Jessica Anderson The Baltimore Sun, December 26, 2018
The Baltimore Police Department had a widespread practice of wrongly expunging internal affairs files of officers accused of misconduct, the public defender’s office alleges, and it’s calling for an investigation into the department’s practices.
The issue came to light as defense attorneys have sought information on police officers while representing clients in criminal cases. Officers’ internal affairs files are largely withheld from the public, and attorneys must make the case to a judge that such information is relevant to introduce the evidence at trial. But in some cases, attorneys say, they found files were expunged even though they had not been eligible for expungement.
The Public Defender’s Office is asking for the issue to be taken up as part of the federal consent decree reforms. The decree was reached last year between the city and the U.S. Justice Department after a federal investigation that found widespread discriminatory and unconstitutional policing in Baltimore.
“This widespread practice of expunging [Internal Affairs Division] files that are ripe for impeachment makes us question the extent to which the BPD is willing to promote transparency, as required by the Consent Decree,” wrote Kristen Getty Downs, the district public defender for Baltimore, and Deborah Katz Levi, the head of the office’s special litigation unit, in a letter to the consent decree’s monitoring team in October. The Baltimore Sun obtained the letter as part of a Maryland Public Information Act request.
Downs and Levi also complained that the Police Department lacked protocols to provide defense attorneys with sufficient access to internal affairs records.
“We continue to aggressively litigate access to withheld lAD files every day in Baltimore City Circuit Court,” they wrote. “Unfortunately, however, what we now know is that the BPD lacks a system to adequately identify and disclose discoverable material.”
The Police Department’s practices “are in direct contravention to state law and undercut the integrity of the entire system and the transparency and accountability tenets of the Consent Decree,” they wrote.
Many community leaders have stressed the need for greater transparency from the Police Department and the city about officer misconduct following the federal racketeering convictions of members of the Gun Trace Task Force and new mandates under the consent decree, which include more civilian oversight into officer misconduct.
City Solicitor Andre Davis, who oversees the department’s legal section, agreed that it needs improvements in how it handles misconduct investigations.
“Anybody who’s been paying attention in the consent decree knows these are the kinds of problems the department has every day,” such as management and supervision, he said.
Lawyers from the Police Department have been working to rewrite policies for internal affairs investigations as part of the consent decree. This summer, the monitoring team overseeing the reform process said the office “suffers from organizational deficiencies that impede its work,” before requesting deadline extensions.
“We are working on it. It’s very frustrating,” Davis said of the improvements.
The public defender’s office wrote the letter after Levi represented Clayton D. Colkley, a 42-year-old Baltimore man, at his fourth trial in October. He is charged with second-degree murder and other offenses in what prosecutors have described as a contract killing of James “Buck” Bowens on May 28, 2003. A second man was also injured in the shooting.
As part of Colkley’s defense, his attorneys have sought to impeach the credibility of the detectives who investigated the case, Kerry Snead and Darryl Massey, by questioning them before jurors about internal misconduct charges accusing them of overtime theft. Internal affairs investigators followed the detectives, finding them at home or running errands at a time when they would later say they were working overtime.
Levi has argued in court that she should be able to question detectives given the credibility issues raised in the internal affairs case. The detectives were called to testify in the prior Colkley trials about the shooting investigation.
In a 2013 victory for the defense, the state Court of Appeals found the officers’ internal affairs files had been improperly withheld from the defense and they weren’t able to question the officers about the case. Colkley’s earlier conviction was vacated and his case was sent back to Circuit Court for trial.
But before Colkley’s latest trial in October, his attorneys found that Snead’s misconduct cases had been expunged.
“Our client never got a fair trial because he couldn’t ask the officers about this theft ring that they engaged in and were found to have committed together. For the Police Department to then expunge those when the case comes back for reversal isn’t just fundamentally unfair, it’s not legal,” Levi said.
”Mr. Colkley has been siting in jail for 15 years without a fair trial, and he’s most recently been denied a bail review hearing,” Levi said.
More concerning, Levi said, is that the practice of wrongly expunging officers’ records appears to have occurred in dozens of other cases, and possibly more, following a hearing questioning BPD personnel about the practice.
“We asked the Police Department and the state’s attorney’s office to come forward and explain how this expungement could happen and what they brought were documents showing at least 27 cases where they changed a finding to administratively closed, which gave them the inappropriate pathway to expungement,” Levi said.
When an officer is accused of wrongdoing, he or she is investigated by officers from internal affairs, who might find a complaint sustained or not sustained. When cases are sustained, the internal affairs investigators will recommend discipline. Officers can accept the finding and any discipline or elect to go before a trial board, which is made up of three police officers. The trial board can recommend discipline, including dismissal, but the police commissioner ultimately has the final say.
Officers can seek to have cases expunged when cases are not sustained by internal affairs investigators, or when they are acquitted by a trial board. They cannot get a sustained case expunged, Levi said.
At pre-trial hearings in the Colkley case, Levi, prosecutors and attorneys for the Police Department sparred over whether Snead’s case should have been expunged. Prosecutors and attorneys for the police department have said Snead’s sustained complaints, which were not heard by a trial board, were later “administratively closed.”
Levi said state law does not recognize the “administratively closed” designation.
Lawyers for the department conceded that expungement polices have not always been clear, and expungements have not been extensively documented.
Daniel C. Beck, the chief of the Police Department’s legal affairs section, attempted to explain the practice at a hearing before Colkley’s trial in front of Baltimore Circuit Judge Althea Handy.
“The department clearly, in its historic practices, treated ‘administratively closed’ as an ‘unsustained’ finding, and therefore believed that that is subject to expungement,” Beck said, according to a recording of the hearing.
During an earlier hearing in the case, Patrick Seidel, who is prosecuting Colkley, argued that the designation of “administratively closed” meant the end of action. But Handy said, “then that should be in the statute.”
Colkley’s trial in October ended in a mistrial. Later that month, Levi and Downs submitted the letter to the consent decree monitoring team, asking them to evaluate the disclosure and expungement issues.
Ken Thompson, the head of the court-appointed consent decree monitoring team, would not comment on the Colkley case, but he said, “We are revisiting a number of internal affairs cases in connection with the overall assessments of the consent decree.”
Next year, the U.S. Justice Department, the Police Department and the city are expected to take up what’s known as the “Brady/Giglio protocol,” which refers to U.S. Supreme Court rulings that require prosecutors to disclose information that could benefit the defense — including any evidence that might exonerate the defendant or information that might impeach the credibility of the state’s witness, such as a police officer.
The consent decree requires the BPD to “eliminate policies that authorize the expungement of records where an employee accepts discipline,” and prohibits the use of “administratively closed” findings.
Melba Saunders, a spokeswoman for State’s Attorney Marilyn Mosby’s office, declined to comment on Colkley’s case, citing the ongoing case, and said that the office is not involved in the expungement process.
“The policy for expunging BPD internal affairs files is an administrative process developed by BPD and the Baltimore City Solicitor. Our agency has no involvement in this internal procedure, which does not impact discovery in criminal cases.”
A Justice Department spokeswoman declined to comment.
Levi and Downs this month also addressed the state commission created to evaluate the Gun Trace Task Force scandal, asking the panel to recommend measures that would improve transparency surrounding officer misconduct. They noted other jurisdictions around the country that have made internal affairs files more accessible to defense attorneys. Levi spoke of the Colkley case, and the “illegal expungement process.”
Colkley has another trial date scheduled for January.
Jessica Anderson The Baltimore Sun, December 26, 2018, “Baltimore police expunged officer’s internal affairs files; public defender’s office calls for investigation”, https://www.baltimoresun.com/news/maryland/crime/bs-md-ci-internal-affairs-files-expunged-20181015-story.html