By DAMIEN FISHER, InDepthNH.org

A Massachusetts police officer sentenced to prison for rape could get a new trial as information emerges that New Hampshire State Police officials may have sat on evidence that undermines the credibility of a key witness.

Former MBTA Officer Shawn McCarthy is seeking a new trial after he was convicted last year of sexually assaulting two women during a 2012 incident that took place in Boston. InDepthNH.org has learned that one of the women is known by New Hampshire State Police to have serious credibility problems, a fact not shared with Massachusetts prosecutors or McCarthy’s defense during the trial.

Suffolk Superior Court Judge Joshua Wall ordered this week that McCarthy’s defense team, led by Rhode Island attorney Gary Pelletier, can now obtain New Hampshire State Police documents related to the witness. This order comes after McCarthy’s lawyers presented a private investigative report with new evidence about a potential screw up by New Hampshire State Police.

Pelletier did not respond to requests for comment.

The criminal case against McCarthy started in 2019 when the initial victim identified only as Jane Doe disclosed the assault during a polygraph exam administered by New Hampshire State Police. Doe was, at that time, applying for a job as a state trooper. State Police commanders, including then-Major John Marasco, soon contacted the Suffolk County District Attorney’s Office in Boston to report the allegation against McCarthy. 

John Marasco was confirmed as Director of Motor Vehicles by former Gov. Chris Sununu on March 1, 2022. 

But, according to private investigative documents reviewed by InDepthNH.org, Marasco and others never told Boston police that Doe wasn’t hired to be a state trooper. They did not tell the prosecutors why, either. 

According to a signed affidavit, part of the private investigative file, Doe was described as a “pathological liar” by one of the NHSP troopers involved in her pre-employment screening process. Doe’s lies about her own background were serious enough to mean she would not be a state trooper, according to the defense’s investigative report. 

Doe’s background check was completed about two months after the polygraph exam where she disclosed the alleged rape, but the NHSP trooper who did her background investigation was never contacted by Massachusetts prosecutors in the years the led up to McCarthy’s trial and conviction.

“[D]uring the pendency of the case against McCarthy, [the background investigator] was never contacted by NHSP, the MBTA Transit Police, Boston Police, the Suffolk County District Attorney’s Office, or any other law enforcement agency for a copy of his investigative report,” the affidavit states.

Tyler Dumont, Public Information Officer with the New Hampshire Department of Safety, told InDepthNH.org that State Police did nothing wrong.

“The Suffolk County District Attorney’s Office prosecuted Mr. McCarthy. NHSP fulfilled the requests for records ordered by the Massachusetts courts, and there has been no judicial finding that NHSP withheld exculpatory information,” Dumont said.

The State Police background investigator told the defense team’s private investigator he was “forbidden by Command Staff” from looking at the rape claim as part of his overall check into Doe. 

While the private investigator working for the defense found many subsequent communications between Marasco and Massachusetts prosecutors concerning Doe’s allegation and her recorded polygraph exam, nothing was found to indicate State Police shared the full background report, completed in October of 2019. 

James Borghesani, chief of communications for Suffolk County District Attorney Kevin Hayden, would not comment on evidence possibly being withheld from McCarthy’s defense, but said there is not enough in McCarthy’s appeal to warrant a new trial.

“Shawn McCarthy was properly convicted of raping two women while on duty as a police officer. He has challenged his conviction, as is his right, and the judge has ordered discovery as part of that process. The details of that discovery are impounded by the court. We dispute that grounds exist for a new trial and will respond in court as appropriate,” Borghesani said in an email to InDepthNH.org.

Doe was considered the key witness at the trial, along with her friend who also claimed to have been assaulted by McCarthy. But jurors were not told about Doe’s NHSP background investigation, nor the other prior law enforcement employment background investigations that turned up troubling questions.

The State Police background report uncovered a number of times in which Doe reportedly lied about her past or gave inconsistent explanations. Doe claimed in one instance that she put up $30,000 she got as an inheritance from her deceased grandmother to purchase a condominium with an ex-boyfriend. However, the NHSP background investigator found both of Doe’s grandmothers were still alive, and the ex-boyfriend stated she put up a couple of thousand dollars to help with closing costs, not $30,000.

The NHSP background investigator discovered Doe had applied to law enforcement agencies in Massachusetts and he went through those prior background reports. On one application, Doe “stated that she reported to one agency that she left a specific job because of a difficult manager. On another application with a separate agency, she reported leaving the same job because the position was eliminated. In a third application, she reported leaving that same job because she found a better role that offered her more opportunity.”

On one of her applications, Doe claimed she had received a financial settlement from one prior job after she reported a supervisor for sexual harassment. However, the NHSP background investigator discovered that it was Doe who was determined by her old employer to have sexually harassed a co-worker.

Doe is currently employed as a police officer with a New Hampshire department in a community near Concord. The NHSP background investigator became concerned when he discovered Doe was working as a police officer. He wanted to alert that department to his findings about Doe but told the defense investigator that he was overruled.

“When he voiced his concerns to his superiors at the NHSP, he was ordered by Major John Marasco not to say anything to the [Municipal] Police Department,” the defense report states.

McCarthy was fired from his job after he was accused by Doe and her friend. He is currently serving a four- to six-year prison sentence.