Third officer acquitted in kidnapping, misconduct trial

Judge decries 'cowboy tactics,' but says prosecutors mischarged case

May 03, 2011|By Justin Fenton, The Baltimore Sun

While decrying their actions Tuesday as "cowboy tactics," a Baltimore circuit judge acquitted the last of three city police officers who had been charged with kidnapping and misconduct for picking up two West Baltimore teens and stranding them far from their homes.

Officer Gregory Hellen, 31, whose name was rarely mentioned during two weeks of testimony, was spared a misconduct conviction only because the case had essentially been mischarged, Judge Timothy J. Doory told him.

"You should be ashamed of your participation in what was done that night," Doory said in handing down his decision.

The verdict came a day after a jury convicted two other officers charged in the case, Milton Smith III, 32, and Tyrone Francis, 30, on two counts each of misconduct in office, while acquitting them on kidnapping, false-imprisonment and assault charges. Though the three officers were tried together, Hellen opted to have his fate decided by Doory.

Defense attorney David B. Irwin said his client, who declined to comment with a $100 million civil lawsuit filed by the victims still looming, was relieved by the judge's decision. "We're obviously very happy that a good, young detective was exonerated of the charges," Irwin said.

The officers were accused of picking up two West Baltimore teens on May 4, 2009, driving one to East Baltimore and leaving the other in a Howard County park without shoes or socks. Defense attorneys for Francis, who drove the van, and Smith, who was accused of placing the teens in the van and pushing them out, had argued that the teens had been wildly inconsistent and concocted their stories because they were police informants.

Doory said he believed the teens.

"There is one central fact that cannot be changed, that stands like a monument in the middle of this case: In the dark of a rainy night, a 15-year-old child was found without shoes, 11 miles from his home," Doory said. "Nothing changes that fact."

Irwin, however, did not adopt the co-defendants' accusations against the teens and did not call any witnesses. His argument was simple: that the state did not prove its case against Hellen.

"He is not alleged to be an actor in any conspiracy, by anyone," Irwin said in closing arguments Tuesday.

The case was the first to be personally tried by Baltimore's new state's attorney, Gregg L. Bernstein. Prosecutors argued that Hellen, who rode in the passenger seat of the van, "cannot divorce himself from what happened."

"His lack of assistance shows clearly he was a participant, that he encouraged this crime," said Assistant State's Attorney Michelle Martin.

In a speech before handing down his decision, Doory, a former prosecutor, said the essence of good police work is respect. "High-handed cowboy tactics are the exact opposite of good police work, and anybody who doesn't believe that shouldn't be in the business," he said.

In acquitting Hellen of the most serious charges of kidnapping, false imprisonment and assault, Doory said that even lawful police work involves all of the elements used to prove those crimes — involuntary detention, threat of force, fear. He quoted one of the teens, who had been asked why he didn't tell investigators that he had been kidnapped: "I didn't know you could be kidnapped by the police," the young victim had replied.

Doory called it the "simplest, most important comment of the trial," and seemed to agree with an argument from Francis' attorney, Michael Belsky, earlier in the proceedings that charging officers with felonies when their police actions are not justified would "open a floodgate."

Bernstein said he disagreed with the judge's interpretation. "To suggest that a police officer can never kidnap someone is troubling," Bernstein said outside the courthouse. "To us, that makes no sense."

But Doory said Hellen could have faced a conviction on misconduct charges. He explained that a public official can be found guilty of three kinds of misconduct: malfeasance (doing an act that is wrong), misfeasance (committing an otherwise lawful act in a wrongful manner) and nonfeasance (failing to do one's duty).

Doory said he believed that Hellen had committed nonfeasance, but prosecutors — under the previous regime —had charged Hellen with malfeasance, which Doory said had not been proved beyond a reasonable doubt.

"I am satisfied that these were cowboys tactics employed [that night]," Doory said. "The question is, does that amount to malfeasance? That's the only crime charged in the indictment, and after two weeks and listening ... I am not prepared to say beyond a reasonable doubt."

Hellen likely still faces internal charges. Francis and Smith have vowed to appeal and are scheduled for sentencing in June.

justin.fenton@baltsun.com



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