Constitution at work in Pagotto ruling

March 09, 1997|By GREGORY KANE

Everyone, no doubt, has an opinion on the sentencing of Baltimore police Sgt. Stephen Pagotto. In fact, we've heard from just about everyone. But have we read the written opinion of the man who sentenced him: Circuit Judge John Carroll Byrnes?

Arriving in the mail last week was Byrnes' complete sentencing opinion in the Pagotto case. Because it is valuable reading for all Baltimoreans and Marylanders in the surrounding counties, I will use portions of it in this column.

"Although each sentencing is as unique as the individual defendant, most judges would likely agree that all sentencing, in varying degrees, is about punishment of the offender for wrongs done to individuals and to the community, about retribution on behalf of the victim, and about deterrence of similar future conduct. It is also, where possible, about rehabilitation of the offender, since we recognize that in most human beings there is the potential for good; and the criminal justice system should look to find it in order to protect the public from future harm at the hands of that same offender.

"Although, as I said, each case is unique; and this case is not only very much different from all other homicides over which I have presided, I suspect it is different from all other homicides that any judge here has presided over. It is different because it involves a previously convicted victim who was, by the evidence, dealing to some degree in illegal drugs; and a 16-year veteran police officer/defendant who, although not without minor blemishes in his record, was talented and dedicated enough to be promoted to sergeant and had no significant infractions of the rules on his record.

"I believe this is the first time an officer has been criminally convicted of such an offense in the City. It is different, also, because the crime occurred in the course of legitimate police enforcement of our gun and drug control laws. Many have likened drug hazard areas to a war zone; and there are some parallels with soldiers who routinely put their lives at risk at the hands of the enemy, who have loaded weapons ready to use with no warning.

"There is an imperfect analogy that came to my mind. Not long ago, military pilots patrolling a no-fly zone in southern Iraq shot down a helicopter which they misunderstood to be an Iraqi helicopter violating a no-fly zone, but was instead a helicopter transporting peace keepers. The loss of life was great and tragic. High-and low-ranking officers were punished for dereliction of duty; but, to this court's knowledge, not held criminally responsible.

"It is not unreasonable to compare this defendant, Sergeant Stephen Pagotto, with those military personnel. If Baltimore City is to be a drug and weapons-free zone, it is argued, those soldiers whom we arm and send to battle must be judged for their dereliction of duty almost as soldiers at war. Of course, we cannot carry this analogy too far. There is a big difference between those pilots and soldiers and this defendant. Soldiers deliberately aim at what they believe to be a lawful target. This defendant had no lawful target. There are also very important differences between the streets of Baltimore City and a true war zone. One of the most important differences is that professional soldiers are trained to kill to attain military objectives; but police officers are not trained to kill, they are trained to preserve the peace. ...

"This distinction is important. Police officers, whose lives are not then at risk, cannot be permitted to regard themselves literally as soldiers ready to shoot upon any non-threatening provocation or even in circumstances that give rise to suspicions that criminal conduct is occurring or occurred. If we accept that standard, we would be establishing, virtually, a quasi-police state."

High school and college history, civics and political science teachers should close their textbooks for a day and, instead, have their students read Byrnes' opinion. We all know what the Constitution says about rights and due process and illegal searches and such. But how do these things apply in the real world?

Byrnes tells us how they apply. We hold our police to high standards and restrict their conduct so that we don't become a police state.

We must give every citizen dignity and respect, Byrnes said later in his opinion. Even those who've lost their way like Preston Barnes, the young man Pagotto shot and killed.

"Three young black males in an automobile stopped ostensibly for a license plate violation did not surrender their right to that respect and dignity," Byrnes wrote. When we fail to recognize that, Byrnes noted, we run the risk of having our police become not peace preservers, but power preservers.

Pub Date: 3/09/97

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