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Further review and talks show lingering questions in Weare shooting

A fleeing car. An overworked officer. The crack of a gun and death of an unarmed man.

It was a night that investigators and those involved have played out time and again in the past nine months. August 14. 10 p.m. The Dunkin’ Donuts parking lot in Weare. Five police officers descend on a suspected drug dealer. He speeds off. Two officers open fire.

Nearly a year on, and much is now publicly known about those few harrowing seconds – who fired the telling shot, what took place in the minutes and hours before he did, some of what has happened since. But with – and despite – the release last month of a 44-page report on the fatal shooting and the state’s criminal inquiry into it, questions linger.

A closer review of that document and talks with the attorney general’s office and town officials highlight several existing unknowns – about officer conduct, about steps since taken by the town, and about what it’s leaders knew and did in the months before to address a serious safety concern.

For one, the report questions how it is possible that no one witnessed the fatal shooter, Officer Nicholas Nadeau, or his co-worker, Sgt. Ken Cox, discharge their weapons. In each case, it said, four other officers and two confidential informants were within eyesight. One potential witness, Detective Sgt. Frank Hebert, told investigators he was fastening his seatbelt when Nadeau fired at the victim, Alex Cora DeJesus. Officer Brandon Montplaisir told them he was preoccupied watching Hebert fasten his seatbelt.

Sgt. Joe Kelley, who oversaw the operation that night and who has since been fired for unrelated department violations, said he saw DeJesus’s green Acura speeding toward Nadeau, but then looked away, for no apparent reason. “Kelley could not explain why he looked away while his junior officer was about to be hit by a fleeing vehicle,” the report said.

“While it is not uncommon for people in stressful situations to misperceive events or not perceive them at all, the fact that none of the officers at the scene claim to have seen Nadeau fire his shotgun has proven difficult to explain,” the report said. “For example, Cox told investigators that he fired his weapon at the drive of DeJesus’s vehicle to protect Nadeau, and yet he did not watch to be sure Nadeau was safe as the vehicle passed by him. Instead, after using deadly force in defense of another, Cox said he jumped back into his cruiser in pursuit of DeJesus, rather than ensuring that his fellow officer was unharmed.”

Both informants told investigators that they heard but did not see the shooters.

The night of the shooting

Kelley’s conduct is questioned at other points in the report. He told investigators in an interview, for example, that before Nadeau’s shot he heard two gunshots and then Cox yell, “No, no, stop, stop,” as DeJesus’s car sped toward him. That could not have happened, the report said, because the car had already passed when he fired.

When later confronted with the inconsistency, “Kelley could not reconcile his observations and did not provide a concrete response,” the report said.

At times, Kelley seemed less than forthcoming about what he actually saw, the report suggested. In later interviews, he told investigators that he could no longer remember much of what had happened. But Hebert told investigators that Kelley had told him at one point early on that “he had a clear view and could see things occurring” at the scene.

“Hebert assumed that Kelley meant that he saw Nadeau fire his shotgun, but he did not ask Kelley to clarify his statement,” the report said.

Kelley also took what Senior Assistant Attorney General Susan Morrell called an “unusual” step immediately after the shooting, when a New Boston officer, Jen Watson, arrived to help secure the area. Watson said she was about to tape off a perimeter when she saw Nadeau approach Kelley, at which point Kelley turned and told her “to walk away.”

“Kelley instructed Watson to walk away so she could not overhear their conversation, essentially so she did not become a witness in the investigation,” the report said.

Morrell, who led the investigation, said Monday only that the response was not a typical one for officers in similar situations.

The town’s response

Then there was the town’s conduct. It was reported earlier this year that Weare spent close to $10,000 through December on legal fees for the five officers at the shooting. Morrell said this week that selectmen have in fact authorized payments for three additional Weare officers who were not there. One, Officer Kim McSweeney, was off duty and at home at the time.

Tom Clow, chairman of the board of selectmen, said he wasn’t sure how much the town has spent to date for all eight officers. Town Administrator Naomi Bolton did not return phone calls.

The move was legal but, according to the report, “unusual and unprecedented in cases like this.” It said Kelley arranged the representation.

More often in such cases, shooters secure their own legal counsel or have one provided to them by their union.

Clow has insisted that selectmen were advised by interim police Manager Arthur Walker – not Kelley – to hire the attorneys. In a formal response to the report released this week on the town’s website, the board said it thought the move was appropriate, given that no criminal charges had been brought.

“What the board saw was a group of our police officers who had just been involved in a traumatic event while serving in the line of duty, and it felt it was the town’s responsibility to stand behind those officers,” it said.

Walker, a retired police chief whose contract with the town has since ended, was never mentioned in the attorney general’s report. Morrell said he was acting in an administrative role only. “I believe Chief Walker was aware that a drug investigation was ongoing, but he was not in a position to sign off on or to supervise the investigation,” she said in an email.

According to Walker’s contract, which has been obtained by the Monitor, he agreed to “be available on-site for an average of 24 hours per week (unless more hours are requested by the town) and he will be available by phone and e-mail at all other times (within reason) for consultation with department personnel or in the event of an emergency requiring his direction.”

Was town prepared?

Town officials also knew months before the shooting about a department issue that would come to play a central role in the incident – excessive overtime. The report said Nadeau, the fatal shooter, had worked 24 of the 29 hours immediately preceding the drug bust. The town’s new police chief, John Velleca, and others have said working that many hours on that little sleep can seriously degrade one’s ability to make split-second decisions.

Selectmen knew for years that the department was clocking too much overtime, and they knew as early as December 2012 how to fix it. A report commissioned by the board and released publicly that month found that the department had spent about $300,000 more than what it had budgeted for overtime expenses between 2009 and 2011.

The analysis, completed by Municipal Resources Inc., said the department allowed officers to work up to 20 hours a day and up to 90 hours in a typical work week. Four officers at the time were averaging more than 20 hours in overtime and outside detail work.

It was a dangerous routine that needed to change, according to the analysis.

“There should be a strict policy in place that regulates the distribution of all overtime with safety as a major concern,” it said. “The policy should specify mandatory hours of rest, who is authorized to waive those mandatory hours of rest, and under what conditions consideration would be given to waiving the hours of rest. A sample mandatory hours of rest policy might be 8 or 12 hours of mandatory rest for each 16 hours worked.”

Clow said the board took steps to improve conditions. It set up an advisory committee to study whether the traditional 10-hour workday was still appropriate. It changed the chief’s position from an elected to an appointed one, to give the board more influence in management. And it began discussing a mandatory eight-hour rest policy. That rest policy was included in the police contract voted down this spring at town meeting.

But it’s unclear how much had tangibly changed by August.

“The selectmen don’t run the police department,” Clow said. “The chief of police does.”

At the time of the shooting, however, there was none.

(Jeremy Blackman can be reached at 369-3319, jblackman@cmonitor.com or on Twitter @JBlackmanCM.)

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