Dual Role At Police Tribunals Decried

November 02, 2009|By Peter Hermann | Peter Hermann,peter.hermann@baltsun.com

Attorneys who represent Baltimore police officers at disciplinary hearings say their clients are being treated unfairly because the department's top lawyer is prosecuting cases while simultaneously advising the independent panel judging the accused.

At a hearing last week, the lawyer for a city officer found guilty of assault said the Police Department's legal affairs chief, Mark Grimes, repeatedly helped the hearing's chairman rule on defense motions during a proceeding called a trial board.

Grimes oversees a staff of attorneys and other officials responsible for selecting which misconduct cases and other charges to pursue against police officers, and he and his staff participate in plea negotiations that can determine how severely officers are punished for wrongdoing.

Defense attorney Sean R. Malone and an attorney for the Fraternal Order of Police union, Michael Davey, said it is not possible for Grimes to offer impartial advice on cases his office is prosecuting in front of the three-member administrative tribunal, which is usually chaired by a command staff member but also includes an officer equal in rank to the accused.

"The board should have the right to consult counsel to ask legal questions because they're not attorneys," said Malone, who served as the Police Department's chief legal counsel from 2000 to 2002. "But it can't be the person who essentially is the police commissioner's attorney. Either you're the prosecutor or the trial board adviser, but you can't be both."

Grimes did not return calls seeking comment, but City Solicitor George Nilson said he does not believe Grimes' dual roles pose a conflict.

"I would hasten to add that Mr. Grimes is advising the board on evidentiary issues," Nilson said. "He doesn't sit in on their deliberations on the merits."

Nilson said, "it would be nice if we had unlimited money and we could go hire private lawyers to come in here and provide that advice. But we don't."

It is fairly common for government attorneys in Baltimore and elsewhere to advise administrative boards on procedural issues, he said.

But other police jurisdictions in the Baltimore area employ independent legal advisers or have some way to separate the jobs to avoid conflicts, according to representatives for those agencies.

In Baltimore County, attorneys who handle misconduct cases answer to the police chief, and trial board members can seek advice from the county law office. Maryland State Police trial boards have an assistant attorney general available to them, while the prosecutor answers to the police superintendent.

Howard and Anne Arundel county police trial boards have even greater separation - consulting with outside counsel.

"The attorney is not involved in the actual board proceedings," Arundel police spokesman Justin Mulcahy said.

Last week, the Baltimore trial board found Officer Michael D. Brassell guilty of assault, but acquitted him of other administrative charges that could have led to his termination, which is what city officials had sought.

The trial board recommended that Brassell be suspended for 60 days without pay.

Malone said he had held plea talks with Grimes a week before the hearing and had complained to him that the charging process was flawed.

When he tried to bring that issue up at the hearing, Malone said, Grimes consulted with the trial board chairman, Deputy Police Maj. Dan Lioli, "and then I was precluded from even making the argument."

Nilson said Brassell got a fair hearing and that "a significant number" of rulings that Grimes helped the trial board members make "went against the prosecution. I'm not sure it's a fair perspective that Mr. Malone was regularly losing on the issues."

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