We’re glad to see that interim Baltimore Police Commissioner Gary Tuggle has ordered officers to respond to a questionnaire from State’s Attorney Marilyn Mosby’s office designed to flag possible integrity issues before they testify at trial. Too many cases have been dropped — and, quite likely, too many guilty people have gone free as a result — because of the untrustworthy testimony of members of the department’s Gun Trace Task Force as well as others who have abused their badges. We appreciate that police might not see the relevance of some questions, like whether an officer has sued or been sued, and indeed much of the information collected may prove to be irrelevant. But under the circumstances, it’s far better for prosecutors to know too much rather than too little about ways defense attorneys might seek to impeach the testimony of their key witnesses.
Under the Patricia Jessamy administration, the state’s attorney’s office maintained a “do not call” list of police officers with known integrity issues who were deemed too unreliable to call as witnesses. Her successor, Gregg Bernstein, abolished it after his election in 2010. Ms. Mosby office has said it does not maintain a “do not call” list, but it does have a system to notify prosecutors of officers who “present credibility concerns” so that they can have a more extensive conversation with the Police Integrity Unit before calling them to the stand. Ms. Mosby did not directly answer a question on The Sun’s endorsement questionnaire this year about whether she would establish a “do not call” list, but she did provide a lengthy explanation of efforts she has made to check for possible integrity issues (and to share more of that information with defense attorneys).
The question raised directly by the do not call list and indirectly by the current questionnaire is: What will the police department do if prosecutors have concerns about an officer’s integrity? In the Jessamy years, the do not call list wasn’t public and wasn’t necessarily even shared with the police department. But when prosecutors routinely dropped cases in which certain officers made the arrests or were key witnesses, the department was effectively forced to move them out of direct law enforcement and into administrative roles. The department is now notified if officers refuse to respond to the questionnaire, and they can be disciplined as a result pursuant to Mr. Tuggle’s order. The department is in discussions with Ms. Mosby’s office about getting the questionnaires in cases where an officer’s answers raise the possibility of integrity issues, but no agreement has yet been struck. One way or another, the department needs the information Ms. Mosby is asking about. It can take action based on officers’ answers to those questions or others like them, and it should.
Last week, Baltimore Fraternal Order of Police President Lt. Gene Ryan sent a statement to the union membership reversing previous guidance that officers should not answer the Mosby questionnaires. Now that Commissioner Tuggle had ordered it, he wrote, officers should do so and should be assured based on a half-century old Supreme Court decision that they would be protected “from any consequences that might arise from the answers you provide on the questionnaire.”
That’s not quite right.
The case Mr. Ryan referred to, Garrity v. New Jersey, stemmed from an investigation into alleged traffic ticket fixing in that state by a handful of police officers. New Jersey law said that public employees who refused to testify in a criminal proceeding in which they were the defendant or a prosecution witness would forfeit their jobs as a result. Under those circumstances, the officers answered questions in depositions that were eventually used against them in criminal trials. But the Supreme Court reversed their convictions on the grounds that the self-incriminating testimony was coerced — a violation of the Fifth and 14th amendments.
That case and those that have followed from it deal with protections against self-incrimination in criminal proceedings, not in internal disciplinary cases. Public employees can face employment sanctions, including termination, based on their coerced answers to questions or for refusing to answer. They can even be prosecuted for crimes related to their answers, so long as they or any evidence derived from them is not used in trial.
Whether Ms. Mosby’s office shares the results of its questionnaires with the police or not, the department needs to be asking the same sorts of questions. Mr. Tuggle’s predecessor, Darryl De Sousa, promised stepped up efforts at detecting integrity problems on the force, including administering polygraph tests. That’s ironic, of course, given that he lost his job because of his own failure to disclose an integrity issue — his failure to file income tax returns — but the point remains. Ms. Mosby’s office is doing the right thing by being proactive about determining whether officers have integrity issues. The police department should be, too.
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