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Baltimore police rarely charged in deaths

Police are rarely charged in arrest-related deaths -- for good reason, or unfairly?

Marleta House struggled for years to stop hating the Baltimore police officer who shot and killed her husband in 1999 after mistaking his cellphone for a gun. "I don't hate him now," said House, who lives in Dundalk. "He has to answer to a higher power."

But the 45-year-old MTA bus driver remains just as frustrated today that Officer Christopher Graul was not charged and that Baltimore prosecutors never bothered to tell her why.

Most families do not see officers charged and tried after a death resulting from an encounter with city police. In fact, before Baltimore State's Attorney Marilyn J. Mosby charged six officers in the death of Freddie Gray, just five city officers during the past three decades have faced criminal prosecution for on-duty actions that resulted in death, according to interviews with experts, news reports, government data and court records. One was found guilty; that verdict was overturned on appeal.

While officials acknowledge that there is no comprehensive historical data on police-involved deaths, the period since 2006 provides a telling sample. Sixty-seven people died in encounters with officers over that period, according to the Baltimore Police Department, and two officers faced criminal charges in those incidents. One, who was on duty when a fatal shooting took place, was acquitted. Another, who was off duty at a nightclub, was convicted and sentenced to 15 years in a separate shooting.

That illustrates the high bar Mosby faces as she seeks to turn her charges into convictions. Four officers in the Gray case face charges that range from involuntary manslaughter to second-degree-murder; the two others face lesser charges.

"It's very difficult to get verdicts against the police," said A. Dwight Pettit, an attorney who has filed dozens of civil lawsuits alleging police brutality, including one he lost involving the death of House's husband. "People do not want to believe — before the advent of cameras and cellphones — that the police would do that type of malicious conduct."

House and other relatives of those who died in police encounters hope Mosby's prosecution and an ongoing federal investigation of the Police Department will help change a prosecutorial process that they say favors police and fosters further brutality.

"With the Freddie Gray case, at least someone can have justice," House said. "They will never have closure.

"It's just a sad situation. You're leaving kids without fathers, wives without husbands, mothers without sons. With no answers."

Policing experts say the reason Baltimore officers avoid charges is clear: They are frequently thrust into dangerous situations in one of the nation's most violent cities and must protect themselves, their partners and others in the vicinity.

"As horrible as it is, the officer can do it right by the book and someone may tragically lose their life," said Bill Johnson, executive director of the National Association of Police Organizations.

Officers involved in deaths are intensely scrutinized — by internal affairs units, prosecutors, the news media, lawyers, civilian review boards and, sometimes, federal investigators, he said.

"I don't think it's correct for people to say that these things get swept under the carpet," Johnson said.

Mosby and predecessors Gregg L. Bernstein and Patricia C. Jessamy declined to comment for this article, as did the Baltimore Police Department and the Fraternal Order of Police Lodge 3.

But other prosecutors say the decision to charge an officer must follow the evidence, not public passions.

"There's no big conspiracy not to convict police officers," said MelbaV. Pearson, president of the NationalBlackProsecutorsAssociation. "I cannot file cases that I cannot prove."

While Mosby has been praised for charging the officers involved in the April 12 arrest of Gray — who died a week later from spinal injuries sustained in police custody — some legal experts say she brought charges to quell Baltimore's civil unrest rather than to seek justice.

"Every death is a tragedy, but not every death is a murder or a crime," said Jason Weinstein, a criminal defense attorney and former federal prosecutor in Maryland who won a public corruption conviction against former Baltimore police Commissioner Edward Norris in 2004. "Whether you have a badge or not, if there is sufficient evidence that you engaged in illegal conduct, you should be prosecuted.

"But if there's not sufficient evidence, then you shouldn't be prosecuted. That should be the only question. It shouldn't be how much coverage there is on CNN or if there were riots."

The city's rare cases

The last Baltimore officer charged with an on-duty killing was Tommy Sanders in 2008. Sanders shot an unarmed 27-year-old in the back as the man fled from the Hamilton Park Shopping Center. A jury acquitted Sanders of manslaughter after he said the man, Edward Lamont Hunt, reached into a pocket, making him fear for his life.

Years earlier, Stephen Pagotto was charged with manslaughter in the 1996 shooting death of a 22-year-old man during a traffic stop in Northeast Baltimore. Pagotto was convicted, but the verdict was overturned on appeal.

Pagotto said the shooting was an accident caused when his gun discharged accidentally, and the state's highest court ruled he was not criminally responsible. But the court noted that the sergeant violated departmental rules, which amounted to "civil negligence,"and the city paid $100,000 to settle a lawsuit filed by the family of the driver, Preston Barnes.

In such settlements, the city and officers do not acknowledge liability for a death.

Charges against three other officers in the deaths of suspects between 1983 and 1994 ended in a mistrial and two acquittals.

The only other officer to be convicted of manslaughter in the past 30 years was Gahiji Tshamba, who was off duty when he shot and killed Tyrone Brown in a fight outside a nightclub in 2010. He was sentenced to 15 years, and the city paid a settlement in the death because Brown's lawyer argued that Tshamba had claimed to be making an off-duty arrest.

Such cases, though, are exceptions. Officers rarely are charged, let alone convicted, in arrest-related deaths.

But just how rare it is can be hard to quantify because not all law enforcement agencies keep track of the number of people killed in police encounters, and there is some variability in the way states collect data. Over the three decades, at least 120 people have died in encounters with Baltimore police, according to city statistics and news reports.

The federal Bureau of Justice Statistics concluded in March that its tally of arrest-related deaths likely captures half, at best, of the actual number of incidents. Nationwide from 2003 to 2009, the most recent statistics available, 4,813 arrest-related deaths were reported to the agency. Nearly 3,000 of them were classified as homicides by law enforcement; others include people who committed suicide when an officer responded to a 911 call, or who sped away from a traffic stop and crashed. Detainees also have died from drug overdoses and other health problems while in police custody.

A bill signed into law by Gov. Larry Hogan on Tuesday requires law enforcement agencies to report to the state the number of police-involved deaths, as well as any officers killed in the line of duty.

The Governor's Office of Crime Control and Prevention will start collecting the data in July and issue a report in October 2016 that will cover the three previous years, said Gregory Coster, who directs the office's Maryland Statistical Analysis Center. He said Maryland was already reporting deaths to the Bureau of Justice Statistics on a voluntary basis, but the new law makes it mandatory for local police departments to provide information to the state.

"I think any time you have a death in police custody, it's something state and local government and the community needs to know about," said Christopher Shank, the former state senator who now directs the crime control office.

'I try to make him proud'

Officer Shean D. Camper is among the rarities. A grand jury indicted him for manslaughter in the shooting death of Jerrod D. Wagstaff, 25, in a dark alley off the 2700 block of Tivoly Ave. on May 6, 1994.

"I'm gone, man, I'm gone," Andre Flood, now 44, remembers his brother saying as he lay wounded that night.

Flood and his mother returned this week to their former block, one of Baltimore's most notoriously criminal and tragic. After years of contending with the blight and drug trafficking in that part of Northeast Baltimore, the city in 2008 began leveling the block for a multimillion-dollar redevelopment project.

But two bedraggled rowhouses remain on one stretch of the street: 2783, where the Floods lived, and 2781, where 10 people perished in a 1982 fire that remains among the most deadly in city history.

"I come down every once in a while just to look," Diane Flood said as a giant earth-moving machine rumbled over a pile of bricks a couple of lots down.

The night of the shooting remains vivid to the Floods 21 years later: Police arrived to investigate reports of gunfire in the area, and Camper said Wagstaff began running, prompting a chase. Stories diverge at this point: Camper said the two scuffled, and he fired when Wagstaff took a threatening stance. Witnesses said Wagstaff was climbing over a fence when he was shot.

The medical examiner's report said Wagstaff had puncture marks on his left hand from scaling the fence, and a bullet fired by Camper shattered against the fence, with a fragment striking Wagstaff.

A witness at the time said she heard Wagstaff call for his mother, a medical assistant. But Andre Flood said police prevented her from getting to him and possibly rendering aid. Diane Flood said she rode in the ambulance with her unconscious son to Johns Hopkins Hospital, where a doctor she worked with was among those who tried to save him.

Camper went to trial in March 1995 and was found not guilty. He and his attorney did not respond to requests for comment.

"I felt as though he had gotten away with shooting my son," said Diane Flood, now retired.

She filed a wrongful-death suit against Camper, hoping that Wagstaff's son, then 2 years old, would have money to go to college.

Before that civil suit could come to trial, Camper, while off duty, was involved in a traffic dispute in which the other driver stopped, got out and struck him with a baseball bat. Camper shot and critically wounded the man, and the shooting was ruled justified.

A jury ultimately awarded Wagstaff's family $111,000. The award was later revised, and Flood said that after lawyers' fees, she and her grandson each received about $33,000.

Wagstaff's son, Brian Daniels, now 23, said his grandmother's wishes were fulfilled — some of the settlement allowed him to attend community college and Morgan State University. He now works seven days a week — Monday through Friday in help-desk support for TEKsystems, which was founded by Ravens owner Steve Bisciotti, and on weekends at a YMCA.

No amount of money, though, can replace his loss, he said.

"I don't have a memory of my dad. I didn't have him at my games, at graduation, at birthday parties," said Daniels, who played football and lacrosse at Dunbar High School. "But I try to make him proud."

Daniels credits his family, especially his grandmother Diane and uncle Andre, who is a truck driver and coach, with raising him to respect police officers. And in fact, he said, he has applied to join the Anne Arundel Police Department.

A 'difficult' standard

The details of a 1994 incident are eerily familiar: A man is arrested in Sandtown-Winchester and placed in a police transport van, where he is later found unconscious.

Police said Jesse Chapman, 30, followed his girlfriend into the Western District police station late that night, where she'd gone to complain that he had beaten her. There, he tried to hit her, police said, and when officers tried to intervene, he ran. Police chased and caught him.

The death triggered several days of protests, with more than 100 demonstrators converging on the Western District station at times.

The medical examiner's office said Chapman's heart-lung system collapsed under stress from cocaine use, an asthma attack and a struggle with arresting officers, and there was no evidence of repeated blows or significant injuries. A grand jury declined to indict the officers involved.

While most police officers who have been involved in arrest-related deaths declined to comment for this article or did not respond to requests, one former officer did defend his actions.

Charles M. Smothers shot a knife-wielding man outside Lexington Market in August 1997, an incident that was videotaped by a bystander and sparked community protests. But he rejected comparisons to the death of Freddie Gray.

"My case is totally different," Smothers said. "I shot an armed suspect."

The videotape of the shooting showed four officers with their guns drawn approaching James Quarles III, who had been using a knife to open a package of socks he was hawking on the street. They ordered the 22-year-old, who was hunched with both hands close to the ground, to drop the knife, and when he failed to do so, Smothers shot him.

Then-state's attorney Jessamy decided not to present the case to a grand jury because she could "find no evidence of a crime."

Smothers' career was changed anyway. As a result of the shooting, a previous domestic violence incident became more widely known and then-Commissioner Thomas C. Frazier fired him. Smothers had been charged with shooting at an ex-girlfriend and her new boyfriend in April 1995 — the officer said his gun went off accidentally — and he received probation before judgment.

"As a police officer, I did my job," said Smothers, who has joined the Fire Department. "The Police Department turned their back on me."

When police officers are accused of shooting someone, they often testify that they feared for their life.

That's no accident. The Supreme Court case of Graham v. Connor established the reasonableness standard for judging police officers who shoot people. Prosecutors and juries are required to consider the actions by putting themselves into the decisive moment when a gun was used, based on the specific facts and circumstances of each incident.

If officers say they feared for their lives when they killed someone, it's hard to refute that assertion without other credible evidence, said Ron Hosko, a former assistant FBI director and president of the Law Enforcement Legal Defense Fund.

That's for good reason, said Jim Pasco, executive director of the National Fraternal Order of Police. "What would seem to be the most routine of police activities — a traffic stop and a call for a domestic incident — are ironically the most dangerous," he said.

A New York City officer and two officers in Mississippi died this month from gunshot wounds suffered in traffic stops.

"Often they come on a scene when an event is in progress, and they have to make a split-second decision about what action to take," Pasco said. "These actions are subject to endless second-guessing."

But that frustrates veteran attorneys like Pettit.

"That's the boilerplate, standard defense: 'I thought I saw a gun, I thought my life was in jeopardy and I reacted,'" he said. "The Supreme Court doesn't allow you to second-guess the police and their other options. The law makes it very difficult to try these cases."

'An ugly situation'

Critics say other factors add to the difficulty of bringing charges against police officers who are involved in a suspect's death.

Officers often protect one another in such situations, said attorney William H. "Billy" Murphy Jr., who represents Gray's family. "That's dishonorable. You have a nation that institutionally the police are believed over anybody black and over most citizens."

In addition, Murphy said prosecutors struggle to bring charges against officers they work with routinely.

Philip Stinson, a criminologist at Bowling Green State University who has studied police misconduct cases, said it's always a challenge to convict police officers.

"Nobody wants to see a cop go to prison," Stinson said. "It's an ugly situation."

But he said the Gray case might be easier to win than a typical case of a questionable police shooting.

"Juries are very reluctant to second-guess police officers — especially in life-and-death situations," he said. But in the Gray case, Stinson said, it would be difficult to convince a jury that the officers were in any danger.

The facts are still not clear, said Hosko of the Law Enforcement Legal Defense Fund. While Mosby alleges that officers ignored Gray's requests for medical care and placed him in a transport van without securing him in a seat belt — violations of department policy — Hosko notes that many detainees fake injuries to avoid going to jail. Some officers do not place seat belts on suspects who are acting violently, he added.

Mosby has a long way to go to prove that the officers had any criminal intent in how they treated Gray, he said.

But Hosko said it is possible that one or more officers in Gray's arrest might deserve to be criminally charged.

"Are there people who shouldn't be in law enforcement? Absolutely. Good leadership should run them off. But you have a lot of folks out there who got into law enforcement to be public servants and to ensure others' safety at their own risk," Hosko said.

But Tawanda Jones, whose brother died in a scuffle with police, is among those encouraged by Mosby's stance.

Jones said a prosecutor's decision not to pursue charges in the death of her brother Tyrone West drove her family to hold protests since he died on July 18, 2013.

The state's attorney's office said that officers were legally justified in using fists, batons and pepper spray to subdue West, who resisted arrest after a traffic stop. He died as police pinned him on the ground.

The medical examiner's office found thatWestdied of a heart problem made worse by dehydration, the July heat and his struggle withpolice. The autopsy report said West did not suffer any injuries that could have killed him, but the medical examiner could not conclude whether the death resulted from an accident, homicide or another means.

Jones said then-state's attorney Bernstein did meet with the family to explain he would not be indicting any officers. "He had the nerve to have us escorted out by a police officer," she said.

She still is upset about Bernstein's decision, and recently voiced allegations of police brutality to U.S. Attorney General Loretta Lynch during Lynch's Baltimore visit. The Justice Department later announced a broad civil rights investigation of Baltimore's police.

Jones said Mosby has lived up to a campaign promise to prosecute police for misconduct.

"I'm pleased that [Mosby] kept her word true to what she said she will do to handle police brutality," Jones said.

Greta Carter-Willis — who watched police shoot and kill her 14-year-old son in her Southwest Baltimore rowhouse — also is encouraged by Mosby's decision to charge the officers in Gray's death.

On Aug. 12, 2006, Carter-Willis called police to calm her son, Kevin Cooper, because the two were arguing. Police said the boy was assaulting his mother, who has always denied that. After two officers responded and calmed the boy, Officer Roderick Mitter stayed to write a report while the other officer left.

Police said Mitter and the boy continued to argue, and the officer sprayed him with Mace to no effect. The boy then hit Mitter with a broom handle, which broke, and came at the officer with the jagged broken end, according to police. That's when Mitter shot him in the shoulder.

Carter-Willis, 52, a retired state correctional officer, disputes the police account. She says Mitter instigated the argument with her son, who was holding a dustpan when the officer shot him. The boy, who had no criminal record, died that day.

Police declared the shooting "justified" by that afternoon, a decision that still baffles Carter. Mitter, who remains a police officer, did not respond to a request for comment.

Pettit filed a lawsuit for wrongful death, but the family lost.

Now, Carter is closely watching the Gray case.

Mosby's action, she said, "gives me hope that changes are taking place" in how the justice system handles police-involved deaths.

"It's been swept under the rug," she said, "for a very long time."

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