Clerk’s office to change its policy concerning motions
By Heather Cobun
BridgeTower Media Newswires
BALTIMORE — A Baltimore city prosecutor said Monday she was “uncomfortable” when someone stood in her office last week and told her what to say while she was on the phone with court officials attempting to clear up confusion over a state motion that was filed but never docketed.
Robin Wherely said she filed a motion for production and review of the internal affairs records of Sgt. Joseph M. Donato as a way to memorialize an agreement with lawyers for 20 defendants who were seeking access to the files. The motion did not appear in any of the case files or dockets and was not ruled on at a March 6 hearing on the discoverability of the files in front of Baltimore City Circuit Judge John S. Nugent.
Nugent ruled March 17 that 33 of the 35 internal affairs files at issue were discoverable and defense attorneys could argue for their admission in their clients’ cases.
The existence of the state’s motion became an issue last week after a spokeswoman for the office referenced it in a statement to multiple media outlets following Nugent’s ruling. Melba Saunders called the state “proactive” in consolidating all open cases in which Donato was listed as a witness, even those where the defense had not yet subpoenaed the records.
But Wherely said Monday she spoke with Deborah K. Levi, the assistant public defender leading the effort to get Donato’s files and other defense attorneys leading up to the March 6 hearing and that it was a “joint effort” to consolidate proceedings.
“This was not solely a state effort, this was... all of the defense as well as the state,” Wherely said.
Wherely did not say who was in her office when she spoke to court officials last week and did not elaborate further on the incident Monday.
Levi, meanwhile, said she successfully argued Monday morning before another judge that a hearing on the admissibility of the records, the first since Nugent’s ruling, should be open to the public.
“This is a game-changer,” said Levi.
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‘Comedy of errors’
Wherely’s motion for production and review of the files, dated Feb. 14, was accompanied by a motion to seal because, she said, the motion referenced personnel records that were not publically available. Wherely said Monday she learned from the clerk’s office that the motion had been set aside because the clerk’s office was waiting for a ruling on the attached motion to seal.
“Basically, this has been a comedy of errors,” she said, adding that she would defer to the court on what should become of the motion and the attached motion to seal.
The court docketed the motion Thursday and dated it on the day it was stamped in the clerk’s office, Feb. 14, but Wherely said it should have been docketed March 23 or March 24 when it was entered and circulated.
Levi said Monday in court that, in her experience, when the docket does not accurately reflect filings, a motion to correct should be made to the judge.
Levi also noted that as of Monday morning, the Baltimore City Circuit Court clerk’s office had changed its policy and no longer allows attorneys to stamp and drop off motions; they must be given to a clerk.
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Public statements
Levi complimented Wherely’s “integrity” for clarifying that setting the cases in for a consolidated hearing was a collaborative process.
Nugent questioned Wherely about what portions of her motion referenced personnel records which were not public record. Levi argued the motion was either moot or the state had waived it by not asking for a ruling at the March 6 hearing.
Wherely replied she needed guidance from the court regarding what she is able to disclose about an officer’s internal affairs records because the Maryland Public Information Act and Law Enforcement Officers’ Bill of Rights contain provisions limiting disclosures and carrying penalties for a violation.
The motion made reference to a pending investigation, according to Wherely, but Nugent asked if the fact there is an investigation alone is confidential if no reference to the substance of the investigation is made. He said he was struggling to figure out what part of the motion should be subject to sealing.
Levi argued the discovery rules requiring disclosure, which codify constitutional provisions of due process and fairness, are controlling and Nugent has already ruled the files are discoverable.
“If the state wants to litigate with these officers, they have to play by the litigation... rules,” she said.
Nugent did not rule on the motion to seal Monday but took the parties’ arguments under advisement.
