaks volumes about the veracity of the officers involved.
NOT!
Once you get a rep, deserved or not, for lying to a judge it's time to leave Law Enforcement and get into a new line of work, like, say, Democrat politician.
So I wonder if there was a "civil forfeiture", and if they still get to keep the dude's stuff.
Well, thank God Mr Rosario will get his $2mil in coke and his .357 back. There is some justice in this world after all.
I belive the cops
Really? even after the drugs went missing while in police custody?
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