Pagotto case ruling challenged again

Md. attorney general disputes court ruling

August 21, 1999|By Peter Hermann | Peter Hermann,SUN STAFF

The state attorney general's office appealed to the state's highest court yesterday to reinstate a manslaughter conviction against a former Baltimore police sergeant who shot a motorist three years ago.

Assistant Attorney General Mary Ann Ince argued in a 15-page petition that the Court of Special Appeals erred when it ruled last month that former Sgt. Stephen R. Pagotto's accidental shooting of Preston E. Barnes did not rise to criminal negligence.

"There is ample evidence from which the jury properly could find beyond a reasonable doubt that Pagotto did not act as a reasonable police officer when he took substantial steps to use deadly force," Ince wrote.

The shooting in February 1996 of Barnes, 22, on Kirk Avenue, Northeast Baltimore raised tensions between residents and police that quickly escalated into a debate over law enforcement tactics and an ambitious effort by officers to get guns off the streets.

The Court of Appeals must decide whether to hear the case. If the panel chooses not to hear arguments, the lower court's ruling stands and Pagotto will remain free.

Pagotto's Fraternal Order of Police lawyer, Henry L. Belsky, accused state officials of caving in to community pressure in the controversial shooting. Pagotto, 43, was the first city officer in memory to be convicted for an on-duty shooting.

For police, Pagotto's trial examined how far an officer can deviate from his training when he believes his life is in danger. Belsky said the lower court, in siding with his client, gave officers new protection in using their firearms.

Noting a rash of killings this week and the danger officers face in confronting armed suspects, union officials, who have spent more than $100,000 defending Pagotto, called Attorney General J. Joseph Curran Jr. a "political hypocrite."

"It's ironic that the same week that eight citizens of Baltimore get killed in a three-day period and politicians are screaming for law and order, the state decides to persecute a police officer," Belsky said.

"They are the same politicians who push and shove each other to get to the front of the line when a police officer is killed," the union lawyer said. "Yet, they want to take away a safety net that the Court of Special Appeals gave to all officers under the most stressful of situations."

Curran's spokesman, Frank Mann, called the union's charges "absurd."

In a statement, Curran said he has "learned a great deal about the extreme dangers and the difficult, split-second decisions officers must make. I have learned to respect their decisions and believe they deserve the benefit of the doubt."

He added, however, that "it is in the public interest" to pursue the Pagotto case and let the state's highest court decide who was right, the jury that convicted the sergeant or the three-judge panel that exonerated him.

Pagotto had stopped Barnes' car for an incorrectly displayed license plate and approached with his 9 mm Glock drawn and his finger resting near the trigger. When Barnes did not respond to Pagotto's orders to get out of the car, the sergeant reached in and grabbed Barnes with his left hand, wielding the gun in his right. His gun discharged when the car lurched backward and hit his hand. Barnes was struck under the arm and died at the scene.

City prosecutors argued that Pagotto violated so many department training guidelines that his actions amounted to a crime. The rules require that officers keep their fingers above the trigger guard unless prepared to shoot. It also prohibits officers from grabbing suspects while holding their guns.

A jury convicted Pagotto of involuntary manslaughter in December 1996, and a judge sentenced him to 20 months in prison. He had been free on bail while he appealed.

The Court of Special Appeals threw out the conviction July 7. The panel concluded that although Pagotto was partly negligent, it was not sufficient to allow a jury to convict him of a crime.

The lower court blamed Barnes -- who had cocaine in his car -- for his own death for trying to flee during a traffic stop.

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