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Lawmakers eye giving Maryland AG prosecuting power in police shootings

Having the attorney general prosecute police ‘will reinforce public confidence and trust in the system,’ says Sen. William C. ‘Will’ Smith, D-Montgomery and chair of the Senate Judicial Proceedings Committee. (AP Photo/Brian Witte)

The Maryland attorney general’s authority to investigate local police-involved slayings derives from a 2021 law sparked by the murder of an unarmed Black man in Minnesota, but the law needs a controversial expansion to achieve the goal of inspiring public confidence in the accountability of officers, the law’s supporters say.

Sen. William C. “Will” Smith Jr., the law’s chief sponsor, said a major priority in the next General Assembly session will be to empower the attorney general to prosecute police officers that he or she alleges are criminally at fault based on the investigation.

That prosecutorial authority currently lies with the local state’s attorneys, a prerogative the overwhelming majority of whom were unwilling to relinquish during debate over the original bill and may remain reluctant to cede.

But Smith said the public rightly perceives a conflict of interest when local prosecutors have discretion over whether to prosecute an officer of the same police force they rely on to conduct other criminal investigations and testify at trial.

Having the attorney general prosecute police “will reinforce public confidence and trust in the system,” said Smith, D-Montgomery and chair of the Senate Judicial Proceedings Committee. “The entity that conducts the investigation should be the entity that carries the case forward.”

Howard County State’s Attorney Richard H. Gibson Jr., president of the Maryland State’s Attorneys’ Association, said the organization’s members have diverse views when it comes to handling these cases.

“I can say that I don’t know that the attorney general is the right entity to prosecute these matters, but I do believe that it would be best left to one entity,” Gibson said. “I do believe that the local state’s attorney’s offices certainly have the skill, ability and knowledge on trying these complex cases.”

Gibson said local prosecutors have other options, including handing off decision-making power in police shootings to state’s attorneys in other jurisdictions.

“Each of us is still accountable to our local community, and if they didn’t like that sort of delegation of power, they could voice that concern,” he said.

Maryland Attorney General Brian E. Frosh said he supports lawmakers giving his office the authority to prosecute, as well as investigate, police shooting cases.

“At this point, I think that since we are charged with doing the investigation, the Attorney General’s Office should complete the process and do the prosecution,” he said Thursday. “It’s easier, it’s smarter, it’s more integrated.”

The 2021 law, Senate Bill 600, requires the attorney general to investigate all police-involved deaths of civilians and permits him or her to investigate other criminal police misconduct discovered during the investigation. After completing the investigation, the attorney general has 15 days to submit a report to the local state’s attorney.

The reports make no recommendation on whether an officer should be prosecuted, noting that the state’s attorney retains prosecutorial authority in the case.

In July, Frosh appointed Dana Mulhauser to lead the Independent Investigations Division. Mulhauser had been the founding chief of the St. Louis County, Missouri’s prosecuting attorney’s office of conviction and incident review, which examines police shootings.

15 cases so far

IID has conducted 15 investigations of police involved civilian deaths since October, including two in Anne Arundel County, two in Baltimore city, two in Baltimore County, two in Charles County, two in Montgomery County and one each in Frederick, Harford, Somerset, Queen Anne’s and Wicomico counties, according to the attorney general’s website.

Three of the investigations have been completed: the two in Baltimore County and the one in Wicomico County. In each case, the state’s attorney has declined to prosecute.

The law’s “placement of authority in the Independent Investigations Division to conduct ‘the’ investigation is premised on there being only one investigation into the police-involved death of a civilian,” Attorney General Brian E. Frosh says. (The Daily Record/Madeleine O’Neill)

Baltimore County State’s Attorney Scott D. Shellenberger declined to prosecute officer Theodore Jermenko in the Oct. 9 , death of motorist Jawuan Ginyard after the IID investigation showed that Ginyard was drunk and trying to elude the officer, Shellenberger’s office stated in a letter to Frosh.

Jermenko “was clearly acting appropriately in attempting to conduct a stop” and “was nowhere near Mr. Ginyard when Mr. Ginyard lost control of his vehicle, which caused his death,” the letter stated.

Shellenberger also declined to prosecute police Lt. Gregory Mead in the Oct. 11 shooting death of Jovan Lewis Singleton.

In a letter to Frosh, Shellenberger’s office stated the investigation showed the officer fired to protect his own life and the surrounding community only after Singleton fired at him.

Shellenberger declined to comment Thursday on whether the attorney general should be given prosecutorial authority, saying he had not seen a specific legislative proposal.

In Wicomico County, State’s Attorney Jamie L. Dykes declined to prosecute officers in the death of Jamaal Parish Mitchell in a car crash during an Oct. 21 police chase in Salisbury. Dykes did not immediately return a telephone message Thursday seeking comment on her decision.

The forthcoming legislative proposal to give the attorney general prosecutorial authority would not be the first change in the law to expand his or her authority.

The General Assembly this year passed an amendment giving the attorney general the power to subpoena witnesses and seek court orders to prevent interference with IID investigations. The amendment, in Senate Bill 763 of 2022, also expressly prohibits local law enforcement from impeding the IID’s investigation and requires that local law enforcement provide any evidence requested by the IID.

Sheriff’s objections

The amendment, which Hogan has signed and goes into effect July 1, was prompted by Harford County Sheriff Jeffrey R. Gahler’s letter to Attorney General Brian Frosh last August stating his belief that he retained — and would exercise — authority to conduct investigations of police slayings within the county, notwithstanding the 2021 law.

Gahler based his belief on the absence of statutory language prohibiting a local investigation or enabling the attorney general to enforce a claim of sole investigative authority.

“I am trying to build public confidence in the criminal justice system,” says Montgomery County State’s Attorney John McCarthy. “I am in favor of an independent prosecution.” (AP Photo/Jose Luis Magana)

Gahler acted on his belief this month by refusing to allow the Maryland State Police’s forensic division — at IID’s direction — to collect evidence following the alleged shooting death of a civilian by two sheriff’s deputies on April 23 in Forest Hill. Gahler said his office could conduct its own investigation.

Frosh responded by filing a motion April 25 in Harford County Circuit Court for a judicial order that the sheriff step aside and let the IID investigate.

In the filing, Frosh defended the validity of his motion in advance of the July 1 effective date, saying his right to seek a court order was inherent in the 2021 law’s grant of authority to investigate.

The law’s “placement of authority in the Independent Investigations Division to conduct ‘the’ investigation is premised on there being only one investigation into the police-involved death of a civilian,” Frosh wrote. “And that investigation is the one conducted by the Independent Investigations Division.”

On Thursday, Harford County Circuit Judge Yolanda L. Curtin agreed.

Curtin ordered Gahler to give the evidence he collected to the attorney general and not interfere with the IID’s investigation into the death of 53-year-old John Raymond Fauver.

The judge found that lawmakers clearly intended to grant primary investigative authority to the Attorney General’s Office in police shootings.

Smith, the senator, said he agrees with Frosh’s interpretation that the 2021 law gave the attorney general sole authority to investigate fatal slayings by police officers and to seek to enforce that authority via court order. The 2022 amendment merely reiterated what was clear in the statute, Smith said, adding that Gahler “manufactured ambiguity” where there was none.

The 2021 law — which went into effect on Oct. 1, 2021 without Gov. Larry Hogan’s signature — was prompted by the nationwide protests following the May 25, 2020, slaying of George Floyd by a police officer in Minneapolis who kept his knee on Floyd’s neck for more than nine minutes.

Minnesota Gov. Tim Walz appointed the state’s attorney general, Keith Ellison, to prosecute former Officer Derek Chauvin, saying the move from the local prosecutor was necessary to avoid the appearance of a conflict of interest. Chauvin was convicted of murder and sentenced to 22 and a half years in prison.

Looming fight

Smith predicted a legislative effort to give the Maryland attorney general prosecutorial authority will be met with the same opposition from state’s attorneys that he faced with his original proposal in 2021.

That initial bill would have empowered the attorney general to prosecute in cases when the state’s attorney declined to despite an IID report concluding that prosecution was warranted. The bill, as enacted, did not contain the reversion to the attorney general for prosecution.

Smith said he respects the state’s attorneys’ opposition despite his disagreement with them.

The prosecutors want to preserve their prosecutorial “scope” and are concerned about “mission creep” by the attorney general, Smith said.

“There is natural opposition there,” he added.

But Montgomery County State’s Attorney John McCarthy said he is in the minority among his colleagues insofar as he supports giving the attorney general prosecutorial authority over police-involved slayings.

McCarthy said he agrees with his colleagues that no actual conflict of interest exists in their prosecuting or declining to prosecute police officers. However, the appearance of a conflict warrants ceding the prosecutorial authority to the attorney general, he added.

“There is a reality: There are segments of the community who feel the process is not always fair,” McCarthy said.

“I am trying to build public confidence in the criminal justice system,” he added. “I am in favor of an independent prosecution.”