Lapse in case blamed on police

Prosecutors say leads in murder case did not reach them

August 01, 1999|By Andrea F. Siegel | Andrea F. Siegel,SUN STAFF

For the fourth time in 20 months, a judge sitting on an Anne Arundel County case has faulted law enforcement officials for failing to turn over information to defense attorneys -- this time in a 1995 killing.

This marks the second time county police have been blamed for not providing details of a murder investigation to prosecutors. The Police Department has begun an internal investigation.

"There is a review going on. There could be some kind of disciplinary action," said Gary L. Barr, deputy chief for field operations.

If officers are disciplined -- punishment could range from a verbal reprimand to firing -- it would be the first time they have been sanctioned for this type of violation in recent memory, Barr said.

On Wednesday, Anne Arundel Circuit Judge Ronald A. Silkworth found a "Brady" violation in the case of David A. Dicus of Millersville, who is charged with murdering his wife. That is a violation of a law aimed at ensuring a fair trial. The prosecution must share with the defense all information that could lead to a judgment of innocence or leniency. The term refers to a landmark U.S. Supreme Court decision more than 30 years ago in Brady vs. Maryland, an Anne Arundel County case.

Silkworth's ruling on Wednesday came months after prosecutors met with detectives to explain what material must be turned over to the state's attorney's office. The sessions were called by prosecutors after a judge punished them last summer for failing to give information to the defense in a double-murder case. Prosecutors later said police had considered the information useless.

"The problem is you don't know what you don't know," said Alan R. Friedman, public defender for Anne Arundel County. "It is a very serious breach of trust, and it does not bode well for fair trials."

The number of evidence disclosure violations has alarmed criminal defense attorneys, who say four in just over 1 1/2 years is a lot for the state's fifth-largest court. In the 1997-1998 fiscal year, Anne Arundel County Circuit Court had 4,272 new criminal cases.

Baltimore City Circuit Court had six times as many new cases over the same period. In a recent investigation, The Sun found eight prosecutions in two years undercut by prosecutors failing to give the defense required information.

"The system is based on trust and truth," said criminal defense attorney Carroll McCabe. "If you don't have trust, everything falls apart."

Particularly unnerving, criminal defense lawyers say, is that the Brady violations occurred in the kind of cases that get the closest scrutiny -- three involved murder charges, and one a charge of assault with intent to murder. Defense lawyers say that makes them wonder what happens in cases involving lesser crimes, or plea agreements.

Gill Cochran, Dicus' defense attorney, was furious when the lapse happened last week in his case. Dicus is charged with first-degree murder in the death of his wife, Terry Lee Keefer, four years ago.

"This is the most outrageous conduct on the part of the police I have ever seen in my life. In 30 years of practicing law, I have never seen such a cover-up," said Cochran. "I think the police should be prosecuted for this. They deliberately did not give me information to exonerate my client."

So far, said Barr, it does not appear that Officer Michael Praley tried to hide information in the Dicus case. But he said he told police leading criminal investigations to "fix this and prevent it from happening in the future."

Detectives and prosecutors often look at investigative results differently. What is unimportant to a detective trying to solve a crime may have great legal importance, Barr said. Detectives learn the distinctions less through formal training than experience.

Defense attorney Byron Warnken, who teaches criminal law at the University of Baltimore School of Law and represents law enforcement officers in disciplinary matters, said he had never heard of a police officer being disciplined for failing to turn over information, though occasionally police do not share what they should with prosecutors.

Similarly, prosecutors have not been sanctioned when they have not given the defense potentially exculpatory material.

Warnken attributed most police failures to give prosecutors information to sloppiness and not thinking critically about what they should be sharing.

After police failed to share evidence in another case last year, embarrassmentAnne Arundel prosecutors met with homicide detectives and police supervisors, said Frank R. Weathersbee, state's attorney for Anne Arundel County. His office will give new detectives the same training.

But defense attorneys say privately that may not be enough because judges blamed two of the four Brady violations on Weathersbee's office. Weathersbee believes those findings were erroneous; one is on appeal in the U.S. Court of Appeals for the 4th Circuit.

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