Letter from Special Prosecutor Glenn Cunha to DA Hayden re former MBTA police officer Jacob Green

January 9, 2023

District Attorney Kevin Hayden

Suffolk County District Attorney

One Bulfinch Place

Boston, MA  02114

Dear District Attorney Hayden:

Pursuant to my appointment as Special Assistant District Attorney, I have completed the investigation of the incident that occurred on April 11, 2021, in the vicinity of the Mattapan MBTA Station involving Jason Leonor Cedeno (Cedeno) and former MBTA police officer Jacob Green (Green).  I have determined that the Suffolk County District Attorney’s Office should not bring charges in this case, as the evidence is insufficient to sustain the Commonwealth’s burden of proof on any state crimes.

Since my appointment as an independent prosecutor on September 14, 2022, I assembled an experienced team to assist me in determining whether any state criminal charges should issue.  The Massachusetts State Police Colonel assigned to me two well-respected veteran investigators, and the former Attorney General granted me access to her office’s Digital Evidence Laboratory and also assigned a skilled victim witness advocate to assist me.  Their willingness to provide these resources helped me to conduct an independent investigation.

Background

Prior prosecutors had assembled police reports, interview transcripts and phone records, including a statement of Cedeno taken by MBTA Police Superintendent Richard Sullivan (Sullivan) on April 13, 2021. The file I received contained no other interview reports or memos regarding contact with Cedeno to discuss his allegations or provide him any assistance.  On July 30, 2021 Sullivan had also obtained a search warrant from a Suffolk Superior Court judge for two cellular phones belonging to MBTA police officers Green and Kevin Davis (Davis), who were allegedly involved in the April 11, 2021 incident.  Phone records in the file showed forty-nine text messages between Green and Davis between 5:00 p.m. on April 11, 2021 and April 16, 2021. The phones were sent to the FBI’s Regional Computer Forensic Laboratory for analysis on August 2, 2021; an initial analysis showed the text messages during the relevant time frame were deleted. 

During the course of my investigation, I interviewed numerous witnesses including MBTA police officers and other MBTA employees, requested and reviewed numerous documents and records, and searched and downloaded material from social media sites.  I obtained a TikTok video created by Cedeno that was relevant to the investigation.  At my request, on December 8, 2022, Sullivan obtained a supplemental search warrant from a different Suffolk Superior Court judge for one of the phones, as new technology had developed since the phones were first extracted that may have provided the means to obtain and recover the deleted text messages. The Attorney General’s Digital Evidence Laboratory conducted a forensic review of data extracted from that phone and could not recover the substance of deleted text messages between the two MBTA officers involved in the April 11, 2021 incident. 

Starting in October 2022, I initiated an investigation in the Suffolk County Grand Jury. This was the first grand jury presentation on this investigation.  Over six days, the grand jury heard testimony from nine witnesses and received fifteen exhibits.  On January 6, 2023, after presenting all the relevant evidence to the grand jurors, I withdrew the investigation because it is my opinion that a prosecutor could not sustain the burden of proving any state criminal offenses beyond a reasonable doubt. The following is a summary of the investigation’s findings.

Investigative Findings

            My investigation revealed the following facts. On April 11, 2021, at approximately 3:00 p.m., Cedeno was driving on Blue Hills Parkway in Milton heading toward Dorchester.  He was coming from a memorial service in Brockton.  Then-MBTA police officers Green and Davis were traveling in the same direction on Blue Hills Parkway on their way to a 3:30 pm shift at the Mattapan MBTA Station.  I was unable to determine how Jason Cedeno was driving his vehicle on Blue Hills Parkway that afternoon, as there were no witnesses who came forward nor was there any video footage from the area despite an exhaustive search by the MBTA police and the Milton Police canvassing the area after the incident.  Cedeno stated he was driving the speed limit of 30 mph and that Green was driving below the speed limit (the posted speed limit on Blue Hills Parkway varies from 20 mph to 35 mph).  Green and Davis stated that Cedeno was driving above the speed limit and driving erratically by frequently changing lanes and cutting in front of Green at a red light at the intersection of Blue Hills Parkway and Eliot Street. 

While stopped at the red light, Green used his iPhone to take a photo of Cedeno’s license plate.  The forensic analysis of Green’s phone data did yield a photo of the rear of Cedeno's vehicle with the license plate at approximately 3:00 p.m. on April 11, 2021.

            Cedeno, whose vehicle was first at the red light, saw in his rear-view mirror that Green was using his phone to either photograph or video Cedeno’s vehicle.  At this point, Davis’s vehicle was behind Green’s.  While the vehicles were stopped at the red light, Cedeno got out of his vehicle and approached Green’s vehicle on the driver’s side.  Cedeno walked up to Green’s driver’s side window, waving his arms, asking Green, “Why are you taking my photo?” Green rolled down his window and stated, “Get the fuck back.” Cedeno repeated his question and continued to come towards his car. At this point, Cedeno was next to Green’s side view mirror and saw that Green had a firearm on his lap pointing in the direction of Cedeno.  Green repeated his command to get back.  Cedeno returned to his vehicle and called 911.  At the same time, Green used his MBTA police-issued radio to contact an MBTA police vehicle outside the Mattapan MBTA station to stop Cedeno’s vehicle, a red Acura. This entire exchange lasted between five and seven seconds.

Jacob Green did not identify himself as a police officer.  He was wearing a sweatshirt so his uniform or anything identifying him as a police officer was concealed. In the vehicle behind Green, fellow MBTA officer Davis-- who witnessed this entire incident-- did not identify himself as a police officer or provide any assistance or de-escalation.  In various statements, Davis claimed he did not roll down his window to hear what Cedeno was shouting and he did not intervene because he wanted to be a witness. 

In his statement to Sullivan on April 13, 2021, Cedeno stated that he saw Green’s firearm positioned on his lap pointing in his direction.  In a TikTok video created by Cedeno shortly after this incident, he described what happened on April 11, 2021.  In that video, Cedeno stated, “In order for him (Green) to move, I had to move,” then, “I wanted to get in this guy’s way.”

On the 911 call, Cedeno’s tone was concerned, and he stated that a guy pulled a gun on him.  Cedeno stated that it was scary because he is a person of color.  Approximately five minutes into the call,  Cedeno stated he is “TikTok famous” with two pages and almost one million followers and likes. He stated that he talks about police brutality and he promotes Black Lives Matter on TikTok.  At ten minutes into the call, he repeated that he is TikTok famous and promotes Black Lives Matter.

While Cedeno was on the phone with the dispatcher, an MBTA police officer pulled him over.  Cedeno asked the 911 operator to remain on the line and he complied.  While the MBTA officer reviewed Cedeno’s license and registration, Cedeno saw the person who was in the vehicle behind him at the red light approaching his vehicle.  It was Jacob Green, dressed in a police uniform.  Cedeno stated on the 911 recording, “That was you. So, why’d you pull out a gun on me?”  Jacob Green’s response is inaudible, but he proceeded to write a citation to Jason Cedeno for Unsafe Lane Change.  After receiving the citation, Cedeno was told by an MBTA officer that he could leave the scene.  The 911 call lasted approximately fifteen minutes which is as long as the stop lasted.  During this time, no MBTA police supervisor arrived on the scene to manage the situation or speak to Cedeno or Green.  In fact, on weekends, no supervisor is assigned to the Mattapan MBTA Police Station.  At the scene on April 11, 2021, no one above the rank of patrolman was present from the MBTA Police.

After this incident, Green returned to the Mattapan MBTA Police Station and completed an incident report.  In that initial report, he described what he believed was Cedeno’s unsafe driving and that he took a picture of Cedeno’s license plate with his cell phone.  Then, he described Cedeno jumping out of his vehicle at the red light, charging his vehicle and screaming.  Green had his seat belt on and described being in fear of an imminent attack.  He admitted to removing his firearm from his holster and holding it on his lap as Cedeno approached his driver’s side window screaming.  Green wrote that he told Cedeno to get away from his vehicle.  He stated that he could not drive around Cedeno’s car as it was blocking him. Green later amended his report to answer questions posed by a supervisor, but the substance of his report of the encounter did not change.  In the subsequent report, Green did confirm that he did not identify himself as a police officer.  Green also admitted to issuing a citation to Cedeno for Unsafe Lane Change.  That citation was subsequently dismissed.  Green also completed an MBTA Transit Police Use of Force Report for removing his firearm from his holster.  His version of the facts in this report were consistent with his initial report. Green as well as at least two other MBTA officers used the Criminal Offender Record Information (CORI) database to search for whether Cedeno had any criminal history.

Following this incident, Green was placed on administrative leave with pay pending a Civil Service disciplinary hearing pursuant to G.L. c. 31, § 4. Before his hearing, Green resigned from the MBTA Police on September 2, 2022.  Davis, as a witness to the incident, submitted to an interview with Superintendent Sullivan and Deputy Superintendent Shawn Reynolds on April 14, 2021.  In that interview, Davis confirmed that he provided no assistance, did not try to de-escalate the situation, and did not open his window to hear what Cedeno and Green were saying to each other.  Additionally, Davis stated that he and Green only had three communications in the days following the incident: a phone call, a face-to-face discussion, and a text message.  As previously noted, phone records show that Davis and Green had one phone call and forty-eight text messages between them in the days following the incident.  After a Civil Service disciplinary hearing on May 23, 2022, Davis was terminated for six reasons including conduct unbecoming, failure to act and misleading an investigation/untruthfulness.

Potential Charges

            The investigation mainly focused on whether the facts supported a charge of Assault by Means of a Dangerous Weapon, to wit: a firearm (G.L. c. 265, § 15B(b)), a felony, against Jacob Green.  Other potential charges included Misleading a Police Investigation (G.L. c. 268, §13B), a felony; Filing a False Official Report (G.L. c. 268, § 6A), a misdemeanor; and Obtaining Criminal Offender Record Information under False Pretenses (G.L. c. 6, § 178), a misdemeanor.  The evidence does not support any of these state criminal charges.

Assault by Means of a Dangerous Weapon - G.L. c. 265, §15B(b)

            By his own admission, Jacob Green took his firearm out of its holster and held it on his lap pointed through the vehicle door in the direction of Jason Cedeno on April 11, 2021 at the intersection of Blue Hills Parkway and Eliot Street.   “The elements of assault by means of a dangerous weapon are that a [person] committed an assault, the [person] intended to commit an assault, and the assault was committed by means of a dangerous weapon.” Commonwealth v. Buttimer, 482 Mass. 754, 767 (2017).  Here the element of assault means an act placing another person in reasonable apprehension of receiving an immediate battery. Id. The first two elements are satisfied as Jacob Green intended to place Jason Cedeno in fear of an immediate battery by his own statement as Green wanted Cedeno to get away from his vehicle.  Jason Cedeno was in fear for his safety as evidenced by his call to 911.  The third element is satisfied as a firearm is clearly a dangerous weapon.

Self-defense

The analysis of the facts must continue because “[w]here nondeadly force is used, a defendant is entitled to a self-defense instruction if the evidence, viewed in the light most favorable to the defendant without regard to credibility, supports a reasonable doubt that (1) the defendant had reasonable concern for his personal safety; (2) he used all reasonable means to avoid physical combat; and (3) ‘the degree of force used was reasonable in the circumstances, with proportionality being the touchstone for assessing reasonableness.’" Commonwealth v. King, 460 Mass. 80, 83 (2011) quoting Commonwealth v. Franchino, 61 Mass. App. Ct. 367, 368-369, 810 N.E.2d 1251 (2004).  When a person charged with a criminal offense offers any evidence of self-defense, the Commonwealth must prove beyond a reasonable doubt, in accordance with the King case, that the person charged had an unreasonable concern for his safety, that he did not use reasonable means to avoid physical combat, and the degree of force he  used was unreasonable given the circumstances.  Weighing all the facts, if charged, the Commonwealth would not sustain its burden to prove that Jacob Green was unreasonable in defending himself.

In analyzing the first element of self-defense, Jacob Green had a reasonable concern for his safety.  While stopped at a red light, Jason Cedeno got out of his vehicle and approached Green’s vehicle while yelling and waving his arms.  Using Cedeno’s words from his TikTok video, Green could not move unless Cedeno moved.  Green had nowhere to go and had his seat belt buckled.  Green’s concern for his safety was reasonable.  Second, this encounter lasted 5-7 seconds.  Green did avoid physical combat.  While he did not identify himself as a police officer, he did shout at Cedeno to get back and he kept his firearm on his lap.  He did not raise it and point it out of his vehicle’s window, and he did not fire his weapon.  Third, given the circumstances, the degree of force was reasonable.  It is undisputed that Green’s firearm remained on his lap as both Jason Cedeno and Jacob Green have stated that.  In Jason Cedeno’s statement to Superintendent Sullivan on April 13, 2021, he stated that Green’s firearm was positioned on his lap.  Given these circumstances, it is reasonable to conclude that a trier of fact, a judge or a jury, would also find that the Commonwealth could not sustain its heavy burden of proving beyond a reasonable doubt that Green acted unreasonably in self-defense.

Other Potential Charges

Misleading a Police Investigation - G.L. c. 268, §13B

Because Kevin Davis stated that he communicated with Jacob Green three times in the days after the incident and the phone records showed forty-nine communications between them, I considered the charge of Misleading a Police Investigation, G.L. c. 268, §13B. An element of this offense is impeding or obstructing any stage of a criminal investigation.   Deleting text messages on their cell phones, Green and Davis appeared to be impeding the investigation.  However, for a number of reasons, people delete messages on their cell phones often when the memory is full or close to it.  The Commonwealth’s burden of proof for any criminal charge is beyond a reasonable doubt. Without the substance of the text messages, the Commonwealth could not sustain its burden.  While suspicious, the fact that both Davis and Green deleted messages from the relevant time period, without the actual messages to show that they were communicating about the investigation, the Commonwealth could not sustain its burden of proof.  The purpose of obtaining the second search warrant was an attempt to have the Attorney General’s Digital Evidence Lab use new technology to find the substance of the deleted texts from Davis’s Galaxy phone.  As previously noted, the forensic analysis of the phone did not yield any of the deleted text messages.  Without that evidence, I could not charge this offense.  

Filing a False Official Report - G.L. c. 268, § 6A

The next charge considered was Filing a False Official Report, G.L. c. 268, § 6A, because Green wrote two versions of his MBTA Police Incident Report.  Notably, he was ordered to amend his report to include answers to questions such as what Cedeno was yelling and what made him return to his vehicle. In law enforcement, it is common practice for a superior officer to review a draft of an incident report and request a subordinate clarify certain statements. There are certainly troubling aspects of Green’s police report including that he returned to the scene and that he issued Cedeno a citation.  What is missing in the report is whether Green contacted a supervisor to report to the scene and manage the situation because no superior officer was present.  Despite the ill-advised actions of Green on April 11, 2021, there was no evidence to support this charge.

Obtaining Criminal Offender Record Information under False Pretenses - G.L. c. 6, § 178

The last charge considered was Obtaining Criminal Offender Record Information under False Pretenses, G.L. c. 6, § 178, as multiple individuals at the MBTA Police inquired into Cedeno’s criminal history.  The last paragraph of this law statute states, “[t]his section shall not apply to, and no prosecution shall be brought against, a law enforcement officer who, in good faith, obtains or seeks to obtain or communicates or seeks to communicate criminal offender record information in the furtherance of his or her official duties.”  Cedeno was involved in an incident with law enforcement.  In practice, this section is meant to prevent law enforcement officers from using the Criminal Offender Record Information database for personal use.  I found no basis for charging this offense.

Prior Incident

            During this investigation, I discovered that Jacob Green had a prior incident with a Black female MBTA bus operator on November 20, 2020.  I am cognizant that this incident suggests a pattern of volatile conduct by Green, yet it does not change my evaluation of the evidence in the April 11, 2021 incident.

After the encounter with Green on November 20, 2020, the female MBTA employee filed a complaint with the MBTA Police and the MBTA Office of Diversity and Civil Rights.  The complainant alleged that while parked in her bus at the Mattapan MBTA Station, a man dressed in black was yelling at her, demanding her license.  The man did not identify himself as a police officer and did not have any clothing that showed he was a police officer.  The man was Jacob Green. 

During the incident, the complainant called her supervisor who arrived on the scene.  Then, three MBTA officers arrived including Jacob Green, now in his uniform, who demanded her license and stated to her and her supervisor that one of them would be arrested.  The complainant gave her license to an MBTA Sergeant.  Despite the Sergeant speaking to Green privately, Green wrote a citation to the complainant for Unsafe Lane Change.  He alleged that she hit his personal vehicle as she was pulling into the station.  Her supervisor inspected Green’s car and found no damage.

            On November 20, 2020, shortly after this incident, the complainant wrote a complaint to the MBTA Police alleging that Jacob Green yelled at her, acted aggressively, did not identify himself as a police officer and wrote her a citation for Unsafe Lane Change.  On December 7, 2020, Jacob Green wrote a report of the incident to a superior officer.  In his report, he confirmed that he was wearing a sweatshirt covering his uniform and alleged that the female MBTA bus driver was operating recklessly.  He stated he was not disrespectful to her. 

On November 23, 2020, the complainant filed a report with the MBTA Office of Diversity and Civil Rights (ODCR) alleging abuse of power and intimidation by Jacob Green.  On March 30, 2021, she wrote an email to an OCDR investigator stating that she believed Green treated her unprofessionally because she is a woman.  In that email, she wrote that her court hearing on the citation Green gave her was on April 12, 2021.  On that date, the citation was dismissed.

            I reviewed the MBTA file on this matter and found no investigative reports.  There was, however, a letter from the MBTA Police to the complainant informing her that her complaint was unfounded.  Then, on January 14, 2021, Jacob Green received a letter from the MBTA Police Office of Professional Standards that the complaint against him was unfounded. 

Conclusion

While this nearly four-month investigation has not resulted in any state criminal charges, it has uncovered the discoverable facts of the incident outside the Mattapan MBTA Police Station on April 11, 2021.  Through numerous witness interviews both in and out of the grand jury, forensic analysis, document review and evidence collection, I completed a thorough investigation with the assistance of the Attorney General’s Office and the State Police.  While I concluded that no state criminal charges are warranted, the actions of Jacob Green and Kevin Davis fall below the expectations we have for law enforcement officers. “Police officers must comport themselves in accordance with the laws that they are sworn to enforce and behave in a manner that brings honor and respect for rather than public distrust of law enforcement personnel.” Police Comm'r of Boston v. Civil Service Com., 22 Mass. App. Ct. 364, 371 (1986) (emphasis in original).  Thank you for the opportunity to work on this case and to continue to serve the people of the Commonwealth.

Sincerely,

Glenn Cunha

Special Assistant District Attorney

James Borghesani, Chief of Communications