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Man's death in custody tough issue

THE BALTIMORE SUN

Two weeks have passed since Jesse Chapman died in the back of a police van -- two weeks that saw charges of police brutality, neighborhood protests, harsh words from the police union, a tough rejoinder from the mayor and federal and local investigations.

Investigators trying to sort out the events of July 2, when Mr. Chapman died after a brief struggle with police, are dealing with five police officers who have refused to give statements to investigators, five witnesses who have also refused to give statements and the autopsy of a 30-year-old man.

The crucial medical examiner's report, which may explain how Mr. Chapman died, is in the hands of State's Attorney Stuart O. Simms, who has not released it.

Several witnesses to Mr. Chapman's arrest in West Baltimore say he was beaten. Police say a preliminary autopsy report shows no evidence of blunt-force trauma. And police officials and Baltimore Mayor Kurt L. Schmoke have said that Mr. Chapman was a cocaine user with an asthmatic condition.

The questions the investigators have to answer include: What happened the night Mr. Chapman was arrested? Did the police use reasonable force or excessive force in subduing him? And even if the officers did go beyond "reasonable force," did Mr. Chapman die as a result? Or was death caused by an unrelated medical condition?

Along with those questions, the case involves a charge of police brutality, which carries with it a volatile mix of politics and racial distrust.

"This is being played out in the court of public opinion," said Byron L. Warnken, a University of Baltimore law professor who also has defended many police officers. "In that sense, this is not your normal homicide case."

Barry Levin, a former police officer who now defends officers as a lawyer in Los Angeles, said, "Most district attorneys are political animals, and they have to consider their standing in the community when they're deciding whether or not to file criminal charges against an officer."

Cases that present "a close call" that the prosecutor might otherwise not pursue more likely go to court if a police officer is accused, Mr. Levin said. "He'll say, 'Prosecute and let the jury decide.' "

L Amid the murkiness in the case, this much is not in dispute:

About 11:30 p.m. on July 2, Mr. Chapman followed his girlfriend into the Western District police station, where she had gone to complain he had beaten her, police said. He fought with her in the lobby and fled. A squad of officers, most of them white, chased Mr. Chapman, who was black. They caught up with him, placed him in a police van and drove him back to the station, where he was pronounced dead at 11:57 p.m.

Refusal not unusual

Prosecutors and defense attorneys (none of whom represent the officers in this case) say the police officers' decision not to give statements is not unusual.

The Fifth Amendment to the Constitution provides that no one can be forced to testify against himself. The officers in this case, both defense lawyers and prosecutors say, are simply asserting that right.

"I advise them, 'Keep your mouth shut and realize you have the constitutional right not to assist the prosecution,' " Mr. Levin said. "You can never benefit yourself by talking to the prosecution when you're criminally accused. I tell them to let the system run its course without contributing to any source any evidence that could possibly be used against them."

Henry L. Belsky, a Baltimore lawyer who has defended many police officers, said, "Generally speaking, they're advised not to make statements -- even if they're absolutely innocent. You're better off not showing your hand until trial."

Mr. Levin noted that police officers face the added problem of being interviewed by colleagues.

"The detectives in the case will give the appearance, 'We just want to get your side of the story. We want to close this.' They may look like they're going to throw their arm around the guy.

"And he's also struck with the feeling that if I don't talk, I must look guilty. He may think these people are out there to talk to him and help him," Mr. Levin said. "That's not the '90s. They may prosecute him and put him in prison. They may fire him."

So Mr. Warnken and other attorneys make clear their police clients should not be seduced into talking to their co-workers. "The brotherhood is dissolved for my purposes," Mr. Warnken said.

He acknowledged that some citizens may view with suspicion a police officer who chooses to remain silent.

"A police officer who stands on his constitutional rights doesn't look the same to the public as if you or I assert our Fifth Amendment rights," Mr. Warnken said.

State's Attorney Simms cautioned that the officers' decision not to talk "is not unusual" in a criminal investigation "and should not be construed one way or another, except as an exercise of constitutional rights."

Interviews scheduled

Mr. Simms said his office is scheduling interviews with witnesses who have told reporters that they saw police officers beat Mr. Chapman. Five of those witnesses last week declined to go to his office to make statements, citing a distrust of authorities and a fear of intimidation by police.

Instead, they met privately with a local minister. They also told Mayor Schmoke last week they would prefer to give information as a group instead of privately.

The defense attorneys say it is not unusual for witnesses to have shared their stories with each other. It's up to the lawyers to try to sort out the truth if the witnesses take the stand.

"My personal opinion is, I think it taints their testimony," Mr. Belsky said of the witnesses' refusal to give official, independent statements.

But, he said, it might help the police officers. "From a litigation standpoint, if I were cross-examining them on the stand, I would use that to take apart their statements."

Even if the witnesses decide not to make statements to investigators, they could be compelled to testify before a grand jury, should Mr. Simms take the case there.

Accounts in conflict

The witnesses' accounts to The Sun conflicted. Some said Mr. Chapman was standing when an officer punched him; others said he was on the ground. Some said Mr. Chapman was handcuffed; others said he wasn't. Some said he was beaten for two or three minutes; others said the episode lasted 10 to 15 minutes.

Both defense attorneys and prosecutors say that the fact that police officers used force in itself is not damning. Officers are authorized to use "reasonable force." What's reasonable depends on the circumstances of each case. An officer cannot use any more force than needed to control the subject.

"If you're a pursuing officer, you're going to use physical force to bring a suspect down," Mr. Levin said. "It doesn't look real pretty to an onlooker."

Should the Chapman investigation result in criminal charges and trial, the question of whether or not the police broke the law on the night of July 2 may ultimately rest with a jury.

"The desire is to trust law enforcement," Mr. Levin said. "But there's a pendulum that swings back and forth that has to do with tolerance of police activities. We tell them, 'We want you to get the bad guys off the street. We give you more power.' But at the same time, people have come to say, 'If you're going to do your job, you've got to do it in accordance with the rules.' "

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