UPDATED: Faked drug-dog certification case ends without a ruling on alleged prosecutorial misconduct

UPDATE (Jan. 29): The U.S. Attorney’s Office provided the following statement to the City Paper:

"To make clear that they did not commit any misconduct, the prosecutors and paralegal took the extraordinary step of filing sworn affidavits and contemporaneous internal emails in the public record. The affidavits and contemporaneous email messages reveal that they believed that the dog had been certified, and to this day all available evidence shows that the dog in fact was certified.  The documents also prove that the U.S. Attorney’s Office employees were trying to determine whether the dog had received proper follow-up training and pressing MTAP to provide supporting documentation. When they received a certification document that they believed was not the original document, they promptly disclosed it to the opposing counsel with a letter stating that it was a reproduction. They did not try to pass it off the certification as an original, they never intended to rely on it or use it as evidence in the case, and they anticipated – correctly – that the dog would be irrelevant to the case."

 

Since July, Maryland U.S. District Judge James Bredar has had before him Indiana real-estate investor Samantha Banks' motion to dismiss a drug-money forfeiture case due to allegations that prosecutors knowingly produced in discovery* in the case a bogus drug-dog certification. Prosecutors responded to the dismissal motion, filed by Banks' attorney, C. Justin Brown, with a seemingly contorted answer, and then followed up with a motion that they’re entitled to the $122,640 at issue because Banks has no standing to sue because she never owned the money. Brown, meanwhile, in November argued that it is "inescapable" that prosecutors "failed to disclose material facts" about the certificate "despite numerous warnings."

Since then, the case has awaited a ruling from Bredar, and yesterday he filed it, handing the government victory without addressing Brown's misconduct allegations since his denial of Banks' standing apparently trumps whatever may have happened in the prosecution of the case.

"Only by setting rationality aside and ignoring the vast amount of evidence against [Banks] could the Court find she owned $122,640 in cash on September 12, 2013," when the money was seized from her husband, Jerry Banks, while he was boarding a flight from Baltimore-Washington International Airport to San Francisco. "Her version of events is utterly discredited by the evidence," Bredar continued, while her husband's travels "are suspiciously indicative of his being a courier of money to be used in drug trafficking." The whole scenario presented by the Banks, Bredar concluded, is "a wildly implausible story."

What's entirely plausible, and in fact supported by evidence in the case introduced by the Maryland U.S. Attorney's Office's chief of the criminal division, Barbara Sale, is that prosecutors Stefan Cassella and Evan Shea offered up a faked document that had been fabricated by a Maryland Transportation Authority Police canine-unit officer specifically for the case. Even before it was produced in discovery*, one of their paralegals, Jennifer Stubbs, described it as "bogus," according to email records. Despite this, Cassella has sworn that "at no time did I believe or have any reason to believe" the document was "anything other than a recreation of a valid training Certificate," while Shea has sworn that he "defended" Cassella's description of it—a "reproduction of the original certificate"—as "adequately disclosing the nature of the document."

Brown also played up the public-policy implications of the case, pointing out that "forfeiture money has become a lifeblood of law enforcement," and that in forfeiture litigation "there is a vast imbalance of power" in favor of the government, which "is highly motivated to take the money first, and ask questions later." Thus, he continued, "it is critical that the Government plays by the rules" because when it "fails to do so, the harm is magnified."

Brown’s indignation over what he’s encountered during the course of the case is relatively muted in his filing, but still detectable. He argued that the case "raises a public policy concern related to the Government and its interaction with" the Maryland Transportation Authority Police (MTAP), the state agency whose drug-sniffing-dog team alerted to the presence of narcotics in the cash after it was seized at Baltimore Washington International Airport last year, and which produced the team's fake certification. Calling MTAP's conduct "highly concerning," Brown pointed out that "not only were the dogs and handlers improperly trained, but, in the words of the supervisor of the canine unit, their conduct was fraudulent. Rather than express concern about that—and try to correct it—the Government chose to try to minimize it, and even encourage others to do the same."

Brown's take on what happened, as stated in his motions, is that the canine unit's conduct was "highly concerning" and "fraudulent," yet "rather than express concern about that—and try to correct it—the Government chose to try to minimize it, and even encourage others to do the same." Asserting that "it is critical that the Government play by the rules" in forfeiture cases because "there is a vast imbalance of power" in the prosecution's favor, Brown argued that "when it fails to do so, the harm is magnified."

Bredar sidestepped the misconduct allegations, and so will not rule on whether or not Cassella and Shea knowingly passed on a sham certificate as authentic. If this situation does in fact call for oversight, then it would fall on the Department of Justice Office of Professional Responsibility, which investigates prosecutorial misconduct.

*An earlier version of this post mischaracterized how the certificate entered into the case. The government produced it in discovery, not introduced it as evidence. City Paper regrets the error.

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