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Baltimore State’s Attorney Mosby was wrong not to release her ‘do-not-call list’ of trouble cops, appeals court rules

Baltimore State’s Attorney Marilyn Mosby told a crowd two years ago that her office has compiled a list of hundreds of city cops whose credibility has been called into question. Her revelation set off a legal battle as public defenders, activist lawyers and news reporters sought the names.

The Maryland Court of Special Appeals ruled Thursday that Mosby’s reasons for keeping her list secret aren’t valid under state open records laws. The court further faulted Mosby’s office for denying requests to waive $18,000 in administrative fees it wanted to charge for releasing records from investigations of police officers, with the judges calling that decision “arbitrary and capricious.”

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Open records laws generally allow such fees to be waived when the materials are considered matters of public interest.

The opinion from Maryland’s second-highest court comes in a lawsuit filed by activist lawyers with the nonprofit Baltimore Action Legal Team, known as BALT.

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“The state’s attorney had the option to disclose these records and she choose not to,” said Matt Zernhelt, legal director of BALT. “She simultaneously told the public that she was fighting for one standard of justice, and she wanted to disclose the records to the public and show she was investigating police. But when we asked, she forced us to litigate.

“While saying these things to the public, she was saying something completely different in court,” Zernhelt said.

“We were told by the Attorney General’s Office earlier this year that we were legally prohibited from releasing,” she said. “I have always been clear about my desire to release this list, and this ruling and the recent MPIA [Maryland Public Information Act] law change, which I advocated for, gives us authority to release this list. I will be doing so in short order.”

She declined to say specifically when her office plans to turn over the list.

The Baltimore Sun also requested the list under Maryland’s Public Information Act.

A spokeswoman for the Attorney General’s Office refuted the notion that her office called the shots. It was Mosby who first denied BALT’s request and set off the litigation, causing the attorney general to step in and defend the denial, spokeswoman Raquel Coombs said.

“It was the State’s Attorney’s Office’s decision initially to withhold the information,” Coombs said. “Subsequently, our office advised that the office was within its rights to do so. The State’s Attorney’s Office could have, at any point in the litigation, chosen to release the list — it chose not to.”

The appeals court opinion overturns a ruling last year by the trial court that sided with Mosby. Her office argued the list and associated materials constitute “personnel records” and are therefore exempt from disclosure in the open records laws. The sides argued the issue in Baltimore Circuit Court last year. At the time, Mosby emailed the judge and BALT’s lawyer to say she felt her hands were tied.

“This legal prohibition is the only reason we have not disclosed this information,” she wrote.

But the Court of Special Appeals ruled her list does not count as a “personnel record,” and therefore doesn’t qualify for the exemption. That particular exemption is reserved for records related to job performance, such as an application or evaluation — not simply the names, the judges wrote.

Similarly, they found Mosby’s office was wrong to cite a second reason for keeping the list secret: that it qualified for an “attorney work-product” exemption in open records laws. That exemption, however, is reserved for documents created in response to specific litigation.

“Even though the SAO constantly faces the prospect of litigation, the ‘do not call’ list was not necessarily created in response to the prospect of litigation,” the judges wrote. “Rather, the list was created for the purpose of alerting prosecutors to the fact that a cohort of officers have questionable reputations and putting them on the witness stand to testify, or to base an investigation on a search warrant submitted by one of these officers, to cite two examples, would potentially jeopardize a prosecution.”

Mosby isn’t the first state’s attorney to maintain such a list. Former State’s Attorney Patricia Jessamy maintained a list of a few dozen officers she would not call to testify in court, but she did not release it publicly. She was succeeded in 2011 by Gregg Bernstein, who discontinued the practice.

Meanwhile, a Philadelphia judge ordered District Attorney Larry Krasner three years ago to turn over his do-not-call list to the city’s defense attorneys.

The specifics of Mosby’s “do not call” list — a catalog of officers who wouldn’t be be called to testify — have remained unclear. Mosby has publicly mentioned yet another list with 305 officers whose credibility has been called into question, but men and women not necessarily too compromised to testify at trial. Police commanders have brushed off the significance of that list.

It remains unclear the number of people on her “do-not-call” list.

Baltimore Sun reporter Justin Fenton contributed to this article.

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