Attorneys for 20 defendants seek release of city police officer's personnel file

Attorneys for more than 20 defendants have joined to seek the release of a Baltimore police sergeant's personnel file, saying it contains allegations that would raise questions about his cases as well as the Police Department's internal disciplinary process.

The files of Sgt. Joseph Donato remain sealed as Circuit Judge John S. Nugent considers the defense request. But at least some of the allegations previously surfaced in 2013 in a civil lawsuit in U.S. District Court. Those records show numerous complaints that were sustained by internal affairs investigators, including alleged beatings and false arrests.

In one case, Donato was one of two officers charged by internal affairs with excessive force and neglect of duty for allegedly sending a young man into a coma after kicking him in the eye and head, dragging him into a bathroom and beating him with their service radios, according to documents from the lawsuit.

The officers in sworn statements denied beating the victim and said he had fallen down the stairs. Unbeknown to them, according to the plaintiff's summary in court records, the incident was caught on surveillance tape.

In another case, according to documents from the civil lawsuit, internal affairs investigators brought charges against Donato for striking a 24-year-old man with his service radio, causing injuries that required facial sutures. Donato again said the man fell down the stairs, according to court records.

Another sustained charge was an incident in which he allegedly arrested a woman to intimidate her into not making a complaint against him.

When internal affairs investigators decide a complaint is warranted, or sustained, the accused officer can go before a police trial board to contest the result. The final outcomes of the complaints against Donato were not disclosed in the federal court records.

Through an attorney, Donato on Thursday maintained his innocence in those cases. Complaints, even those charged by internal affairs, are not conclusive and false claims are often made, attorney Chaz R. Ball said in an interview.

"Sgt. Donato has never been found responsible for any use of excessive force or any charge impugning his integrity," Ball added later in a statement. "He is a dedicated public servant who has spent his career trying to make this City safer for its law abiding citizens."

Police disciplinary records in Maryland remain tightly protected as personnel documents. Defense attorneys in criminal cases often request access to an officer's file and can view the contents under a court order requiring them to keep it secret. They can ask judges to allow certain cases to be brought up at trial to attack the officer's credibility.

Such maneuvers can help the public learn about otherwise secret police discipline.

Public defender Deborah K. Levi argued before Nugent this week on behalf of more than 20 defendants with cases that involve Donato. She said the officer had "amassed a file" 5,000 pages long "that we think the public is entitled to know about."

"If officers are recommended for termination and allowed to continue, there's a problem with transparency that results in real harm," Levi said at a hearing Monday.

Ball, who represents police officers in administrative, civil and criminal proceedings, said officers are entitled to due process through the Police Department's internal disciplinary process. Officers who face charges are offered punishment or can fight the charges through a trial board, a three-member panel of fellow officers and commanders.

"Having some allegation against you doesn't mean that allegation is true," Ball said, equating officers who prevail before a trial board to criminal defendants who are acquitted by a jury.

Police spokesman T.J. Smith said the agency could not discuss Donato's discipline history. He said Police Commissioner Kevin Davis "inherited a lot of problems" but fired 23 officers last year and has invested in an early-warning system to highlight potential problem officers.

Monday's hearing came days after seven police officers were indicted on federal racketeering charges, accused of robbing and extorting citizens and filing false paperwork.

In the aftermath, some defense attorneys have argued that prosecutors and police were aware of past problems with the indicted officers, citing questions raised in previous court cases or in personnel files they had been able to view under court orders.

Levi said she and other defense attorneys did not learn of Donato's internal affairs history from prosecutors during the course of discovery. Rather, they used a 2014 media report that cited a case involving Donato to convince Baltimore Circuit Judge Jeannie Hong to let them view his files. The judge's order prohibits them from disclosing the records.

Prosecutors say rules require only that "credibility" issues — such as lying under oath — be disclosed, not excessive-force complaints.

The Baltimore state's attorney's office said at Monday's hearing that it did not believe Donato's file should be disclosed but said it was looking to Nugent for guidance.

On Tuesday, Donato was transferred from the department's Central District to its Southwestern District. The department declined to discuss the move, calling it a personnel matter.

Donato has been a city officer since 1994 and in recent years has faced at least four lawsuits.

The most recent lawsuit, in which the plaintiff was seeking more than $1 million from a group of officers that included Donato, was settled by the city last year for $19,000, with the city admitting no wrongdoing.

In 2006, a fellow Baltimore police officer sued for $20 million, saying Donato was one of four officers who raided his home, not knowing he was an officer, after falsely alleging an officer had brought drugs from the home. After destroying his front door, the officers held his wife at gunpoint, the plaintiff said. The plaintiff, who as of last year was still a city police officer, could not be reached for comment to discuss the outcome of the case.

In 2013, Donato and three officers were sued in federal court in 2013 for race discrimination for allegedly twice arresting a man without cause. U.S. District Judge Catherine Blake said the case showed "unacceptable behavior by members of the Baltimore City Police Department, including a warrantless home search."

But she dismissed the case, saying the plaintiffs had failed to establish that they were discriminated against on the basis of race.

It was in that case that the plaintiffs gained access to Donato's internal affairs records, and cited them in court documents. The documents lay out five complaints between 2009 and 2011 in which Donato was accused by internal affairs of excessive force, false arrest, abusive language, and neglect of duty.

Ball said Donato "understands that it does not look good to have complaints against an officer," but said people often make up complaints to back officers off of investigations or to try to prevent them from testifying. "And there is no consequence for making a false complaint," Ball said.

Levi subpoenaed the Police Department's internal affairs chief, Rodney Hill, to testify at Monday's hearing, and asked about about the department's discipline process.

"I've never prosecuted someone I thought was not guilty," Hill testified.

jfenton@baltsun.com

twitter.com/justin_fenton

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