By Justin Fenton, The Baltimore Sun
5:32 PM EST, November 5, 2012
Nearly two years after a towing kickback scandal rocked the Baltimore Police Department, 14 officers who were not criminally charged remain suspended with pay and unavailable to perform police functions, officials said.
Police say they must wait for final word from prosecutors on whether the officers will face criminal charges before the agency can determine whether to punish them or clear them of wrongdoing. But the case is emblematic of a slow-moving disciplinary system that robs resources from a department that has the second-highest staffing per capita in the nation.
New Police Commissioner Anthony W. Batts has said he wants more officers on the streets, and as part of that effort he plans to re-evaluate the efficiency of the internal affairs process. That system was criticized by the panel convened last year by Mayor Stephanie Rawlings-Blake to review agency procedures after the fatal shooting of an officer at the Select Lounge nightclub, but a former police commissioner says hurdles have slowed broader reform.
James "Chips" Stewart, who chaired the Select Lounge panel, said Baltimore must revisit its practice of delaying action until criminal cases are resolved — a process that often leaves the department in limbo as prosecutors weigh their options and legal battles drag on.
"The department has to uphold the standards and conduct of their police officers," said Stewart, a consultant and former director of the National Institute of Justice. When the process becomes drawn out, he said, "you're shorting your own capacity to serve the public."
The kickback case dates back to February 2011, when 17 officers were federally charged amid accusations that Majestic Auto Repair, a Rosedale towing company and body shop, paid police to refer business to them while on duty. Police said their own investigators uncovered the problem and brought concerns to the FBI, which helped develop the case.
In addition to those criminally charged, officials said at the time that 11 additional officers were suspended and would face internal discipline. Court records and statements from prosecutors indicated more than 50 were implicated overall.
Some of those officers have since "separated" from the agency — police say they can't elaborate on how or why — but 14 are currently suspended. That's equivalent to nearly an entire district shift of patrol officers, and the officers continue to be paid.
The suspension is only a precursor to the internal disciplinary process. If the department concludes the officers have violated policies, they must be charged and face a trial of their peers, a process that tends to take a year or more.
Police say they are waiting for city prosecutors to decide whether the officers will face criminal charges. City prosecutors, meanwhile, contend that they were only recently handed the cases for review, once federal prosecutors completed their cases.
"We are now investigating those remaining cases and will make charging decisions in the near future," said Mark Cheshire, a spokesman for State's Attorney Gregg L. Bernstein.
Federal prosecutors affirm that they "would not have wanted the state's attorney's office to proceed until after the resolution of the federal case in April 2012," according to Marcia Murphy, a spokeswoman.
Former Police Commissioner Frederick H. Bealefeld III called the internal disciplinary system a "source of great frustration," and he said attempts at reform were largely stymied by the complexities of the process. The most important thing, he said, was making sure bad officers were weeded out.
"As much as you'd like to work as the de facto judge and jury, there is ample precedent for what happens when we didn't cross our t's and dot the i's," he said.
In law enforcement agencies across Maryland, police generally do not start the internal disciplinary process until prosecutors have determined whether criminal penalties apply. Only after the criminal process has played out — either with prosecutors formally declining to bring charges, or with charges and an acquittal or conviction — do police move forward with internal charges.
The practice is rooted in concerns that compelling statements from officers for internal cases will conflict with their constitutional right against self-incrimination in criminal cases. Like any citizen, officers have a right to remain silent.
But it's not written in the law that one process must run its course before the other can begin, experts say.
"It doesn't stipulate in the law that you have to do it one way or the other," said L. Douglas Ward, director of the Johns Hopkins University's Division of Public Safety Leadership program. "You can choose to wait and see if they will be charged with a crime, but there comes a time when there's a reasonable time to wait, and an unreasonable time."
Earlier this year, the commission that reviewed Police Department procedures after the Select Lounge shooting criticized the internal investigative process. It said the practice of deferring internal investigations in police-involved shootings until after the criminal process "unnecessarily delays the Department's ability to fulfill its responsibility to determine compliance with policy or any policy shortcomings." And it recommended that criminal and internal investigations be conducted simultaneously.
Stewart, the panel chair, said that waiting is "too costly for the department and the community."
"Prosecutors want to get a conviction, and they don't care whether the guy is on ice for two years," Stewart said. "They have no reason to speed up or worry about what the department is doing. But the department, however, has to be concerned about the kind of conduct their officers are engaged in, and they have to continue to reinforce positive conduct.
"The mayor and chief executive have a responsibility to ensure that their officers are acting in accordance with the policies and procedures of the department, and if you wait 18 or 22 months, you've reinforced the culture that nothing is ever accountable. It doesn't help retrain the officers, and it keeps you deprived of a competent officer's services for a year or two years."
Stewart acknowledged that police officers are protected from making incriminating statements, but he said such statements can simply be excluded from court.
Still, members of the Select Lounge panel were struck by the number of officers unavailable to perform police functions in Baltimore. "We said, 'Why are all these people on administrative leave?' " Stewart said.
Bealefeld said that he and his staff directed funding and training toward beefing up internal affairs, and sought ways to accelerate the internal disciplinary process, implementing some of them. At times, he said, he wanted to "blow up the system and start from scratch."
"But at the end of the day, this is a very time-consuming process, and there are legal precedents you have to be mindful of," said Bealefeld, who added that legal advisers would frequently raise concerns over proposed moves. "I would give us credit for being aware and making an effort, but it doesn't mean we solved the problem. It's not an easy solution."
Police generally have to bring internal charges within a year after prosecutors conclude a case. Disagreements over when the clock starts ticking have torpedoed a number of cases over the years. In 2009, more than 50 internal discipline cases were dropped on technical grounds, many of them because of alleged back-dating on charging documents to make sure the cases fell within the statute of limitations.
Herb Weiner, an attorney whose firm represents the police union, said he's unsure whether police could still bring internal charges against the officers in the kickback scheme. "I can't say it definitively, but my belief would be that the statute has expired," he said. "An awful long time has passed, and at some point in time I think a decision has to be made, one way or the other."
Ward, of Johns Hopkins, said that with the officers continuing to be paid, "the public is bearing the costs for a long period of time for individuals who may or may not have a job at the end of this."
It's also not a good situation for those who may be cleared of wrongdoing. "You potentially have employees who are not administratively in the wrong and not criminally in the wrong, and yet these things are hanging over their heads," Ward said. "It's not a good situation for anybody."
According to FBI data on major cities, Baltimore has the second-most police officers per capita in the country, with 4.7 officers per 1,000 residents. That ranks behind only Washington D.C., where there are 6.1 officers per 1,000 residents, and is higher than Philadelphia or New York. Oakland, Calif., where Batts last worked, has 1.6 officers per 1,000 residents,.
In remarks to the City Council at his confirmation hearing, Batts said he is trying to figure out why the department seems short-staffed given its resources.
"Commissioner Batts is frustrated at the amount of downtime involving officers waiting for investigations to be completed," said police spokesman Anthony Guglielmi. "We have to maximize our resources. At the end of the day, he wants people to be serviced by the officers they're paying."
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