Antonio Ellerbe had already been dead a year when a gunman executed Hope McLaurin with two shots to the head. Nevertheless, Baltimore homicide detectives charged Ellerbe with the murder and a robbery that netted $42,000 in cash and 85 pounds of marijuana.
Gerald Robinson was two years into a 12-year sentence at a state prison in Hagerstown when nine slugs from a semi-automatic handgun ended the life of a 30-year-old man on a West Baltimore basketball court. Homicide detectives charged the imprisoned Robinson with the murder.
Ellerbe and Robinson were among at least 34 people accused of murder whose charges were dropped during the past 19 months because police investigations had produced evidence that was fatally flawed.
According to some experts, the 34 cases show that police are bringing charges on thin evidence, sometimes basing murder charges on faulty and uncorroborated "eyewitness" identifications. The Ellerbe and Robinson cases, they say, are the most egregious examples of what happens when police, under pressure to bring killers to justice, act on erroneous information without the kind of thorough investigations that produce solid cases in the courtroom.
Some of the dropped cases involved claims of self-defense - later proved to be valid - and those arrested were later released. Two involved armed robbers who were slain by their victims. And some involved murders in which suspects were considered such a threat to public safety that police arrested them to get them off the street, though investigations were only in the preliminary stage.
In one such case, Lawrence Owens was charged with murder in order to protect public safety after witnesses said they had seen him with a woman hours before she was found dead. He was released when detectives failed to connect him directly to the murder.
In September, The Sun published a series of articles, "Justice Undone," that examined the 1,449 murders in Baltimore over a five-year period between 1997 and the end of 2001. The computer-assisted analysis found that more than 1,000 of those killings went unpunished or resulted in a light sentence because police made no arrest or prosecutors were unable to obtain a murder conviction, often as a result of faulty police work.
Those articles involved homicides in which - within weeks of a suspect's arrest on District Court charges - prosecutors presented evidence to grand jurors who then indicted the defendant because they believed he probably committed the murder. Once the indictment was handed up, the defendant's case moved to Circuit Court.
Unlike the cases in that series, these 34 cases were not taken to a grand jury because they didn't pass initial screening by prosecutors. Instead, they were dropped in District Court - but not before many defendants spent a month or more in jail.
Some of these cases looked strong at the beginning but collapsed when witnesses disappeared or changed their stories, or additional investigation raised doubts about the reliability of witnesses, or police found they had charged the wrong person.
But other cases were so flimsy that casual reading of the charging documents raises questions about why and how detectives obtained arrest warrants from judges or court commissioners.
Defending the system
Mayor Martin O'Malley and Police Commissioner Edward T. Norris say they are overcoming weaknesses that include repeated failures to produce solid homicide cases.
Norris attributes much of the blame for the poor record on murders in recent years on former Commissioner Thomas C. Frazier's "rotation" policy, which moved many veteran detectives out of the homicide squad.
Police officials say they have moved to improve homicide investigations since Norris' appointment 2 1/2 years ago.
During the past few months, these steps have included hiring a former prosecutor to work with the squad; creating a Homicide Case Review Team of senior officers, detectives and prosecutors to assess the strengths and weakness of cases set for trial; and using videotapes of murder trials to identify weaknesses in police testimony that sink cases.
Norris declined to be interviewed for this article.
O'Malley defended the police, saying, "It's not a perfect system, but it's the best one humankind has come up with on the planet."
The Sun's review of cases dropped in District Court since May of last year suggests that problems persist.
In their defense, detectives say they often are left at murder scenes with few if any solid clues and potential witnesses who claim they didn't see anything. "Unfortunately, at a crime scene on a corner, you've got shell casings and some blood," said Detective Gordon Carew, a veteran of four years on the homicide squad. "It's not like on television."
But The Sun's review also found that detectives sometimes try to aid their investigations by charging people with first-degree murder - with the idea of pressuring suspects to cooperate or encouraging witnesses to talk.
"Sometimes, you've got a problem case," says Lt. Terry McLarney, a veteran homicide detective. "You're trying to make the case. Sometimes you get together and say, 'If we don't take a shot, we have nothing. If we take the shot, that can break the case.' "
He added, "You take your shot when you think that might make the guy talk. And there's the fear factor. Get him off the street, and witnesses might talk."
Added Mark Cohen, the city's chief homicide prosecutor, "Sometimes that fails. You bring them in and see, but you might dismiss the case in 30 days."
At other times, detectives say, they move quickly to file murder charges when they know they need more evidence because they want to protect the public from people who they believe are violent criminals.
This troubles experts.
"Cops should be careful saying that," said Paul O'Connell, professor in the Department of Criminal Justice at Iona College in New Rochelle, N.Y., and a former New York City police officer. "That gets into the whole area of malicious prosecution."
Erik Luna, associate professor at the University of Utah S.J. Quinney College of Law, added, "They may have benevolent reasons, but I have serious doubts about whether that practice is constitutional."
To arrest someone for a crime, police must demonstrate they have "probable cause" to believe the suspect committed the offense. While rooted in the Constitution, probable cause is not precisely defined. Some say it means "more likely than not." Others say it means "more than suspicion." Still others say that it can mean that the probability of guilt is something less than 51 percent certainty.
"Police cannot arrest on less than probable cause simply because they are concerned for public safety," said Luna. "If that were the rule, the constitutional constraints on arrest would be utterly meaningless. Cops would simply arrest for any reason and then argue that they were concerned about public safety. In my opinion, this practice is blatantly unconstitutional and unacceptable in any society that abhors the petty tyranny of the lawless cop on his beat."
Once a person is arrested, prosecutors must convince a judge or jury "beyond a reasonable doubt" that the defendant is guilty. This is a much higher standard, often defined as a 95 percent to 99 percent belief that the defendant is guilty.
"There is a huge leap between probable cause and the next standard, which is 'beyond a reasonable doubt,'" said Luna.
O'Connell posed a rhetorical question: "Is it possible that a police officer can have probable cause in a case where the person is going to be acquitted? Absolutely. Is it a bad arrest? No."
"They shouldn't charge without probable cause," O'Malley said in an interview, noting that police obtain an arrest warrant only when a judge or court commissioner approves the charging document.
"That's why we have a neutral magistrate review that nebulous concept of probable cause," the mayor said. "Very often, when they charge, they don't have proof beyond a reasonable doubt."
Closely guarded prerogative
In Baltimore, unlike most jurisdictions around the country, police have the power to bring charges and, if approved by a judge or a magistrate, to get an arrest warrant. While they sometimes consult prosecutors before filing charges, they jealously guard their arrest prerogative.
Some experts say that giving prosecutors the sole power to file charges would likely prompt police to seek more evidence before arrest and weed out hopelessly weak cases.
"Prosecutors should serve as gatekeeper and make the judgment as to whether the case is worthy of prosecution," said Douglas L. Colbert, a professor at the University of Maryland School of Law. "It's not the officers' call. Officers are too close to the event."
Others disagree. "Leave the determination of probable cause to the cops," said O'Connell. Then, he added, the prosecutors can step in after the arrest and say, "I know you've got probable cause. That does me no good. I need a conviction, somewhere beyond a reasonable doubt."
While most experts say that police would bring fewer weak cases if prosecutors had to sign off on the initial charges, there is no guarantee. Homicide detectives consulted prosecutors before filing charges in some of the murder cases that were subsequently dropped in District Court for a lack of sufficient evidence.
Antonio Ellerbe's family was told Nov. 22, 2000, that he had been found dead in his jail cell that morning.
An autopsy report says Ellerbe died of bronchopneumonia and the effects of drug addiction.
"He had never been sick a day in his life," his sister, Wanda Ellerbe, said in an interview.
His wife, Francina Ellerbe, added that she saw him the day before he died. "He looked better that day than he looked a couple of days before," she said.
Family members readily admit that he had a drug problem and a record of arrests on minor charges, most of which were dropped. He had a 1996 conviction for drug possession that got him a six-month sentence, according to records.
"Little dumb stuff," his mother, Marian Ellerbe, said of his record.
Ellerbe, 34, had been jailed a week before his death on drug possession and distribution charges. He was being held on $11,000 bail.
"He kept calling us and saying did we get the money to get him out on bail," said Wanda Ellerbe.
The family was shocked recently to learn that Antonio Ellerbe had been charged with a murder that occurred Nov. 5, 2001 - 11 1/2 months after he died.
"I've never heard anything like that," said his wife. "That's crazy. They're just trying to close cases out they can't solve."
Detective Don Gordon, the lead investigator on the case, and his boss, Maj. Laurie A. Zuromski, the head of the homicide squad, said in an interview that when Ellerbe was charged, detectives checked databases that should have disclosed the drug case that ended in his death.
"We could not find Ellerbe in the system," Gordon said. "There's certain places you go to look for certain things and you're confident they're going to be there."
Nevertheless, public records - District Court files and the court's online database - showed that the drug charges were "abated by death" nine months before the murder.
Having failed to find out about Ellerbe's death, Gordon filed charges against him Dec. 19, alleging that he had murdered Hope McLaurin and shot a 43-year-old man six weeks earlier.
In seeking an arrest warrant, he wrote that Ellerbe was one of three men who kidnapped McLaurin early on a Monday morning. They took her to a Northeast Baltimore apartment building, stood her in front of an apartment door and knocked. A man inside, seeing her through a peephole, opened the door. The three forced their way in and beat his head with a gun, demanding "the money."
They took $42,000 in cash and 85 pounds of marijuana, Gordon wrote in his charging document.
Then, the trio shot each of them in the head as McLaurin pleaded, "I thought you weren't going to kill me." She died; the man survived.
Ellerbe "was positively identified by photo arrays as one of the persons wanted in this incident," Gordon wrote.
A second man, Neil Stockhausen, was also charged.
Recalling how he focused on the two suspects, Gordon said that one of McLaurin's brothers "tells me Ellerbe and Stockhausen are responsible - this is what is coming off the street."
Gordon then showed the surviving victim photo lineups that included pictures of Ellerbe and Stockhausen, and he quickly picked them.
Said O'Malley, "There's a case where you have police doing what police are supposed to do. The victim identifies them as the guys who shot him. What would you propose - that they not get the warrant?"
Unreliable witness
Police learned of Ellerbe's death when, unable to find him, they called his sister.
Prosecutors then dropped the case against Stockhausen.
"One witness picked two people," said Cohen, head of the state's attorney's homicide unit. "One was Ellerbe, and the other was Stockhausen." After learning that the lone witness had identified a dead man, he said, "We knew we couldn't trust that witness."
McLaurin was what's known in the drug trade as a "mule," who regularly drove her Nissan Maxima to New York to pick up marijuana for the apartment resident - 300 to 400 pounds at a clip, Gordon said.
"They likely knew that she had just gotten back from New York," said Zuromski.
Ellerbe, Stockhausen, McLaurin and the alleged dealer, who has never been charged, knew each other and frequented the same club, Gordon said. "We had a picture of Stockhausen and McLaurin together," he added. "He had his arm around her."
Six months after McLaurin was murdered, Stockhausen was found dead on Pulaski Highway in Baltimore County, shot in the back of the head. John C. Wood, a 29-year-old Baltimore man, was charged with the murder.
At a bail hearing for Wood, Baltimore County prosecutor John Cox said the McLaurin family "is a drug-dealing family" in the city. He said Wood had admitted that Lawrence McLaurin, one of Hope McLaurin's brothers, had offered to forgive a $1,300 drug debt of Wood's if he would kill Stockhausen. Wood told police he recruited an accomplice to be the trigger man, Cox said.
Days after Hope McLaurin's murder, Lawrence McLaurin, now known as Lawrence Abdul-Muhaimin, and two other members of the McLaurin family were indicted on drug distribution charges by a federal grand jury and a grand jury in Baltimore County. The county dropped its charges when the case was transferred to federal court, where the suspects pleaded guilty.
Ellerbe wasn't the only person charged with murder based on a faulty photo identification of a person whom detectives could have eliminated as a suspect early in the case.
On Aug. 1, 2001, Detective Kirk Hastings charged Gerald Robinson with the murder two days earlier of Donald T. McCoy, who was chased down and shot nine times on a West Baltimore basketball court. Hastings obtained the arrest warrant after two witnesses told him Robinson was the gunman and picked him out of photo lineups.
Later that day, Hastings talked to an informant who told him that someone else, "Brenna," had killed McCoy.
In a report, the detective wrote, "Based on this fact, your writer began to research the suspect background. On 31 July 2001 it was believed that Robinson was on the street due to the fact he had a release date on his jail record. Later it was determined that Robinson was in fact in jail and currently incarcerated in Hagerstown."
"That was a pretty big kink" in the case, said Hastings, who had the warrant recalled before it was served.
Added McLarney, "Two people decided to lie about who did it."
Zuromski said, "We check all the resources we have available to us, and sometimes that's not accurate."
Public records show that Robinson was sentenced to 12 years in prison in December 1999 for assault.
When a defendant leaves the city jail, a release date goes on his record, even if he is being transferred to the state prison system after conviction, said LaMont W. Flanagan, commissioner of the state's pretrial detention and services division.
Hastings later identified "Brenna" as Tyrone Mackall and charged him with murdering McCoy. Mackall pleaded guilty to second-degree murder and is serving a 30-year sentence.
Alarming practice
Cases that go awry usually don't end up with another arrest and a conviction. Most remain unsolved, although internal homicide unit records continue to list them as solved. Indeed, an examination of records shows that when defendants are acquitted or prosecutors drop the cases, homicide records continue to list them as solved - or, in police parlance, cleared.
Ellerbe and Stockhausen were listed in the homicide squad's records as McLaurin's killers months after the cases were dropped.
Some experts are alarmed by this practice.
"Having an incentive structure where police are not evaluated on whether a case results in conviction - that to me almost begs for police who want to get collars and improve their career to file as many cases as possible, regardless of whether they will result in conviction," said Luna, the law professor in Utah.
Take the case of Percy Holland. Detectives continued to list him as one of the killers of Ibrahim Abdullah after prosecutors dropped the case and detectives charged another man, Sean Harriston, who is awaiting trial.
Holland's case, police and the city's chief homicide prosecutor say, is one in which the filing of charges against one person led police to the culprit.
Holland's arrest "took them to who the shooter was," said Cohen, the chief homicide prosecutor. "Many times detectives will do that - arrest, and see where it takes them."
About 10 people, including Holland and his brother, Gary Redd, were inside a Park Heights bar and package goods store one afternoon in November last year when Abdullah walked in with an accomplice, pulled a .25-caliber handgun and announced a robbery. Abdullah put the pistol to Holland's head and pulled the trigger, but it misfired.
That set off a melee, and Holland's brother was shot. Customers took after Abdullah, who crawled from the store while a surveillance camera videotaped the incident. Once outside, Abdullah was shot four times. He died at the scene.
Detective Gary Niedermeier, who filed the charges against Holland three days later, wrote that "an individual" shot Abdullah and that witnesses said Holland was "involved in this incident."
"He was involved," said attorney A. Dwight Pettit, who represented Holland at a bail hearing. "He was a victim." Pettit said that witnesses did not identify Holland as the gunman, and that his client, trying to prove his innocence, asked detectives at the murder scene to test his hands for telltale gunshot residue - what police call a GSR test - and they declined.
Records show police tested the hands of Holland's brother and three other people at the scene. All tested positive.
"I don't recall him specifically saying, 'GSR me,'" Niedermeier said of Holland. "He wasn't GSRed."
Experts say that gunshot residue on the hands doesn't necessarily mean that a person fired a gun - only that the person was near a gun when it was discharged.
Niedermeier and Cohen said the state's attorney's office gave the OK to file charges against Holland. The charging document did not mention Abdullah's failed attempt to shoot Holland.
"Even if he didn't do the shooting," said Cohen, "we could charge him in the murder" because he was involved in beating Abdullah. "Sometimes you have to do that to make the case."
"We knew he wasn't being honest with us - not completely honest," Niedermeier said, asserting that Holland told detectives he was down the street with his brother when Abdullah was shot. Today, Holland insists that's where he was when he heard the fatal shots.
"They told me, 'We know you ain't the shooter, but since you ain't going to tell us who did it, we're going to put it on you,'" Holland said recently, referring to homicide detectives.
Holland spent a week in jail before being released on $50,000 bail.
On Dec. 22, police charged another man as the gunman. But it was another five weeks before prosecutors dropped charges against Holland.
"Based on the statements of witnesses and further looking at the tape, it was determined that it was self-defense," said Niedermeier.
Self-defense is a powerful argument in favor of innocence, but it sometimes takes police and prosecutors a while to conclude that a person who kills an assailant is innocent.
"We make the arrest, and the state's attorney decides," said McLarney, the veteran detective.
"A lot of times, it depends on whether the person hangs around to give them his story," added Cohen, the chief homicide prosecutor. "We have to be cautious. We don't want to screw up."
Self-defense
When Herbert Ellis Jr. killed a man in self-defense, his big mistake, detectives said, was fleeing with the weapon before police arrived.
For Ellis, a security guard at Baltimore-Washington International Airport, the sojourn in the criminal justice system began June 7 last year.
About 1:25 a.m., Michael Wilkes, 36, went to the O'Donnell Heights home of his former girlfriend, intimidated her into opening the door and rushed upstairs. He kicked in a bedroom door and found Ellis, 38, and the girlfriend's 10-year-old son. Ellis shot Wilkes to death with a gun he legally possessed, then fled. Detective Don Gordon filed murder charges, obtained a warrant for Ellis and arrested the security guard that day at his airport job.
After Ellis spent nearly a month in jail, the charges were dropped at a nine-second hearing July 3 last year.
"That was self-defense," said Cohen.
He says police had to charge Ellis because he wasn't there, and they didn't know if they could believe witnesses. Moreover, he said, they had to be concerned that he might kill again.
"The guy wasn't around to tell them his story," said Cohen.
Once Ellis was interviewed, prosecutors reviewed the case and decided to drop it. Said O'Malley, "There are hundreds of cases where self-defense is alleged and proves not to pan out subsequently. I wouldn't want police to do anything other than what they did in that case."
In another case, Carew, the homicide detective, charged a man who fled in September after killing a gunman in self-defense.
"Had everyone remained at the scene and the suspect also remained at the scene, we probably would not have charged anybody," Carew said days after the murder. "For public-safety reasons, he is arrested."
Homicide detectives acknowledge that they sometimes arrest a suspect, though they haven't got the evidence to show that the defendant committed the murder. They say public safety is a key consideration.
That, experts say, leaves police departments vulnerable to legal challenge.
"If it's clear there wasn't probable cause," said Christopher Slobogin, a law professor at the University of Florida, "it's actionable" under federal law.
"An individual, at least in theory, could obtain damages from an individual officer if he is acting in bad faith, and from the city if it appears that it is a policy or custom of the city to let it happen."
Added Colbert, of the University of Maryland, "It's depriving people of liberty when they fall short of the constitutional standard to arrest."
Carew cited public safety in the arrest of four men he charged with murder after gunfire erupted on a Little Italy parking lot in December last year, following a party for 100 people thrown by a drug dealer about to go to prison. Carew wrote that witnesses said one of the defendants, Otis Rich and another man were firing guns when Rich was wounded and Sidney Joyner, a guest at the party, was killed.
Rich jumped into a car with the three other men and was driven to the hospital. Rich and one of the men were arrested at the hospital, while the other two were arrested when their car crashed as they fled police.
To Carew, safety was an issue - along with the behavior of the four suspects. In an interview, he pointed to factors that led him to charge the suspects:
When the four were brought to the homicide office, he said, Rich asked for a lawyer.
Though no gun was recovered, a window of the crashed car was lowered enough to enable a gun to have been tossed out.
Rich's companions said they knew nothing of a gun.
Drugs were found in the car that crashed.
Rich had been shot, and, said Carew, "that's how we know he was a shooter."
Recalling interviews with the four, Carew said, "I don't think they're telling me the truth. Given the set of circumstances, the drugs, nobody cooperating, we just can't let them go out of here. ... So we have to hold everybody - because they're obviously not telling the truth. It was contrary to the truth."
He said, "If I was to let them go and continue to investigate, there was the possibility that the violence would continue."
Ballistic analysis of shell casings found on the parking lot showed that four guns were fired, but none was recovered. "We really had nothing in this case," said Cohen, the chief homicide prosecutor.
A restaurant employee "was the only witness. He said the victim fired first, and he couldn't say who fired back," Cohen said.
"We tried to make the case and couldn't," said Carew.
Records show that the four defendants spent from a month to two months in jail before prosecutors threw out their cases.
Public safety was a factor for Detective Roscoe Lewis in a failed case last year that he calls "circumstantial."
Yolanda Walker was found dead of asphyxiation on a balcony at the North Avenue Motel at 7 a.m. March 9 last year. Lewis wrote that a witness said she had gone with Walker and Lawrence Owens to a room at the motel "to get 'high' on drugs in the early morning hours" of March 9. Later the witness said she was told to leave.
"According to the witness, she left the victim alone with the defendant and that was the last time she saw the victim alive," Lewis wrote. Walker's body was found outside the room.
Lewis wrote that a second witness identified Owens in a photo lineup "as the person he saw with the victim hours prior to her death."
"Two people put her with the suspect that evening," Lewis said in an interview.
Owens denied killing the woman but admitted he had been with her the previous day, Lewis said. Lewis was skeptical because the witnesses put Walker with Owens much later - the evening before she was found dead.
Moreover, in a conversation with Lewis, the suspect speculated on what might have happened to Walker. The "what-if scenario" suggested by Owens matched what Lewis knew of the crime, persuading him that Owens was the murderer.
After the conversation, Lewis said he got Owens into a hospital for drug treatment. Several weeks later, hospital personnel called to tell Lewis the suspect was preparing to leave.
He feared that Owens would disappear. "I didn't have time to put everything together," Lewis said.
He obtained an arrest warrant after charging Owens with choking Walker to death, basing his application on the statements of witnesses that they had seen Owens with the victim before her death.
"We had nothing to put her with him when the body was found," Cohen, the prosecutor, said. "We just didn't think we had enough evidence linking him to the murder."
Added Lewis, "I thought I had probable cause to lock him up for safety reasons."
Bad case, good case
Public safety was an issue when it came to Tyrone Beane, 17.
In February, Col. Robert M. Stanton, the chief of detectives, called Beane the city's "most wanted" fugitive after he was charged in two murders and an assault in which he is accused of sticking a gun in the victim's mouth. He was arrested the next day. Then, less than a month later, prosecutors quietly dropped one of the murder cases because they had a "bad identification" from a witness, according to Detective Frank Miller.
Before the case was dropped, police searched Beane's house and turned up "blood evidence" linking the teen to the other murder. "We utilized one case to help another one along," said Miller.
Cohen called the remaining murder case against Beane "much stronger" than the dropped case. Beane is scheduled for trial next month.
Murder cases based on single witnesses are a perennial problem for the police, particularly when an identification is based on a witness who picks a picture from an array of six photographs. Witnesses sometimes recant their identifications out of fear. Sometimes they pick the wrong person - leading police to charge the wrong person, as they did in accusing the dead Ellerbe and the inmate Robinson, who was identified by two witnesses.
Still, detectives defend the use of single-witness identification in arresting defendants.
"You go out and get the guys as soon as you can because you don't want to see another homicide," said Gordon, the detective. "Getting the guys off the street is a big safety issue."
Charges filed, charges dropped
Tyrone Mackall
After witnesses identified Gerald Robinson as the gunman who murdered Donald McCoy, Detective Kirk Hastings got a warrant for Robinson's arrest, only to discover that the man was in prison at the time of the homicide. In this memorandum, Hastings offered an explanation. Later he identified "Brenna" as Tyrone Mackall, who was arrested and pleaded guilty to second-degree murder. He is serving a 30-year sentence.
Herbert Ellis Jr.
Herbert Ellis Jr. was at his girlfriend's house when her former boyfriend, Michael Wilkes, stormed into the house and kicked in Ellis' bedroom door. The document charging Ellis with the homicide suggested strongly that he acted in self-defense. Prosecutors concluded that, in fact, it was self-defense, and Ellis was released after four weeks in jail.
Lawrence Owens
Lawrence Owens was charged with the murder of Yolanda Walker after witnesses told police they had seen him with the victim hours before she was found dead. The charging document does not say that Owens killed her -- only that he was seen with her before her death.
Percy Holland and Sean Harriston
Percy Holland was charged with the murder of Ibrahim Abdullah after Abdullah was attacked by a group he was robbing at gunpoint. The document that charged Holland with murder said he was "involved" in the melee but did not mention that Abdullah had tried to shoot Holland. Detective Gary Niedermeier included that fact in papers that charged Abdullah's accomplice. Ultimately, Sean Harriston (right) was charged with killing Abdullah. He is awaiting trial.