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Judge says state secrecy on police records extends to courtroom

A Baltimore judge recently agreed to unseal portions of a court hearing that had been closed to the public — proceedings that included allegations of police misconduct — but said Maryland's public information laws justify restricting access to the entire hearing.

The Baltimore Sun filed an objection after Circuit Judge Edward R.K. Hargadon, who is overseeing a 2003 murder case, closed his courtroom for the July 10 hearing. He said he took that action because "it involves personnel matters."

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Previous, open hearings outlined a key issue: allegations of overtime theft by the two lead detectives in the case, Kerry Snead and Darryl Massey, from about 2006. In one of those hearings, defense attorneys read documents from a police investigation that showed their unit racked up tens of thousands of dollars in overtime and that the detectives were secretly observed running errands or at home while they were still on the clock.

Those allegations were central to a Court of Appeals decision overturning the convictions of defendants Clayton Colkley and Darnell Fields in a murder conspiracy. Defense attorneys wanted to use the allegations to discredit the detectives.

Massey, who has retired, said Friday that he and Snead were wrongly charged after a flawed police investigation into a practice that continues. Snead could not be reached for comment.

Fields pleaded guilty shortly before the July 10 hearing was closed and received a 20-year sentence; he has already served 12. Colkley continues to fight the charges.

As arguments and testimony were to begin about the officers' records, Hargadon asked a Sun reporter to leave and sealed the proceeding.

In his ruling, the judge said recent appellate court decisions affirming the state Public Information Act's prohibition on releasing police personnel records extend to the courtroom. "This is uncharted territory," he said.

Maryland's highest court ruled last month, in a case involving a state trooper, that internal records related to an officer's misconduct are exempt from the Public Information Act.

In a written ruling issued last week, Hargadon said about 25 minutes of the two-hour hearing — which covered other matters beyond the officers' alleged misconduct — would remain sealed.

The Sun reviewed the unsealed portions of the hearing, including segments in which public defender Deborah Levi argued that it should be open.

"There should be no reason why the public ought not to be able to know exactly what's happening, if there was discipline imposed" on the officers, Levi said. "The public has a right to know these things."

Brent Schubert, an attorney for the city, told Hargadon that Levi's comments "are maybe good arguments."

"But Annapolis has spoken," Schubert added, referring to state laws on personnel records.

At a hearing on the issue of access, Nathan Siegel, an attorney for The Sun, told Hargadon that it is crucial for the public to know what decisions judges make in pretrial hearings regarding evidence allowed into a trial.

"Those decisions are at the heart of fair trials. Cases turn on [such] decisions. That's precisely why the public has to have access," Siegel said.

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The Baltimore state's attorney's office and city solicitor's office argued against the hearing being open.

Assistant State's Attorney Gerard Volatile said, "The public will be represented at trial by 12 jurors." He said the public defender's office wanted an open hearing to generate media coverage that would "embarrass the police officers and poison the well before trial starts."

Hargadon said he would unseal any evidence and records that he determines should be presented to the jury.

Internal police records do not automatically become public when they are an issue in court. Judges often review documents in their chambers and decide whether they should be discussed openly. Other types of protected documents also find their way into public view once introduced in trials.

David Rocah, an attorney for the American Civil Liberties Union of Maryland, was not involved in the July hearing but said in an interview that the judge's decision "is taking secrecy involving police to some absurd extreme that is utterly unjustified by either law or policy."

Another motions hearing is scheduled for Aug. 18, when Massey could testify.

He said Friday that the squad that investigated his case was disbanded and that the allegation has no bearing on his investigation of the murder Colkley is charged with.

"It's so unfair to me, as a highly decorated law enforcement officer who gave his all for 30 years," Massey said.

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