Gregg Bernstein may well have best summed up the kerfuffle he faces as a result of the public airing of a memo he wrote dissecting the results of his first stab at a prosecution in Baltimore City Circuit Court: "Welcome to the State's Attorney's Office."
It's not that Baltimore's new top prosecutor said anything that wasn't true in his analysis of the case against three Baltimore City police officers who picked up a pair of teens off the street in West Baltimore and dropped them off far from home — one of them, without shoes or socks, in a park in Howard County. The case did, indeed, have "some issues" with multiple, inconsistent recorded statements by the witnesses and with a lack of communication between the internal affairs detective assigned to the case and the prosecutors. Judge Timothy J. Doory's conclusion in the case of one of the officers that it is essentially impossible for a policeman to be guilty of kidnapping, false imprisonment and assault in the course of doing their jobs was curious in the context of this case, and the result, in which two of the officers were found guilty of malfeasance but not the other charges was probably reasonable.
Where he got in trouble was in the tone of some parts of the message. Mr. Bernstein said in an interview after the memo became public that he intended it to be "tongue-in-cheek," but apparently he missed one of the cardinal rules of email, which is that it is not a medium in which sarcasm is effective. The officers' defense attorneys are likely to seize on Mr. Bernstein's line that "there were some novel charging decisions" as part of an appeal, and the explanation that "I was only kidding" is rarely effective. So, too, with his crack about a "crack" internal affairs detective — not exactly the kind of thing that furthers his campaign theme of ending the public finger-pointing between the state's attorney and the police department when cases go awry.
In Mr. Bernstein's defense, his criticism of the detective's performance in the trial at least came in a memo that was intended to be for his staff's eyes only, whereas his predecessor, Patricia C. Jessamy, tended to make her complaints about the police on the nightly news. But another rule of email is that it never dies, and the likelihood that whatever you intended to keep private will stay that way is inversely proportional to how embarrassing it would be if it gets out.
This is particularly true given that Mr. Bernstein is leading an office still populated mostly by people who worked for his predecessor, a long-time incumbent whom he took out in a hard fought election campaign. There are plenty of people in that office whose loyalty he has not earned, and perhaps never will.
The propensity for anything put in writing to become public is a lesson Mr. Bernstein should have learned from former U.S. Attorney Thomas DiBiagio, who was forced out of office shortly after the publication of a memo he wrote demanding that his office produce front-page worthy indictments in public corruption cases by the fall — that is, in time for the November election. A memo you write intending to rally your staff — clearly Mr. Bernstein's intent, given his generous praise for his subordinates — can look very different in another context.
And the effects can be far-reaching, beyond momentary embarrassment or, in Mr. DiBiagio's extreme case, loss of your job. The real legacy of the DiBiagio memo is that federal public corruption cases in Maryland were put on the back burner for years. Mr. DiBiagio's office had been heavily investigating possible City Hall corruption — an effort that, in the hindsight of Mayor Sheila Dixon's conviction and resignation, seems entirely justified — but it dropped the effort and left the matter to the state prosecutor, who has far fewer resources.
Likewise, the real damage of this memo is that it puts the focus on the prosecutor and not where it should be: on the bad conduct of these police officers. The two who were convicted got probation and community service, and as of now, all three still have their badges. What is important now is not what Mr. Bernstein thinks about the case; it is what Police Commissioner Frederick H. Bealefeld and his internal disciplinary process make of it. The prosecutor's effort to establish the criminality of what these three officers did resulted in a rather muddled judgment, but Mr. Bealefeld now has the opportunity to render a verdict that is crystal clear. It is up to him to leave no doubt that such conduct will not be tolerated in his department and that anyone who engages in it will no longer wear the badge.