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Baltimore's top prosecutor considering changes to police-misconduct procedures

As the Baltimore Police Department faces one of the largest corruption scandals in its history, the city's new state's attorney is revamping the way prosecutors deal with police wrongdoing as part of a comprehensive office overhaul.

Gregg Bernstein, who took office in January, is considering eliminating a decade-old division that is devoted to police misconduct cases. And he has abolished a controversial list kept by his predecessor that banned certain officers from testifying at trial.

Such moves appear contrary to national trends "in larger jurisdictions" like Baltimore, according to Scott Burns, executive director of the National District Attorneys Association, based in Alexandria, Va. Most cities have a separate prosecutor's unit to investigate criminal allegations against police, he said, and everyone keeps tabs on officers who might have credibility issues.

"Whether by formal policy or by common sense, you try to make sure that person isn't the lead investigator on every case," Burns said.

While Bernstein is still choosing his final moves, law enforcement analysts said they are likely to be geared toward preserving positive relations with police.

Bernstein campaigned for the top prosecutor position on a platform of better relations with law enforcement, which roundly endorsed him after years of butting heads with former Baltimore State's Attorney Patricia Jessamy, who wasn't shy about criticizing the department.

"The Police Department isn't the enemy" of the prosecutor's office, said Christopher Dreisbach, an assistant professor within the Division of Public Safety Leadership at the Johns Hopkins University's School of Education. "There's a kind of loss of confidence in the whole law enforcement structure of the city if the two main players are feuding with each other."

Events during Bernstein's first few weeks on the job have underscored the need for the watchdog role, however.

In January, four officers were involved in the fatal shooting of a colleague outside a city club. Last month, 17 officers were indicted on federal charges in connection with a towing company extortion scheme, and 14 others were suspended from work. And last week, The Daily Record newspaper reported that payouts in police misconduct civil suits have already cost Baltimore more than $800,000 this year.

"The investigation of allegations of police misconduct is a significant priority of our office," Bernstein said in an e-mailed statement.

He declined to be interviewed, saying in the 500-word message sent a week ago that his "schedule is a bit tight" and he was not "able to meet … or talk on the phone" about the issues or the specific factors he's taking into account in setting police misconduct policies.

History and conversations with several other prosecutors, including state's attorneys in Baltimore and Prince George's counties, reveal a range of considerations in handling such cases, based on the region.

"It just depends on how big," the region is, Burns said.

Most misconduct investigations start inside the Police Department, which is then supposed to bring cases to prosecutors if the alleged conduct could be criminal.

Smaller jurisdictions with populations under 10,000, which make up about 80 percent of the country's prosecutor offices, often refer the cases to be handled out of town, Burns said. But the larger areas — Seattle, Miami, New York, Houston — handle them on their own, often under a separate unit within the prosecutor's office.

Baltimore has had its Police Misconduct Unit for 10 years, though what it will look like in the future is undecided. Its chief, Douglas Ludwig, retired in January, and a senior prosecutor has been filling in ever since.

"[W]e have been actively reviewing the operation of the Police Misconduct Unit almost from the first day I took office," Bernstein said in the statement, noting that decisions about the scope and structure of such a division going forward "will be made within the overall context of the decisions we make as to the organizational structure of the office as a whole."

As part of the review, Baltimore has studied the operations of offices in other cities and worked with police "to establish lines of communication and information-sharing regarding specific allegations of misconduct," he said.

Before Baltimore had the misconduct unit, prosecuting corrupt city police was handled by the chief of the economic crimes division, Elizabeth A. Ritter, within the state's attorney's office.

But, in January 2001, evidence disappeared in a case against an officer accused of perjury and misconduct, leading Jessamy to drop criminal charges against him. That prompted then-Mayor Martin O'Malley to blast her as not having "goddamn guts to get off her ass and go in and try this case."

That same month, Ritter called a local radio show using her middle name as a pseudonym and berated police for a backlog of disciplinary cases. The police commissioner at the time called for her dismissal.

"I find it outrageous and ironic and somewhat amusing that the lead prosecutor for police misconduct and integrity disguises her identity to humiliate the Police Department," said Commissioner Edward T. Norris, who in 2004 would himself be convicted of public corruption and serve six months in prison for misusing a special police fund.

"How can we possibly trust her in the future after doing something like this?" he said.

Ritter later apologized, but the combined incidents pressured Jessamy to react, and led to the creation of the Police Misconduct Unit within the state's attorney's office. Its sole purpose was to prosecute law enforcement officers for criminal behavior.

It was supposed to be a five-person office, including one lawyer from the attorney general's office, though it was never staffed with more than three people: a Baltimore prosecutor, an investigator and a secretary, said A. Thomas Krehely, who ran the division for seven years, through 2008. He's now in private practice in Annapolis.

Krehely was brought in from the state prosecutor's office, where he tried former state Sen. Larry Young on bribery and extortion charges. (Young, who was acquitted, was coincidentally represented by Bernstein.)

"We had at least 19 officers indicted while I was there, indicted or charged … which in our view was very successful," Krehely said. "But a lot of it depends on the cooperation you get from the police departments … it's not like we could go out and uncover these issues ourselves."

He called police cases "difficult for local prosecutors to handle because they work closely" with officers. "That's one of the reasons Mrs. Jessamy [created] a separate division with nothing else to do," he said. "I wouldn't be handling typical cases. All I would be doing is prosecuting police officers."

There was also a public relations component to it, Krehely said — sending a direct message to citizens that "police are not going to be able to perform their jobs unchecked."

In Prince George's County, where federal agents last year arrested two officers and the county executive in connection with a corruption probe, the cases used to be assigned to various prosecutors after being reviewed by senior staff.

But the new state's attorney, Angela Alsobrooks, who also took office this year, has changed that. She created a Special Prosecutions Unit within her office, which is about a third the size of Baltimore's, to handle economic crimes, public corruption and police misconduct cases.

"These cases do require additional attention and resources and we wanted to be able to handle them as effectively as possible," Alsobrooks said, adding that police, too, want misconduct "rooted out."

She's also considering creating a version of Baltimore's "Do Not Call List," which Bernstein has abolished. Baltimore's list included officers who had been accused of wrongdoing, and those listed were banned from appearing as state witnesses — a move that effectively restricted their ability to make arrests.

"This is something we're looking at," Alsobrooks said, noting that it's a "proactive" way to ensure strong cases.

"It is a common practice to use a list like that," Alsobrooks said.

Jessamy's list was perhaps more public than most, however, though few saw it.

"I don't even know who was on it," said police spokesman Anthony Guglielmi. "It's not like they gave us the list, they just didn't call" those officers to testify.

An undated copy obtained by The Baltimore Sun contains names of about two dozen officers accused of various infractions, including Sgt. Allen Adkins, whom Jessamy once accused of falsifying police reports.

He was consequently transferred out of a narcotics division and placed on warrant duty, where he's still working today, according to Guglielmi. Last year, a civil jury granted a $123,000 judgment against him, finding that he committed false imprisonment and malicious prosecution and battery.

Some officers feared that the list was open to abuse, however, and Bernstein seems to agree.

"I have said repeatedly that I am not in favor of a blanket list that simply says a particular officer will never be called as a witness," he wrote in the e-mailed statement. He plans to consider allegations on a case-by-case basis and decide whether to use an officer's testimony based on individual circumstances.

Without a list, some question how prosecutors can keep track of alleged ethical issues, however. The state is required to tell defense attorneys about prior evidence of untruthfulness involving its witnesses, including police.

"They have to keep track of those things, otherwise they're not doing their jobs," Krehely said, speaking generally. He later added that a list might not be necessary if you trust the Police Department to remove unethical officers from duty, however.

There's no list in Baltimore County, for example, said State's Attorney Scott Shellenberger.

"Because I have such confidence in what [county police] do, I base my decision on what they do," he said.

That's the model that Dreisbach, of Johns Hopkins University, would like to see in Baltimore.

"It's kind of a common sense idea that they should be on the same side," he said.

tricia.bishop@baltsun.com

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