In December, a West Virginia State Police internal investigation found that Trooper Michael Kennedy did not engage in criminal conduct during the arrest of a 16-year-old.
In March, a federal grand jury indicted him for the deprivation of rights under color of law in connection with the alleged beating in Martinsburg.
Authorities then released footage of four officers kicking and punching the teen, before Kennedy unleashes a flurry of blows to what appears to be the back of the suspect’s head. He is then seen picking the teen up and throwing him aside.
Kennedy’s trial is set for October.
State Police made their conclusion in a report by the department’s professional standards section, which investigated an internal complaint. The department released the report this week following repeated records requests from this newspaper since January to obtain it.
The document — which is almost entirely redacted — details the State Police’s internal investigation into the conduct of two of its officers who, along with two Berkeley County sheriff’s deputies, engaged in a high-speed pursuit of the juvenile. The chase ended in a crash, followed by the alleged beating.
Both Kennedy and Trooper Derek Walker were fired in January as a result of the incident. Walker was not charged with any crime.
The “action taken” and “list of exhibits” sections of the report are completely redacted. Some of the “conclusion” section is redacted, save for the following:
- The allegation that the troopers failed to comply with State Police policy and procedure was not sustained for Walker but was sustained for Kennedy.
- The allegation that the troopers violated the law or engaged in criminal conduct was not sustained for either trooper, although the report notes this allegation “may be modified at a later date pending the outcome of a criminal investigation”.
- The allegation that the troopers used unnecessary force during an arrest was not sustained for Walker but was sustained for Kennedy.
- The allegation that the troopers committed conduct that among other charges “casts aspersions or doubt” upon their honesty and integrity was sustained for both officers.
- The allegation that the troopers interfered with the rights of others was not sustained for Walker but was sustained for Kennedy.
State Police did not respond to follow-up questions about the report. Berkeley County Sheriff Curtis Keller fired deputies C.S. Merson and Austin Ennis in connection with the incident, though they appealed their firings and made their case before a board of their peers — fellow law enforcement officers — as state law allows. The board sided with the deputies. Keller could have appealed the board’s ruling, but said he chose not to after agreeing to a settlement with the officers that called for a 10-day suspension. He declined to say whether he thought they committed a crime, but said his decision to fire them and their decision to settle speaks for itself. “Obviously, I wouldn’t have taken the action they took,” he said.
The State Police report was assigned Nov. 30, 2018, one day after Gov. Jim Justice brought it to light in a news release and 11 days after the pursuit. However, Brian Abraham, Justice’s general counsel, and Keller said the delay is attributable to trouble extricating the footage from Merson’s car, which collided with the juvenile’s during the pursuit. Keller then forwarded the evidence to State Police.
In January, State Police denied a request outright to release its investigation into the incident, claiming an exemption to state public records law regarding records that “deal with the detection and investigation of crime.”
In 2013, The Charleston Gazette sued State Police for declining records requests for documents related to the agency’s review of complaints against its troopers. The West Virginia Supreme Court overturned a circuit court ruling upholding the denial and opined that such records must be released to the public.
“After the investigation or inquiry into the complaint has been concluded and a determination made as to whether disciplinary action is authorized by the Superintendent, the public has a right to access the complaint, all documents in the case file, and the disposition,” wrote Justice Margaret Workman in a unanimous opinion.
Over the nine weeks since the grand jury handed up its indictment, State Police have ignored or denied several requests to release the report.
Such reports typically contain evidence forms, a summary written by an officer who conducts the investigation, and statements from officers and witnesses to the underlying event.
When asked about the declination in light of the troopers’ firings and the Supreme Court ruling, Melinda Craddock, a paralegal for the State Police, said earlier this month that the January denial stands because the case is an “active matter.”
“After completion of all proceedings, the report will be provided,” she said.
Craddock did not respond to a follow-up regarding what counts as a “proceeding.”
State Police only provided the redacted document when the Gazette-Mail requested records only pertaining to Walker — who is not known to be under criminal investigation — instead of the two of them jointly.
Sean McGinley, an attorney who worked on the 2013 lawsuit for the Gazette, said there is federal case law that could support the State Police’s argument that the department does not have to release the report during ongoing criminal proceedings. However, in such instances, government agencies need to demonstrate that releasing the records would compromise the ongoing law enforcement investigation.
Given that this case is an issue of excessive force, and video footage of the alleged crime and the identities of the suspects involved have been released publicly, McGinley said there’s a strong case to be made that the investigation would not be compromised by release of the State Police’s investigation.
On Tuesday, Abraham said he spoke with John Hoyer, general counsel for State Police. According to Abraham’s description of the conversation, the Berkeley County prosecutor (who is pursuing charges against the juvenile) and a federal prosecutor both told Hoyer they would prefer the State Police not release its internal report.
Berkeley County Catie Delligatti said she spoke to a police representative and requested the juvenile's information be redacted, should the report be released. She denied asking state police to withhold it.
Don Smith, executive director of the West Virginia Press Association, criticized the State Police for its denial.
He said the Supreme Court spoke clearly in affirming the public’s right to access WVSP’s internal investigations. In a statement, he said some law enforcement agencies have a way of using “vague qualifiers” to “skirt the real intent of a court decision” to restrict access to information “ensuring the case fades from public memory.”
While there are legitimate concerns of ongoing investigations, the final report needs to be made public.
“The people of West Virginia should question why law enforcement officials are able to call press conferences, make speeches and fill the room with evidence the very day they arrest a private citizen, but remain silent and restrict public access to information for months or years on internal investigations,” he said.
This article has been updated with comment from the Berkeley County Prosecuting Attorney.