Police and Perjury: A Drama Baltimore Case Leaves Questions, Bitterness

THE BALTIMORE SUN

" I smell a rat," declared the mayor of Baltimore.

Perjury, said the city's chief prosecutor.

Resign, the offending police officers were told. Resign in disgrace or face indictment.

It was all good drama for a time, this business about police allegedly lying to obtain search warrants, then busting down doors in a wild, reckless search for narcotics. Good drama when one of the raided homes belonged to a relative of the mayor's wife.

"I'm going to call Kurt. I'm going to have your job," the angry relation is said to have shouted at the scene. Calls were made. Police supervisors came to the house and ordered the officers to stop their search.

Top-notch melodrama, with Mayor Kurt L. Schmoke himself issuing opinions from City Hall as to the guilt or innocence of a handful of young officers. Sharp stuff, too, from the state's attorney, firing off indictments and declaring that he could not in good conscience tolerate any blemish on a sworn statement made by a Baltimore officer.

It looked good on paper, even better on some 30-second sound bite in which an anchorwoman might toss around phrases about fraudulent warrants and lying police officers. It looked good until last week, when a city judge ruled that nothing the mayor and the state's attorney were talking about could be called perjury.

After that, there wasn't much drama. Circuit Judge Andre M. Davis knocked down the state's perjury case against five Northwestern District drug officers. There remained only the flotsam from a political and legal misadventure, not to mention a fresh layer of anger and distrust between City Hall, the prosecutor's office and the rank and file of the Baltimore Police Department.

"I can't believe the mayor could get up there and simply turn the case into a personal vendetta," says one veteran prosecutor. "But that's essentially what he's done. He's left us with a real public image problem."

A ranking police official agrees bitterly: "The only message Kurt Schmoke sent to his police department is: 'Don't mess with my family and friends.' There isn't anything else to this crap beyond that."

Can it be as simple as that? A police investigation takes a wrong turn, goes through the wrong door of the wrong house, and a mayor known for genial calm is suddenly calling for the heads of the offending officers? A judge declares the state's perjury case to be little better than smoke, yet that same mayor declares publicly that the fight is not over, that the case may be pursued in federal trials or administrative hearings?

If it was Mr. Schmoke's desire to take a sharp stand against police corruption, he couldn't have done more to demean his case than choosing to do battle over an incident involving his own family -- an incident that offered far less evidence of police deception than a host of other recent cases soft-pedaled by prosecutors and police officials.

And if sending a message to police officers about the need for integrity was foremost in the mind of Stuart O. Simms, the city state's attorney, he could have easily chosen any number of cases involving willful fraud by officers with which to make his point.

Most important of all, if it was the desire of City Hall and the prosecutor's office to use this case to isolate corrupt and negligent police while reassuring competent and honest officers, they have missed the mark. Black and white, veteran and rookie, beat cop and supervisor -- most every man and woman in the Baltimore police department is now looking at what happened in Circuit Court last week with the same jaundiced eye.

"Here's my question," says one veteran police investigator. "I write a warrant that I think is good, and I enter a house to look for evidence. I come through the door, and the guy tells me, 'Hey, pal, I know the mayor.' What do I do? I'll tell you what I do. I say, 'Pardon me, sir,' and I go back out the door and say, 'To hell with investigating this crime.' "

All the deeper meanings have been lost in this debacle. And though the Baltimore department does indeed have a genuine problem with perjury and false statements by its officers, no one is paying attention to that now. Instead, a mayor's public wrath has taken a handful of young officers who engaged in some sloppy, negligent police work and made them martyrs among their colleagues.

And it isn't over.

"This doesn't end the matter by any stretch," the mayor told reporters after the charges were dismissed, suggesting further legal ordeals for these five officers. As for Nicholas Constantine, the officer who wrote the warrant for the home of the husband of a cousin of Dr. Patricia Schmoke:

"I was sorry that one officer's case didn't go to trial," the mayor said. "I thought that case had facts very different than the others."

*

Not so.

The case against Officer Constantine differed in no substantial way from the others.

The five officers faced indictment because prosecutors checked through their paperwork and found that on several occasions, they swore to search warrants before a city judge and declared that drugs obtained in their investigations had already been sent to the evidence control unit at headquarters for analysis.

In fact, the officers submitted the drugs hours later, along with whatever other evidence and contraband they acquired during the subsequent search and seizure raids.

That's it in a nutshell. That's the crime that the mayor feels so strongly about.

"In this case, like in the last case, and in all the cases, the state has to prove that there's been a willful falsehood," Judge Davis said, ruling for Officer Constantine's acquittal. "When we talk about perjury, we're talking about purposeful and intentional" misstatements.

True, by any standard, the warrant that led Officer Constantine to search the home of Ronald E. Hollie, a retired hospital union official and the mayor wife's relative, contained sloppy, negligent police work.

Officer Constantine wrote the warrant because he believed that an informant had purchased drugs from someone at that location. The officer contended that he had watched the informant go into the home and return later with narcotics.

The officer then went back to the district and wrote out the warrant, noting that the drugs obtained by the informant had been submitted for analysis. It should be noted here that whether drugs are submitted or not, and whether they have yet to be analyzed by the police are issues that have no bearing on whether the judge will issue a warrant.

The judges who signed the warrants in question have said that they would have done so regardless of when the drugs were submitted or analyzed. In fact, drug analysis often takes weeks because of a backlog. Officer Constantine has said that he wrote that the drugs were submitted almost by rote, knowing that after the raid, he would turn all of the contraband over at headquarters.

Did the informant really purchase drugs at the Hollie home? Was the informant's entry to the home observed by the officers? Not likely, say prosecutors, who say privately that they believe Officer Constantine exaggerated when he said he saw the informant enter the residence. No drugs were discovered at the house, and prosecutors believe that Officer Constantine was manipulated by an informant who brought back low-grade drugs, duping the officer out of the buy money as well as whatever was paid to him as an informant.

It's a reasonable explanation and one that doesn't exactly instill confidence in the officer's investigative precision. And though the police raid was certainly an ordeal for the Hollie family, it's hardly uncommon in Baltimore or anywhere else for a legally obtained warrant to result in a search that yields no evidence of criminal wrongdoing. Sometimes a criminal investigator is on the right path; other times, not.

When prosecutors pressed the informant who claimed he bought drugs at the Hollie home, he denied ever going inside the residence and he denied that Officer Constantine saw him go in. Yet the informant wasn't credible; sources say he failed a polygraph test.

In the end, the only inaccuracies in the warrant that prosecutors felt comfortable contesting in court involved the timing of the drug lab submissions. It was hardly an overwhelming case, but Assistant State's Attorney Haven Kodeck nonetheless told Officer Constantine's lawyer that if the officer did not resign, he would be indicted.

This proved true enough, and the indictment was followed by a wholesale examination of a multitude of search and seizure warrants written by the Northwestern District's drug unit. What resulted from that close inspection was a few more similar inaccuracies about the timing of drug submissions.

But consider for a moment what this lengthy investigative effort did not reveal. Consider that prosecutors, after poring over months of police work by these officers, never brought to court anything that suggested that Officer Constantine or the others falsified their evidence or manufactured probable cause for the warrants. Make-believe informants, exaggerated observations, the false pretense of surveillance -- such material deceptions were not the threshold for this prosecution.

Rather than issues of police malevolence and deceit, this case came down to little more than poor training, clerical sloppiness and a basic inattention to detail. And if this prosecution was supposed to be send some sort of message about police integrity, it missed its audience.

"They could have given these guys a variety of departmental punishments and they would have taken that. Instead, they indicted them," says one veteran officer, who blames the mayor for applying political pressure to the case. "They're not saying, 'Hey, if you lie and cheat to get a warrant, we'll indict you.' They're telling us, 'Hey, if you mess up in any way at all, whether you mean to or not, you're charged. Your career is over. You're going to jail.' "

Officers throughout the department say that if prosecutors carefully checked the warrants in most every district, they would find errors and inaccuracies similar to those committed by the Northwestern officers. A veteran circuit court judge offers a more conservative estimate: "I'd say about half the districts are that sloppy. Some of them, the Eastern for example, are pretty good. Others aren't as well-trained."

For his part, Mr. Simms continues to insist that the decision to indict Officer Constantine and his colleagues was his own: "I've said over and over again, that the mayor has nothing to do with this office. . . . It's a question of preserving the integrity of the system."

"The excuse of 'It was just a teensy lie' is unacceptable," Mr. Simms added. "It's not a question of whether the pimple is small. It's a question of whether there's a blemish at all."

Mr. Simms told reporters that he couldn't put this case in his back pocket and forget about it: "It would have burned a hole through my pants."

*

That sounds sincere enough, but frankly, if any blemish on any police statement was the true standard, then by rights, Mr. Simms' trousers should be little less than a hellish conflagration by now.

Some recent cases in which the state's attorney's office did not seek an indictment:

* A vice officer lied on the witness stand about the fact that an unnamed citizen cited in an affidavit in a gambling case was, in fact, a paid police informant. The officer was suspended from duty for three days.

* Another undercover officer faked his probable cause in a poker-machine case, saying that he made observations in a bar when a video camera trained on the tavern door proved that the officer wasn't present. The officer received a 15-day suspension.

* A Western District officer shot up his own patrol car, claiming that he was under attack, and made false statements to detectives conducting a criminal investigation. This officer was punished with the loss of eight vacation days.

"There are any number of serious cases of police perjury that the state's attorney's office could pursue. That they've charged these guys in the Northwest over such minor stuff is crazy," said Gary Bernstein, a former prosecutor and defense attorney who handled one of the cases and actually went so far as to obtain a criminal summons from a court commissioner charging the officer with perjury. That summons was ultimately dismissed by prosecutors.

For the police department, the implication here is that beyond the selective prosecution of the Northwestern officers, there is a problem with false statements by officers. In the wake of last week's dismissals, several veteran prosecutors suggested that the case against Officer Constantine and the others was pursued criminally because Mr. Simms has lost faith in the police department's willingness to police itself.

"Time and again, we haven't indicted officers, and when we refer the cases back to the department for administrative hearings, nothing happens," says one prosecutor.

But Mr. Simms himself generally defends the police department's response, noting that Commissioner Edward V. Woods has in recent years taken a stronger line than his predecessor. For example, in one case involving a rookie officer who misstated the time of his drug submissions on a report and then continued to lie about the matter on the witness stand, Mr. Simms did not seek an indictment, but referred the case back to the department.

A trial board recommended punishment short of dismissal for the officer, but Mr. Simms wrote to the commissioner of his concern, and the commissioner elected to fire the officer in March 1990.

A similar fate may be in store for the Northwestern District officers, who have been assigned to desk duty pending an administrative review. The mayor has been frank about his desire to see the matter pursued in that fashion, as well as renewed criminal prosecutions. But if these officers receive harsher punishment than those whose misstatements were far more tangible and serious, the appearance of a mayoral vendetta will be furthered, as will the appearance that the police department and state's attorney's office are acting in a politically dependent fashion.

Already, the mayor's behavior has cast doubt on the independence of Mr. Simms. But while the state's attorney is elected in his own right and is beholden only to the voters for his job, Police Commissioner Woods, a mayoral appointee, is in a decidedly different position; his ability to resist the politics of the case is more questionable.

In fact, Mr. Schmoke freely acknowledged calling the police commissioner the day after the raid on his wife's relative's home: "One concern in his mind is that Dr. Schmoke often eats dinner with the Hollies, with her cousin, and this incident could have occurred during one of those times," said Clint R. Coleman, a mayoral spokesman, explaining that earlier intervention to reporters. "After reviewing the facts in the case, the mayor's comment to the police commissioner was, 'I smell a rat' . . . and that he was very upset with what happened."

Such comments, coupled with the selective nature of this failed prosecution, might well produce a civil suit by the Northwestern officers. But one thing is already certain: More than the careers of the officers themselves, the greater damage from this imbroglio is being inflicted on the professional stature of the PTC city's law enforcement leadership and on the morale of rank-and-file police officers and prosecutors.

"No one comes out of this without a black eye," says one city prosecutor. "The mayor, our office, the police department, the officers themselves -- everyone loses."

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