Bill allowing AG to prosecute police-involved deaths gains in Senate

ANNAPOLIS – The Democratic-led Senate on Tuesday gave its preliminary approval to legislation that would give the attorney general authority to prosecute local police officers he or she finds criminally at fault for having killed someone or caused an injury “likely to result” in death.

The Senate’s voice vote followed a vigorous debate in which Republican senators critical of the bill said local state’s attorneys are in a better position than the attorney general to prosecute officers within their jurisdictions as they are most familiar with the local courts and their judges.

The Senate is expected to vote later this week on final passage, which would shift attention to the House of Delegates and its consideration of the legislation.

Sen. William C. “Will” Smith Jr., D-Montgomery and the measure’s chief sponsor, said giving the attorney general prosecutorial authority would remove the “inherent conflict” of interest in having local state’s attorneys bring charges against the officers with whom they have worked in investigating and prosecuting crime.

“State’s attorneys and law enforcement officers have very close relationships, not inappropriate relationships, but close nonetheless,” added Smith, who chairs the Senate Judicial Proceedings Committee. “If I were a state’s attorney, I would not want these cases because they are political hot potatoes enmeshed with conflict. I would be happy to cede this responsibility to an entity that is not as conflicted as I would be.”

That comment drew criticism from Sen. Chris West, R-Baltimore and Carroll counties.

“In my experience, our state’s attorneys are quite cognizant of their need to not only be independent but to be perceived by the people as being independent,” West said. “Do you believe that our state’s attorney’s fail to appreciate conflict of interest issues?”

Smith responded that “I would never besmirch anyone’s reputation or their ability to prosecute cases, to exercise sound judgment but there is an inherent conflict.”

But Sen. Jack Bailey, R-Calvert and St. Mary’s, said the conflict would not apply to all police prosecutions, as Smith said. Rather, the conflict would only apply when the prosecutor knew the specific officer being accused.

Under current law, the attorney general investigates police-involved slayings but then must hand the case to the local state’s attorney, who ultimately decides whether to prosecute the officer.

The proposed legislation, Senate Bill 290, would give the attorney general exclusive authority to prosecute the officer or request that the local state’s attorney handle the prosecution, as is largely the case in three states: Minnesota, Connecticut and New York, Smith said.

The legislation is opposed by the Maryland State’s Attorneys’ Association, which has said — as West argued — that local prosecutors should retain the discretion to decide whether to prosecute officers and to handle the prosecution as well.

“For over 230 years, Maryland state’s attorneys have had the responsibility of prosecuting all crimes taking place in their jurisdictions, specifically all crimes committed by police officers,” West said. “This bill seeks to remove from Maryland state’s attorneys and grant to the attorney general all power to prosecute in those cases. Next year, should we expect yet another bill to remove from Maryland state’s attorneys the power to investigate and prosecute any other crime allegedly committed by a police officer?”

West proposed an amendment to SB 290 that would give local state’s attorneys the initial choice of whether to prosecute following the attorney general’s investigation. If the state’s attorney chooses not to prosecute, the attorney general would then have the opportunity.

Senate Minority Whip Justin Ready, R-Carroll and Frederick, praised the proposed amendment.

“When there is this kind of question about a police-involved death, then this would be a great compromise to not remove that local autonomy, at least on the front end, and give our elected state’s attorneys, who by and large, do an outstanding job, … first bite at the apple and then involve the attorney general afterwards.”

Smith opposed the amendment, saying the bill would unfairly give prosecutors – the state’s attorney and attorney general – “two bites at the apple” on whether to prosecute the officer.

West’s amendment failed on a party-line vote of 17 for and 30 against.

Attorney General Anthony G. Brown, who took office in January, testified in support of the bill last month before the Senate Judicial Proceedings Committee.

“Senate Bill 290 is about ensuring that the public has confidence that prosecution decisions, just like investigations, are made in an impartial manner by people who do not work together or rely on each other professionally or personally to the extent to which our local state’s attorneys do with their local law enforcement agencies and officers daily,” Brown said.

“We’re not talking about inappropriate relationships,” he added. “We’re talking about close relationships when you are asking a state’s attorney to now investigate and prosecute a case against the very men and women that they work so closely with every day in fighting crime in our communities.”

If enacted, the attorney general’s prosecutorial authority would apply to police-involved slayings that occur on or after Oct. 1. The new authority would require the attorney general’s office to hire two attorneys, an investigator and a paralegal, according to the Department of Legislative Services.

SB 290 is cross-filed in the House of Delegates. House Judiciary Committee Chair Luke Clippinger, D-Baltimore City, is chief sponsor of House Bill 857.