Lawsuit accusing Baltimore Police detectives of coercing witness revived

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The U.S. Court of Appeals for the Fourth Circuit last week revived a civil lawsuit by two wrongfully convicted brothers against two Baltimore Police detectives.

Kenneth McPherson and Eric Simmons were convicted of conspiracy to commit a murder in East Baltimore in the 1990s, but they were exonerated, and their convictions were overturned more than two decades later. They were released from prison in 2019, then sued the police department, named and unnamed police officers, and the Baltimore City State’s Attorney’s Office.

The Maryland Board of Public Works gave them nearly $2 million each in 2020, a few months after they filed their complaint. (The board’s agenda did not describe the payment as a settlement and did not cite a lawsuit, but the brothers did release the state from any future civil claims.)

The Maryland U.S. District Court dismissed the claims against every defendant except two detectives, Robert Patton and Frank Barlow, who allegedly coerced a vulnerable witness into blaming McPherson and Simmons for the killing.

Under pressure from the detectives during an interview, 13-year-old Marcus King, who had learning disabilities, told the officers what they wanted to hear, the opinion states. He was handcuffed and shackled for more than four hours, the opinion states, and Patton admitted to yelling and banging on the table.

But he recanted his testimony before and during the criminal trial; the jury convicted the brothers of conspiracy to commit murder anyway.

Patton and Barlow moved for summary judgment, and Maryland U.S. District Judge Stephanie Gallagher ruled in their favor in August 2023. Gallagher excluded King’s testimony, ruling that it was inadmissible hearsay. The testimony was needed because King is dead, so the parties could not interview and cross-examine him in a civil trial.

The Richmond-based Fourth Circuit ruled May 21 that Gallagher committed a “clear error” and abused her discretion in excluding the testimony.

“A Maryland court determined that Kenneth McPherson and Eric Simmons were actually innocent of crimes for which the State incarcerated them for over two decades,” Fourth Circuit Chief Judge Albert Diaz wrote. “Now a jury should decide whether the detectives who investigated them fabricated evidence that led to their incarceration.”

Diaz was joined by judges Nicole Berner and James Andrew Wynn Jr.

A spokesperson for Baltimore City State’s Attorney Ivan Bates declined to comment. The Baltimore Police Department and mayor’s office did not respond to requests for comment, so it’s unclear whether the detectives are still employed by the department. But they aren’t listed in the city’s employee salary database. 

“Eric and Kenneth are very grateful for the opportunity to prove their case at trial,” said one of the plaintiffs’ lawyers, Gayle Horn, a Chicago-based partner at Loevy & Loevy.

The Fourth Circuit also revived the brothers’ claims that the detectives fabricated evidence, but they ruled that Gallagher was correct to dismiss their claims of evidence suppression.

Diaz wrote that a fabrication claim requires more than proof of coercion and that “there’s no doubt that King was a flawed witness,” so it’s far from a certainty that a jury would agree.

“All told, we’re satisfied that McPherson and Simmons have shown sufficient evidence of fabrication,” he wrote. “We repeat: those arguments may not win the day at trial. But they’re enough to survive summary judgment.”