Saying Wayne Cooke acted “incredibly foolishly,” but not necessarily criminally, a state prosecutor yesterday agreed not to pursue reckless endangerment charges stemming from Cooke’s decision to smear chemically harmful bird gel on a score of political signs he had purchased and put up around Branford.
David J. Strollo, the supervisory assistant state’s attorney in New Haven, said, however, that his decision was conditional. “The state will reopen the case if it happens again.” The state agreed to nolle the case, which means Cooke will have the charges erased from his record if he does not commit another crime over the next 13 months. If he does, the prosecutor will reinstate the charges. Technically that means the case is open until then.
Strollo personally came to Superior Court on Elm Street yesterday morning to handle this one case and to explain to Judge Susan Connors his reasons for not prosecuting it. Strollo and Cooke’s attorney, Walt Spader of the Marcus Law Firm, had conferred about the case before the outcome unfolded in court.
Cooke’s arrest on Nov. 15 stemmed from his admitted decision to smear the bird gel on “DaRos Dishonest” signs he had erected in the days before the Nov. 8 election for first selectman in Branford. Cooke purchased hundreds of the signs, but they kept disappearing. This was his way to prevent theft. Cooke has been engaged in a long-standing feud with First Selectman Anthony “Unk” DaRos over the tax status of his farm.
Cooke, 55, appeared in court shortly after 11 a.m., the day of his scheduled arraignment on the reckless endangerment charge, a B misdemeanor that carries a six-month prison term. Instead, in what appeared to be a prearranged decision between Strollo and Spader, the prosecutor took the unusual step of declining to prosecute the case. He acted before an arraignment or a plea was entered.
Earlier this month, Strollo’s own state attorney’s office and a judge took the charges against Cooke more seriously when each approved a six-page police arrest warrant. Another prosecutor signed off on the arrest warrant on Nov. 8, and another Superior Court judge concurred with the Branford police on Nov. 10. That means they both believed there was probable cause a crime had been committed and the case should go forward. After the arrest warrant was signed, police arrested Cooke on Nov. 15.
In a news release issued late last night Police Chief Kevin Halloran added that the public “should be assured that the Branford Police Department conducted a thorough investigation which included, but was not limited to advice of experts from the state concerning the toxicity of the chemical utilized by Mr. Cooke.”
Strollo said he deemed Cooke’s story that he did due diligence before spreading the gel on the signs credible. He also found his story plausible despite the warnings on the “Tangle Foot” bird gel repellent and the information the Branford police obtained from the University of Connecticut Poison Control Center that the gel is hazardous. In public statements Cooke has claimed he did a thorough check with the company and with poison control officials and was told the substance was not harmful.
Strollo cited two actions he had taken in deciding in his discretion not to prosecute. First he called the Yale Poison Control Center yesterday morning before court began, where he learned that the bird gel could create health problems if someone were allergic to it, but otherwise would not be harmful.
He also told the judge that on Monday night he called the home of the complainant and spoke with her husband. She is the one who filed a formal complaint with Branford police. Her husband told Strollo his wife was concerned that she couldn’t get the substance off her hands and didn’t know what it was. Otherwise she was unharmed.
Strollo did not take up the larger public safety issues and the police concerns as outlined in their warrant when he presented his overview of the case to the judge. Nor did he mention a town wide alert to the public to be cautious about touching the signs. Strollo did the main presentation with Spader speaking only a few sentences afterwards. Spader stood at Cooke’s side.
At the end, after the judge accepted Strollo’s decision, Cooke thanked her. She did not ask the prosecutor or Cooke any questions. It was over in five minutes. Spader was beaming. Strollo was smiling.
The large printed warnings on the label concerned Chief Halloran, he said in a later interview. He said he thought a crime had been committed after he read the label on the bird gel and then checked with officials at the University of Connecticut Poison Center.
Police took a photograph of the Tangle Foot bird gel repellent product Cooke purchased. It clearly states in large letters:
“PRECAUTIONARY STATEMENTS –
KEEP OUT OF REACH OF CHILDREN
HAZARDS TO HUMANS AND DOMESTIC ANIMALS
“Causes substantial but temporary eye injury. Harmful if absorbed through the skin. Do not get in eyes or clothing. Avoid contact with skin. Wear (word unreadable) or face shield. Wash thoroughly with soap and water after handling. Remove contaminated clothing and wash clothing before (word unreadable). See Back Panel for additional precautionary statements.”
The warning also says to keep the repellent out of lakes, ponds and streams.
In his conversation with the University of Connecticut Poison Control Center, Halloran said, he was told that although the substance was nontoxic it should not be handled by people. UConn officials told police that “the bird gel can cause rashes and irritation if contact with the skin .It was asked if the community should be notified and we were advised the department had a responsibility to notify the community of the potential danger associated with the substance coating the signs.”
Once the police received this information, Halloran said: “We decided the most prudent course of action to take was to remove the sprayed signs that were known to us and to notify the Branford community of the potential danger in the event any signs were missed.” Click here to read about it.
When police learned of the potential hazards to children and domestic animals, they informed all residents via the B-Alert system to keep away from the signs. Chief Halloran also asked the town’s public works department to remove all the signs from both public and private property because they may pose a potential health hazard for children and pets. These sets of facts did not come before the court yesterday.
Chief Halloran told the Eagle, “the Branford Police Department acted in accordance with its mission to protect the public from harm and keep the community aware of danger. The decision to remove the signs and notify the public was, and is, believed to be, in the best interest of the public. The rationale underlying their removal was completely apolitical.
“Given the same circumstances, we would again follow the same course. The safety of the Branford community is too important to ignore and to take any other course of action than we did, we would be shirking our responsibility to our citizens. It was a tough call in an election season but one that needed to be made.”
The police were under pressure to alert the public about the safety issues and did so immediately, then took time in conducting their investigation into Cooke. In their arrest warrant filed in court, Detective Ryan P. Tobin summed up his conclusions, telling Cooke “that he posed a serious concern to citizens, based on the fact that the bird repellent is not tested on humans and it could not be determined if it could harm people if touched. On the label, I told him that it clearly states: ‘Keep out of reach of children’ and that glasses and gloves are to be worn during the application of this substance.
“I also told Wayne that not knowing how a human being could have a reaction to the substance, that he was reckless in his behavior. Wayne still felt based on his diligent research into this product, that he did nothing wrong, but does feel remorseful and surprised at how this caused such a concern.”
In the end, based on the investigation “and the alarm and concern that Wayne Cooke had caused by putting this bird repellent substance on these signs,” as well as a formal complaint filed by a woman who came in contact with the gel from a sign placed on her property by someone else, the police charged Cooke with reckless endangerment.
Cooke, who has been involved in a long battle with DaRos after losing his farm status, purchased hundreds of “DaRos Dishonest” signs during the election. The arrest warrant says he told police that he lost about 400 signs because people removed them from their property or town property. Cooke said he went online to find a way to deter further theft. (Signs on public property may be removed without penalty.)
Cooke then ordered ten tubes of Tangle Foot repellent gel, which comes in 10 oz tubes. The sticky gel is so named because it entangles a bird’s feet, preventing them from flying and causing their death. After convincing himself the gel did no harm, even though there are large warning signs on the tube, he applied the substances to approximately 20 signs, some of which were placed on properties without the owner’s consent. Where those signs were located was another concern.
One of those people was a woman who removed the sign only to find the bird gel on her hands, her keys and later on her doorway. She became agitated, police said, when she could not remove the substance and did not know what it was.
She told police she went first to the health department to discuss with them what was appropriate to do. Health officials told her to contact the police. She told police she was concerned about public safety, especially for children and small animals. So were the police.
At the police department she had a serious verbal exchange with Cooke, sources said. She later filed a formal complaint in the case. Apparently Strollo, the prosecutor, decided that because she was not harmed her larger concerns about public safety and health were not relevant. Another resident was also affected by the gel. He is a volunteer firefighter who later decided not to file a formal charge.
After Cooke appeared for questioning, the police asked him to deliver the remaining tubes of bird gel so that they could be placed into evidence. In the police warrant, he told police he applied the substances to approximately 20 signs.
Cooke showed the police a safety sheet on the product, claiming he had done his research but according to police he then became concerned after he learned the woman did not know what she had on her hands and was unable to remove it. Chief Halloran and his staff then checked the internet for additional information.
Cooke assured the police that he, too, was concerned about the warnings so he called the manufacturer and Yale-New Haven Hospital poison control to see if it were in any way harmful to humans. In a press release that appeared on the Patch website, he stated: “Both said no and explained that the warnings were just a disclaimer put there to cover all bases. “ He repeated the essence of his press release in a statement he asked police to write down as he said it.