Rutland County’s top prosecutor is poised to drop an attempted murder case because of the “staggering dereliction of duty” by a Rutland police detective whose cases she will no longer prosecute and whose truthfulness was questioned by a judge.
State’s Attorney Rose Kennedy said the inaccuracies and questions of evidence-handling by Rutland City Police Detective Emilio Rosario would also result in Rosario being stripped of his designation as a death scene officer, a key position often involved in the most serious and complicated cases.
In a letter to Rutland Chief Brian Kilcullen, Kennedy said she would no longer prosecute Rosario’s cases. The attempted murder case was the latest involving Rosario and questions about whether he provided accurate sworn statements and collected evidence properly.
Kennedy’s decision to likely drop the attempted murder case came after a ruling this week by Judge John Pacht that any evidence police seized from the Dodge Charger belonging to suspect Javon E. Wright could not be used in the case. Wright faces charges of attempted second-degree murder and aggravated assault with a weapon.
In tossing the evidence, the judge wrote he could not square accounts provided by Rosario about obtaining consent to conduct a search. Pacht, in his 11-page ruling, cited two other cases where problems were found with sworn statements by Rosario.
“As is the case here,” Pacht wrote in his ruling, “these incidents reflect circumstances in which Detective Rosario swore to information that was either misleading, incomplete and/or inaccurate and this leads the court to question the detective’s commitment to the care needed when swearing or affirming to tell the truth.”
Pacht wrote he did not find that Rosario was intentionally misleading during testimony in an evidence suppression hearing, but called it “concerning.”
The judge cited “the lack of precision” that left him unclear about what, if any, consent was actually given for the search of the vehicle in the attempted murder case.
Kennedy said she doubts she can now pursue the case against Wright.
“In light of Judge Pacht’s decision,” Kennedy said in an email Tuesday, “which did not surprise us, given the officer’s testimony, we will likely need to dismiss this case.”
Where was the phone?
The felony charges against Wright stem from a stabbing in July 2019 inside a Pine Street home, allegedly over a drug debt. Police allege Wright used a knife to stab a man in the neck and torso.
Under Judge Pacht’s ruling, no evidence seized by police from inside Wright’s vehicle, including a phone, could be used in the case. Kennedy was unavailable Wednesday to discuss the ruling. Rosario could not be reached Wednesday for comment.
Kilcullen described Rosario’s actions as errors and a lack of attention to detail, rather than intentional steps to mislead or be deceitful.
“There were certainly some mistakes made by our officer in a number of cases,” the police chief said Wednesday. “The extent to which the mistakes were made certainly affects the state’s ability to successfully bring, or prosecute, cases.”
Kilcullen added that the department often discusses issues surrounding proper searches. “It’s certainly best to get a search warrant rather than consent in the appropriate circumstances, I think this is one of those circumstances,” he said.
As for Rosario’s future as a detective, Kilcullen said, “We certainly hope going forward it is not disqualifying for him being a police officer.”
The police chief added, “Those are some of our ongoing discussions.”
Rosario, who has been with the force for about seven years and has been a detective for most of the past two years, remains employed as an active detective with the department, he said.
A letter to defense lawyers
Kennedy has also written a “Brady” letter — also called a “Giglio” letter — to defense lawyers in Rutland County about Rosario. Such letters inform defense lawyers about credibility or honesty issues involving an officer.
In that letter, Kennedy cited three cases where Rosario’s credibility was at issue, including the attempted murder case involving Wright.
In Wright’s case, the prosecutor said Rosario stated in a sworn affidavit that he seized phones from Wright’s “person.” However, the prosecutor wrote, at least one of the phones was from Wright’s car.
Also, according to the letter, an evidence tag indicated that another officer, Sgt. Keith Lorman, had recovered the phones. “However, Sgt. Lorman indicated that he has no recollection of that, and neither officer could testify to who wrote on the evidence tag,” Kennedy wrote.
After the hearing in August, the prosecutor told the police chief she would no longer take cases Rosario prepared.
“The testimony,” Kennedy wrote, “covered three instances of material inaccuracies, misstatements, or omissions that irreparably undermine any reader’s confidence that an affidavit authored by Detective Rosario accurately recounts the facts of a case.” Kennedy predicted an “adverse credibility finding” by the judge.
The two other cases Kennedy cited in her Brady/Giglio letter about Rosario included a domestic assault investigation from February 2018. In that case, Kennedy wrote, Rosario recorded an interview with the victim and obtained a sworn written statement from her. The statement, Kennedy said, had an added section regarding the woman’s assessment of her pain, on a scale of 1 to 10, caused by the assault.
“At no point, while on the scene and while recorded, did Officer Rosario ask this pain scale question of the victim,” the prosecutor wrote.
Rosario testified he altered the statement after “a subsequent conversation with the victim, asked her that question, swore her to her answer, and added her response to her sworn, written statement.” Kennedy wrote in the letter to the police chief.
“Detective Rosario,” the prosecutor added, “explained while testifying that he did so knowing that the statement had already been notarized and with the understanding that his actions in altering her statement could be potentially criminal.”
The outcome of that case was not immediately available.
Another matter, Kennedy wrote in the Brady/Giglio letter, involved a case of domestic assault and sexual assault. According to the prosecutor, Rosario wrote in an affidavit in support of a search warrant that he had seized a truck that would be searched.
However, the prosecutor wrote, the truck had actually been towed to an independent impound lot and was “outside of police custody” for some time before police seized it.
That case eventually went to trial, leading to a conviction on the domestic assault count and a deadlocked jury on the sexual assault charge.
Kennedy said case could be pursued despite the issues with Rosario’s affidavit because other evidence supported the charges, including the testimony of the victim.
In her letter to the police chief, Kennedy wrote that in refusing to prosecute any more of Rosario’s cases, she had decided against other, less drastic options. Those options, she wrote, included requiring Rosario to discuss all of his affidavits in detail with a supervisor for the next six months and requiring him to carry a recording device which must be activated when interacting with the public.
“These proposals and any remedy short of the non-prosecution of Detective Rosario’s cases fails to honor my obligation to protect our community with integrity and honesty,” Kennedy wrote.
“It also fails to recognize the importance that credibility plays in the criminal justice system,” Kennedy wrote, “and how even unintentional misstatements can erode public confidence in the police.”
