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Baltimore state’s attorney, public defender spar over response to police body camera video

‘She walked on the edge, but I am going to give her the benefit of the doubt,’ one criminal defense lawyer says of Baltimore City State’s Attorney Marilyn J. Mosby, seen at a press conference earlier this month, pursuing charges against six police officers in connection with the death of Freddie Gray. But another lawyer says Officer Edward Nero’s acquittal shows Mosby ‘is a prosecutor who is bent on promoting herself rather than the city.’ (Maximilian Franz/The Daily Record)

Baltimore City State’s Attorney Marilyn J. Mosby. (Maximilian Franz/The Daily Record)

Baltimore City State’s Attorney Marilyn J. Mosby on Thursday defended her office’s response to controversial police body-camera footage as prosecutors, defense lawyers and legal observers continued to assess the fallout from a video that appears to show an officer planting drug evidence.

Mosby said her office was alerted to the footage last week and said prosecutors worked as fast they could following a policy for what happens to active cases involving an officer accused of misconduct.

“This is a very delicate process and not only requires time, but requires a thorough evaluation and so far we’ve identified close to 100 cases where these officers have some sort of involvement,” Mosby said.

The Office of the Public Defender, however, repeated its criticism that Mosby’s office moved too slowly, arguing defense counsel should have been notified once the cases were identified.

“The state’s attorney has a well-established constitutional obligation to disclose information that challenges the credibility of its officers,” Deborah K. Levi, head of the Baltimore Office of the Public Defender Special Litigation Section, said in a prepared statement. “The Constitution does not build in any exception for delay.”

Mosby said her office was notified by a public defender late July 12 that he had concerns about a segment of body camera footage turned over in discovery in April.

Credibility issue?

In the video, which the public defender’s office released publicly Wednesday, Officer Richard Pinheiro appears to place a can containing a plastic bag onto a trash-strewn lot and walk back to the street. Pinheiro then activates his body camera — which saves 30 seconds of video prior to activation — and walks back to the lot to show two other officers the bag of suspected contraband.

“This video is pretty dramatic,” said David Rocah, senior staff attorney for the ACLU of Maryland. “The most charitable interpretation is that they did a staged recreation of finding contraband but didn’t disclose that’s what they were doing. That is illegal, unethical and a violation of police policy, as was their turning off the video during the search.”

Rocah said all of the officers involved now have a credibility issue.

“These three officers have managed to single-handedly destroy the credibility of much of the BPD’s video evidence, which is quite an accomplishment,” he said. “Not a good one, but amazing nonetheless.”

The assistant state’s attorney handling the case informed his supervisor of the video July 13 and reviewed the footage, at which time they decided to drop the case and informed the defense attorney. Prosecutors also referred the case to the police department’s Internal Affairs Division and internally notified all prosecutors with cases involving the officers to contact the Police Integrity & Public Trust Unit.

Before that notification went out Monday, one of the involved officers testified in a district court case.

When misconduct affecting integrity is alleged, the office reviews all of the information available, including 10 segments of body camera footage in this case, according to Jan Bledsoe, the deputy state’s attorney of criminal intelligence.

“You want to be very careful before you make a notification about a police officer,” she said.

Mosby said she was happy with the pace of her office’s response to the video, noting that even though the alert to prosecutors had not gone out Monday by the time the officer testified, the defense attorney was aware of the incident and cross-examined him.

“(T)his was something that was reviewed by the Baltimore Police Department Body-Worn Camera Division,” she said. “This was something that was reviewed by my office in the Body-Worn Camera Division. This was something that was reviewed by the defense attorney who had this same information for more than three months and when it was brought to our attention, we looked at it and immediately did something about it.”

Constitutional obligations

Bledsoe said part of the evaluation of cases involving an officer accused of misconduct, once it is clear it is a credibility issue, is to evaluate if that officer is a necessary witness in the case.

“If it’s not an officer we intend to call for trial, then impeachment material is not required under the Maryland Rules to be produced,” she said.

But prosecutors have a duty to disclose any information that could exculpate or mitigate the defendant’s case, according Adam Ruther, an associate at Rosenberg Martin Greenberg LLP in Baltimore and former city prosecutor.

“There is a strong argument that the officers’ involvement in the investigation could be Brady material,” Ruther said, referring to the Supreme Court holding that suppressing evidence favorable to the defendant violates defendants’ rights.

Levi, in an interview Thursday, said prosecutors cannot decide not to call an officer as a witness and then not disclose evidence that helps the defendant’s case.

“It is our position that the State’s Attorney’s Office’s decision to not call an officer as a witness does not relieve them of their burden to disclose exculpatory information and it is clear that impeachment evidence is exculpatory,” she said. “Under Brady, the rules of discovery and the special duties of prosecutors, they have an obligation to make timely disclosures of all exculpatory information.”

Baltimore public defenders have alleged in the past that prosecutors make routine discovery violations and the state was even sanctioned last year by Baltimore City Circuit Judge Barry Williams during one of the Freddie Gray cases for failing to turn over Brady material.

Earlier this year, a group of defense attorneys lead by Levi gained access to more than 30 internal affairs records for a Baltimore police sergeant after arguing they should be discoverable.

“We know there is not frequent enough disclosure,” Levi said.

Rocah said the secrecy afforded to police misconduct investigations and difficulty defense attorneys face getting access to those records are underlying concerns in these discussions.

“It’s important that that discussion happen in public and that it’s not just the BPD that has to be accountable for that, it’s the state’s attorney’s office,” he said.

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