Freddie Gray case trial boards to be prosecuted by outside lawyer, a former school board chair

The Baltimore Police Department is taking the rare step of reaching outside its ranks to fill two crucial roles for the pending internal disciplinary trials of the officers involved in the arrest and death of Freddie Gray.

To prosecute the case, the city is turning for the first time to an outside attorney who has never led such a proceeding: Neil Duke, a litigator and former chair of the Baltimore City School Board.

And the chair of the three-member panel that will decide the case will come from another Maryland police agency, likely Prince George’s County, an attorney for the city police union said.

City officials say they are handing those duties in the trial board to outsiders in an effort to avoid conflicts of interest much as the internal investigation of the case was conducted by police from Montgomery and Howard counties.

“It really is about assuring the public confidence in the integrity of the proceedings,” said City Solicitor Andre Davis, the former federal judge who now oversees Baltimore’s legal affairs. “This is a proceeding that will be run by people who have no vested interest one way or the other in the outcome, no skin in the game other than to be fair, impartial and seek the truth.”

The disciplinary hearings are the last attempt to mete out justice for Gray, who died days after his spine was severely injured in the back of a police transport wagon. Criminal charges brought by Baltimore State’s Attorney Marilyn Mosby fell apart, with three officers acquitted at trial and the three other cases dropped. The city also paid a $6.4 million settlement to Gray’s family.

The internal affairs investigation recommended three officers be fired: Officer Caesar Goodson, who was the van driver; Sgt. Alicia White; and Lt. Brian Rice. Two other officers, Edward Nero and Garrett Miller, who made the initial arrest of Gray, face lesser punishment.

A sixth officer who faced criminal charges, William Porter, was cleared of breaking any agency rules.

The internal cases come with the added element that they will be the among the first the public has had an opportunity to observe, after the General Assembly passed a law making trial board hearings public.

Having key roles filled by outsiders has raised concerns on both sides.

William H. “Billy” Murphy Sr., the lawyer for Gray’s family, said he found it “strange” that the city selected Duke to present the case against the officers.

In recent years, the city has deployed Duke, a private attorney who has a contract with the city law department, in a different manner on police misconduct cases — as a defense attorney for officers. He is listed as the attorney for police officers accused of misconduct in 30 cases, several of which are pending.

Meanwhile, Lt. Lisa Robinson, president of the Vanguard Justice Society, a group for black city officers, said she had concerns about an officer from another police agency chairing the trial board panel. She said the Baltimore Police Department has been in flux for years, with policies continually changing, and she is not sure whether an outsider can fairly grasp the issues city officers grapple with.

“We expect that the Baltimore Police Department will provide Officer Goodson a fair hearing and the due process that he's entitled to,” said Sean Malone, a former BPD trial board prosecutor who is one of two attorneys who will represent Goodson at the first hearing on Oct. 30. “The agency should also expect that Officer Goodson will get a vigorous defense."

Police Department statistics show that few cases advance to trial board hearings. Out of 62 internal affairs cases disposed this year, 56 were settled without going to a hearing after officers accepted their punishment or resigned. Only six cases have advanced to a trial board, with four officers found guilty and two acquitted.

The chair of the trial board plays a crucial role as both judge and a member of the jury, ruling on the admissibility of evidence, and on objections and motions, then voting along with two other members.

“They run the hearing,” said Michael Davey, an attorney who has been involved in trial boards for 18 years and who will represent Rice at his hearing. “It’s an extremely big role and a very important role.”

Though the chairperson has not yet been selected, Davey said the pool selected by the Police Department consists of commanders from Prince George’s County and one from the Maryland State Police, all but ensuring the role will be filled by someone from outside the city. Commissioner Kevin Davis spent 21 years with the Prince George’s Police Department, where he worked until 2013.

T.J. Smith, the chief spokesman for the BPD, said the lineup won’t be finalized until the day of the trial board hearing.

The union’s contract also allows officers to opt to have an administrative law judge take the place of the chairperson.

Some agencies, typically smaller agencies like the Baltimore School Police, have stipulations in their labor contracts that trial boards be composed of members from outside agencies. Davey said he could only recall “one or two” hearings in which the city police reached outside for a trial board member, and said other large regional police forces use in-house panels.

Typically, trial boards are prosecuted by an attorney from the Police Department’s legal affairs section. Longtime observers could not recall an attorney from outside the law department handling the cases.

Davis, the city solicitor, said Duke is an “excellent litigator” who will have no problem going from defending officers in civil cases to pressing the internal disciplinary charges.

“A good lawyer can pick up a file and with adequate preparation go into any adversarial hearing and handle the matter,” Davis said. “If you’re on the prosecution or defense side, either way you’re either proving some facts or trying to undermine your adversaries’ proof of those. I think the skills are easily translatable.”

Duke, who is also a former vice president of the Baltimore NAACP, said in an interview that he is eager to take on the case. “This is an important point in the city’s history, and it represents the potential for closure,” Duke said.

Citing his long record of public service, he said, “I’ve always wanted to assist the city whenever called upon.”

Duke said he has investigative experience from his time with the Office of Special Investigations in the U.S. Air Force, where he was a captain. His last assignment with the military had him stationed in Maryland, which is what brought the New Jersey native to Baltimore. After the military, he took a job with the federal public defender’s office as an investigator.

Duke has been a litigator for nearly 20 years, focused on labor and employment law. He chaired the city school board from 2009 to 2013.

City officials did not provide information Thursday about how much Duke is paid for his city work.

Many of Duke’s cases defending police officers accused of misconduct are pending, including one where he is representing officers from the Gun Trace Task Force who have been indicted on federal racketeering charges and are accused of abducting and robbing a Carroll County couple.

In one pending civil lawsuit, two brothers have accused police of pulling them over for a broken brake light, then removing them from their vehicle for a baseless drug search. Police fired a Taser into one of the men during a struggle after he swatted away the hand of an officer who was patting him down, according to the suit.

“What transpired was a simple traffic stop that quickly escalated because of [the plaintiff’s] ill temperament at the time,” Duke wrote in asking for the lawsuit to be dismissed. “The actions undertaken by the defendant officers was plainly justified.

“Moreover, the reasonableness of the defendant officers’ actions must be judged objectively from the perspective of a reasonable officer in their position, at the time of the event.”

Duke also has brought claims from officers, such as a discrimination case Annapolis police officers filed against their department. The city prevailed in that case.

“I’d like to think if nothing else, I come to the table with a pretty balanced understanding,” he said.

jfenton@baltsun.com

twitter.com/justin_fenton

Copyright © 2017, The Baltimore Sun, a Baltimore Sun Media Group publication | Place an Ad
41°