By Justin Fenton, The Baltimore Sun
7:41 PM EST, December 12, 2012
More than a year ago, police suspected that James Berry III had killed a man during a triple shooting in Bolton Hill, and they presented their evidence to prosecutors.
At the time, the case was not deemed strong enough to merit arresting Berry, once a promising boxer with Olympic dreams. It wasn't until last month that detectives got the green light to charge the 25-year-old with murder, after another triple shooting — which left two men dead — focused police attention on him again.
Berry has not been charged in last month's West Baltimore shooting, which killed two brothers and critically injured their mother, but Police Commissioner Anthony W. Batts, speaking Wednesday at a meeting of criminal justice officials, said investigators believe Berry was involved. With police focusing on Berry once again, prosecutors reinterviewed witnesses in the Bolton Hill case and authorized charges, several police sources said.
The situation is part of a broader debate about when evidence is strong enough to bring criminal charges — a debate that sometimes pits police and prosecutors against each other.
Interviews with multiple police sources with knowledge of the Bolton Hill shootings show that many in the department believed that they could have charged Berry last year, though others questioned whether the evidence was strong enough. State's Attorney Gregg L. Bernstein declined to comment on an open case.
Batts said he met with the top prosecutor last week and presented five cases that police felt were ready to be charged but which prosecutors had not authorized. He said Bernstein looked at them and agreed to bring charges in the cases.
Such decisions can make a big difference in city neighborhoods. A criminal who beats a charge because the case against him was too thin can become even more menacing on the streets, authorities say. A wrongly accused man could spend months or years in jail before his case works his way through the courts.
For Berry, the latest investigation adds to the trouble he has faced since he lost his shot at a college boxing scholarship and a ticket out of Baltimore's tough neighborhoods. He was acquitted of murder in 2008, and just last weekend lost his best friend to gun violence in the city, his lawyer said. Batts said Wednesday that the weekend violence is believed to be retaliatory.
Berry's parents, Yolanda Williams and James Berry Jr., say his recent arrest amounts to police harassment. They insist that their son is not a killer.
"He's just a stand-up type of guy. The police from West Baltimore just got something with him," Williams said.
Police detectives have complained that Bernstein has stalled cases by imposing stricter oversight of the charging process, despite his campaign promises. In his push to unseat incumbent Patricia C. Jessamy, he vowed to be more "courageous" than his predecessor when taking on cases, including ones that police feel strongly about but that may rely on one witness or circumstantial evidence.
Statistics show the Baltimore state's attorney's office in 2011 had charged two-thirds the number of homicide cases than in the previous year, which critics point to as proof of greater prosecutorial control over charging.
Prosecutors say they want to build strong cases that will result in appropriate prison time. Mark Cheshire, a spokesman for the state's attorney's office, said police and prosecutors are working more closely than ever.
"There's an absolutely unprecedented level of cooperation between police and prosecutors in our pursuit of individuals who commit violence against others," said Cheshire, adding that "prosecutors are really working hard to investigate and prosecute those who do harm and even kill others."
Former Police Commissioner Frederick H. Bealefeld III said his interactions with prosecutors in Bernstein's administration gave him confidence that they had the city's best interests in mind when contemplating charges, but he acknowledged some tension.
"I think, for sure, [prosecutors are] trying to build better cases," Bealefeld said. "They're dedicated to getting convictions. The lingering part in the minds of detectives is [concern] that they won't take the cases so they preserve a high conviction rate for themselves. …The long-term of this is going to require trust on everyone's part."
Berry was a promising boxer who won the Golden Gloves state and regional titles. The Baltimore Sun profiled him in 2007, chronicling his challenge in staying away from the drug-dealing that had gotten both his parents in trouble.
"Little Berry, he got that mentality that he a thug," his mother told reporters at that time. "And I want to save him from that corner."
The Sun reported the next year that Berry was to attend the United States Olympic Education Center at Northern Michigan University on a scholarship. But the center dropped boxing from its program, ending Berry's best chance to go to college.
Berry had been a target for more than a year in the investigation of the March 2011 shooting that killed Angelo Fitzgerald in Bolton Hill, with gunmen firing 30 bullets at three people sitting on a bench. Detectives had evidence linking Berry to the incident, but prosecutors wanted more, five police sources say.
The case took on great urgency once police learned that Berry might have been involved in another fatal shooting, the sources say.
On Nov. 13 at about 9 p.m., police said, a group of men burst into a home in the 2500 block of W. Lafayette Ave. and shot 19-year-old Darian Horton and his 23-year-old brother, Allen, at close range. Their mother, a 48-year-old woman, was also shot and seriously wounded.
Allen died within an hour at a hospital; Darian hung on until 5 a.m. the next day, when he was also pronounced dead.
According to court records, at 1:48 the next morning, Detective Frank Miller filled out an application for a statement of charges laying out the evidence against Berry in Fitzgerald's March 19, 2011, killing.
Police wrote in charging documents that witnesses had given recorded statements about that shooting, and Berry had been identified by them through photo lineups. The law enforcement sources said the witnesses — the same people police had been in touch with for months — were reinterviewed by prosecutors the day after the Horton brothers were shot.
Police spokesman Anthony Guglielmi said the homicide unit commander, Lt. Col. Garnell Green, "is confident that the case is adequately prepared for trial, and he personally had been working with the assistant state's attorneys to make sure the case was as strong as it could be."
Berry is being held without bond in the killing of Fitzgerald. He waived his right to have an attorney at his bail review, saying he knew he wasn't going to be released either way. He has since retained attorney Russell Neverdon, who said he has not had a chance to discuss the charges in detail with Berry.
The Hortons were buried at a ceremony two weeks ago in North Baltimore, with a heavy police presence because of fears of further attacks on the family. Four marked police cars sat outside the Church of the Redeemed on Old York Road, with another inside the gates of the parking lot and another circling the block. Their mother declined to comment on the situation when reached by a reporter last month.
On Saturday, Angelo Ward, who according to Berry's attorney was his best friend, was fatally shot in Reservoir Hill.
Berry's arrest last month is not the first time he has been in trouble — in 2008, he was charged with the murder of 18-year-old Mark Henson. He was found not guilty in May 2010 after a jury trial. His attorney in that case, John Denholm, said that the jury acquitted him in "20 minutes — the fastest jury verdict I ever had."
Bealefeld said it's important for authorities to get a case right the first time.
"One of the things that has ailed Baltimore for decades is that if you don't fire a silver bullet at these guys, and they come back and go back to the community, they have a status that makes them virtually untouchable," Bealefeld said. "No one in the community will [give police information about them], they will intimidate juries. It's just an infectious process and they become larger than life."
Police can charge using a standard of "probable cause," and Jessamy's office was criticized by police for dropping cases that prosecutors weren't confident in. During Bernstein's tenure, police have not been charging such cases in the first place, critics say.
Last year, veteran homicide commander Maj. Terrence McLarney, who had clashed with Bernstein's office, was removed from his position and reinstated at a lower rank. His interim replacement, then-Lt. Leonard Willis, filed a memo with superiors complaining that prosecutors were "stalling and hindering" cases, listing as an example five that police believed were ready to charge but could not get approved by prosecutors, The Sun reported at the time.
David Simon, the former Sun crime reporter, nonfiction author, and creator of the HBO television show "The Wire," has written on his popular blog that Bernstein has changed the dynamic between police and prosecutors for the worse. He said in an interview that allowing police to bring charges in a weak case can sometimes open the door for crucial supplementary investigative work.
"Once [the suspect] is off the street, people may start talking," said Simon, who spent a year with the police homicide unit for his book "Homicide: A Year on the Killing Streets. "He's not going back to the corner, terrorizing witnesses and neighbors."
For their part, relatives of Fitzgerald, killed in the 2011 shooting, said they are satisfied with the handling of the case.
"[The detective] expressed frustration that people weren't coming forward [with information], and we kept in touch," Sylvester Young, his stepfather, said in an interview. "Detective Miller handled this case beautifully, I think."
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