Not an ‘infamous crime’: Delaware Supreme Court lets ex-cop convicted of official misconduct take council seat

A sign reads,

The town of Newport, Delaware. (Cris Barrish/WHYY)

A former Delaware police chief predicted in April that “this is far from over” when a judge prevented him from taking a town council seat because as a cop he had been convicted of official misconduct.

And he was right.

The state Supreme Court has overturned a ruling by the Superior Court President Judge Jan Jurden and is allowing Michael Capriglione to join the Newport Town Council.

The high court’s decision is a blow to Attorney General Kathy Jennings, who initially went to court to stop Capriglione from taking the oath of office in April after learning of his election in the town of about 1,000 people west of Wilmington. Capriglione ran for one of four open seats in Newport and received 32 votes, the most of any candidate.

Michael Capriglione wearing a police uniform
Michael Capriglione was Newport chief for nearly four decades but the official misconduct conviction ended his police career. (WHYY file)

Jennings had argued that under the Delaware Constitution, Capriglione’s misdeeds amounted to an “infamous crime’’ that barred him from holding an “office of trust, honor or profit under this state.” The imprecise phrase “infamous crime” is listed in in the constitution in addition to the specific crimes of embezzlement of public money, perjury, and burglary.

Capriglione’s 2019 misdemeanor conviction stems from an incident where he crashed into another Newport police cruiser in the town’s parking lot and then attempted to cover up the accident by lying to other officers and having video surveillance footage erased.

The state dropped a felony charge of tampering with physical evidence in the plea bargain. A judge gave him a one-year suspended sentence and stripped him of his police certification.

Capriglione had been Newport’s chief for about four decades and previously headed the Delaware Police Chiefs’ Council for 11 years.

After Jennings filed a motion to stop Capriglione from taking office, Jurden held an emergency hearing on the day he was scheduled to be sworn in. She issued a temporary stay on his taking office, ruling that it was not urgent to decide the issue immediately because Newport had a quorum — four or five council members – and could conduct town businesses while she mulled the issue.

But she ruled in May that while “Delaware precedent offers no definitive answer to the precise question of whether a misdemeanor can ever qualify” as an infamous crime under the state constitution, the “circumstances of Capriglione’s case” do qualify as one.

Jurden’s order noted that the question of whether the crime of official misconduct constitutes an infamous crime is a “difficult” and that the Supreme Court “has not decided whether any misdemeanors can ever qualify.”

During oral arguments before the Supreme Court last week, Department of Justice attorney David Skoranski argued that the totality of Capriglione’s actions in uniform as a public official, including his deception of town officials, qualifies his crime as an infamous one.

Capriglione’s attorney, Stephani Ballard, had asserted that Jurden “clearly erred” and argued that her client’s misdemeanor offense was not enough to disqualify him.

She also noted that the constitution and case law bolster the argument that “some but not all felonies” constitute infamous crimes sufficient to bar a candidate from taking office.”

The justices agreed with Ballard, ruling in a one-paragraph order that the “judgment of the Superior Court should be reversed” immediately and Capriglione can take the oath. “A more formal opinion, fully explaining our views, will issue in due course,” the order said.

Capriglione was delighted by the decision and said he expects to take the office next week for the two-year post that pays $700 a year. He receives a police pension from Newport.

“So I’ve always had a great faith in our highest court,’’ he said, noting that he has dealt with many of the five current justices during his police career. “So I really believed from the get-go that my chances were really good that these judges were going to sit there and say someone who makes a mistake should not be punished for life, especially if it’s not a felony.”

He said the court fight cost him about $35,000.

“My reputation meant more to me than the cost factor… The problem is, how about the Joe Citizen who decides to run for office or school board and they go after him on this? And he doesn’t have money he just walks away and then the rest of his life he’s got a black mark on his record saying he couldn’t serve because he was an infamous criminal.”

Despite ending up on the losing end of this legal fight, Jennings maintained that her reasoning is sound. She says she’s working with some state lawmakers to change the law and make official misconduct a felony.

“Abusing public office ought to be at the top of the list of disqualifications from holding future office,’’ the attorney general said in a statement. “Rooting out public corruption has been a hallmark of this administration and we are disappointed to learn that the Court will let Michael Capriglione, who was convicted of abusing his power as a police chief, assume elected office.”

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