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James Burke trash-talked DA's office, ex-Spota deputy testifies

Emily Constant in October 2015.

Emily Constant in October 2015. Credit: Barry Sloan

Growing tension

Emily Constant, former second in command at the Suffolk District Attorney's Office, testified Thursday about tensions that developed after James Burke began trash-talking about the DA's office.

"At some point, it got back to Mr. Spota … that Burke was going around saying the DA's office was stale," Constant testified in the trial of Thomas Spota, Suffolk's former district attorney, and Christopher McPartland, former head of Spota's anti-corruption unit, "and they haven't been doing good cases since the departure of him and Madigan."

"What was Spota's reaction?"  Alan Vinegrad, Spota's lead defense attorney, asked during cross-examination.

"Furious," she said.

William Madigan, who had worked under Burke in the district attorney's investigations unit, later followed Burke to the police department, and followed Burke to department, and to  a promotion to chief of detectives.

But the DA's office was having issues with Burke's police department, too.

"There was some concern with the quality of the police work and the impact it had on our ability to prosecute cases," Constant said.

Under an intelligence-based policing structure Burke put into place, Constant said, "field intelligence officers under Burke started vacuuming up all of the case information and not distributing it, primarily, to the DA's squad." 

Spota wasn't happy with that, either.

"Mr. Spota was very upset about that," Constant testified. "He had a lot of conversations with Burke about that."

No relationship

During questioning, Assistant U.S. Attorney Justina Geraci pressed Constant on why the Suffolk DA's office skipped Nassau County by instead going to Queens for a special prosecutor.

"Do you know Kathleen Rice?" Geraci asked.

"Yes," Constant answered, "she's a congresswoman."

In 2012, when Christopher Loeb was beaten, Rice was Nassau's district attorney — but the neighboring district attorney's offices hardly were close.

"They didn't speak," Constant testified, "they didn't collaborate."

"She operated as district attorney of Nassau," Constant said, "and he [Spota] operated as the district attorney of Suffolk."

Looking to seal a leak

In January 2014, Newsday published a story about a string of burglaries, which was sourced and included mention of documents from the Suffolk police department.

"What was the reaction to the article?" Vinegrad asked.

"Shock," Constant replied, "because all of the information in the article and the document referenced in the article came from a confidential police document that was distributed to many, many police officers."

"Members of the police department asked Newsday to take the article down, and they refused," Constant said.

And as for Spota, she said, "He was really, really upset."

One result of the article, according to the testimony, was that police moved more quickly than had been planned to arrest a suspect.

Another was that the DA's office moved to try to seal leaks from the department.

"We both said this was unacceptable," Constant said.

"We found it difficult to believe that a police officer would put the lives of his fellow officers in jeopardy," she said.

"Leaking it to a reporter was grave," she said.

"Grave?" Vinegrad asked.

"G-R-A-V-E," Constant said.

Calling Mr. Ellsberg

With that, the Suffolk DA's office discussed ways to investigate the leaks.

Spota, at some point, suggested subpoenaing the Newsday reporter's phone records, and putting a wiretap on her telephone.

"Both Mr. McPartland and I counseled him that was a bad idea," Constant testified.

"Do you remember the Pentagon Papers?" she said she asked at one point.

"It's not the reporter's obligation not to use the stolen material," she testified. “ … It is the police officer who leaked it that we need to be concerned about."

Back from Washington

Ultimately, the decision was made to tap the telephone of former Suffolk Det. John Oliva, who was in the courtroom during Thursday's testimony.

Oliva, who has frequented the trial, was in Washington earlier this week when his former partner, Det. William Maldonado, was recognized posthumously by U.S. Attorney General William Barr for his work on MS-13 cases.

"I thought about him," Oliva said in an interview. "He was a hardworking guy, a great guy who worked to keep it safe out there."

And then he paused.

"He's probably watching this right now," he said.

According to multiple witnesses, Oliva ran afoul of Burke after he and Maldonado were pulled from a federal gang task force.

What if …

"If James Burke had told you that he had assaulted Loeb back in 2013, what would you have told him?" Geraci asked Constant.

"I would have told him he had to turn himself in," Constant said, "that he had done something terribly wrong, and that he had to account for it."

"You would have not covered up for him?" Geraci asked.

"Absolutely not," Constant said.

Meetings with Burke, Hickey

After Burke was arrested, Constant testified, Spota called her and McPartland into his office.

"I have some questions I want to ask you," he said, according to the testimony. "Did either one of you ever meet with Burke and [former Suffolk Lt. James] Hickey alone anywhere?"

"I said no," Constant testified, "and Mr. McPartland said yes."

"He said that there were two meetings, that they both took place at the end of the workday, that Mr. McPartland was on his way home," she testified.

"That he got a phone call from Burke saying it was critical that he meet with Mr. McPartland," Constant said.

"At the first of two meetings in the parking lot outside of St. Patrick's Church in Smithtown," she said, "Mr. Hickey and Mr. Burke asked Mr. McPartland whether or not the witness protection program applied to organized crime or [to] … any case."

"He told them that it was available to any witness who might need it," Constant testified.

As to the second meeting, Constant testified, "he said he got another call from Burke asking if he could stop again and meet with him and Hickey."

"Mr. McPartland said that he would …[and] that they asked him questions about federal grand jury immunity, if it was different from state," she said.

"He didn't feel comfortable talking about it," Constant said, because he was not an expert.

"You will have to get that information from someone else," she quoted McPartland as saying.

Tomato, tomahto

At one point, Geraci asked Constant what McPartland had earned as head of the DA's anti-corruption bureau in 2016.

"Approximately $171,000," came the reply.

And did he get a bonus? Geraci asked.

"We call them stipends, we don't call them bonuses," Constant replied.

In 2016, she said, McPartland got a $17,000 bonus, er, stipend.

In 2017, she said, his salary of about $181,000 plus a $20,000 stipend came to total of about $200,000.

Neither a borrower …

"Did you loan Mr. McPartland money?" Geraci went on.

"Yes," Constant replied, after McPartland had received a letter from federal prosecutors informing him that he was the target of an investigation.

With that, she said, McPartland needed to hire a lawyer, and that his lawyer of choice, Larry Krantz — who is representing McPartland at trial — wanted a $15,000 retainer.

“ … He only had $11,000," Constant testified.

"I told him I would give him $4,000 so he could retain the lawyer," she said. "He argued with me, but I insisted."

"I had to speak with my husband," she went on, "but we were going to do it regardless."

She said McPartland gave her a promissory note.

"He insisted upon it," she testified.

Under questioning from Geraci, Constant said she gave that note to prosecutors on Wednesday.

Krantz asked if McPartland had ever repaid the loan.

"I told him that I didn't want him to," Constant said, "I told him to tear up the promissory note and he resisted, and I said put me at the bottom of your creditors."

At some point, McPartland needed additional financial assistance.

"What he needed was well beyond my means," Constant testified. “ … I asked him if he knew any gracious, and generous wealthy people." 

In an isolated area

McPartland's indictment rattled the DA's office.

"The whole situation was very traumatic to anyone who was in the DA's office," Constant testified.

At one point, McPartland moved from one part of the office to another.

"I just thought it would be better, under the circumstances," Constant said. "I thought it would be better that he worked in a more isolated area."

 "So you could watch him?" Geraci asked.

"I really didn't feel that I needed to watch him," came the reply.

"So he couldn't wander around?" Geraci asked.

"He didn't want to," Constant replied, "I didn't have to tell him not to."

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