NewburyportNews.com, Newburyport, MA

August 29, 2013

Former Newburyport officer found not guilty

Jury clears McCarthy of felony perjury charge

By Dave Rogers
Staff Writer

---- — NEWBURYPORT — Former Newburyport police officer Daniel S. McCarthy was cleared of a felony perjury charge yesterday after 12 jurors found him not guilty during his trial at Salem Superior Court.

Yesterday’s decision comes after three delays that pushed the trial from its scheduled January start until late August. The delays were prompted by the unavailability of witnesses or the over-scheduling of a judge, according to the Essex County District Attorney’s Office.

McCarthy’s attorney, Douglas Louison, said his client was gratified that the jury ruled quickly and ruled correctly, saying McCarthy did not commit perjury and never wavered on that fact.

“It was the right decision for the right guy,” Louison said.

McCarthy was charged with perjury following the May 2011 road-rage trial of Robyn Stack of Newburyport. McCarthy, who ran an unsuccessful campaign for mayor in 2005, was charged with coaching a witness during the Stack trial and then lying to Newburyport District Court Judge Michael Uhlarik when questioned. Uhlarik subsequently declared a mistrial in Stack’s case.

Four days after the Stack mistrial in May 2011, city Marshal Thomas Howard placed McCarthy on paid administrative leave, pending completion of an internal investigation. The report was completed in late June of 2011 and submitted to Mayor Donna Holaday. McCarthy, who had faced discipline for on-duty conduct in the past, resigned shortly before being indicted.

An attempt by The Daily News to obtain a copy of Howard’s report under the Freedom of Information Act was turned down by city attorneys.

Louison said the jury began its deliberations around 3:45 p.m. and by 4:10 p.m. the court officer informed the courtroom that the jury would be heading back soon.

“That’s a very quick deliberation,” Louison added.

Asked if the multiple delays played a factor in yesterday’s decision, Louison said the only factor present was the frustration felt by his client as prosecutors repeatedly asked for continuances.

The trial was almost postponed a fourth time after a bomb scare phoned into the Federal Street courthouse around 9:15 a.m. forced the evacuation of the building. Louison said he was about 5 to 10 minutes into his opening statement when everyone was ordered out of the courtroom. By 11 a.m. the courthouse was reopened and McCarthy’s trial continued.

An Essex County District Attorney spokesperson declined to comment on the verdict.

In January 2012, Louison attempted to have the perjury case thrown out. He filed a motion to dismiss the perjury charge, stating the grand jury that indicted McCarthy in July 2011 did so in error. Louison argued that McCarthy’s action during the Stack trial had no bearing on the case. The next month, a Salem Superior Court judge disagreed and denied Louison’s motion.

Stack died in December 2012 of heart failure at the age of 47.

McCarthy resigned from the Newburyport Police Department on July 19, 2011, after almost 14 years of service. His resignation came days before he was indicted. McCarthy earned about $70,000 in 2010.

Days after resigning, McCarthy filed for retirement benefits from the city’s retirement board. Last August, the retirement board unanimously approved his request, saying it had no choice, since although McCarthy was charged with perjury, a felony, he had not been convicted of anything.

McCarthy’s tenure with the Newburyport Police Department was marked by several internal confrontations with co-workers and supervisors.

Since 2001, McCarthy had been disciplined on a few occasions by his superiors.

In 2007, he filed suit against the city and several former and current officers claiming he was unfairly disciplined. He also claimed to be harassed and intimidated by other police officers, who, he said, also filed false charges against him relating to his suspensions. In the suit, McCarthy claimed he was unfairly disciplined by then-Acting Marshal Thomas Cappelluzzo in 2001 for allegedly leaking information critical of the department to a local newspaper.

Four months later, McCarthy was disciplined again by Cappelluzzo, who suspended him for three days for failing to file a report involving his use of a key to enter a private establishment, a violation of department policy. Cappelluzzo demanded McCarthy hand over his badge during the duration of his suspension. McCarthy allegedly tossed his loaded handgun onto Cappelluzzo’s desk, prompting Cappelluzzo to suspend him for another five days. An independent counsel reviewed and upheld these suspensions and recommended an additional 15-day suspension, which then-Mayor Lisa Mead ordered.

McCarthy was eventually charged in the gun-throwing incident in 2002 and placed on administrative leave by Howard, who had been promoted to marshal. In October 2002, McCarthy was cleared of the charges.

His civil suit was eventually thrown out by a U.S. District Court senior judge and then again by an appeals court judge. His appeal regarding his suspensions also was quashed by the state Civil Service Commission.

With the trial behind, McCarthy is hoping to resume his law enforcement career, according to Louison.