Obey rules, mayor asks

Prosecutors at work on policy to avoid compromising cases

Witnesses' safety an issue

Courts require some evidence to be shared with defense

October 11, 2001|By Sarah Koenig | Sarah Koenig,SUN STAFF

After a tense exchange with the mayor, Baltimore prosecutors said yesterday that they are pursuing a new policy regarding evidence to avoid having serious criminal cases thrown out because of failure to comply with court rules.

The conversation, which verged on argument, took place at a Criminal Justice Coordinating Council meeting, at which prosecutors announced they would recommend to State's Attorney Patricia C. Jessamy this month a new, more open policy regarding what evidence they will turn over to defendants.

The topic is a touchy one for city police and prosecutors, who have lost cases or had them badly compromised because of problems involving evidence rules relating to discovery. As a result, people charged with murder and other felonies have walked free from Baltimore courtrooms in recent years.

Discovery rules require prosecutors to hand over certain investigative documents to defense attorneys. In addition, they must disclose any information suggesting the defendant is not guilty.

With barely concealed irritation, Mayor Martin O'Malley raised the issue yesterday, asking Deputy State's Attorney Haven H. Kodeck why Baltimore did not adhere to the "open file" discovery policy used in Maryland counties, in which defense attorneys have easier access to the state's case.

When Kodeck replied that definitions of "open file" varied, and that Baltimore had far more violent crime than any other jurisdiction, O'Malley said: "Is it your contention that the volume of cases is preventing your office from complying with the Constitution?"

"No," Kodeck said.

"Open file" is interpreted differently across the state. Some jurisdictions automatically turn over everything, except in homicide or sex-offender cases.

Of particular concern in Baltimore is protecting witnesses, Assistant State's Attorney Page Croyder, who is working on the new discovery policy, said after the meeting.

Although some jurisdictions disclose witness statements before trial, that could be unworkable or even "irresponsible" in Baltimore, where eliciting testimony from witnesses frightened of retribution is often the most difficult aspect of a prosecutor's case.

"We want to be able to say to witnesses, `Nobody's going to see your statement unless you testify.' And we want to mean it," Croyder said.

Croyder said the new policy, to be presented for Jessamy's review by the end of the month, would be more open, but would also be "sensitive to the needs of our community."

At the meeting, O'Malley also challenged prosecutors to sign for investigative documents they receive from police officers to avoid finger-pointing when papers are missing. Croyder said they would, but noted it was "unfair and inaccurate" for the mayor to imply that they had refused to do so in the past.

Afterwards, Kodeck said that as far as he knew, city prosecutors "have never refused to sign for anything." He said: "I can tell you we have not been asked wholesale to sign these documents," There might have been individual requests, but he didn't know of them, Kodeck said.

Croyder later said she welcomed such a system, predicting it would improve accountability on both sides and force police to pay closer attention to exactly what their files contain.

For its part, the Police Department has pledged to begin numbering each document it turns over to prosecutors, and to improve its filing system so that police reports -- and even entire case folders -- are not lost, as happened in a recent attempted murder case that was dismissed as a result.

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