Computer at center of argument about evidence in Pickles criminal case
PLYMOUTH — As lawyers prepare for the criminal larceny trial of former Carver Marion Wareham Regional Refuse Disposal District Executive Director Ray Pickles, they and a judge
are wrestling with how to handle evidence now sitting on a computer owned by the district. Pickles served as the district’s executive director for 45 years, at the helm of an organization that handles the disposal of waste generated by Marion, Carver and Wareham.
Officials in the three member towns discovered financial irregularities in district records in 2017, fired Pickles in January 2018, and filed a civil embezzlement suit, charging him with stealing $838,457 from the waste district. In March 2019, the Attorney General and Inspector General’s offices indicted Pickles on six criminal counts of larceny for taking over $675,000.
Officials allege that Pickles used his position as director to make improper payments both to himself and to Moss Hollow Management, a consulting firm of which he was the only employee. A long-time Marion resident, Pickles continues to serve as that town’s elected town clerk. After the criminal charges were filed, the Marion Board of Selectmen requested that Pickles, whose term ends in 2020, resign. Selectmen say they received no response to that request.
At issue at an Aug. 7 pre-trial hearing at Plymouth Superior Court was evidence that sits on a computer used by Pickles while running the district. The district turned the computer over to the state as part of the investigation of Pickles’ conduct. It is now in the hands of a digital forensic specialist, but how to handle what is found on the hard drive involves issues of attorney-client privilege.
Special Assistant to the Attorney General John Lunstad Vogt-Brooks told the judge that files on the computer might be relevant to both Pickles’ case and to the criminal case against Robert Tinkham, who formerly served as the chair of the board. Tinkham, former Carver health agent, has been separately charged with larceny and false claims.
The problem with turning the entire contents of the computer’s hard drive over to prosecution and defense is that Pickles apparently used the computer for some correspondence with his personal attorney.
Normally, clients’ interactions with their attorneys are protected in a court case. Judge Cornelius Moriarty was concerned about how long it would take for a third party to go through the entire contents of the hard drive to sort out privileged material.
“If the digital team, or whatever it is that you have that’s looked at [the computer] says, ‘We’re not going to do a thing because we’re afraid of privilege,’ well, then we’re never going to get anywhere, right?” the judge asked.
In response, Pickles’ Lawyer Christopher Markey said he could speed up the process by sorting through a copy of the contents of computer, releasing to the prosecution information that wasn’t protected by privilege, and sending information that he considered protected to the judge.
“I don’t want it to drag out six months for the purpose of someone to look through every single document. I can look through it, go through it in a realistic fashion and say, ‘These are the ten items that I don’t want. Here they are, Judge, you can look at them, make a decision as to that,” Markey said.
However, Vogt-Brooks pointed out that things could get complicated because there may be communications between the Waste Disposal District and its attorneys on the computer – things that attorney-client privilege could keep from Pickles’ defense team.
“So to the extent that Mr. Pickles has waived the privilege that’s — that only takes us so far is my concern,” said Vogt-Brooks. But, he added, “I’ll be seeking to obtain the Refuse District’s waiver [of attorney-client privilege] as well. To the extent that there are any issues with that, I’ll bring them to the court’s attention.”
Moriarty ordered that lawyers report back on the evidence exchange on Sept. 12.
The civil lawsuit against Pickles, Tinkham and Pickles’ wife, Diana Bondi-Pickles is still in the pre-trial phase at Brockton Superior Court.