Following officer indictments, a slew of old cases to go over

On the heels of the arrest and indictment of seven Baltimore Police officers on conspiracy charges last month, the Office of the Public Defender is scrambling to revisit all the cases where these officers were involved. The 45-page federal indictment charges the officers with extortion as well as stealing money, property, and drugs from homes and storage units, and then falsifying incident reports, evading court proceedings, giving false testimony during internal investigations, turning off their body cameras, and lying about overtime hours. Their credibility as arresting officers and witnesses in a slew of criminal cases in the city over decades is now being called into question.

The fallout in the courts is significant.

"The magnitude of how this could all compound if we go back to the very first day of each one of the officers, we’re talking about thousands of cases," said Deputy District Public Defender Natalie Finegar

So far, in phase I of its review process, public defenders have identified 750 cases.

"However, these officers were involved in with over 10,000 arrests in the course of their careers," said Finegar. Go back 10 years and it "gets crazy very quickly."

Complicating things is the fact that "each case has to be evaluated individually," she said.

One of men charged, Det. Daniel Hersl, has been on the force since 1999, and all seven members of the Gun Trace Task Force have been indicted following an FBI investigation that secretly recorded multiple arrests. While the FBI investigation appears to have begun sometime in 2015, likely sparked by the Department of Justice Investigation into Baltimore's entire police force last year, the current charges have spurred the State's Attorney's Office and the Public Defenders Office here to dive back into hundreds of cases where the officers were involved.

Between them, the seven police officers have more than 79 years of service on the force, and while arrests over time certainly varied, allusions to the rapid clip at which they operated surfaces in an October 2016 police department newsletter. The shout-out celebrates the team's record, noting that the seven men made 110 arrests for handgun violations in a 10-and-a-half-month period. "This team of dedicated detectives has a work ethic that is beyond reproach," Lt. Chris O'Ree wrote. "Their relentless pursuit to make our streets safer by removing guns and arresting the right people for the right reasons has made our City safer. I couldn't be more proud of the strong work of this team."

Now, all of the cases where they were involved must be revisited to see if questions about their credibility might impact the outcome.

Baltimore's Public Defenders Office, already swamped with approximately 49,000 new cases yearly, has called in reinforcements, with attorneys from the administration, post-conviction, and appellate offices volunteering to help review cases and compile a database of those impacted.

"People are pulling together because they understand the gravity and we don't want to leave a client alone," said Finegar. "We are going to have to prioritize. Open cases with people incarcerated are number one."

The Baltimore City State's Attorney's Office is similarly reassessing.

"We recognize that these indictments will have pervasive implications not only on open and pending cases but closed cases as well," said Melba Saunders, spokesperson for the State's Attorney's Office in an emailed statement. "As such, we have already begun to reallocate resources in an attempt to evaluate and assess the magnitude of the impact that these indictments will ultimately have on both."

While some of the pending cases that rely on these officers as witnesses have already been dismissed in the last two weeks, it is not cut and dried. For example, if there is a way for prosecutors to make a case without calling these officers—say, security footage of the crime taking place—the State's Attorney's Office would presumably pursue it.

But what makes this whole process insanely frustrating for the public defenders or private attorneys representing the accused is that they have been regularly asking for police Internal Affairs Division records (the documents that detail police misconduct or corruption investigations) on some of these very same officers for years. But judges repeatedly denied their requests.

According to the Brady Rule, prosecutors are required to share exculpatory evidence, that is, facts or documents that are favorable to the accused, with defense lawyers. For example, if police interviewed someone who provided an alibi for the accused, Brady would require that prosecutors share that information with the defense. It's part of creating a level playing field and making sure that someone who may be innocent is not wrongly convicted and packed off to prison. In this case, public defenders in the city have often argued that the credibility of a police officer—or lack of credibility as evidenced by police internal investigations of the officer's conduct—should be information that is shared with defense attorneys.

But the State's Attorney's Office regularly contests this. Then the internal affairs investigation records go before a judge who makes a call on their relevance.

The State's Attorney's Office insists it follows Brady. "Any officer that has a credibility or integrity issue, we disclose the file pertaining to that specific issue, pursuant to a protective order signed by a Baltimore City Circuit judge," said Janice Bledsoe, Deputy State's Attorney of Criminal Justice. "If the judge denies looking at the file, we follow the court's order."

But in the Baltimore courts, judges regularly deny access to internal affairs investigations of police officers, public defenders complain. Even when judges rule that the files must be shared with the defense, they typically insist that they are confidential and thus cannot be shared with other public defenders who may be working on cases with those same officers, explains Finegar.

"The confidentiality orders make it very difficult for us to have a really comprehensive list [of officers with credibility issues] so it becomes more piecemeal for us and how we deal with it," Finegar said. "And it really shouldn't be incumbent for me to keep a database, the State's Attorney's Office should share this with us."

Meanwhile, some of the alleged victims of crimes the officers stand accused of are joining forces to file a civil suit for damages.

James Rhodes, an attorney working with Michael Glass and Ivan Bates, said they are "gathering the number of folks charged by these officers, stopped, or arraigned, or not charged" and looking at wrongful arrest and detention charges. "There are easily hundreds if not thousands of these cases that will now be pending," he said. "It is our hope to get all or the majority under one case in federal court."

One case was already filed in state court, he said, explaining that it has to do with one of the people only referred to by the initials N.H. in the indictment but identified by Rhodes as Nancy Hamilton. (She declined to speak to City Paper through her attorney.) But according to the indictment, four officers are charged with stealing more than $20,000 from Hamilton, an assisted living operator, and her husband, who was identified as a used car salesman who kept large amounts of cash on hand to buy auctioned cars.

The indictment cites police officers Wayne Jenkins, Momodu Gondo, Jemell Rayam, and Hersl as being involved and quotes from secretly recorded conversations between the officers who made a traffic stop then inquired about cash in the Hamilton home, took the couple there and stole the cash from a bedroom closet. After the fact, the indictment alleges, police sought a search warrant from the courts, searched the couple's home, then turned over some of the remaining money. "They were never arrested," said Rhodes.

The U.S. Attorney's Office has also set up an 800 number for people to call if they think they have been a victim of a crime committed by the seven named officers.

What makes a secret investigation like this tricky, particularly when the FBI was monitoring the officers for months in order to collect enough evidence for the indictment, is that the agency follows the officers as they go about their business—and meanwhile people are robbed or arrested, charged, and tried based on these officers' statements. (Two additional Baltimore Police officers have since been administratively suspended in connection with the investigation but have not been charged with a crime. T.J. Smith, spokesperson for Baltimore City Police, said they are not publicly naming those two officers.)

"The important thing to understand is when you have officers involved in high volume arrests and have questions about their credibility, there has to be an immediate response," says Finegar. "If a case is in the system—and I understand they wanted to move forward on the investigation—but their investigation can't trump my client's constitutional right. We can't go forward if the whole foundation of the case is shaky. That's not justice."

Unraveling the thread of criminal cases where the accused officers were involved could take years to slog their way through the city's already over-burdened courts.

Finegar sighs. "That's where we are."

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