Bernstein's mixed debut

Our view: New top prosecutor didn't put on a master class in his first trial, but the outcome — and his decision to handle the case — still matter

May 04, 2011

The thrust of Gregg Bernstein's campaign against longtime incumbent Baltimore State's Attorney Patricia Jessamy was that her office was badly managed and too often produced incompetent performances in the courtroom. In that context, his pledge to personally try cases if he was elected — in part to share the prosecutorial load but also to show the lawyers on staff how it's done — served as an important symbol of confidence and hands-on leadership. A successful private defense attorney and former federal prosecutor, he promised to get convictions in cases that his predecessor wouldn't touch.

If there's a lesson to be drawn from Mr. Bernstein's courtroom debut in recent weeks, it's this: Easier said than done.

The case he took on revolved around what Judge Timothy J. Doory described as a central, inescapable fact — that on a dark and rainy night, a 15-year-old boy was found without shoes 11 miles from his home — but Mr. Bernstein mustered convictions of only two of the three police officers accused of taking him there, and those two on the least of the charges they faced. The prosecutor found himself hampered by unreliable witnesses, forcefully challenged by skilled defense attorneys, and faced with myriad legal complications that are bound to be grounds for appeals.

Officers Milton Smith III, Tyrone Francis and Gregory Hellen were accused of picking up two West Baltimore teens in 2009 and driving one to East Baltimore and dropping the other off in a Howard County park. The boys provided several different and contradictory stories about what happened. One of them testified that he had lied when he told a 911 operator that he had been beaten up by the officers, and he disputed a claim in his $100 million civil suit that one of the officers choked him. A cell phone that one of the boys claimed had been broken in half by the officers was produced, intact, as evidence. Mr. Bernstein was accused by the defense counsel of prosecutorial misconduct — withholding evidence and coaching a witness (though the judge disagreed). This was not exactly the textbook prosecution Mr. Bernstein might have wanted, and he left no doubt afterward that he was disappointed by the outcome.

Still, the trial was important, both for the cause of justice and for its symbolic value. Mr. Bernstein failed to convince the jury who provided the verdicts of the first two officers or the judge who handled the third that the officers' conduct amounted to kidnapping. Still, the jury found Officers Smith and Francis guilty of misconduct, and Judge Doory excoriated Officer Hellen for employing "cowboy tactics." Whatever the criminal implications, the verdicts were clear and consistent that the officers had done something wrong, and they have been made an example of.

Furthermore, the criminal trial isn't the end for Messrs. Smith, Francis and Hellen. The police department will now begin termination hearings for the two officers who were convicted and will begin disciplinary hearings for the third. We have full confidence that Police Commissioner Frederick H. Bealefeld III, who has taken a tough line on misconduct by his officers, will make sure these three never wear a badge again. That would send a strong message to the rest of the force that the gambit of picking people up and dropping them off far from home — a practice established well enough to be comedic fodder for David Simon — is unacceptable.

Perhaps most importantly, the case provided Mr. Bernstein an opportunity to refute a central charge against him during last year's campaign, that he was too cozy with the police department. He was endorsed by the Fraternal Order of Police and by Mr. Bealefeld, and Ms. Jessamy and her supporters said he would be a rubber stamp for the force. He proved that wasn't so.

Ultimately, Mr. Bernstein's task as prosecutor is to reboot a poisoned relationship between the police, state's attorney's office and Baltimore City juries that leads far too often to the guilty being acquitted. It will take more than a few months in office and one trial to do that. But this case provided an important start. Juries too often believe that police officers and prosecutors stack the deck against defendants, but this case turned all that on its head — the defendants were the police, and the prosecutor was on the side of two inner-city kids. Mr. Bernstein sent a message that he will act independently and will fight for what is right under the law. In the end, that matters more than whether he put on a master class in litigation.

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