Baltimore prosecutors must also hold police accountable

Like many, when I saw the video of a Baltimore police officer repeatedly punching a young man, unprovoked and causing significant injuries, I was horrified. Horrified, but not surprised. We have repeatedly seen and heard BPD officers behaving badly in the news over the past couple of years. At the Public Defender’s Office we have long known, and been vocal about, abuses perpetrated against our clients, which, without video, were not credited and without media attention were generally ignored.

Two years ago, the Department of Justice issued a scathing report detailing widespread Baltimore police misconduct and abuse and highlighting the lack of transparency and accountability that allowed for this conduct to continue and spread. Despite a consent decree that was supposed to bring about real change, these issues are as prevalent now as they were then, continuing to leave the community without a police force it can trust.

True accountability does not come from a soundbite after a shocking video. It comes from everyone in the criminal justice system recognizing their role in perpetuating misconduct and taking seriously the constitutional and other legal protections intended to identify and address these problems. In particular, the state’s attorney, who is not subject to the consent decree but relies on police officers on some level in virtually every case, needs to prioritize conducting fair and just prosecutions, and not limit her role in police accountability to high profile cases.

The Baltimore police officers who regularly commit abuse and misconduct are known — by prosecutors, defense attorneys and most likely their fellow officers. Nonetheless, assistant state’s attorneys insist on relying on problematic officers as witnesses when attempting to secure convictions, even when they have reason to believe that these officers are not credible. Last year, the state sought to secure a conviction based on an arrest by the Gun Trace Task Force officers, even after the officers were indicted.

In my office, public defenders work tirelessly to uncover all of the information that they can gather to make sure that our clients receive a fair hearing. While information that could be used to impeach a prosecution witness (such as a police officer) or exonerate a defendant is supposed to be turned over by the prosecution as a matter of course, the city’s prosecutors frequently do not meet this proactive responsibility. As a result, we file numerous requests with the court demanding these materials and providing whatever details we are able to gather.

Assistant state’s attorneys strenuously object to requests for internal affairs’ files that may challenge the trustworthiness of their officer witnesses, despite well-established law that requires this information be turned over. In response to extensive litigation brought by my office to demand the files that we are entitled, the city solicitor and the State’s Attorney’s Office came up with a policy that limits when defense attorneys can review internal affairs files and prohibits providing copies of internal affairs files to lawyers, even though the rules clearly provide for them. Files for open internal affairs investigations are uniformly withheld under this policy, even when the law does not support that position. As a result, files that relate to blatant misconduct, such as evidence planting, investigations that remain open for unreasonable periods of time and allegations lodged directly by the State’s Attorney’s Office are actively hidden from defense counsel.

The state’s attorney is able to continue these problematic discovery practices because some judges allow her office to do so. Defense counsel is denied the ability to “provide their client a meaningful defense” when judges deny access to these files. All too often, clients have been forced to go forward with their cases or even enter plea agreements without these crucial records. Records that often go directly to an officer’s credibility for trustworthiness and truthfulness.

If the state’s attorney truly wants to address the police abuses that occur in criminal cases under her watch, she needs to take that mission seriously throughout her office’s practice, not merely in response to publicized accounts. Viral videos and media leaks by the public are not systemic transparency. Complying with constitutional disclosure obligations, while less newsworthy, will lead to a more accountable police force and an environment in which true police reform can be realized.

Kirsten Gettys Downs is the district public defender for the City of Baltimore. Her email is kdowns@opd.state.md.us.

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