Baltimore prosecutors can guide police behavior under consent decree

Justice Department found systemic violations of constitutional rights in police department

By Heather Cobun
BridgeTower Media Newswires
BALTIMORE — The consent decree governing police reform in Baltimore is 200-plus pages mandating sweeping changes for how the city’s officers interact with the public and handle allegations of misconduct. But it does not give any instructions to a potential key player in reforming the criminal justice system in the coming years: the Baltimore City State’s Attorney’s Office.

The agreement’s reforms jibe with State’s Attorney Marilyn J. Mosby’s vocal advocacy for changes in how her office investigates and prosecutes police misconduct. Mosby charged but did not obtain convictions of six officers involved in the arrest and transport of Freddie Gray – whose death in police custody spurred the Department of Justice’s investigation.

The state’s attorney’s office is not a party to the consent decree, and Mosby and top prosecutors in the office declined an interview request through a spokeswoman to discuss what role, if any, they should play when it comes to enforcement of the agreement.

Melba Saunders, the spokeswoman, said in an statement prosecutors are “pleased that the execution of the consent decree is well underway and optimistic that it will be a catalyst for reform to our local criminal justice system.”

Public Defender Paul B. DeWolfe, however, said prosecutors have a responsibility to ensure the state only brings cases based on appropriate arrests with credible officers as witnesses rather than “fighting the defense and objecting to disclosures of misconduct” that may be in personnel files.

“Since misconduct by police officers is a large part of the civil rights violations that were identified in the report and in the consent decree, the state’s attorney’s office has a constitutional obligation to turn over any evidence to the defense that implicates one of their witnesses,’ including police officers’, credibility,” he said.

Most recently, a team of defense attorneys lead by a deputy public defender successfully had dozens of internal affairs files for a police sergeant declared discoverable in multiple cases where he was slated to be a witness.

“We think the transparency issue, if the police want to reform and get rid of cops that have been the subject of the Justice Department report and investigation, they should work closely with the defense bar and with the state’s attorney to expose these officers and, if necessary, get them out of the force,” DeWolfe said.

Influencing behavior

The Justice Department found systemic violations of constitutional rights and a lack of accountability in the practices of the police department. But because there was no investigation into the practices of the state’s attorney’s office, the consent decree does not proscribe any reforms, according to Jonathan M. Smith, a former Justice Department lawyer who oversaw consent decrees with multiple cities, including Cleveland, New Orleans and Seattle.

Yet police look to prosecutors for guidance, Smith said, and a decision not to bring charges that may have arisen from police conduct in violation of the consent decree but not the Constitution sends a message.

“If you see that an officer is engaged in misconduct repeatedly, then a prosecutor should approach this case with caution,” said Smith, now executive director of the Washington Lawyer’s Committee for Civil Rights and Urban Affairs. “The role of prosecutors is to get it right, not to win. Often it’s that desire to win at all costs that causes these concerns.”

Other observers agree Mosby’s office has an opportunity to guide police behavior under the consent decree.

The decree, for example, includes some “supra constitutional” limitations on officers, like the prohibition on conducting a pretextual stop based on loitering or misdemeanor trespass, as well as using an individual’s presence in a high-crime area as a sole factor in defining reasonable suspicion. An officer, then, could violate the terms of the decree but not violate the state and federal constitutions, according to David Gray, a professor at the University of Maryland Francis King Carey School of Law.

Yet Gray said the office is unlikely to adopt a self-imposed exclusionary rule which would allow serious crimes to go unprosecuted just because it started with an investigatory stop that violates the consent decree.

“My bet is that the state’s attorney as a matter of policy is going to say that the consent decree policy is there to proscribe and generate that reform and it’s not my job to add to that,” he said. “I’m sure that Ms. Mosby is going to be an active supporter of the consent decree but I would be surprised to see an exclusionary rule as a policy.”

Prosecutors usually make decisions at the charging level if there are concerns about an officer’s credibility, Gray added.

“Routinely, good prosecutors and particularly good prosecutors’ offices have pretty established practices of dropping cases if they see repeated instances of law enforcement misbehavior, particularly perjury,” he said.

Impeachment evidence

Smith called the question of defendant access to misconduct allegations against an officer “separate but connected” to the consent decree’s goals and said DeWolfe is not wrong in calling it a serious issue. The law already imposes a duty on prosecutors to turn over potentially exculpatory evidence, including information relevant to the credibility of a witness.

“The problem is it’s really not that complicated if you want to do it,” Smith said. “What you see is sort of a willful blindness, and that’s what causes discovery violations.”

DeWolfe said he applauds the police department’s commitment to reform and believes change is possible but would like to see more transparency from the state’s attorney’s office.

“My hope is that the leadership in the police department is fully committed to rooting out dishonest police officers and, to the extent that the prosecutor needs witnesses, they should be in full partnership with the police in identifying and removing police officers who have been found to have committed misconduct, including anything having to do with dishonesty and anything that affects their credibility,” he said. “They should be working hand in hand with the leadership in the police department to reform because it affects their credibility as well and it affects their ability to successfully prosecute cases.”

Saunders, the spokeswoman for the state’s attorney’s office, said prosecutors have an obligation to disclose impeachment material in officer personnel files and “will continue to investigate and disclose police misconduct allegations and credibility issues.”
DeWolfe said he believes Mosby’s office will work collaboratively with police as reforms are implemented.

“All we’re asking is that they honor their constitutional obligation to turn over exculpatory information and anything that… is favorable to the defense,” he said.