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Md. court overturns ex-police chief’s misconduct conviction

Judge Andrea Leahy. (File)

Judge Andrea M. Leahy. (File)

Maryland’s second-highest court on Thursday overturned a former Pocomoke City police chief’s official misconduct conviction, saying he was wrongfully denied the opportunity to present at trial expert testimony that his refusal to cite a motorist after a car crash was a valid exercise of officer discretion and not a cover-up.

The Court of Special Appeals said the expert testimony was essential to Kelvin Sewell’s defense that his actions were proper and not “unusual,” as officers under his command had earlier told jurors unaware of the many factors small town police chiefs consider before issuing citations.

“Although lay jurors may have first-hand experience interacting with police officers during a traffic stop, they are unlikely to be aware of the policies and procedures that a police department has in place regarding the internal handling of investigations, or the broad discretion the officers enjoy in assigning personnel and handling cases,” Judge Andrea M. Leahy wrote for the Court of Special Appeals, which sent the case back for retrial. “Accordingly, we conclude that Sewell’s proffered expert testimony was relevant in that it tended to make probable Sewell’s defense that he did not possess corrupt intent, and the trial court’s failure to appreciate this was an error of law.”

Sewell, the Eastern Shore city’s first black police chief, had alleged in pretrial motions that his prosecution was in retaliation for his having sued the city for alleged racial discrimination against black employees. But a Worcester County Circuit judge dismissed the motion, saying Sewell had presented insufficient evidence to show that State Prosecutor Emmet C. Davitt – whose office is independent of county prosecutors – acted in bad faith in bringing the case.

The Court of Special Appeals agreed in its reported decision.

On Friday, Davitt called it “highly likely” his office will retry Sewell but no final decision would be made until witnesses are contacted.

“The appellate court’s opinion was certainly thorough, well-reasoned and we respect it,” Davitt said. “Although we are disappointed that the case was remanded, we are gratified that the court held that there was no verifiable evidence whatsoever that our office engaged in any prosecutorial misconduct as Mr. Sewell alleged. We are also gratified that the court found that the facts and testimony were sufficient to permit the jury to conclude that Sewell’s actions were corrupt.”

Sewell praised the Court of Special Appeals’ ruling in a statement issued Thursday by the American Civil Liberties Union of Maryland.

“I am extremely grateful to the appeals court for taking such care in considering my case and for safeguarding my right to a fair trial,” Sewell said. “It renews the faith I have always had in our justice system.”

In the same statement, Sewell’s criminal-defense attorney, Lloyd Liu, said that “we’re extremely grateful for the appeals court decision, which recognized that Chief Sewell was not afforded a fair trial at the lower court, and we remain committed to vigorously defending him.” Liu is with Coburn & Greenbaum PLLC in Washington.

The Worcester County Circuit Court jury convicted Sewell of misconduct in office for stifling an investigation of motorist Douglas Matthews, a fellow member of the Masonic Lodge who in 2014 allegedly hit and damaged two unoccupied parked cars.

Sewell’s defense, for which he sought to introduce expert testimony, was that his oversight of the investigation was in keeping with standard police practice in small towns, where officers are concerned about the effect on public trust of handing out too many or too few citations.

In overturning Sewell’s conviction, the Court of Special Appeals ruled 2-1 that the state could retry him because the prosecution had presented sufficient circumstantial evidence from which a jury could conclude that the police chief’s refusal to cite Matthews was unusual and constituted official misconduct.

Specifically, it could appear to be unusual for Sewell to have arrived at the crash scene in plainclothes, to have reassigned the case to another officer during the course of investigation, to have answered questions on behalf of the motorist and to have instructed the investigating officer to report it as an accident, Leahy wrote in the opinion Judge Alexander Wright Jr. joined.

Judge Dan Friedman dissented, saying Sewell could not be retried because the state had presented insufficient evidence to prove he acted with a corrupt intent, as opposed to a good or bad intent.

“Because any of the three species of intent might be evidenced by the same unusual behavior, and each is equally likely, it is my view that the state has failed to prove any intent at all, let alone a corrupt one,” Friedman wrote. “Moreover, because nothing plus nothing equals nothing, I reject the idea that the state’s evidence cumulatively is more than the sum of its parts.”

The Court of Special Appeals rendered its decision in Kelvin Sewell v. State of Maryland, No. 2183, September 2016.

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