City to settle lawsuit claiming cop framed an innocent man

The City of Baltimore agreed on Oct. 12 to settle a lawsuit against a city cop who allegedly orchestrated a bogus drug bust, killed an innocent man's dog, and jailed him on trumped-up charges—all to help a confidential informant who was trying to steal his girlfriend.

"Incredible as it may seem, this is the theory that the plaintiff advances in his civil complaint," attorney Neil Duke wrote in an unsuccessful attempt to get the case dismissed. "Namely, that the defendants risked their professional livelihoods and jeopardized their personal reputations for the purpose of 'hooking up' a confidential informant with Plaintiff's girlfriend."

Duke's motion says the "Plaintiff failed to advance credible material facts in support of his claims." That isn't so.

The evidence presented indicates that the events played out as alleged: A police informant, Terry Hubbell, "set-up" the plaintiff, Michael H. Williams, for a police raid after Williams' girlfriend moved out of an apartment she had been allowing Hubbell to live in. When the woman, Jennifer Catalano, moved back in to the home she shared with Williams, Hubbell harassed her and arranged for the raid by the Baltimore City Police Violent Crimes Impact Section. Williams was jailed and lost his job before the criminal case was dropped, City Paper reported last year.  

The police officer who served as Hubbell's handler, Edgardo Hernandez, appears to have gone along with Hubbell's plan—but not at any particular risk to his livelihood. The available record indicates that Hernandez was not disciplined, and is currently a detective in the sex crimes unit.

The case raises questions about how Baltimore Police handle confidential informants and investigate complaints of alleged criminality by its own officers. But so far, no one is answering those questions.

None of the parties to the suit, the lawyers, or the Baltimore Police responded to requests for interviews about what happened. The terms of the settlement—which could come before the city's Board of Estimates months from now—were not disclosed. Even the winning lawyer discouraged a reporter who called for comment on the settlement.

"It's not very interesting," Williams' lawyer, Norman L. Smith, told City Paper when reached several weeks ago. "There's not much in the file."

The file is about eight inches thick. It offers a keyhole into how the drug war is conducted and how the police department handles confidential informants—whose identities are some of the department's most closely-held secrets. Confidential informants risk their lives in exchange for cash and lenient treatment for their own crimes. They offer crucial inside access to criminal networks, and can form the basis for search warrants and wiretaps on murderers who might otherwise be untouchable. But if mishandled, informants can develop fearsome power to manipulate police, as infamously happened in the 1970s and '80s when Whitey Bulger and Stephen Flemmi teamed with FBI agents to direct organized crime in South Boston.

This case is much smaller.

On June 13, 2012, police raided Williams' house at 5008 Grindon Avenue. The seven-man squad from the Violent Crimes Impact Division took the door down with a battering ram and killed an arthritic, 9-year-old Rottweiller named Tiny with a shotgun blast to his head. A second dog, Junior, was tased while in the back yard. (A third dog, cowering in a corner, was spared). The initial search turned up three long guns, which were seized as evidence—but no drugs. Williams, then a 45-year-old tile installer with a fondness for old Chevy muscle cars and a scant criminal record, was furious at the intruders and insisted he had no drugs. Then Hernandez triumphantly retrieved two baggies of white powder from a flower pot on the porch: logged into evidence as "suspected cocaine," it tested positive as 11 grams of heroin. Williams said he knew who set him up: Terry Hubbell, his girlfriend's estranged boyfriend.

Williams' longtime girlfriend, Jennifer Catalano, had broken up with Williams a year or so before. She moved from the house the two shared, then she met Hubbell, who sweet-talked his way into Catalano's apartment. In an interview last year, Catalano said Hubbell claimed to be working for a couple of cop friends flipping houses, but was actually a manipulative drug user and petty criminal.

Not long after Hubbell moved in, he became abusive, Catalano said. But his "cop friends" were looking out for him. One even picked her up from work—driving her car—when Hubbell failed to do so. By the spring of 2012, Catalano wanted Hubbell out and was trying to get back together with Williams. Things got very weird then, she told City Paper last year.

On May 31, 2012, Hernandez texted Catalano: "Hey Jen this is Ed, Terry's cop friend. Just to let you know that whatever info u r getting about him is not true. Text me if you have any questions." Catalano says she has no idea what Hernandez's text was referring to.

Hernandez also showed up at her apartment with a female officer to tell Catalano she could not toss Hubbell out, because he had "achieved residency."

By then, Catalano had reconciled with Williams and left Hubbell in her old place to pay the rent if he could. Hubbell became "angry and agitated," the lawsuit alleges, and began to text Catalano increasingly threatening messages.

Catalano says she did not know Hubbell was a paid informant for the police until after Hernandez told her she would be charged with obstruction of justice if she blabbed about it. (In a court filing, Hernandez says he never told Catalano that Hubbell was a confidential informant but hypothetically said that if he was, she should keep her mouth shut so as to avoid trouble with "the criminal element.")

 

In a deposition taken on September 8, 2016, Hernandez said he was trying only to “do my due diligence as [Hubbell’s] handler, to try to minimize any type of fallout.” He said he tried to record the conversation he had with Catalano on his iPhone, but the device went to sleep. The stakes were high.

"At that point [i.e. June of 2012], Terry Hubbell had done numerous, probably dozens, of controlled purchases for me around the neighborhood, and he was afraid that once his identity was revealed as a C.I. that these people would come after him," Hernandez said.

Hubbell, meanwhile, was sending Catalano numerous text messages, claiming he knew that she would be needing him again soon and that she would be unwise to make an enemy of him.

Williams was arrested, jailed, released on a $175,000 bond, indicted and, finally, cleared when the state declined to prosecute the criminal case. He complained to the Internal Affairs Division, which told him little other than that there were none of his or Catalano's DNA on the drug baggie, but that there was not enough evidence to make an administrative case against Hernandez.

"I was raised to trust police officers, you know?" Catalano told City Paper last year. "It's not like that now."

Documents filed in the civil case show how the law is stacked against plaintiffs alleging police misconduct.

At first, the city said that it is not liable for police: "For a century and a half Maryland courts have consistently and repeatedly held that the city does not exercise control over the Baltimore Police Department and is therefore not the employer of its officers for the purpose of tort liability."

The Maryland Attorney General then said the state was also not responsible, adding that "Plaintiff seeks relief that the state disallows"—i.e. more than $200,000. "Here, for the purposes of this case, the BCPD is not an agency of the state; it is, instead, a local agency."

Things went on this way for months. The defendants claimed the suit was barred by statute of limitations, filed two days late. "A period of imprisonment does not toll the statute of limitations," the city's lawyer tutored.

There were motions to dismiss the case against most of the defendants—including all but two of the police in the raiding party, and the former commissioner, Frederick Bealefeld. Those were granted.

In one remarkable pleading, the city solicitor wrote that "even if the allegations…are true, the plaintiff is barred from recovery as a matter of law."

Catch that? Even if the cop planted drugs on you in order to "hook up" his confidential informant, the law does not allow you to recover damages. It's like an old joke in the Baltimore Police Department: When hearing of a particularly outrageous crime, they deadpan, "is that illegal?"

On Oct. 14, 2015, Hernandez denied all liability, claiming immunity, privilegem, and "express or implied consent"—as if Williams had invited him in.

Hernandez also claimed that he and his team had "probable cause" for the search based on a "valid warrant." This was true, in legal terms: They had a warrant, signed by a judge, which allowed them to bust the door down and search the house. The warrant also allowed them discretion to shoot the dogs.

According to Hernandez's affidavit for a search warrant, a confidential informant—Hubbell—did a "controlled buy" of cocaine from Williams at his home on June 8, 2012. This formed the basis for the subsequent police raid.

But it does not appear that the controlled buy could have happened as Hernandez described. In his deposition, Hernandez says Hubbell called Williams shortly before their meeting to make sure Williams was home and had drugs to sell. But Williams' phone records show no calls—on that or any other day—from any phone associated with Terry Hubbell.

Hernandez said that after the two spoke on the phone, he drove Hubbell to the neighborhood, dropped him off, and parked in a location that allowed him to view the action. He said he did not recall where, exactly, he parked. But anyone familiar with Williams' home and neighborhood knows there is no place from which to watch the house without being seen by the people in it.

Hernandez also did not remember what time it was when all this supposedly happened. But Williams testified that he was at work that day from 7:30 a.m. until just after 4 p.m., when a friend pulled in to his driveway right behind him and asked him to come out for a drink. The two, joined by another friend, immediately repaired to Koco's Pub, The Hamilton Tavern, and finally the Firehouse Tavern, which they closed at 2 a.m. The two friends have no criminal records, no reason to lie about their whereabouts that day.

In short, every element of the sworn document that formed the legal basis for the search warrant was, by the evidence Williams presented, impossible.

Hernandez denies planting anything.

The city fought disclosure of Hubbell's Confidential Informant file, as well as the Internal Affairs record of the case, neither of which are in the public court file. The city did disclose the general orders for certifying and handling confidential informants. Among the disqualifiers for CI: "extensive criminal record or reputation."

Hubbell's arrest record comprises more than 30 cases since 1988, including theft, drug possession, identity theft, counterfeiting, forgery, unlicensed contracting, malicious property destruction, and arson, the vast majority of which were dropped. There is currently a warrant for his arrest on theft charges in Baltimore County; he apparently lives in Florida.

On Oct. 4, the judge ordered the department to disclose an administrative report written by Hernandez's then-sergeant, Christopher Schmidt, who said Hernandez had told him about the relationship Hubbell had with Catalano. The case was settled a few days later.

The BPD is under scrutiny by the Justice Department, which found systemic problems in street policing and sex crimes, among other issues that the department has pledged to remedy. The Justice Department's report did not say anything about the department's use of informants, except that one told the department in March of 2012 that a certain cop was having sex with prostitutes in his squad car. (When told of that allegation, one ex-Baltimore cop quipped, "Is that illegal?") The department administratively closed that case.

Michele Nethercott of the Innocence Project, who had nothing to do with the Williams case, says confidential informants are seldom disclosed in the criminal defense cases she handles, so there's no easy way to tell if the underlying warrant was based on truth. "A lot of times you don't even know if they're using them," she says. "A guy calls up and says, 'So-and-so committed a murder.' That's part of the problem the media faces getting these stories: How do you get this stuff?"

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