In candid email, Bernstein criticizes police in officer misconduct case

Memo to staff 'tongue in cheek' but raises ethical issues, expert says

June 02, 2011|By Justin Fenton, The Baltimore Sun

In an unusually candid email to his staff after trying his first case, Baltimore State's Attorney Gregg L. Bernstein criticizes the lead police detective and acknowledges miscues that, according to some legal analysts, could give defense lawyers ammunition to overturn the misconduct convictions of two city police officers.

The memo, obtained by The Baltimore Sun, also appears to suggest that the case had been wrongly charged and that there was no evidence to support convictions on serious charges against an officer who was acquitted.

Bernstein confirmed the authenticity of the email, saying it followed a tradition he experienced 20 years ago in the U.S. attorney's office of recapping cases for the benefit of staff. He said the tone was intended to be "tongue in cheek."

"I wrote it in the spirit of helping build morale and camaraderie," he said.

But two former prosecutors said the message raises potentially significant appeal issues for the convicted officers and represents "locker room talk" not appropriate for mass distribution and not befitting the office of a chief prosecutor.

The memo was sent out to the entire state's attorney's office the day after two city police officers — charged with kidnapping, false imprisonment and assault — were convicted of lesser misconduct charges. A third officer, Gregory Hellen, was acquitted of all charges.

The officers, Hellen, Tyrone Francis and Milton Smith, were accused of picking up two teenagers on May 4, 2009, and leaving them stranded far from their homes. Michael Johnson Jr., who was 15 at the time, was left on the side of the highway in Howard County's Patapsco Valley State Park without shoes or a cellphone.

In the email, Bernstein called the convictions of two officers on misdemeanor misconduct charges "in many ways the right result," though he had pursued felony kidnapping charges that would have brought a maximum penalty of 30 years in prison for the officers. He said the jury's verdict was "inconsistent" but "that's the AG's problem!" a reference to the attorney general's office, which handles criminal appeals.

In reference to the acquitted officer, who also faced kidnapping charges, Bernstein wrote that "there was no evidence that Hellen in any way participated in the abductions, other than being in the minivan, but shouldn't that be enough?"

"Oh well; from a culpability standpoint at least, the right defendants were convicted," he wrote.

Eugene O'Donnell, a former prosecutor and police officer who teaches at the John Jay College of Criminal Justice in New York and who reviewed the email for The Sun, said it raises "serious ethical issues" about how Bernstein handled the case.

"He's basically saying the evidence wasn't sufficient to support those charges. That to me is a serious issue," O'Donnell said. "There's an ethical question about any prosecutor deliberately pursuing charges that they don't think are founded against somebody. … A literal interpretation of what he said is that a just verdict was delivered, meaning it was a misconduct case and not a kidnapping case."

O'Donnell said Bernstein made the mistake of putting "locker room" office talk into an email. Bernstein said it was never intended to be viewed by the public or anyone outside his office. "It's one thing to sit over coffee and talk about the trial with your senior staff," O'Donnell said. "This triggers some issues that are probably going to be a part of any appeal."

In an interview, Bernstein said he handled the case appropriately. The charges were filed by his predecessor. "I can't say this more strongly: If we did not believe that the case was properly charged, and that the culpable defendants were charged, we wouldn't have proceeded," he said. "We went forward with the charges that we thought we could prove, as we always do. … The defendants who were most actively involved in the case were convicted."

Bernstein said that instead of propping up a poor case, he stuck to a campaign promise of not dropping charges in the face of adversity. On the campaign trail last fall, he frequently chastised his predecessor, Patricia C. Jessamy, for not having "courage" to try tough cases.

"I think it was important to send a message that I'm prepared to take on the difficult cases," he said in an interview. "There were a lot of hurdles to clear, but in essence, we brought this one home."

Page Croyder, a former Baltimore prosecutor who supported Bernstein's candidacy, said Bernstein's comments about the charges did not mean that he brought a malicious prosecution. But she said the email should never have been sent.

"You can start a trial in full belief of what you're about to do, but as circumstances unfold, you come to realize maybe the jury, given what it had, made the appropriate decision," she said. "I would hate to think that he thought the case was overcharged to begin with."

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