A Few Questions For Sheriff Cummings -And His Shamus Schlabach

                A Few Questions For Sheriff Cummings -And His Shamus Schlabach

                                                        I can't get no satisfaction.

                                                        I can't get no satisfaction.

                                                        'Cause I try and I try and I try and I try,

                                                        I can't get no, I can't get no. . . .

                                                                     -Mick Jagger

       Barnstable Sheriff James Cummings told the press last month, after announcing the patronage appointment of Jeffrey Perry as Special Sheriff, that he had commissioned an "investigation" by North Attleboro private dick Robert Schlabach concerning Perry's service as a Wareham police sergeant, and Schlabach's report "satisfied" him that Perry had done nothing wrong in his involvement with patrolman Scott Flanagan's sexual molestation of two teenage girls.

      Cummings, of course, can't release Schlabach's report as requested by the Cape Cod Times because of his concern for the very public Jeffrey Perry's "privacy." He also told reporter George Brennan of the Times that to release the report would, somehow, interfere with the Sheriff's ability to conduct investigations.  What a load of twaddle!  The Sheriff is paid to conduct criminal investigations, which are necessarily done out of the public eye, so does Cummings think anyone might actually believe he'd been thinking of bringing criminal charges against Perry for his involvement with Flanagan?  Maybe he needs to be told that the statute of limitations on that elapsed a long time ago.

     So Cummings is "satisfied," but the rest of us, like Mick Jagger, just "can't get no satisfaction."  That's fine with Cummings, too, because, obviously, Shamus Schlabach's report was commissioned to be just a whitewash for Perry's appointment.  It's obvious, isn't it, where Cummings had already made up his mind to appoint Perry two years earlier, as he has publicly acknowledged, and even held this oh-so "important" position open  over two years as a fall-back while Perry ran for Congress. 

      After last fall's Congressional campaign, however, when Perry's sordid history of covering up for Flanagan's sex crimes became widely reported, Cummings really needed a whitewash, a piece of paper he could hold up and wave around to say Perry has been "cleared" of any wrongdoing as a Wareham cop. He  can't let anyone else  actually read it of course, because it's a "confidential" public record, so you'll just have to trust him. Sure.

       It's pretty obvious that Cummings simply hired Schlabach to review the records and then  write up a whitewash about Perry in  the guise of an "investigation."  This is not a knock on old Shamus Schlabach, by the way, where he just did what gumshoes are hired to do -get the goods on someone sometimes or, as in this case, try to clear someone from serious charges of misconduct. 

     People knock us trial lawyers for doing the very same thing, so I'm not really knocking Schlabach for just doing his job -not at all because the amoral and arrogant contempt for the public's intelligence belongs entirely to Cummings for hiring Schlabach to do such a whitewash on Perry.  Schlabach's problem, however, is that by taking the assignment and giving Cummings what he says "satisfies" him about Perry, he's raised more questions than he's answered. 

     Let's start with Schlabach's December 13, 2010, letter to Cummings where he sets out the financial terms and the scope of his "investigation."  He says he will charge $125 per hour plus any extraordinary expenses, to be cleared in advance with Cummings.  I requested, by the way, copies of all Schlabach's bills and any vouchers prepared by Cummings for payment, and the response indicated that there were none. 

      This circumstance supports the claim that Cumming's paid Schlabach out of his own pocket, as opposed to using public funds.  But, if so, how can his report be considered a public record just because, presumably, Cummings has placed it in Perry's personnel file?  On the possibility that private investigations are a routine part of the Sheriff's hiring protocol, I've asked for copies of  private investigator reports for other Sheriff's Office employees and it does not appear there are any. 

        If  Schlabach's report to Cummings is therefore a one-of and not part of the normal personnel protocol, and if it was paid for with private funds, how can it be considered a "public record?"  As a privately commissioned report, it would be exempt from disclosure under the Public Records Act, but it would then not be protected by the "privacy" and "investigatory" exemptions that Cummings has raised under that statute to deny the requests filed by the Cape Cod Times and myself. 

       In that event, with Schlabach's whitewash being  a privately commissioned report and not a public record, Cummings would be at liberty to release it to the press -if he wanted to do so.  That is a very big "if," but  if the report actually contained any real, factual information that somehow "cleared" Perry of any wrongdoing as a Wareham cop, why would Cummings not want to release it ?  Why wouldn't he want it to be published on the front page of the Cape Cod Times and the Boston Globe as well? 

      Reading Schlabach's engagement letter  to Cummings, "Re. Jeffrey Davis Perry," raises even more questions, where it never states exactly what Schlabach is supposed to be looking for in his "investigation." Schlabach begins:

Pursuant to your recent request, this correspondence will serve as an engagement   proposal for investigative services to be rendered in connection with the above-referenced  matter. . . .

It is not clear from this letter whether Cummings' "recent request" was in writing or oral.  I did, however, specifically request that Cummings provide me with all correspondence  between his office and Mr. Schlabach, which would include any written specifications from Cummings, but Mr. Schlabach's engagement letter is the only correspondence produced in response to my request.  Why? 

        Did Cummings only communicate orally with Schlabach and not in writing about this highly unusual investigation purportedly to vet someone for such an important position as Special Sheriff?  If so, why weren't any documents produced in response to my request for "Any and all telephone logs maintained by the Barnstable County Sheriff's Office . . . regarding the position of Special Sheriff. . . ?"  That request referred specifically to calls made to any person or persons, "to include without limitation any private investigator."  I also requested copies of e-mails between Cummings and any private investigator regarding Perry's appointment as Special Sheriff and, again, none were produced.  The claim of confidentiality for the report itself is dubious enough, but certainly Cumming's written or oral communications with Schlabach commissioning the report are not protected by any privilege.   It sure looks like Cummings was being extra careful here not to create a paper trail.

       So, just what did Cummings say to Mr. Schlabach in that "recent request" for investigatory services?  Specifically, what did Cummings tell Schlabach he wanted to be "investigated?"  Mr. Schlabach's engagement letter never really gets down to anything specific on that question, and says only:

It is understood our services have been requested in connection with a pre-employment review process undertaken by your agency concerning Mr. Perry.   

The letter continues to say that Mr. Schlabach will examine public records pertaining to criminal and civil court proceedings, will review employment documentation provided by Perry, and will interview unnamed individuals "possessing information relevant to this process," and that's it.  There is no specific focus or objective stated for this purported "investigation."

       While it is true that Mr. Schlabach does not say that he has specifically been retained to "clear " Perry of any wrongdoing, it is equally true that he does not say  he was retained to conduct an unbiased, objective review into the documented record of Jeffrey Perry's sordid conduct as a Wareham police sergeant in connection with Scott Flanagan's sexual molestation of two teenage girls.  As I said earlier, a private investigator works for a client and will look into whatever the client asks for, whether the client puts it in writing or not, but we cannot tell from this engagement letter whether Cummings paid Schlabach $3,800 for an objective evaluation of  Perry's background or for a whitewash. 

       What has been fully documented from the public record on this site as well as in the local press, however,  in combination with the circumstances, strongly indicates that is the latter -a whitewashing to do Tom Sawyer proud.  The difference is that Tom snookered his pals into whitewashing a wooden fence, while Cummings is stonewalling about the whitewash he paid Schlabach for -trying to snooker the public.

      Without a copy of the report, or at least Cummings' "recent request" referred to by Schlabach, there is nothing to support Cummings' claim that the report somehow "satisfied" him that Perry had done nothing wrong.  Like Mick Jagger, we surely can't get no satisfaction simply from Cummings' claim that the report somehow clears Perry of any wrongdoing.

      Without a copy of the report, we can't tell how deeply Mr. Schlabach looked into the court records, or how intelligently, and we can't evaluate whatever information he may have gotten, if any, from interviewing persons "possessing information relevant to this process."  Indeed, without knowing what Cummings requested, we can't even tell what Schlabach considered to be "relevant," can we?

       Mr. Schlabach himself has appropriately declined to speak to the press about his findings, where his engagement letter states that "information developed through the course of this engagement will be regarded as confidential."  Despite that reticence, however, Mr. Schlabach has quite tellingly told George Brennan of the Cape Cod Times that "Mr. Perry's biggest failing was too deep a faith in Scott Flanagan," while saying his investigation showed that some of the press accounts about Perry were inaccurate.

        So where do you think Shamus Schlabach got that line about Perry having too much faith in Flanagan?  It has a familiar ring to it -but where have we heard it before?  Oh, right -that's what  Perry himself has said to cover his own undeniable actions in lying for Flanagan twice, remember? 

       So it's apparent that Perry is one of the individuals possessing relevant information referred to in Mr. Schlabach's engagement letter to Cummings.  But who else did Schlabach interview to support the claim that Perry's only failing was that he believed Flanagan?  Flanagan himself, maybe -you think?   Did he speak with Captain Paul Cardalino, maybe, and get something different from Cardalino's deposition testimony that Perry filed a written report on New Years Day 1994 that "corroborated" Flanagan's lie that the Adams girl voluntarily stripped for him?

        One huge question that will remain unanswered until Cummings releases Schlabach's report is how Schlabach can exonerate Perry for the failed cover up of the Adams incident, where Perry admits he went with Flanagan to see the parents and told them Flanagan's story because, as he said to George Brennan, he had no reason not to believe Flanagan.  Did Mr. Schlabach review the court records that document how Perry at least heard about the Allen girl's complaint a year earlier, even if he didn't see or hear anything when he was the officer in charge of the scene back then as he now claims?  Did Mr. Schlabach review the court records describing the incident where Flanagan pat frisked a female motorist and was reported by a fellow officer just a few months before he molested the Adams girl?

       Perry was certainly at least aware of those two prior incidents before he covered up for Flanagan on New Years Eve 1993, so how can Shamus Schlabach buy into Perry's claim that he had no reason to disbelieve Flanagan about a third incident of sexual impropriety with a young woman within an 18 month period?  The only answer to that question is that Schlabach's assignment from Cummings was limited to marshalling the facts to show Perry in the best possible light, as opposed to conducting an objective investigation, which is to say -a whitewash. 

        Even then, however, if Perry had been honest in the claim that he trusted Flanagan and had no reason not to believe him about the New Years Eve incident, the best that can be said about his purportedly valuable "experience" in law enforcement is he was a lousy cop.  Cummings can't have it both ways here, where Perry was either a corrupt cop who covered up for Flanagan's sex crimes or he was both an inept investigator and an  ineffective supervisor.  So did Mr. Schlabach the former FBI agent put that in his "confidential" report to Cummings?  Did he duely note that although he believes Perry was innocent of any deliberate wrongdoing he was so clueless and incompetent as a cop and a supervisor that he let Flanagan commit several sex-crimes on his watch?   

      The Allen girl was molested by Flanagan while Perry was in charge of the scene in a remote cranberry bog just a few yards away, but he didn't hear or see anything.  When the girl tried to report the incident afterward, Perry said he saw and heard everything at the scene and "nothing happened," then changed that story later to say he just couldn't hear or see anything that happened.  Those facts are fully documented on the court records.  Then, when Flanagan got Perry to cover up for another indecent assault, he says he believed Flanagan without even a shred of doubt. Those are the facts on which ex-FBI agent turned PI Robert Schlabach concludes that Perry's worst failing was trusting Flanagan.

     So where's Porfiry Petrovich when we really need him? Certainly not in the Barnstable County Sheriff's Office, where the County's  top law enforcement officer is so easily "satisfied" about his pal Jeffrey Perry's role as the enabler of Scott Flanagan's repeated sexual molestation of young girls and women. 






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