Baltimore police have ended an agreement with city prosecutors and taken back the authority to charge homicide suspects without first getting approval from the state's attorney's office.
The agreement, in place for about six years, was an effort by previous administrations to reduce the number of cases charged by police but dropped by prosecutors due to concerns about proving a suspect's guilt beyond a reasonable doubt.
But the Police Department has formed a committee of four commanders who review homicide cases in which detectives and prosecutors disagree on whether evidence is strong enough to proceed. Prosecutors are not part of the panel, and the committee can authorize police to charge over their objections.
Police Commissioner Kevin Davis signaled the change at a January news conference during which he bemoaned the criminal justice system's revolving door.
"It's in existence nowhere else in Maryland," Davis said of the previous agreement on charging homicides. "That protocol that's been in place for several years in Baltimore quite frankly is leaving people we believe we have probable cause to charge with murder still out on our streets."
Baltimore Assistant State's Attorney Lisa Goldberg, a supervisor in the homicide unit, said when differences have arisen in the past, police and prosecutors would convene intensive case review meetings to iron out problems. Such meetings were convened only 11 times over the past two years, leaving prosecutors puzzled as to why police sought a change.
"At the end of the day, it's your prosecutor who is charged with trying the case," Goldberg said in an interview. "While you might have probable cause to charge, there's so much more that needs to be done and we need to have it done before charging."
"We have the same goal: We want murderers off the street," she said. "We want the right people charged, with accurate evidence."
Police and prosecutors say the change affects a small number of cases. Since the police committee was created in February, four cases have been reviewed. The panel approved filing charges in two of them, over the disagreement of prosecutors.
The other two cases brought by detectives were rejected by the commanders, who said more work needed to be done. But prosecutors eventually brought charges in those cases after detectives did additional work.
The panel has to be unanimous in its decision to go forward with charging a homicide suspect.
Police declined to discuss the individual cases.
Police spokesman T.J. Smith said the new panel "is not a way to circumvent" prosecutors. "They're still in the conversation," he said.
Police have been trying to improve their diminishing rate for solving homicide cases, called a clearance rate. It for years was regularly above 50 percent but dropped below that threshold the same year prosecutors asserted more control.
When killings increased sharply two years ago, the homicide clearance rate fell to 30 percent. The year-end closure rate last year was 38.5 percent.
As of April 10, the rate of closed cases was more than 53 percent, the same figure as this time last year.
When police file charges in a homicide, they fill out a statement of "probable cause," a standard that is lower than "beyond a reasonable doubt," which prosecutors must meet to win a conviction in court.
Charles Wellford, a University of Maryland criminologist who has studied homicide units in Baltimore and elsewhere, says the different charging standards for police and prosecutors can lead to conflict.
"It's not unusual to have the issue come up, but in my experience, in most cases the police and prosecutors reach some kind of accommodation that works for both of them," Wellford said. "That appears not to be the case in Baltimore."
Joe McCann, a former Prince George's County police commander, was hired last year by Baltimore police to the newly created position of director of quality control. McCann said he created the new charging review committee.
In an interview, he and Maj. Donald Bauer, the commander of the homicide unit, said police want to move more quickly to charge in cases but still have proper oversight.
"Unfortunately with the increased amount of violence we had in 2015 and 2016, we don't have time to slow down on these cases," Bauer said.
McCann said police did not have to defer to prosecutors in Prince George's County. In Baltimore County, State's Attorney Scott Shellenberger said police don't have to consult with his office, but with only 25 to 30 homicide cases a year the agencies are typically in close communication.
Goldberg, the homicide prosecutor, said Baltimore police have long deferred to prosecutors on charging of homicides even before the formal policy in 2011. But the approach to developing cases has changed over time.
"There was a time when cases could be charged, and there was a hope that we could" continue investigating and uncovering new evidence, Goldberg said. "As the criminal justice system has evolved, we're not charging people without having every duck in a row."
Goldberg noted that prosecutors can lose the power to use the grand jury to conduct investigations if a case has already been charged and indicted. When the grand jury is involved, prosecutors can subpoena witnesses in an effort to elicit more evidence. "If we charge a case prematurely, we may have roadblocks," Goldberg said.
But Davis, in January, said taking a suspect off the street by charging him may open up new investigative avenues. "That's when people feel comfortable coming forward and cooperating more with police," he said. "Sometimes, a really great prosecution begins with a really good arrest, and the case gets enhanced before the trial date."
When Gregg Bernstein was a candidate for state's attorney, he criticized his predecessor, Patricia C. Jessamy, for cases in which police would file charges in a homicide that prosecutors would drop before taking it to a grand jury. So after Bernstein took office in 2011, then-Police Commissioner Frederick H. Bealefeld III agreed to change the process.
After the change, detectives stewed that they were being blocked from making arrests. But officials say tension between the agencies was overstated. Bauer, the homicide commander, said "not every case they [detectives] want charged is chargeable."
Melba Saunders, the spokeswoman for the Baltimore state's attorney's office, said prosecutors were "open and willing to explore new ways to support BPD's pursuit to increase homicide closure rates."
"The overall impact to active cases appears to be minimal; however, we will continue to evaluate the effectiveness of this approach unless and until it proves to be detrimental to the overall pursuit of justice," Saunders said.