COMMONWEALTH OF MASSACHUSETTS

SUFFOLK, SS - SUPERIOR COURT DEPARTMENT

DOCKET 1884CR00762
DOCKET NO. 1884CR00959

COMMONWEALTH
.

DAVID KEEFE 

 

SENTENCING MEMORANDUM OF DAVID KEEFEI

 

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SENTENCE RECOMMENDATION

In light-Of the-below stated sentencing guidelines and a number of additional factors to be
ussed in?a,?Mr. Keefe-requests that this Court, pursuant to MILL. c.?278, section 18, and
1monwealth v. Powell, 453 Mass. 320, (2009)', permit the Defendant?to admit to suf?cient
on the stated charges and impose the following disposition of 12 months probation, 100
"s of community service and payment of restitutiOn as the Oourt deems acceptable.

CASE BACKGROUND 
As set forth in the Commonwealth?s memorandum, Over twenty years ago, in .1996, the
ssachusett?s State Police initiated certain overtime programs designed to reduce
:ding on the Massachusetts Turnpike: these programs are currently referenced as 

cident and Injury Reduction Effort) and ?Xa?l?ime? programs. These programs, which were 

 


the 

to Legislature has thus acknowledged that the disposition Of ?cOntinued without a ?nding" remains available in
luperior Court for those offenses that do not prohibit such dispositions." -

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er 4;hour or. 8?hour long shi.fts, respectively, and were intended to incentivize MSP Troopers I

 

 

 

 

 

 

to work additionalhours and thereby increase Trooper presence along the Massachusetts

Turr pike During these shifts, Troopers were responsible fer traf?c. enforcement and 
were ?expeCted? to target aggressive drivers and speeding. The AIRB program was initially .
started by the then head of Massachusetts State'Police Troop 13, Major Michael-Mucci. Lt. Keefe 
was not assigned to the Turnpike at the time of the inception of the AIRE program; He played no

role in establishing the ?rules? for the AIRE program?and only began working at the Weston

Turnpike Barracks ?fteen years a?er the gram had been established.

Although the MSP is a paramilitary organization with extensive tyritten Rules,

Reg ulations and l3rotocols for all aspects of their operation, there were no formal written
reqnirements or rules issued by the State Police regarding the number or amount of tickets to be -
written by each officer during these AIRE shifts. Signi?cantly, .there also is no document
identi?ed. by the Commonwealth that spedi?es the time requirement necessary to complete these
shifts. However, in order to justify the additional cost'of deploying additional Troopers for
oventime shifts, the Troopers were instructed by their then supervisors, Major Mucci, Captain
.Ren 3y, and Mucci?s replacement, Maj0r Terry Hanson, that they were ?expected? to write a.

minimum of eight (8) citations-during their 4 hour AIRE shift or be subject to removal from

these shifts.

It is also important to note that ?quotas" fer the issuance of citations by law enforcement
of?cers in Massachusetts are illegal. Although the Department denies that there was a ?quota?
requirement for the issuance of citations on the Turnpike, the reality is that a de facto quota

em existed. Unlike most municipalities, who receive approximately one- half of the total of -
?nes generated by speeding citations, the Massachusetts Turnpike Authority receives one I

hundred percent of the revenuefrorn speeding tickets issued on the Turnpike. All members of the

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Departmenaincluding TrOopers, Sergeants and Lieutenants, were subject to review and

reprimand by their superiors in the event that their level of expected citations was not met.

In addition to traf?c safety, the stated .purpose of these overtime shifts Was to also . 

generate'extra money for the Massachusetts Turnpike Authority. The money generated from that: 

citations issued by Trooper's assigned to these AIRE shi?s far exceeded the cost of the. Trooper?s
overtime. _As stated, the' particulars of the AIRE program were originally develoPed by Major
Muc st and the E-Troop Union representative at that time. There was nothing committed to
writingand the ?rules? were passed on over the years verbally to new Majors and Troop
representatives- When Major Mucci created the program, he? explained to the Troopers

initially assigned to these shifts that he wanted.?qua1ity citations? for the revenue it 'would
generate for the Turnpike Authority. As Major Mucci testi?ed. at page 64 of his GrandJury, 

have something I want done (quality'citations). If you do it for me= I?ll pay you four hours



overt ime.

Over the ehsuing years, the four-hour minimum mandatory payment that was guaranteed
by the terms of the State Police Union CBA regarding many contractual issues became common
practice throughout the Department. The Collective Bargaining Agreement provided contractual
four-hour minimum guarantees to members of the. for many overtime related issues
including; court time, details, Comnmnity Action Team assigninents, as well as State Police I

Detective 'Unit call outs.

When Lt. Keefe was transferred to the Turnpike in '201 I, ?fteen years after the program

started,.both his supervisors and other Troopers at E-l' explained to him how the AIRE program

worit ed. They informed him that he had four hours to write eight citations and when he met that

number; he was allowed to leave his shift, but was required to remain Subject to recall if needed.

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also explained that on rainjsnow days Troopers were not expected to write tickets for safety
ms and that officers would receive the four-hour minimum pay because the assignment was
elled due to inclement weather. Although the AIRE patrols were cancelled, records show
Lt. Keefe remained subject to recall in the event of an emergency.- In January of 2016, the;
artment issued its first ?written? rules regarding inclement-weather, which state that ?The

Of?cer and/or OIC may re-deploy personnel when necessary.? ?In the event of inclement 

her the Duty Of?cer or appropriate Desk Officer will be contacted to determine the sector of

oyment.? I

Lt. Keefe con?rmed these ?unwritten rules? of the program through the then-

ant Traf?c Programs Of?cer, Lt. Donald Richer and the Troop operations Of?cer, Lt. Drew
on. Lt. Keefe-also confirmed these ?rules? with many ether Lientenants and supervisors. .
monitored the AIRE programs. Lt. Keefe worked the ALRE overtime shifts for over six 

3 while assigned to Troop E, never thinkng he was doing anything Wrong or being informed .

ny supervisor that he was violating any department -policy._ Lt. Keefe, like other members of

the Massachusetts State Police,'were operating with the tacit understanding that the AIRE

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times'were functionally the same as any other overtime detail assignments that contractually
ided a four?hour minimum payment. Whether it was an AIRE, ?Click it or Ticket,? OUI

or any other federally funded overtime shift, the requirement for the past thirty years was
Implete the required number of citations or arrests regardless of the time it took- to

mplish the goal of the operation.

In 2016 Lt.'Keefc med 79 AIRE patrols. The Commonwealth claims he was not
ant for a portion er all of 14 AIRE shifts. Local Boston weather reports show that 8 of those

JRE shifts in question were impacted by either rain or heavy falling snow. In the remaining 

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65 AIRE shifts not in question, Lt. Keefe completed each shift without issue, consistent with the

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that

Keefe only canceled an AIRE shift if therewas signi?cant inclement Weather. During these

rules? in place at that time. It is important to. note that, consistent with Departmental policy, Lt. 

other 65 shifts,, the Defendant can demonstrate that there were numerous days that the Turnpike .

had'light rain or snow falling and that Lt. Keefe did not cancel these shifts. The records show i

he, in fact wrote citations and also- had the Trc'cpers under his direction write citations. The

Commonwealth does not in any way, attribute a comment to Lt. Keefe that .was made by another

stati

an commander to avoid writing citations because "?lt?s raining somewhere on the Turnpike.?

There was never any attempt by Lt.'Keefe to conceal the fact that inclement weather

prevented the issuance of tickets on these days questioned by the Commonwealth. During those

particular inclement weather days, Lt. Keefe submitted Officer In Charge? Activity Sheets

tohi

supervisors at EHQ indicating there were no citations written by Troopers under his

supervision due to weather conditions. Lt. Keefe was never criticized or advised that this was a

problem when these inclement weather conditions occurred. During inclement weather, of?Cers

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se AIRE shifts were cancelled were only required to ?be available to assist? in the. event

3 was an emergency. They were never reassigned to any other speci?c duties as a result of
sancellation due to weather. The Commonwealth has not and cannot produce any
artmental rule or regulation thatrequi'red members to perform any speci?c alternative
onsibility in the event that an AIRE shift was cancelled due to inclement weather. Several

Lesses have testi?ed before the Grand Jury that this past practice only required of?cers to ?be

?lable to assist? on those days and be subject to recall if needed. This practice was Well

wn and accepted by both Majors and Captains who had been assigned to the Tumpilce for

of their careers. The Commonwealth has produced no evidence or testimony that there was

 

 

 

 

 

 

ever been an occasion in which assistance was needed to be provided by Lt. Keefe (or any of?cer

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er his supervision) who were assigned to the AIRE patrols and. they were not available or did 

respond.

In its Sentencing Memorandum the Commonwealth questions Lt. Keefe?s activity on 

August ?10, 2016. On that day, the Defendant has. cell phone records showing nine phone calls

veen Major Hanson, Lt. Smith, Lt. Nee and himself prior to'and during. the time-of that AIRE

shift indicating he had been reassigned during that time period by his supervisor. On another day

questioned by the'Commonwealth, December 5, 2016, records show-that Lt. Keefe was

signed to immediately go. to the scene of a demonstration protest at the State House in

ton. There are both administrative log notes and Boston Globe news stories for that date to
blish his presence at that time. On another day in cuestion, September 15, 2016, the
unonwealth?s records show Lt. Keefe wrote ?ve citations that day. The

1m0nwealth suggests that Lt.? Keefe's radio was off on. that day, however, on several

tsions Lt. Keefe has, for safety reasons, or when his issued cruiser was down for

ntenance, Used a fully marked cruiser to conduct his AIRE patrols. There are no records

1tained by the MSP as to ?when a Spare fully marked cruiser was signed out.

On another'day, October 14, 2016, the Commonwealth?s. records shew Lt. Keefe wrote 
:itations and thathis cruiser radio and laptop commuter were on for most of the shift. It is

known why the AG investigators Could not locate a physical copy these citations, but the

databases Show they existed. They are also missing several other citations issued by Lt.

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fe, who has the actual of?cer cepy of the citations written. The last two days in question, 3
5 17, 2016 and July 22, 2016, the Commonwealth?s records show Lt. Keefe?s cruiser radio

on and his issued laptOp commuter was transmitting for a majority of the shifts. 

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In 2015 Lt. Keefe worked 29 AIRE patrols. The Commonwealth claims Lt. Keefe Was

 

 

:rnent rain and/or snow days. One day in-question, June 25, 2015, the Commonwealth?s 

rds'show on that day Lt. Keefe wrote ?ve citations and his issued laptop was transmitting

until 1745- hours, Lt. Keefe also has a Verich cellphone record that shows he was making a

phone call while driving on the Turnpike at 1730 hours. The last day in question, December 2,

2015, the Defendant has emails between himself, Major Hanson, and Eileen Fenton, the Mass

Legal Section, that were written at 5:11 PM. On that .date, Major Hanson told Lt. Keefe to
el the AIRE patrol and write a Speci?c report which was needed by. the Highway .
?nistrator the following morning. During nine of the 29.AIRES that LL Keefe worked he

to either stop early due to the weather or worked through it. There were no issues regarding

emaining 2'4 AIRE shifts.

On the days Lt. Keefe worked these shifts, 90% of the citations were written after 3:15
(only '15 minutes prior to the ?official? start ofthe AIRE shift, but 15 minutes after his eight
i day shift ended at 3 PM). It is crucial'to understand the actual time period that the MSP.

its employees. Onpaper, Lt. Keefe?s regular work shift began at 7: am and ended at ?3 :30
for a total of 8 and one?half hours. .HoweVer?, all employees, including Lt. Keefe, are
paid 'for 8 hoursper'shift (40 hours; per week), not 8 and one?half hours. The remaining 30 .

hte time period was contractually intended to be used' for-each of?cer?s unpaid lunch break. 

In its analysis, the Commonwealth consistently uses the start time-of the AIRE shifts as 3:30 PM.

vever, this thirty-minute time between the end of the day shift 3:00 PM and. the of?cialstart 

AIRE shift has consistently been described as a ?grey area? by Troop supervisors- As

Major'Mucci testi?ed before the Grand Jury at page 56, ?Like I said, it?s (the 30 minutes of

 

aresent for ?ve of these shifts; Three of those ?ve AIRS shi?s Weresimilarly documented as A

 

 



unpaid time) something that?s there. You know, you could drive yourself nuts with that 30

 

mimLtes. Major Mucci further testi?ed before the Grand Jury at pages 55- 56 that if he
.pers anally worked the day shift from he would begin the AIRE shift at 3PM. The
Commonwealth asserts that 47 of Lt. Keefe 3 citations were issued during his "regular shift.? 
However, when applying the start time of the AIRE shift at 3 PM, the percentage of Lt. Keefe?s 

citations issued during the half hour time period between 3 and 3:30 PM is 78 

It is also important to note that the location-of the Weston Barracks'where?Lt. Keefe Was
assigned played a signi?cantiissue in his ability to write so-called 'f?quality tickets.? When
working the AIRB shifts Lt. Keefe always wrote ?quality citations," as Major Mucci and Captain
Reney requested he do. Lt. Keefe did not typically stop someone unless their speed was eighty-

- four miles per hour and above; He did not write ?cheap? citations just to be able to ?nish his
AIRB shift quickly. In order for Lt. Keefe to write these ?quality Citations]? he had to write them

before the traf?c on the Turnpike became a par-king .lot during the evening commute.

While Lt. Keefe was assigned to the Turnpike it was clear that the traf?c level became

inert asin?gly worse, making it more dif?cult to reach the expected quota of-citations required by 
the Department. These traf?c issues were the focus of a BostOn Globe Spotlight report in

Nov amber of 2019. In August of 2019 a report was done for the Governor 5 Of?ce showing

I how traf?c In the Commonwealth has gotten worse over the years.
://wivw.mass. go vldoc/ 

?In the 4 p. m. how;- heavy; congestion tangles many roadways inside the [?95/128 belt;
incla ding the Mass Pike we?sz?bound?om Allston to Weston, Route 9 in both directions inside I-

9511 28, 1-93, and McGrath/O?Brien Highway ?between Boston and Medford, and the Southeast

 

 

 

 

 

 

 

Expressway. Route 1 north- bound from Charlestown to Peabody 13 also marred by congestion,

wl?lich lS heavy' In some spots. 12 

The above quote is taken from. the Commonwealth?s Traffic Survey report, which

analyzes various areas of the state 'and shows traf?c on the Turnpike progressively worsening

over the scheduled start timeframe (3:30 PM) of the AIRE patrols worked by Lt Keefe. This

was a justi?able reason to start the shift prior to the onset of heavy traf?c. Most of the AIRE

shit" ts Lt. Keefe worked Were done in the Westboro area to avoid the traf?c congestion. The. 

Commonwealth?s traf?c report also demonstrates that the Westboro area was relatively free of

congested traf?c-at 3 PM and more likely to produce motorists traveling at an excessive rate of

. speed over 84 MPH. 'If Lt. Keefe saw a violation while traveling'out to that less traf?cked area i

- from the Weston Barracks to Westboro, he ?wo?uld issue a citation. Some of Lt. Keefe?s issued

citations were written a few minutes prior to his regular shift ended at 3 PM while in route to the

Westboro area.

During the time period in question, 2015-2016, Lt. Keefe, alone, wrote over 650 citations 

to speeding motorists. All-of his. citations were written for violations in excess of 84 MPH. The 

?nes for that rate of speed were, at a minimum, $190 per citation, and frequently exceeded $325

for other related offenses and/or lane change violations.- Lt. Keefe? efforts generated a total

exce edi'ng $125,000 in revenue directly to the Turnpike Authority. It bears repeating that these

were not ?ghost tickets,? and each person cited Was in fact stopped for speeding.

There were some citations written by Lt. Keefe in the morning between 7-9 AM that were

for texting violations. In the years 2015 and 2016, there was a push by? the and Mass DOT

 

to issue citations to people texting while driving. Lt. Keefe was aWare that most of the accidents 

 

 

 

 

 

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Lt occurred during the. morning cOmmu-te on Rt. 90 East were the result of people not paying 
attention 1n heavy traf?c and rear?ending the person in front of them. As the station commander
in Weston, Lt. Keefe knew most of the Troopers were not enforcing the texting laws, especially
duz mg the day. So, 1n order to set an example, occasionally Lt. Keefe would take the Turnpike

into work and issue 'a citation for texting inheavy traf?c. It was Lt. Keefe?s intention that his



210 .vity would encourage other Troopers to do the same thing. There was no. intent while issuing

these citations to not perform his responsibility for his AIRE patrols.

,Any citation Written either in the early morning'or mid?day would occur while Lt. Keefe I

was commuting from EHQ, GHQ, or meetings at other locations. Contrary to the
Commonwealth?s contention, Lt. Keefe did not go out on patrol in the middle of the day in order

to write citations to supplement his AIRE shifts. Those citations were written. while he was
conunuting, and if he saw a violation, 'he stopped the car. That was his responsibility Unlike
some individuals on the MSP who drove an unmarked car, Lt. Keefe didn? put the blinders on

and ignore everything, If a citation ended up in an AIRE ?pile,? it was because any citation

 

written on the Turnpike was ?led 1n a way so the ?ne money would benefit the Turnpike. There

was no intention to improperly supplement the AIRE quotas by adding these citations. 1

Testimony from one of the Troops AdminiStrative Assi?stant 5 supports this contention I

Mic.1eIle Kelleher? testimony before the Grand Jury explained how the other administrator 1n

the 'l raf?c section, Maureen Egan, would. occasionally make changes to citations to make her jobf

of ?ling easier. Ms. Kelleher said:

?There are mistakes on here that could be from our data entry. I meanI pride myself on
my accuracy, but you know, if you?re keying 100 to 500 citations in a-day, I can?t?guarantee that 
I did not make a mistake on something.? P. 89 ?There was a period of time where. . .she (Ms. 

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Egan) was writing on the citations herSelf, and i told her to not do that." P. 91 feel like, I?m
being mean, but she?s not the most accurate person- she?s just?end like a lot of times she?s just1

4 .


very- lackadaisi?cal about these-things? P. 91.
SUBSEQUENT WRITTEN CHANGES IN AIRE RULES 9

As aresult of a State Police audit that. had been conducted of shifts-several senior
members of the Tr00p conducted a meeting at Troop Headquarters in March of 20-1 7. The
specific purpose of the meeting was to end the previous AIRE program and to replace it with a? 1
new initiative called a CRT. Present were Tr00p Maj or Hanson, Captain ?Reney, Lieutenants
Kalton, Lieutenants Luce; Smith; Guilino; Nolan; and Lt. Keefe. The topics discussed included

hwhat the new ?quota? of citations would be required for of?cers working the new CRI program.
It was decided by the two senior F. Troop supervisors that the number of citations under the new

program would be increased to 20 citations .per 8?hour shift. The actual number of hours

required to be worked was also changed during this meeting. During this meeting, Lt Luce also

asked 1f the of?cers working these shi?s would still be required to perform the CRT patrols
during inclement rain/snow days. Captain Renejr?s response .to the group was, f?yes,? that there
was ?n'o more going home on those days.? Another question was asked. about going home after

writing the required 2t) citations. Captain Reney stated, ?Those days were over. Everyone who I

works these shifts has to stay for the entire shift under the terms of the new CRI program.-?

When the written rules for the new CR1 program were-published, it stated that

supervisors wouldnow have to meet with assigned personnel to collect their. citations . I 
at 1:117 end of the CRT shift. This rule was never in effect for the AIRE programs because it was

an es :ablished practice that officers working these AIRE shifts'were permitted to travel to their

homesa?er writing their citations which was a different time foreach officer. The new CRI

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program also reinforced the consequences for not meeting the 20 citation quota. Paragraph 6 of

Maj or Hanson?s Troop Commander?s Order regarding the new CR1 program which was sent to 

all ofB Troop and. Lt. Col. Amodeo .at GHQ states in part: -

?To that endo??icers assigned to the initiative will be. expected to conduct multiple
motorist contacts during their shit? and pro videdoczrmentatian those contacts to the
01C at the conclusion of the shift Officers who participate in the program and do not meet
these criteria will be addressed via the process for unsatisfactorv performance. Repeat

unsatisfactory performance can result in removal from the eligibility list"

I The record is clear that Lt. Keefe submitted his tickets when he wrote them and applied
them to the correct shift. Lt. Keefe didn?t change dates. He didn?t change the times or the names

of the persons he gave citations to. Lt. Keefe didn?t write any ?ghost tickets.? Lt. Keefe didn?t go

home at the mere mention of rain or snow. Lt. Keefe worked these shifts in-th?e way he was told

to when he ?rst arrived on the Turnpike, ?fteen years after the AIRE program had been
operating. Nothing was hidden, altered, or changed by Lt. Keefe in any of his citations. He
appropriately submitted all of his citations and OIC reports to Troop-Headquarters, which then
were sent to the administrative assistants, Traf?c Programs Lieutenant and then to the Captain
and ?nally to the Major in charge of the Troop. Lt. Keefe was never told that he was in conflict
or had violated any of any rules fer the AIRE patrols. As is consistent with Li. Keefe?s thirty-
year career, if an issue had been brought to his attention, he would have corrected it.
ARGUMENT

I. RELEVANT SENTENCIN COMPARISONS SUPPORT 

REQUEST TO HAVE THIS MATTER CONTINUED WITHOUT A FINDING

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The allegations and charges brought to bear on Lt. Keefe are not unique to him alone

nigh he may be the only person presently standing before the Court, there are "currently 46

aral Court to far more egregious behavior than that comprising the allegations against Lt.

Fe. Specifically,- each of those individuals have been charged with writing non-existent

and/or using other unlaw?il means to conceal their conduct None of those

ations are present in this case, which clearly indicates their was no intention on the part of

emaining 40 plus of?cers involved 1n this investigation are not going to be charged by the

lished by Major Mucci 1n 1996.

Given this background, it 18 not unreasonable for the Court to consider those of?cers?

ices in additiOn to the sentences imposed on other local law enforcement of?ceis, in the

111011 0th Keefe 5 case. See 18 use. 3553(a)(6); Commonwealth Tejeda,119

.743, 744?45 (Mass. 20' 19) (recognizing that udges are able to consider a coventur'er? 

cc for the same crime even if' Imposed subsequent to the defendant?s sentence where it is

lably apparent that the defendant Was less culpable than or equally culpable to his 

[uently?sentenced coventurer).

Although this Court' iS not necessarily bound by Federal sentencing guidelines, 18 U. S- C.

states, in relevant part, that, ?The court, in determining the particular sentence to be-

 

2 :l/wWw wcvb. com/article/scale-o? state-

2019)

17 (last visited April '26,

13

 

3r. members of the Massachusetts State Police who Were under investigation for the same type


of allegations regarding overtime abuse."- At least eight membeis of the MSP have pled guilty' 11:1

.eefe to 111 any way conceal what he thought was his compliance with the AIRE patrol rules.

and had complied with the rules

 

 

 

 

 

 

im1osed, shall consider. .the need _to avoid unwarranted sentence disparities among

defendants with similar 1ecords who have been faund guilty of similar conduct.. (emphasis

added). While the explicit language of the statute does allow for some variation in sentenc1ng,_ .

sue 1 disparity must be explained by material differences between the Defendant and 1 
1

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1





. 1
comparators. See United States v. Deniers, 842 (lst. 20.16). Material differences 1 1




1



 

1 include eligible departures criminal history, community? based characteristics, and individual . 1 1
fact Jr's. See United States v. Ramem, 1906 F.3d 196, 211- 12 (lst Cir. 2018); see also United
states v1. Flares-Machicofe, 706 312116, 

There are clearly ?material differences?" 1n Lt. Keefe? 3 case that separates him from all of 1

1
the other defendants who have been charged to date. Though not co-defendatits to this case,t11e1 .

1
State Police- o?ticers who have pled guilty' 1n Federal Court were an charged with essentially 

much more egregious offenses. 1What separates their cases from that of Lt. Keefe' 13 their actual



1
writing of false, non?existent' ?ghost tickets? and their attempts to subsequently conceal their: 
conduct. It IS clear that Lt. Keefe never wrote any false citations To the contrary and to his 1 .

1

credit, Lt. Keefe always focused his efforts on the highest speeding violators on the Turnpike. 1

 

The allegation brought against him" 15 that he allegedly didn?t work the entirety of his shift or1
started- it ear1y due to traf?c and/or weather1 concerns. DesPite these factors, even a cursory look
'1 at the chart provided 1n the Co m1nonwealth?1s sentencing memorandum shows that the

prose cution' IS seeking a more excessive punishment for Lt. Keefe than any of the others

1 similarly situated or more culpable, despite the fact that the allegations against him are less

severe than others.
For purposes of additional comparative analysis, a signi?cant number of local and Bosion

Police officers have also recently been Investigated for overtime abuse allegations similar to1 that

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Lt. Keefe. By way of example, thirty-mic (32) of?ceis from the Boston Police Department?s
111g Unit, received overtime pay for 91 instances in which they said they were called to testif

wOUl-"t for trials, case conferences, or motions hearings claims that were not backed up 

rs for court appearances they either did not make Or that they were not scheduled to appear

By comparison to this case, the related discipline imposed On these of?cers was-minor. Nonei

- of those 32 of?cers were ever charged criminally,

appe
the Court. In those Drug Unit cases,
1rty day suspension or transfers in order to allow the of?cers to further their careers 3One 1

1 Unit of?cer, was only suspended without pay for a total of ten (10) days even though he

altered a court-issued notice-to

Department, there have been several other Boston. police of?cers that have been charged
acriminal proceeding that have not resulted in convictions. Those of?cers have had their
es continued without a finding' in magistrate hearings. For example, a Boston Police

ant Detective was investigated for fraudulently collecting approximately $13,.000 00'1n

overtime pay for hours he did not worlt over the course of four months He had also been

court notices kept by the Suffolk County District Attorney? 3 of?ce. The BPD Drug

accounted for approximately $1.8 million dollars in overtime that year. 1

- .

In multiple instances involving the Boston Police Drug Unit, of?cers claimed overtime

even though they were paid for court

arances that they never attended. Some of those drug eases-resulted in being dismissed by

 

the of?cers? administrative punishments ranged from a one- 1
1 1

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-appear to add his colleagues names so that. they could also. 1

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receive unwarranted overtime pay

Although the-Drug Unit-officers1 fraud allegations we're handled-internally by the Boston 1' I - i

 

3 htt__os: boston lobe. com/metro/ZOlZ/OWZZ/lucrative-
scrutinv/A 8 uet'04r8 K/storv. htn1l9n 

=Article Inline Text Link
15

 

 

 

 

 

 

 

 

previously 1nvestigated for falsely reporting his horn-s a few years earlier. The of?cer did not

contest the allegations, but had his matter continued without a ?nding, given probation for 18

months, after which the charges _were _to be dismissed 

Another Boston Police Lieutenant saw a- comparable resolution. He voluntarily retired

fro cm the Boston Police Department after 26 years of sen/ice in lieu of criminal prosecution for

his attendance' rssues, overtime pay, and detail work

$10

the amount in question summing nearly

0, 000. 00.5 This Lieutenant was also required to pay restitution to the city of Boston. In

ex change for the of?cer 5 retirement and restitution payments, the Boston Police Department

agreed to drop the charges against him. Beth of these of?cers were also able to keep their . 
pensions. 5.

In 2017, another of?cer in the Boston Police Department, was also allowed to resign
@0111 the department, serve probation and perform comrhunity service hours 1n response to

criminal charges of money theft. Of?cer Joseph Nee was indicted on charges ofste'aling money

from the evidence unit (approximately $2,000.00 from a closed bank robbery tile), and then .

attempting to latmder- it at Plainridge Park Casino. The charges against Of?cer Nee were

continued without a ?nding.

In September of 2019, twenty-setten (27) Medford police of?cers were also suspended

'from?work for periods of time ranging ?'om one (1) to (30) thirty days for overtime fraud. The

 

'hgps. .
court-hearin 
5 Thou this particular Lt. had earned approximately $57, 980. 00' In overtime and $43, 548.00 from details, which

was the subject of the internal affairs investigation, it was determined that he had fraudulently collected nearly

$6,800 00' 1n _.pay s. wcvb. 111-affairs-
investi 1gati01i/823 853 

5 bostonglobe. com/men 0120 18/ l2/07lcl1ar es-a ainst-
co urt-h aari11g/BzDUiCcG Pd9kdnaoJc

 
   

         
 

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twenty?seven of?cers were never charged criminally for being paid for details that they did not

 

 

work at a construction project in the city last year An external' investigation con?rmed that the 

twenty-seven officers had been paid money for the details that they had not worked and were not
entitled to. The violations occu1red from February to April 2018 during the Medford Square

Bridge project. Although the. amotmt of money illegally obtained totaled 000 for some
of?cers, none of them were ever charged with a crime. hese of?cers were simply required to

pay 1estitution to the City of Medfmd and not permitted to work ?rture details for periods of time

rang1 ng up to one year.

It isclear that the issue is clearly a systemic and cultural issue that-has arisen as a
consequence of years of lack of proper oversight and true accountability from management. Lt.
Keefe, like other members of the Massachusetts State Police, had been operating with the tacit
unde1stand1ng that the AIRE cvertimes were functionally the same as any other overtime detail
that contractually provided a four-hour minimum payment. By the terms of the State Police
Union? 3 (State Police Association of Massachusetts Collective Bargaining. Agreement,
all members of the Department are entitled to be paid a minimum of feur hours for any Court
and/01 Detail appearances, regardless of the amount of time actually spent in Court or at a detail
site. Lt. Keefe did not originate this thought process. This minimum mandatory payment of four
hours had become a ?cultural sense of entitlement that was reinforced by the CBA as well as other



ranking supervisors of Lt. Keefe throughout his tenure with the State Police.

This sense of contractual entitlement regarding overtime pay clearly was not uncommon
nor was it necessarily considered to be criminal by supervisors within the Massachusetts State
Police or the Boston Police Department; in fact, it serves to highlight a greater systemic problem 

within law enforcement throughout the region. By example, in 2016, a Boston Police Detective

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more than quadrupled his pay through a similar contract provision requiring of?cers who work

details or testify In court to be paid a minimum of four hours? even if the assignment is less than 


an hour. That Detective 5- base salary was $92, 515. 00, yet he earned approximately $403,000 for



the year because of the same four-hour guaranteed overtime provision. This provision alloWed



the Detective to receive approximately fou1 months of overtime pay for hours he did not actually




Based on his communications with his supervisors, Lt. Keefe was advised that the focus
of the AIRE overtime shifts was intended to be simply on issuing ?quality? Citations within the

fourl hour-time period. By ?quality? citations, the Department, as .well as the Turnpike Authority
were primarily interested 111 citing drivers operating at 80 MPH er above. However, if a Tampa

completed the unof?cial ?quota? of' 1ssuing the requisite number cf citations quickly? in less

than three hours it was well understood and accepted by Lt. Keefe? supervisors that he was not 5

required to complete the full four hours of the AIRE shift. The requirement of actually working
the full four hours of the shift was considered thioughout the Department to be merely an
administrative issue because the of?cer had still completed their assigned task of issuing the

requisite number of citations. See Major Mucci Testimony Grand Jury, at 27-28.

Similarly, Major Teny Hanson, who followed Major Mucci as the head of Troop E,
stated to the Grand Jury that his primary concern was that AIRE officers weie accessible and
visible during their shift. Often times this meant that Turnpike supervisors, including Majors

Mucci and Hanson, allowed of?cers to begin traveling-home' 1n their cruisers anytime during the

 

7 Officer Lee earned time-and-a- half for working 1,100 hours ofovertirne, totaling $58, 600. 00 of overtime pay.
Howev'e1, because of the four-hour-minim?um pay provision, he was able to earn that amount without actually
working 674 of those 1,100 hours. bostonulobe. olice-
. lnline' Text Link

   

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latterportion of their shift as long as- theyhad completed the requisite citation requirement.
because they would still be a presence on the road. See Hanson Testimony, at 12-13. This

accepted practice of allowing members on AIRE shifts to l'eave?early was well documented in




Grand Jury testimony. Both Majors Hanson and Mucci testi?ed that the-accepted times to leave
prior to the end of the AIRE shift ranged from a half hour to one and a half hours prior to the end
-of their shift Both Majors Mucci and R'en'ey testified that it was ?ok? to go home" a little early?
from these shifts. Even the own 2018 internal investigation into possible overtime abuse
did not seek to identify troopers. who worked ?incomplete shifts. Instead, they identified' issues 
ofiattendance, false citations and date changing of citations. This further supports the argument

that an shift? was not Seen as infraction, even by those tasked to find abuse.

Major Mucci testi?ed before the Grand Jury at P. 38, ?If he (Trooper) would stay at least
three hours, Ilhave absolutely no problem with that. Later in his testimony, a Grand .lu1or asked
Mucci; conversation that you had. with the (SPAM) rep that your eXpectation Was if they
?neede to stay for three or meie hours to be paid for four hours. That wash wr1tten down, that
was an understanding with the rep who agreed with that, passed that down to the other union 

members. Did I get that right?? Mucei? 3 response was ?Yes.? Grand Jury P. 66.

This evidence demonstrates that for years Lt. Keefe?s supervisors permitted, if not
endorsed, the accepted practice of alldwing of?cers working AIRE shifts to work less than the
full four hours of their shift once they had completed the neCessary ?quota" of eight citations.
This accepted practice of leaving prior to the end of a shift was commonplace within the State

Police not simply Troop and the Turnpike. As the Civil Service-commission found.

?I?nd that it is a common and accepted practice for Si't'zte Troopers to begin

commuting home once their relief has signed on, even iftlzis. occurs before'tlzeir to m' of duty

19

 

 

 

 

 

 

 

 

has

pf

no?



ab'oi

argued below make him stand out as an exceptionalcandidate for resolving-this case by means of I

anad

C0111
requi
Justi
revel

.3335

livelil

purpo

accep

facing

in exc

Department of State Police, D- 09- 334. December 11, 2009. 3

come to an eurL- Having sanctioned this practice for many years, the State Police cannot

 

m1? categorize it as misconduct solely because it was ?te Appellant who engaged' in this

tice]. Chairman Christopher Bowman. Civil Service Commission Decision, Brian Sweet v.

1

i

attempts to use it as a basis for presecution. As such, Lt. Keefe requested resolution 13

more reasonable in light of the multiple diapositions and sentence compariSOns noted



we. Lt. Keefe also suggests that his remarkable character and mitigating circumstances as

Since Mr. Keefe has retired from his position with the State Police, the Commonwealth?s

ested sentence fails as a measure of speci?c deterrence. Compare with Opinion of the

gas to the Senate, 423 Mass. 1201,1222

ring a license to practice to bar individuals from any opportunity for misconduct ?mctions

peci?c deterrent).


?1
Furthermore, in consideration of his total investment in this previous career as his

mod and as part of his being, the fact that Mr- Keefe is no longer able to serve his life?s
so as a police officer has a strong enough deterrent effect on its own. If the Court does not
I: Mr Keefe? 5 request to admit to suf?cient facts 1n this case, he and his family are also
the loss of his pension, a heavy collateral consequence that would likely amount to a ?ne

Bssof a million dollars over the .course of his remaining lifetime. It is clear thata

 

3 Civil 
June 17

?Service Commission Decision Brian Sweet v. Department of State Police, Af?nned by the Superior Court-on
201.incredible that the Department who has sanctioned such Conduct for literally decades,

mission to suf?cient-facts and restitution with probationary conditions as determined by the

-23 n.15 (1996) (using regulatory measures, such as

 

1 .

 

 

 

 

 

 

permanent criminal record would leave Mr. Keefe with limited other ?1ture: sources of income at:

 

his age.

A. The Defendant?

     

Re nested Resolution of this Matter' 1s 3 Just Punishment 1n

Light of all the Circumstances

?just punishment" re?ects the seriousness of the offense while simultaneously

pror

 

noting respect for the law and serving as a deterrent. A just sentence must also be tailored to

the articular defendant and the speci?c conduct at issue; this means that aggravating and

miti ating circumstances must be weighed 1n the sentencing decision. See Commonwealth v.

 

Cou Min, No. 2004- 01739, 2006 Mass. Super. LEXIS 282, at*lO (May 17, 2006). This .

eval ation censiders factors including Mr. Keefe? relationship with his community, his family

ties 1nd responsibilities, his lack of propensity for crime, the likelihood of future offenses as well

7 as his overall- character and personal history. See id. at 9; see also Commonwealth v. Felguson,

571 N. E. 2d 411, 415 (Mass. App. Ct. 1991) (allowrng Judges to consider hearsay information

about various aspects of the defendant?s life including his behavior, employment, and health).

In this situation, there 15 a myriad of mitigating circumstances sufficient to support Mr.

Keefe? request for an admission to sufficient facts. First is Mr. Keefe? 3 character, de?ned by his

sel?es sness and devOtidn to his family. Mr. Keefe has been married for over twenty-?ve years.

He and his wife, Kerri, have two- teenage children, 16 and 18. The 1mpact of this case affects not

simply Mr. Keefe, but his family and their future as well. A cursory review of Lt Keefe? 

I background demonstrates that he was a trusted and reSpected member of the State Police for over

thirty ears He single?handedly designed and oversaw the consnuction of every aspect of the

Troop l3 Headquarters at Weston. He was in charge of hundreds of thousands of dollars of seized

drug 

cney without issue. He has had no disciplinary history in his nearly 30-year career. Lt.

21

 

 

 

 

 

 

 

 

 

Keefe?s exemplary work history includes oVer thirty unblemished years of dedication to serving
his community as a member of the State Police. Though the Commonwealth suggests otherwise, 1

I the greater picture of his career shows Lt. Keefe as an exemplary public servant. Without any I

record of aggravating factors beyond the allegatiOrls of not working the full four hours of his I:
AIRE shifts, this Court is well within reason to recognize Lt. Keefe?s good deeds and character
in its sentencing decision. United States v. Mehta, 307 F.Supp.2d 270, 275-76 (D. Mass. 2004)
(citing United States v. Takai, 941 F.2d'73 744 (9th Cir. .1991) (statement of Judge John T.

Noo ?ran, 

The Commonwealth?s own Sentencing Guidelines1 clearly allows this Courtmuch

. greater discretion in dispositions to ensure that an appropriate punishment is imposed. In

Commonwealth v. Stevanovich, the sentencing judge. in that case had the choice between

. incarceration or a probationary sentence, the Court emphasized that ?the judgment must be made
on the basis of some nonnative framework.? No. 2006? 0086, 2006 Mass. Super. LEXIS 288, at
*19 (May 25, 2006) (refusing a 'clang of the prison door? sentence for a single mother of three
children who stole: public and private funds). The judge then articulated a framework
encouraging prison as ajust punishment only where there is a serious concern about the danger 
ported by the offender to the public, the offender will not comply with other sentences, where the
crime is ?so serious that it can only be marked by a signi?cant prison sentence,? or if the crime

necessitates a ?clang of the prison door.? Id. at *19-20 (emphasis added).

. 
It is patently clear that Mr. Keefe is neither a threat to the community or an uncooperative 
perso n; his years of'commendable- service, his performance reviews and work history say as
much There is also no evidence, given the other law enforcement dispositions cited previously,

that these allegations, by their very nature, necessitate any term of incarceration or for that

22

 

 

 

 

 

 

 

 

 

 

ms

051'

Commonwealth Sent. Memo, at 12-13. Therefore, the Commonwealth?s suggestion of prison.

ltter, a conviction. In fact, the Commonwealth even, cites the majority of those charged with

11mg ?ghost tickets? had received nominaljai-l-time of ?1 day deemed served."

only be premised on the ?dang of the prison door theory? which' 13 not supported by the facts

0r circumstances of this case..Stevqnovich, No. 2006-0086, 2006 Mass. Super. LEXIS, at *20

(cit'

200

Cori-

char

suf?

mg Lord Woolf, The Lord Chief Justice ofEagland and Wales, ?Making Sense of

Sedtencing,? The Sir'Leon Radzinowica Lecture, Cambridge? Institute of Criminology (May 12,



In this case the'Common-wealth requests a sentence of nine (9) months in the House of 

action followed by two-years of probation and 200 hours of community services, and

restTution. Their recommendation IS clearly and excessive to the reality of these

ges. However, for the above stated reasons, the Defendant? 3 request of an admission to

clent facts, restitution, supervised probation and community service in lieu of the

Commonwealth?s recommendation. is clearly more compatible with the goals of the .

Comimonwealth?s own Sentencing Guidelines. Despite any arguments by the Government to the

eontrary, Mr. Keefe 1s a 55 year old, non~violent, ?rst time offender; he did not use violence 1n

his employment. He became, like nearly 100 other members of the State and local Police (none

of which are currently charged), ensnarled in a cultural and systemic pattern of an accepted

pract1ce that tacitly permitted him to not work the entirety of an AIRE shift. He has never used

his of?cial title towards unseemly ends. His lack of criminal history places him 111 Zone A of the

Guidr lines. The terms of the Sentencing Guidelines allow this Court to continue his matter

witho

at a ?nding with appropriate'ter'ms of probation and restitution.

23

 

 

 

 

 

 

 

 

 

 

 

As vital as it 13 that a punishment be Just for the sake of the Defendant, societal

 

considerations cannot be ignored when making sentencing decisions. This means that the othe1-

. purposes of punishment? deterrence, rehabilitation, and public safety must be evaluated in -

light of the proposed'sentence. Since it is evident that public safety is not an, issue invoked by

these charges, the Commonwealth?s 1equested sentence must be reviewed with respect to

dete rrent and rehabilitative purposes. Such an evaluation shows that neither goal' rs adequately

met by the Commonwealth. When considering the deterrent effects of a given punishment,

deterrence 1s aimed at the offender to discourage him from re-offending and measured as against

- the effects on society. See generally Commonwealth v. Bland, 724 N. E. 2d 723, 725-26 (Mass.

App. Ct. 1999) (including a message of general deterrence as a factor' 1n sentencing rationale IS

acceptable). Since Mr. Keefe has retired from his position with the State Police, the

Commonwealth?s requested sentence fails as a measure of speci?c deterrence. Camper 2 with

Opinion of the Justices to the Senate, 423 Mass. 1201, 1222-23, n.15 (1996) (using- regulatory

meaiures, such as revoking a license to


practice, to bar individuals from any opportunity for
misconduct functions as a speci?c deterrent). Furthermore, 1n consideration of his total

investment 1n this previous career as his livelihood and as part of his being, the fact that Mr

Keefe 1s no longer able to serve his life?s purpose as a police of?cer has a strong enough 

- deterrent effect on its own.

Mr. Keefe respectfully submits his requested resolution of. this matter 1n the name of

justice; His requested disposition IS a suf?cient restraint on his liherty as required by the rule of

law, but' 13 also no greater than necessary to achieve the purposes of Sentencing. An admission to

suf?cient facts is an acceptance of responsibility and clearly falls within the advisory range of

di3positions permitted by the Commonwealth?s Sentencing Guidelines. Acceptance of

'24

 


.

 

 

 

 

 

 

 

 

responsibility by means of an admission to ?suf?Cient facts, follOWed by a term of supervised

 

rehabilitation in sentencing. Mr. Keefe?s request would allow him to work and meet his .
rest .tution obligations. Importantly,? his request would allow him to remain with his family and

com inue to support them. The alternative would cause additional, adverse harm to the 

defendant?s and his loved ones? lives.

The Commonwealth?s requested sentence inappropriately discredits all of Mr. Keefe?s
being and fails to articulate either a reason for .why incarceration would bene?t the public or how
it wduld help rehabilitate Mr. Keefe moving forward. Cf Stevanovich, No. 2006- 0086, 2006
Mass. Super. LEXIS, at *22 . . the burden should be on the proponent of incarceration to
demonstrate that it is necessary [tOWards deterrencej?). Infact, in Topic: v. United States the

Supreme Court confirmed-the explicit language of 18 USC ?3582 to mean that incarceration

.cannot serve the purposes of rehabilitation. 564 U. S. 319, 328 (2011) See also Jo'lmson v. United .

State: ,529 U. S. 694, 708- 09 (20.00) (discussing the goals 'of supervised release as rehabilitative)
I (citing United States v. Johnson, 529 U. S. 53, 59 (2000) (?Supervised release ful?lls
rehabilitative ends, distinct from those serVed by indarceration. In fact, incarceration
essentially blocks or otherwise prolongs the possibility of rehabilitation by signi?cantly
separating the probationary period from the crime. See Johnson, 529 S. 53,59 (2000) (?The
objectives of supervised release would be un?il?lled if excess prison time were to offset and

reduce terms of supervised released?).
CONCLUSION

For the foregoing reasons, the Defendant, 111 good conscience and good faith, respect?illy

reques 's that this Court accept his request to admit to suf?cient facts, and to impose a period of

25

 

'reljas'e adequately punishes 'him and more than suf?ciently serves the purpose of deterrence and






 

 

 

 

 

 

 

 

12 months of probation, community service, and restitution _as determined by the Court, and with

wh ateveradditional terms the court deems necessary and appropriate.

Respect-hillyV-submitted, 
For the Defendant,

By his attorney, 

Tirnothy M. Burke; #065720 
LAW OFFICES OF TIMOTHY M. BURKE
160 Gould Street, Suite 100

Needham, MA 02494
(7:51) 45570707

CERTIFICATE OF SERVICE

Timothy M. Burke, hereby certi?,r that. on this 3'I5-t day of January, 2020, I served the
ing by email to the following: . 

 

   
 
   

Attorney General .
Mass chuselts Of?ce of the Attorney General
One shburton Place, 19?1 Floor

'5 MA 02108

617?963-2685

Timothy M.- Burke

26