For first time in Connecticut, investigators can demand people to talk. But there’s a big caveat. The investigative subpoenas can only be used on police

State prosecutors have pleaded for decades for a law enforcement tool their colleagues almost everywhere else in the country use routinely to crack open criminal conspiracies from gang murders to political bribery: An investigative subpoena that can be used to force reluctant witnesses to talk to investigators.

The prosecutors got their wish from the Legislature, but with a big caveat. Only one prosecutor among the 220 in the state Division of Criminal Justice can issue investigative subpoenas. And it can be used only to investigate possible criminal behavior by law enforcement officers.

The Legislature put the cut-down version of subpoena power in a sweeping package of reforms intended to exert greater legal control over the way police do their jobs at a time when outrage over police shootings was inspiring the defund the police movement. Among the reforms was the creation of a new office of Inspector General with the authority to subpoena witnesses and records during investigations of fatal use of force events involving police and correctional officers.

Both the the Inspector General and subpoena power were on hold until last week, when Gov. Ned Lamont signed a revision of the law that settles a Constitutional disagreement over how the Inspector General is appointed. The Legislature wanted the appointment, which in the end went to the Criminal Justice Commission, an executive agency. The yet-to-be-appointed Inspector General will be equivalent in seniority to a Deputy Chief State’s Attorney and the quasi-independent office is supposed to be part of, but operate separately from the Division of Criminal Justice.

Not surprisingly, state prosecutors see more than a little irony in the idea that, after years of begging, the kind of subpoena power federal prosecutors in Connecticut use routinely in cases involving racketeers, swindlers and corrupt mayors is available only for use against their state law enforcement partners.

Chief State’s Attorney Richard J. Colangelo, Jr. has taken the position that something is better than nothing. Until now, he said investigations of deadly shootings by police of civilians were carried out by state’s attorneys and those probes were sometimes hampered by the refusal of witnesses —including police officers — to cooperate. Investigative subpoenas can compel cooperation by threatening reluctant witnesses with contempt and possibly jail, he said.

“If you look at several of the reports that state’s attorneys have done with regard to use of force cases, you’ll see that one of the things that was hampering them was people not cooperating, not coming forward, people deciding they were not going to talk to us,” Colangelo said. “Giving the Inspector General the ability to compel testimony in these types of cases is very important to us. These cases are very difficult to investigate. So having every tool in our tool box is very important to us to regain the public’s trust.”

And there is hope, Colangelo said, that if the Legislature sees the value of investigative subpoenas in deadly police shootings, their use might be expanded.

“Investigative subpoenas are something that could be useful in the prosecution of cases in Connecticut,” he said. “It would help all of our cases. Not just racketeering, but cold case homicides. The division has been trying to get that tool for a long time.”

The power of the subpoena

An investigative subpoena gives prosecutors the power to compel individuals and institutions to cooperate with criminal investigators and that includes answering questions and producing finance, telephone or other kinds of records. Subpoena recipients can fight back in court. But if the prosecutors win and the recipient continues to resist, a judge can charge the recipient of the subpoena with contempt, which could be punishable by jail.

Prosecutors elsewhere typically use investigative subpoenas to look into allegations of wrongdoing, determine whether there is evidence of a crime and, if so, whether there should be further investigation. If a state law enforcement agency in Connecticut is told that a politician is a silent partner in a shady real estate deal, state prosecutors now have no fast, efficient and effective means of determining whether the tip is valid.

“Say an agency gets a complaint that a particular politician is a silent partner in this real estate consortium and the authorities should really ferret that out,” a federal prosecutor said. “If you don’t have probable cause, there is no way to get it — unless you have subpoena authority and can subpoena bank records and things like that, basically third-party custodial stuff. Then you can develop probable cause from that.

“Without the subpoena,” he said, “you really don’t get to first base.”

Until the mid-1980s, state prosecutors could compel testimony with something known as an investigative, one-man grand jury. But when former Chief State’s Attorney Austin J. McGuigan empaneled a dozen or more and began focusing on political crime, the Legislature balked. Among other things, the lawmakers rewrote the grand jury laws in a way that have made such investigations cumbersome, inefficient and a difficult to obtain legal relic.

State prosecutors still have access to the one man grand jury but use it rarely, mostly in cold-case homicides — many of which are unsolved shootings between city drug gangs. The gangsters rarely offer police voluntary statements and business records. Five years ago, a one-man grand jury investigation cleared a Hartford man wrongly convicted of a fatal shooting.

“With the statutory changes that took place in the mid-1980s, it is extremely difficult to get an investigative grand jury under the statute,” Kevin T. Kane, another former Chief State’s Attorney said. “And the state’s ability to seek testimony under oath, under the penalty of perjury, is extremely limited. And that hampers the enforcement of many criminal violations, not just complex white-collar crime or corruption. But also, serious violent crime.”

Difficult, apparently, is what the Legislature intended. By the 1990s, federal law enforcement was complaining about having to use its subpoena power, as well as its budget and personnel, to fight local crime that is supposed to be the state’s responsibility. A meeting was set up with the powerful Chairman of the Legislature’s judiciary committee, former State Rep. Richard Tulisano, who was reminded that state prosecutors lacked an effective means of their own to compel testimony in criminal investigations.

“Exactly,” Tulisano replied.

Several state and federal prosecutors said that leaving investigations to federal law enforcement means many local crimes go unaddressed. With a limited budget and personal, in-state federal law enforcement are limited to the most egregious crimes. A Connecticut resident who lost his life savings to a financial swindle was told the loss didn’t meet the $1 million federal threshold for investigation.

The case that changed things

The defund the police movement provided the momentum for a re-examination of how police-involved shootings are investigated. It was an investigation of the fatal police shooting of Edward Gendron in Waterbury on Jan. 20, 2020, that showed just how ill-equipped state prosecutors are for such investigations without an investigative subpoena or some other effective means of compelling testimony.

Gendron, who faced eviction from his home, was depressed, drinking heavily, abusing drugs and armed. On the night of his death he was suspected of firing a gunshot that passed through a common wall and into neighbor’s home. Three Waterbury police officers were sent to Gendron’s home. Gendron was still armed and threatened to shoot the first officer who arrived. That officer wrestled with Gendron and during the struggle, Gendron was fatally shot.

At that point in 2020, before the office of Inspector General was created, State’s Attorney Brian Preleski was assigned to investigate and report on whether the shooting was justified. Preleski prepared a comprehensive account of the events through a variety of witnesses that cleared the officer of wrongdoing. But the case showed how hopelessly ineffective state law enforcement can be when confronted by an uncooperative witness. It was enough to persuade the Legislature to give prosecutors a means of compelling testimony — at least in the case of police-involved shootings.

One of the witnesses to the events leading to Gendron’s death, Waterbury police Officer Daniel Stanton, refused to give a statement and the authorities had no means of forcing him.

In notes to his report, Preleski said the one-man grand jury would have been the only means “by which officers could be questioned without their cooperation.” But Preleski said the “cumbersome and rarely used process” could not be used because of the “state of the evidence” in the Gendron case.

“Connecticut law simply does not provide a mechanism to compel Officer Stanton to answer these questions,” Preleski wrote in another note. “Unlike prosecutors in virtually every other jurisdiction in the United States, Connecticut law fails to provide either a viable and effective grand jury system or investigative subpoenas. That means if an important witness does not wish to cooperate with an investigation, they do not have to cooperate.”

State Rep. Steven Stafstrom, a Bridgeport Democrat and co-chair of the Legislature’s judiciary committee, said lack of police cooperation in the Gendron inquiry tipped the scale in favor of authorizing an investigative subpoena in police shooting cases. But he remains unpersuaded that it is a tool prosecutors should have to investigate crime in general.

“We were really concerned by that case out of Waterbury and I think that is why that was kind of deal breaker for us,” Stafstrom said. “Certainly, it felt like the investigation was stonewalled by a lack of information sharing from the local police department.”

The Legislature found the power to compel cooperation in police abuse of power cases so compelling that it also has given city and town civilian police review boards the power to issue investigative subpoenas. The boards, under the police reform laws, can issue subpoena’s “to compel the attendance of witnesses” and “require the production for examination” of any records the boards decide are relevant. The local boards cannot, as the Inspector General can, compel testimony.

“I think the difference with a local review board is generally it is lay folks,” Stafstrom said. “What we were looking to do is, if you have a civilian review oversight board in the city of Hartford and they ask the Hartford police department for documents and the Hartford police department says, ‘Sorry we are not giving them to you,’ it kind of undercuts you ability to do your investigation.”

Stafstrom said he sees nothing paradoxical about giving a prosecutor a legal tool for use against police officers, but not against criminals in general.

“I wouldn’t say ‘Used against police,’ ” Stafstrom said. “I think they are used in police use of force investigations. And they can compel testimony of nonpolice witnesses, they can compel documents or recordings from others as well. The idea is to come to a transparent evaluation of use of force instances. So I wouldn’t say it is against police. It is about trying to get at the truth.”

If there is a need for investigative subpoenas in complex crimes, it is a matter better left to federal prosecutors, he said.

“I think you need to draw a distinction between the types of crimes that are charged on a federal level versus the state level,” he said. “The feds have that type of power if they are going after racketeering and the like. Those are federal prosecutions generally.”