Under a new agreement between Baltimore prosecutors and the city law department, police officers involved in bringing felony and “serious misdemeanor” charges against criminal defendants in the city must disclose any misconduct allegations in their internal affairs files to prosecutors, and the law department must respond to prosecutor requests for those files within 48 hours.
The Baltimore State’s Attorney’s office — not the law department — will then decide what information in the file, if any, must be disclosed to defense attorneys in the cases, the agreement states.
The agreement drew immediate criticism from the public defender’s office and an attorney for the local police union, even as it was hailed as a great breakthrough for fairness and transparency by city officials.
In a memorandum to Baltimore State’s Attorney Marilyn J. Mosby outlining the terms of their agreement on Friday, City Solicitor Andre Davis wrote that the deal represents “a major policy enhancement” and comes “in light of the need for positive reforms in the pursuit of fairness and integrity in the City’s operation of the local criminal justice system.”
The deal was brokered by Davis and Mosby amid scathing criticism of the current disclosure process from public defenders and defense attorneys, who say Mosby’s office routinely fails to meet its constitutional obligation to disclose information about officers that may benefit their clients’ cases.
The defense bar says such failures have allowed for corrupt police officers like those on the Gun Trace Task Force, who were convicted recently of robbing citizens, among other offenses, to act with impunity and continue working on the force even as complaints stacked up against them.
In some cases, defense attorneys have sought internal affairs files directly from the city in an effort to bypass the prosecutor’s office, which has brought the city law department and court judges into the process of deciding which parts of an officers’ past should be shared.
In an interview Friday, Davis said the new agreement makes the roles of the police officers, the city law department and the prosecutor’s office clear, and that he has “absolute confidence that the state's attorney’s office will implement this agreement entirely to the letter.”
The state’s attorney’s office, in a statement, said the agreement “streamlines” the process by which internal affairs files for officers serving as “integral witnesses” in criminal cases are reviewed by prosecutors.
“Our hope is that this new process not only streamlines the process for disclosing [internal affairs] files, but also lends itself to more transparency within our local criminal justice system and processes,” Mosby said. “These changes should relieve some of the burden on the court to resolve [internal affairs] file disputes between my agency and the defense bar, as well as make these files accessible more quickly.”
Others, including members of the defense bar, disagreed.
Baltimore District Public Defender Kirsten Downs slammed the agreement as misguided, saying in a statement that it leaves the disclosure of information relevant to the integrity of officers in the hands of the officers themselves and of prosecutors who routinely have failed in that role in the past.
Downs took particular issue with a portion of the agreement that states that while defense counsel would be provided favorable information from internal affairs files, they rarely would be provided the internal affairs files to review themselves.
Downs said the agreement “ignores the reality” that those officers and prosecutors “have repeatedly demonstrated, often on the record, that they lack the understanding, capacity or will to identify and disclose highly relevant exculpatory and/or impeaching materials.”
She also noted that the agreement contemplates “no training, oversight or enforcement of these obligations, which are already constitutionally established but nonetheless ignored.”
Mike Davey, an attorney for the local police union, questioned the practicality of the agreement based on a cursory review of it.
He said “almost every officer has some kind of record in internal affairs, even if they’re all unsustained or unfounded,” and most — including those under active investigation — “don’t have a clue what’s in their file.”
“An officer can be under investigation for many, many months and not even know it until they get asked to give an interview,” Davey said. “To be on the safe side, I guess every officer should just say, ‘Yes I think I have a file.’”
Davey was not sure how such a process will assist any of the parties involved.
The number of cases the agreement will apply to is unclear, in part because it does not define what it means by “serious misdemeanor.”