Friday, February 27, 2015

"Dismissed" Doesn't Mean Innocent!

Thomas C. Donovan arraigned in Eastern Hampshire District Court (3/10/14).  Your humble reporter standing in background.  MassLive photo by Dave Roback

So the hotshot Boston attorney for Mr. Thomas C. Donovan was being a tad coy when he told my friends at MassLive that the reason he took so long to file a lawsuit against Amherst police is because he wanted to wait until the Blarney Blowout criminal case was concluded against his choir boy client.

Thus giving the impression that the criminal case was "dismissed" and his client was totally innocent.

As any of you who have followed my Eastern Hampshire District Court reports over the past year or so know, the usual method of dealing with UMass students arrested for rowdy behavior is a "diversion" from criminal to civil and the dropping of at least one of the charges.

In the case of Mr. Donovan, who was charged with "failure to disperse" and "disorderly conduct", the Judge, as part of his plea deal, dismissed outright the "disorderly conduct" charge but DID NOT DISMISS the "failure to disperse" charge.

Instead he was put on probation for four months, ordered to pay $200 in restitution and write a letter of apology to APD ... only THEN was the charge of "failure to disperse" dismissed.

Click to enlarge/read

And yes, I have confirmed Donovan wrote the letter of apology to APD, but since this now involves a lawsuit the letter is not a public document.  I also assume he paid the $200 and did the 20 hours of community service.

If he's so innocent, why write a "letter of apology"?

The fact he was recording on his phone at the time he failed to heed a lawfully given order to disperse is irrelevant.  If he were playing a violin, the cops would have told him to stop playing the violin and leave.  

"Not talking to reporters now".  Gee, I wonder why?


54 comments:

Anonymous said...

Excellent fact-based reporting. Thank you Mr. Kelley.

Larry Kelley said...

No problem.

Rule #1: Seek truth and report it.

Anonymous said...

And the police stomping on his phone?

Larry Kelley said...

If he had been playing a violin, they probably would have stomped on it as well.

Anonymous said...

Okay so you actually believe the police attempting to destroy video evidence is an okay thing...every time I read your blog I leave more disgusted then when I came. If you think the APD isn't going to lose this case you are an idiot.

Larry Kelley said...

I think they were pissed off about having full cans of beer thrown at them.

No way in Hell are they going to lose this case now.

Anonymous said...

It also does not mean you are guilty and likely means that charges are really not that serious in the first place.

It is very common to admit guilt or apologize when someone has their hand raised over you (or gun or entire court system and local sentiment). This is common with bullies on schoolyards, the mob or citizens facing the legal system or govt opposition.

He may still be guilty of something somewhere and may have to face whatever charges/penalties they levy on him.

I just wanted to make it clear that when facing a opposing force 10,000(,000,000,000,000) larger than you - it is not uncommon to put your tail between your legs and grovel. It seemed the tone of the post overlooked this bit of common knowledge.

But if he is guilty, punish him in proportion to the damage he inflicted upon the community. That would be justice. Punish everyone who hurts or get violent with others or destroy/take property/time.

Zachary Callaghan said...

Lmao....Did the defendant throw a beer can? Obviously the police were responding to a riotous situation, doesn't mean you can smash cameras.


What makes you believe there is any chance of them not losing the case? The officer stood above the cell phone, looked around to see if he was being watched, and stomped on the cell phone REPEATEDLY, while the defendant in question was asking his friend to grab his cell phone before the police could take it. I laughed out loud watching the end of the video, as I'm sure the defendant did after he got the pepper spray out of his eyes.

And you legitimately think a federal judge will see that and say the APD was within their rights? This will be settled out of court, you are a moron.

Larry Kelley said...

I'm sure it will. But for a Hell of a lot less now.

Anonymous said...

Zach seems to have overlooked the Imputus Rectificis Doctrine.

Once a perpetrator elects to engage in a criminal act as in this case, the officer, acting on behalf of the people is now working temporarily under this doctrine, initiated by the decision of the criminal, not the officer himself.

Once under the Imputus Doctrine, the officer has the right to levy instant proportional punishment during the period of "impending instability" and also has the rights to control, retain, search and seize your property. The officer was clearly acting within the doctrine when he smashed the phone and legally, at the time, it was his. Once something his his, he can do with it as he wishes. Once the "impending stability" ends, then the phone reverts back to being in possession of the perpetrator, but unfortunately by then the phone was broken, but without fault because it was broken by the officer during the time in which the officer had possession of it.

This is the way America works and those that don't like it have plenty of other places they can go. Even those not familiar with the doctrine specifically, know this is just how it works.

Anonymous said...

What I saw and heard in the video in question. Was a punk kid with some sort of delusion of grandeur who incorrectly believed that because he was filming the police, he somehow had the right to disregard a lawful order to disperse. I also saw that same individual very quickly find out that he had exercised extremely poor judgment and misunderstood the law he thought he was trying to quote. Yes, you have the right to film the police. You also ha E the right to be arrested if you disobey a lawful order from a police officer. He was never told he couldn't film. He was ordered to leave an area where a riot was ongoing. What I also saw was a police officer who was being pelted by missiles of various types standing over a cell phone that had been dropped by a subject who was being taken into custody. I saw that same officer inadvertently step on said cell phone. I saw no "stomping". I didn't see him "look around to see if anyone was watching". He was looking around alright, but probably for the rocks, cans, and bottles that were being thrown at him. But hey, I guess we all see what we want to see. The 2 questions you have to ask yourself are; 1. Would you be focusing on a dropped cell phone if you were in a situation such as this? With rocks and bottles flying at you from all directions. 2. Do you honestly believe for one moment, or expect anyone else to believe that this video and the phone it was shot on would still exist of those officers truly wanted it destroyed? The lawsuit is a farce. A blatant money grab. The sad part is that the town will probably just settle it instead of spending even more money to defend it. This kid, his lawyer, and anyone who encouraged him to file this bullshit are a huge part of what's wrong with society. Somebody in his life should have taken him aside, kicked him squarely in his over privileged ass and said "you fucked up, now be a man, accept responsibility for your actions, and learn a valuable lesson". But that's no PC in this day and age. Its always someone else's fault. As a result we end up with a society full of people with no sense of personal integrity and who can't accept the consequences of their actions.

Anonymous said...

Larry knows APD is guilty in his heart of hearts. It's just his perogative to always have APD on his side so he can violate the law and stand alongside them when they're breaking up frat parties. We know where your allegiances lie, larry, and they're not with truth in journalism.

Larry Kelley said...

And they are not with Cowardly Anon Nitwits like yourself.

Annoymous said...

Go Larry!

Larry Kelley said...

I actually have been having a hell of a week.

My bricks and mortar friends still have not caught up with the School Regionalization plan going down in flames story.

Anonymous said...

Re: RAWG, that's because nobody cares.

Anonymous said...

"I actually have been having a hell of a week."

So said the "humble reporter"

If I were asked for 10,000 words to describe you, "humble" would not make the list.

Your arrogance staggers the imagination of a fifth grader.

Journalist? Is that why you put yourself in every story?

Anonymous said...

Uh, Mr. Kelley has violated the law, Anon 11:46 am?

Do tell.

Larry Kelley said...

Cowardly Anon Nitwit 1:22 PM

You write pretty well for a fifth grader.

Anonymous said...

LK's defense of this cop that was clearly (CLEARLY!) out of line is solidifying my opinion that his "brand of journalism" is not true, honest or impartial. No way in HELL.

This is a blog. He treats it as a blog, though he calls it journalism. You can't have it both ways, dude.

Larry Kelley said...

Actually dude, I can. And do. Every day. Sometimes three or four times a day.

Anonymous said...

Mr. Thomas C. Donovan is just what this country does not need. Another entitled brat. If he really had any courage, he would have sued right away. Instead he games the system hoping to make the town pay for his childish, criminal actions.

Please Mr. Donovan consider taking a job in a foreign country when you graduate and don't come back. Thank you.

Anonymous said...

Failing to disperse does not warrant grabbing and smashing a cell phone. Or a violin.

The police may have been "pissed off," to use Larry's words at having full cans of beer thrown at them.

That is not an excuse to destroy property.

Police who when "pissed off" resort to illegal and violent action are a threat to a civil society.

Anonymous said...

You hyprocritical internet troll Larry.
http://www.masslive.com/news/index.ssf/2015/01/amherst_blogger_larry_kelley_s.html

Go ahead and get your right to film an event taken away and then file a formal complaint and then turn around and bash a student who his expressing his outrage for a violation of a 1st amendment right.
"Kelley told the committee that was "assault and thievery" but he felt not being able to record "was a clear violation of the First Amendment."
You are a the first to bash someone else who had their first amendment right violated but will file a complaint when yours is "violated".

He said it was a public presentation in public space paid for by the taxpayers. He said he understands that social justice is "is great, on other hand you have the First Amendment, the First Amendment should win every time."

Your own words there mister Kelley. Your credibility is now shot. You would have filled suit if the Amherst PD denied you from filming like they did this kid. They let you stay and film. Next time you make unruly comments against someone practicing their own civil rights, make sure you don't have an article on masslive that shows your outrage during the same event. Doubt you'll even let this comment go through for people to see

Larry Kelley said...

Now that's pretty funny. A Cowardly Anon Nitwit calling me, the most public person in town, an Internet troll. Yikes!

The difference dude is Mr. Donovan refused to leave the immediate area after a lawful dispersal order was issued.

Therefor it does not matter if he was recording on a phone or singing the Star Spangled Banner.

THAT is what he was arrested for: "failure to disperse"; and being an asshole, err, I mean, "disorderly conduct."

Anonymous said...

And Mr. Kelley you were told by the Calvin Terrell not to film but instead you "started filming with his Iphone anyway only to have a woman sitting behind him snatch it." you then decided to file a complaint. Now whats the difference hear moron. A presenter asked you to not film him, you did, you got your phone snatched away and then claimed it to be theft, and assault. Mr. Donovan was filming, was asked to stop, expressed his first amendment right to film, was pepper sprayed, hit, tackled, and arrested. If that lady had taken your phone and smashed it on the ground you would have had a fit. If the amherst police came in and arrested you for filming without a person permission you would have had a fit. You have no argument now. You're a hypocrite. And to call yourself the most public person in town makes you seem rather egotistical. Oh and to your point stating "dismissed doesn't mean innocent." well Mr. Kelley it neither means guilty.

Larry Kelley said...

The "presenter" had no legal right to ask me not to film him while on public property I finance through my exceedingly high property taxes.

Yes indeed, "dismissed" does not mean either guilty or innocent.

But his high-priced lawyers are the ones trying to turn it into "innocent."

Anonymous said...

Now if Mr. Donovan was a rent paying resident of Puffton Village where he was arrested. Does that give him the legal right to film someone. The disperse order was given in brandywine, Mr. Donovan is not in brandywine, He is in Puffton village filming on the other side of a fence. He then gets pepper sprayed by a police officer and you can clearly see the stream of pepper spray cross the bottom right of the screen at the 28 second mark while Mr. Donovan is clearly trying to state that he can't be arrested for filming. He made aware that he was filming, and while filming got pepper sprayed. He then began to immediately move backwards from the location he was pepper sprayed while requesting the badge number of the officer. The officer in question then came running up to Mr. Donovan and seems to strike him. I do not see Mr. Donovan causing any issue. The police officer acted unprofessional and blind siding someone when he is trying to express that he has a right to film and can't be arrested for that. And then the icing on the cake. The phone fell, and I will assume the phone is an iphone in which the camera is on the backside, therefor the officer cannot see that he is on film, but just decides "hey why not just stomp this phone just in case I am on it"

Larry Kelley said...

He wasn't arrested for filming, he was arrested for failing to disperse and disorderly conduct.

And only one of those charges was thrown out by a Judge.

Anonymous said...

You were doing the same thing. I didn't see you getting arrested for failure to disperse. Actually Mr. Donovan was silently filming until he was approached. He seems to be 30 feet back and quietly filming an arrest until he is approached and threatened for filming and then pepper sprayed. Seems to me that the police caused a disorderly moment with their unprofessional containment of a situation. Ed Davis even said the police were pre mature with the pepper spray use. For the first 12 seconds Mr. Donovan is quietly keeping his distance from an arrest. The police clearly had an issue with Mr. Donovan having them on film which is evident when they try and stomp the phone out at the end of the video.

Larry Kelley said...

I try not to be an ass while filming.

Works wonders.

Anonymous said...

Mr. Kelley, I must say, I believe you lost this round. You were standing 20 feet away from this kid getting arrested and you weren't even bothered but because this kid was a student, he was targeted. Saying you have the right to fuckin film does not give the police the right to pepper spray, tackle, and attempt to destroy personal property. As a "journalist" you should be the first to side with someone expressing their rights. Instead you get on your knees and pucker up for the Amherst PD in hopes to continue to get leeway that a UMass Student would not be given. And to focus on a lawsuit and claim dismissed doesn't mean innocent which is you implying it means guilty. Without a finding Mr. Kelley. And a letter of apology does not mean an admittance of guilt, it means a kid doing what is demanded of him by the court in order for the charges to be dismissed. I doubt they said hey Mr. Donovan, pay this fee, do this community service, and if it conveniences you, write a letter of apology.

Larry Kelley said...

No, actually I was not 20 feet from him when he was arrested.

I missed that part of the riot as I was stuck in traffic (mostly pedestrian) that shut down North Pleasant Street.

(I would hate for anyone to accuse me of pulling a Brian Williams.)

Of course my video is from the confrontation at Pike Frat house about an hour after Mr. Donovan was arrested.

Anonymous said...

Apologies, it was Robert Rizzuto who filmed the brandywine and puffton section for masslive. He was 5 feet from police and Mr. Donovan handcuffed and yet was not bothered once by the police. Targetting a student that was filming but allowing the middle aged man to continue to film.

Anonymous said...

And also one count was dismissed immediately and the other was "NOT GUILTY PLEA" which sounds rather innocent to me. The court just wanted their 200 dollars. So the case was fully dismissed, just not right away, But the agreement is a Not guilty plea. "the "disorderly conduct" charge but DID NOT DISMISS the "failure to disperse" charge. Correction, it was, just delayed 4 months.

Larry Kelley said...

Actually the $200 was "restitution" to APD, not Court costs.

Although it goes into the town's General Fund.

Anonymous said...

Larry you're not even comparable to Brian Williams. You're a no name loser who has nothing better to do but troll students

Larry Kelley said...

Actually I'm an equal opportunity troller.

Anonymous said...

Why can't you people wrap your head around something; Donovan was not arrested for filming; he was arrested for failing to leave a clearly riotous situation. He was part of the problem. He was yelling at and engaging cops after being told to leave multiple times. He was clearly not a member of the press silently filming..he was drawing attention to himself and accosting officers as they were actively arresting (while getting pelted with items) another person.

HUGE DIFFERENCE. This is what is wrong with society today. Cop says you are under arrest and you fight them & something goes wrong its the cops fault. Punch a cop in his car and grab his gun, something goes wrong and its the cops fault. Be told to leave multiple times and you say no. Get arrested. Its the cops fault. Entitled asshats. You are contributing to the pussification of America.

Anonymous said...

"If he's so innocent, why write a "letter of apology"?"


Because as a plea deal he was ordered to. Read what you wrote. You answered your own question. He wanted out of this and compromised to do so.

Larry Kelley said...

And now he wants to cash in big time.

Ain't gonna happen.

Anonymous said...

He will cash in and Amherst will pay big.

Larry Kelley said...

Nah, he signed a legal paper essentially admitting guilt to the "failure to disperse" charge.

Anonymous said...

I don't get it, do you have a job Larry? Or do you get enough money from this blog, if any? I just don't understand how you have time for all of this. Good pension? Boy I wish I had as much free time as you. Maybe one day I can retire and have a super high bank account, but alas, not today :(

Larry Kelley said...

My life is but to serve.

Dr. Ed said...

Twelve words.

Enkuy Gelaye on the Witness Stand.
Larry Kelly on the Witness Stand.

If you plead guilty to an unconstitutional law, isn't that moot? And I'dlike to see anything that authorizes a police officer to do anything more than restrain a prisoner and obtain possession of deadly weapons.

So which is the camera? Ummm....

Ad the other thing to remember are the consequences of half of the poulation bel;9ev9jg that the law is irrelevant, that the police exist for no purpose but to oppress them.

Then you get some officer walking somewhere, alone, and he doesn't go home. That is what I am afraid of -- and you folks should be as well...

B.B> N.A said...

It is cute dancing around reality.

The police own everything that is near them. Once you interact with them, on any level, they have the right to take anything you have. You then have to prove it was yours at your expense after the fact.

This includes your person. Offend a cop, they will take you.

The solution, as so many of us have learned is that it is in most people's best interest to not interact with an officer. This is the only way you can have some level of confidence they will not take your stuff or lock you up. Sometimes they come to your house, good luck with that if it happens.

But to debate what they can do is just silly, they can do anything they want, the law does not apply to them. It is cute after the fact how people use pseudo law to justify anyone actions in this situation.

It is just this simple, the kid and the police interacted, thus the kid no longer has any rights. It does not matter if he was chewing a piece of gum or raising his fist to the officer. This does not change the officer's right to react as he sees fit, the officer retains his rights at all times, regardless of his behavior. This has been upheld in courts over and over and over.

Anonymous said...

Ed's obsession with Enku is apparent and disturbing. Does she have a restraining order yet, or is that something you could find out?

Dr. Ed said...

"Ed's obsession with Enku is apparent and disturbing."

Yes, I want to see her (and her staff) indicted -- and I have no doubt that disturbs them.

It disturbs them because they know that sooner or later, someone is going to listen to me and all it will take is the right someone making the most cursory of inquiries to bring down the whole house of cards.

"Does she have a restraining order yet"

On what grounds?

She is a highly-paid public official and the right of citizens to criticize public officials dates back to 1736 and John Peter Zenger.

I allege that, while acting in her official capacity and under color of law, she is violating the civil rights of students. I have a Constitutional right to do that - and as I'm alleging a violation of Federal law, a state court would be in a really interesting situaton...

And if she was ever stupid enough to even try to get a restraining order, she'd have ot answer some questions == in oen court and under oath -- that she very much does not want to answer.

And some of those questions would relate to what we see above, the practice of malicous defamation. It's the same sort of thing that was done to Larry when he attempted to prove that a former SelectBoard Member wasn't an Amherst resident.

Dr. Ed said...

"he signed a legal paper essentially admitting guilt to the "failure to disperse" charge."

No, Larry, see Rule 12(a) -- he would have either plead "nolo contendere" or have "admitted to sufficient facts" and the email you posted says instead that he maintained his plea of "not guilty."

I'm thinking that someone in the DA's office might have actually read both the statute and the one relevant SJC decision and concluded that they would (a) have a hard time establishing criminal guilt of his violating a statute which (b) is probably Unconstitutional and (c) which the SJC refused to uphold.

(I'm thinking that someone realized that one is a number smaller than five, let alone ten...)

So he apologized -- Socrates did too...

And then there is the classic "I'm sorry you feel that way" apology which truly isn't, one classic parody of which is:

"Nobody is sorrier than me that the police officer had to spend his valuable time writing out a parking ticket on my car. Though from my personal standpoint I know for a certainty that the meter had not yet expired, please accept my expression of deep regret at this unfortunate incident."*


*Cite: McCall, Bruce (22 April 2002). "The Perfect Non-Apology Apology". The New York Times (New York).

Larry Kelley said...

Oh, the town has his letter of apology and will be using it as evidence if this ever goes to trial.

Which it will not.

T said...

Being angry doesn't allow the police to do or not do what they did. The arrest was perfectly legal, the accompanying stomp was unprofessional and illegal.

Dr. Ed said...

"Oh, the town has his letter of apology and will be using it as evidence if this ever goes to trial."

A letter written under duress while he was being subjected to the undue influence of a state actor (Enku Gelaye), in which -- at most -- he admitted to facts already established.

If the lawyer is intrepid enough to find me and ask me to testify as to what I know about ACT, which almost certainly was involved here, oh boy....

Remember too that there is the Davis report and that the people who wrote it can be subpoenaed -- it shouldn't be hard to convince a jury that the cops were wrong too...

Throw in allegations that he didn't know the arrest was unlawful (which I think it was), ineffective counsel and youthful ignorance -- show the jury the video of the cop stomping on the phone -- it's all over at that point....

"Which it will not."

If the town were a defendant, I'd agree with you, but this involves officers being sued personally and I can't see them having large chunks of disposable cash for settlements.

Anonymous said...

Wow, more than 50 anonymous comments!
That's enough to get Donovan on the ballot for school committee.