The Baltimore police union has advised its members not to answer a new set of questions being posed by prosecutors to flush out potential integrity issues of police witnesses, saying the questions go beyond the internal affairs disclosures mandated under a March agreement between prosecutors and city attorneys.
“We have concerns about it being overreaching and asking questions that don't relate to integrity,” said Mike Davey, a union attorney with the firm Schlachman, Belsky & Weiner. “We're working with the police department in an attempt to revise the form.”
The new “checklist” of questions being put to officers by prosecutors in Baltimore State’s Attorney Marilyn J. Mosby’s office, obtained by The Baltimore Sun, asks officers about their internal affairs records but also whether they have ever been sued or sued anyone else, whether they have ever received traffic violations or faced criminal charges, and whether they have ever received time off from work in exchange for securing evidence in a case.
Lt. Gene Ryan, the president of Fraternal Order of Police Lodge 3, sent a letter to union members Monday night advising them to refuse to answer the questions as union officials work to address the concerns.
“On advise of our Counsel … we are writing to inform you that if you have any upcoming cases with the Baltimore State’s Attorney’s Office and you are presented with a new type of checklist requesting both professional and personal information, we strongly advise that you refuse to complete it until we have more clarification as to its purpose,” Ryan wrote in the letter, which was obtained by The Sun.
“If you are ordered to complete the information by a member of the [State’s Attorney’s Office] Staff, please remember that they are not your employer and, therefore, cannot order you to do so,” Ryan wrote. “If, however, you are ordered to do so by a higher ranking sworn member of the BPD, we urge you to request the order in writing, after which time you should comply.”
Both Davey and Ryan said that discussions about potentially altering the list of questions being asked were under way with city officials Wednesday.
Chief Deputy State’s Attorney Michael Schatzow said he didn’t understand the union’s objections to the checklist, as it is “remarkably similar to one which police officers have been responding to for years when presented by the U.S. Attorney's office” in federal cases.
“Virtually similar information requested by us is somehow objectionable, but it’s not when it’s requested by the U.S. Attorney’s office?” Schatzow said.
He said his office is “casting a wide net so that we don’t miss anything,” but that it is likely that much of the information gathered would not be disclosed in open court. Within the office, the information is kept in a central, secure location, he said.
Davey said he has never seen the federal checklist, but that officers who have responded to it and the city checklist have told him they are different, with the city list being more invasive.
The Maryland U.S. attorney’s office said its checklist is an internal document that it would not comment on or release.
Ryan said officers who have been presented with the new city checklist have expressed outrage about the questions that are not related to their internal affairs files.
“Say you and I were in a car accident, and I sue you, on my off time. What does that have to do with my testifying in a criminal case?” Ryan said. “My personal life should not be dragged into court.”
The agreement reached in March between Mosby and City Solicitor Andre Davis required city police officers testifying in felony and “serious misdemeanor” trials to disclose any misconduct allegations in their internal affairs files to prosecutors, and for the law department to respond to prosecutor requests for those files within 48 hours.
In a memorandum he sent to all officers advising them of the agreement in March, which was obtained by The Sun, Police Commissioner Darryl De Sousa wrote that the department has always provided internal affairs files to prosecutors but needed to be increasingly careful about meeting its evidentiary obligations in criminal cases.
De Sousa referred to a federal jury’s awarding a Baltimore man $15 million in November for being wrongfully convicted of murdering his girlfriend in a case in which a former Baltimore detective was found to have withheld information beneficial to the defense, and wrote that internal affairs files “have become an increasing subject of litigation in criminal cases and the failure to disclose this information could result in a conviction being vacated.”
T.J. Smith, a police spokesman, confirmed the authenticity of the memorandum, but otherwise declined to comment on the deal or the union’s advice to officers not to cooperate with prosecutors’ requests under it.
Davis, the city solicitor who struck the deal with Mosby, declined to comment on the union’s stance as well.
Davis said at the time the deal was struck that it came “in light of the need for positive reforms in the pursuit of fairness and integrity in the City’s operation of the local criminal justice system.”
It also came in light of scathing criticisms from the defense bar in Baltimore, which has said Mosby’s office routinely fails to meet its constitutional obligation to disclose information about officers that may benefit their clients’ cases. Defense attorneys have said such failures allow corrupt officers — like those on the now-disbanded Gun Trace Task Force — to act with impunity in the city and continue working even after sustaining a stack of integrity complaints against them.
Ryan said the new agreement is clearly a reaction to the federal Gun Trace Task Force case, in which eight officers were convicted of racketeering — and accused of robbing residents, stealing and reselling guns and drugs on the street, filing false court paperwork and making fraudulent overtime claims.
Some of the convicted officers had a history of integrity issues and complaints against them, and critics of the department and Mosby’s office have said their misconduct should have been flagged long before federal prosecutors stepped in.
During the trial of two of the officers, there was testimony that cops were routinely given “slash days,” or days off, for confiscating guns — a term specifically mentioned in one of the new questions being put to officers, about compensation for securing evidence. That was one question Davey said officers had told him was not asked by federal prosecutors.
Ryan said he understands city prosecutors want to appear to be doing something to prevent the type of corruption exposed by the Gun Trace Task Force case, but shouldn’t “take it out on everybody and ask about their personal lives because a small group of guys” broke the law.
Schatzow acknowledged that the Gun Trace Task Force case was one factor pushing his office to adopt the new checklist. But there are many others, he said, from the Freddie Gray case, to the Justice Department’s findings of discriminatory and unconstitutional policing in Baltimore, to more recent body-camera footage showing officers manipulating evidence.
“All of those things combined cause us to reexamine our obligations and what we’re doing — specifically in terms of information about police officer witnesses that we need to know so that we can determine whether we're meeting our obligations of disclosure,” Schatzow said.
Baltimore Sun reporter Justin Fenton contributed to this article.