In February, as revelations about the Fairfax County police shooting death of John Geer were unfolding, a Fairfax police commander had to walk over to the county prosecutor’s office and make an embarrassing admission:
The police had secretly tape-
recorded a phone conversation between one of their internal affairs commanders and the chief deputy county prosecutor, as prosecutors were seeking the internal affairs files of the shooter, Officer Adam D. Torres.
When Fairfax Commonwealth’s Attorney Raymond F. Morrogh learned of the secret taping by police, he was irate. “In over thirty years as a prosecutor,” he wrote in a February e-mail, “I have never seen an instance of a police officer recording a prosecutor in this county.”
The covert taping of Chief Deputy Commonwealth’s Attorney Casey M. Lingan was revealed this week in the newly unsealed case file of former chief deputy county attorney Cynthia L. Tianti, who is pursuing a grievance against the county for allegedly demoting her over her handling of the Geer case. County supervisors said Tianti had not advised them of key developments in the Geer case, including her office’s advice to police not to hand over the Torres files, which helped create a nearly two-year delay before Torres’s indictment this week.
At the county’s request, much of Tianti’s grievance file was redacted by Fairfax Circuit Court Judge Daniel E. Ortiz under a claim of attorney-client privilege. Entire pages of Tianti’s 26-page grievance are obscured, and there are no almost no communications between Tianti and the county supervisors that would shed light on what the county’s leaders were told about the Geer case by their attorneys. The grievance does state that County Executive Edward L. Long Jr. had arranged for Tianti, a 26-year employee, to move to the Loudoun County attorney’s office for one year, but she apparently declined.
Since the revelation of the police taping in February, Fairfax police Capt. Edward O’Carroll said, the police have created a new standard operating procedure that says, “Surreptitious audio recording of individuals should be avoided unless the purpose directly relates to allegations of misconduct against employees necessitating that this type of recording occur.” The procedure notes that it “shall apply in particular but not exclusive to, disputes with other law enforcement officers, or officers of the court.”
The taping, by Capt. Darrin Day, occurred in November 2013, more than two months into the criminal investigation by Fairfax homicide detectives into the killing of Geer. Previously released records showed that Morrogh was already aware of possible anger problems with Torres because he had erupted at one of Morrogh’s assistants in the courthouse in March 2013.
Morrogh sought any prior internal affairs files on Torres, to include the courthouse incident, as factors to consider in whether to charge Torres with a crime. He said police have provided these files in previous officer-involved shootings without hesitation.
On Nov. 4, 2013, Lingan called internal affairs to arrange a pickup of the Torres files. But instead, Day informed him that the county attorney’s office had advised the police not to release them. “IA [Internal Affairs] history is protected,” Day said, according to a transcript prepared for the Geer lawsuit. “Statements to IA should never be considered for a prosecution.”
This was news to the prosecutors. “If you won’t turn it over,” Lingan told Day, “we will turn it over to the feds.”
Ten days later, a meeting was held with Morrogh, Lingan, Fairfax Police Chief Edwin C. Roessler Jr., Day, Tianti and Deputy County Attorney Karen L. Gibbons. According to Morrogh’s e-mail, Day asked in the meeting whether Morrogh planned to use the internal affairs files against Torres. Morrogh said yes. “His reply was, ‘Then you’re not getting it,’ ” Morrogh said of Day.
“It is alarming,” Morrogh wrote, “that he is the one who secretly tape-recorded a prosecutor. . . . It is even more concerning that Captain Day was secretly recording a prosecutor on the Geer case before the meeting even occurred. I think some explanation is warranted.”
In 2013, Roessler and the police stood fast by their claim that prosecutors were not entitled to an officer’s prior internal affairs cases, and in January 2014, Morrogh did “turn it over to the feds,” referring the case to the U.S. attorney in Alexandria. Prosecutors there subpoenaed the internal affairs files and obtained them, the Justice Department has said, but then federal officials took no action.
But the Justice Department also issued a letter saying it did not object to Fairfax releasing information about the Geer case. So in December 2014, Fairfax Circuit Judge Randy I. Bellows ordered the police to provide their investigative file to the Geer family in their civil suit. And in February, he ordered the police to turn over to the Geers the internal affairs files on Torres. When that happened, internal affairs Maj. Mike Kline was forced to go to Morrogh’s office and reveal the existence of Day’s secret tape, because it was being provided to the Geer lawyers.
After Morrogh sent his e-mail, a police official visited him and said the surreptitious taping had not happened before and would not happen again. It was solely Day’s decision, Morrogh was told. “I wanted to know why” Day had done it, Morrogh said, “and never really got an answer.”
O’Carroll, a former internal affairs commander, said the taping by Day was “not a function the department endorses, and now it’s prohibited by policy.” He said no one instructed Day to tape Lingan, and “we have full faith in the commonwealth’s attorney’s office.” He said the recording was “frankly not necessary or appropriate” and that Roessler was not aware of it.
“The captain’s intention in recording this conversation was in no way conducted with ill will towards the Deputy Commonwealth, but rather was simply done to replace the taking of handwritten notes with the recorder,” O’Carroll said in an e-mail.
It was not clear, because of the heavy redactions, why Morrogh’s e-mail was included in Tianti’s grievance. “Raw nerve!” County Attorney David P. Bobzien wrote when Tianti forwarded it to him.
Morrogh later tried to arrange a meeting with Fairfax Board of Supervisors Chairman Sharon Bulova (D) to discuss the police and county attorney’s roadblock, but Bulova said the county attorneys never told her that. Tianti’s grievance states that The Washington Post wrote a “story about the failure of the County Attorney’s Office to inform the Chairman or the Board, which was not true.”
But nearly all of the five pages surrounding that claim by Tianti are redacted, at Fairfax’s request.