Police critical of the use of internal data

Appeals are filed over judges' admission of citizen complaints

July 04, 2006|By JULIE BYKOWICZ | JULIE BYKOWICZ,SUN REPORTER

Defense attorneys representing suspected criminals are trying to dig deeper into the internal affairs records of Baltimore police officers, and some city judges are allowing it - prompting lawyers for the Police Department to appeal some recent rulings.

The department opposes what it sees as efforts by Baltimore Circuit Judges John N. Prevas and Wanda K. Heard to broaden the accepted conditions under which jurors can hear about citizen complaints against police, which defense lawyers use to try to discredit officers on the witness stand.

Paul M. Blair Jr., president of Baltimore's Fraternal Order of Police, said he is glad the department's lawyers are fighting the rulings.

"It's deplorable that the courts are doing this," he said. "For the judge to allow defense attorneys to spend more time attacking our officers than defending their clients - it's very upsetting."

The issue emerged in March, when Prevas ruled that defense attorneys in a three-defendant drug case could tell jurors that a pair of investigating officers had 46 complaints between the two of them, even though all but two complaints were unsubstantiated.

The prosecutor said Prevas' ruling "gutted" her case, so she dropped charges against the suspected East Baltimore drug dealers.

Karen Hornig, a city solicitor who is chief legal counsel for the Police Department, said at the time that she viewed Prevas' ruling as "an anomaly" that didn't warrant appeal.

But since then, Prevas has made several similar rulings in drug cases, subjecting officers to questions about their credibility. Police filed appeals notices in two cases about two weeks ago.

Last week, Heard ruled in an assault case that a defense attorney can question the arresting officer about substantiated complaints of excessive force. City lawyers filed a notice that they intend to appeal this case as well.

Hornig said that although the appeals deal with three specific cases, they aim to be far-reaching. She said the appeals ask the Court of Special Appeals to clarify what parts of an officer's internal affairs record should be admissible in court.

Typically, Hornig said, jurors hear only about substantiated complaints concerning an officer's ability to tell the truth. Unsubstantiated complaints - even disclosing just the number of them - did not come up in court before Prevas' ruling in March, she said.

"It's inappropriate, in our opinion, to subject an officer to scrutiny that goes beyond sustained complaints that would impact truthfulness or veracity," Hornig said.

Lou Curran, a defense lawyer involved in one of the cases under appeal, said jurors "should be entitled to weigh who is telling the truth based on a broad view" - not just based on substantiated complaints.

Prevas seemed to agree. "Misconduct, sometimes when it's frequent enough, it indicates a lack of desire to tell the truth," the judge said at a hearing in March, after reviewing an officer's internal affairs file.

"The undercurrent here," Curran said, "is that the defense bar polices the Police Department."

Police and prosecutors say jurors are more skeptical of officers' actions because of high-profile allegations of misconduct, such as unnecessary arrests.

A city grand jury report released in March says residents distrust the Police Department because of the thousands of arrests each year that do not result in criminal charges. And last week, two civil rights groups filed a class action lawsuit alleging police misconduct and arrests without probable cause.

Margaret T. Burns, a spokeswoman for the city state's attorney's office, said the climate of distrust makes it difficult to successfully prosecute cases.

"In what other community in America is there a need to address these infractions against cops, in this type of legal forum, in order to see that justice is served?" Burns wrote in a statement. "Cops should be a prosecutor's best witnesses."

The appeals concern the cases of Martin McKithen, 22, Freddie Harper, 36, and Dawnta Franklin, 25. Harper and McKithen are charged with five counts of drug possession and distribution. Franklin is charged with second-degree assault, resisting arrest, failure to obey and weapons violations.

The three cases are unrelated.

Curran, who represents McKithen, said he wanted to check the arresting officer's internal affairs record "to see if there was a history of violence or other unprofessional behavior." Curran said McKithen was arrested during a chaotic scene that resulted in two residents filing complaints against officers.

Prevas said he would allow Curran to tell jurors about the number of complaints - substantiated or not - filed against the officer and cross-examine the officer about the specifics of any substantiated complaints, even if those complaints did not directly call into question the officer's ability to tell the truth.

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