A ‘Partial Victory’ for Baltimore’s New State’s Attorney

… Critics disappointed Bernstein deviated from ‘fight crime first’ philosophy …

baltimoresun.com

By Justin Fenton, The Baltimore Sun

7:41 PM EDT, May 4, 2011

After he campaigned on a slogan of “Fight Crime First,” many expected that for his first case, Baltimore State’s Attorney Gregg L. Bernstein would pursue a repeat offender who had slipped through the fingers of the previous regime. Perhaps a drug killing, or a case of witness intimidation.

But to the surprise of critics who worried that he would be too cozy with the police who endorsed him, Bernstein chose to try three city officers charged with kidnapping and misconduct after picking up two West Baltimore teens and dropping them off far from home.

Bernstein made no secret that he took the case in part to prove skeptics wrong.

“I do think it is important for the public to know that as state’s attorney, I take these cases very seriously,” he said outside the courthouse after a jury found two of the officers guilty of misconduct but acquitted them on the more serious charges of kidnapping. “We think these officers did not act appropriately. They dishonored the badge. … As long as I’m state’s attorney, we will not allow that kind of conduct.”

For a prosecutor who had accused his predecessor of too often battling police, some saw Bernstein’s prosecution of the officers as a betrayal and a failure.

Defense attorney Kenneth Ravenell said after the verdict that Bernstein had wasted his time. “Look at what he ended up with — a misdemeanor” conviction, he said, vowing to appeal. “Our hope is that he doesn’t end up with that either.”

And the police union that enthusiastically endorsed him as a crusader for justice felt let down.

“Choosing this case to go forward with first seemed more political than his mandate of fighting crime first. I would’ve looked elsewhere,” said Robert F. Cherry, president of the police union, which backed Bernstein during his campaign against longtime incumbent Patricia C. Jessamy.

The case itself presented a slew of challenges: It pitted Bernstein against three skilled defense attorneys who accused him of misconduct and made some of his key witnesses look foolish under relentless cross-examination. Bernstein often appeared frustrated, eyes closed and hand on his brow.

For his efforts, after two weeks of testimony, jurors and a city judge delivered what many say is at best a partial victory for Bernstein, convicting two of the officers of misdemeanor counts of misconduct in office while finding the third not guilty on all charges. All were cleared of felony counts of kidnapping, false imprisonment, assault and conspiracy charges, or, as their supporters noted, 38 of the 42 counts they collectively faced.

But a relative of one of the teens said the family appreciated that Bernstein had made the case a priority for his office. In the year after the incident occurred, the case seemed to languish, and they believed it would be “swept under the rug.”

“He knows justice needed to be served, and that’s what he’s doing,” said Rhonda Stokes, an aunt of Michael Johnson Jr.

A heavyweight bout

On the first day of the trial, after days of contentious motions hearings and then jury selection, Bernstein stepped up and grabbed the lectern with both hands. For months he had been cooped up in offices, trying to reorganize and refocus the prosecution of criminals in Maryland’s most dangerous city. Now the trial attorney was back in his natural habitat.

“My name is Gregg Bernstein,” he told the jurors, “and I am the state’s attorney for Baltimore City.”

Baltimore’s top prosecutor had not personally tried a case in at least 15 years, and Bernstein, formerly a white-collar defense attorney, had made it a campaign pledge to roll up his sleeves and argue cases in court.

The officers were charged one year ago by a grand jury, after the police investigation appeared to have stalled. The prosecutor assigned to the case retired when Jessamy left office, leaving a void as Bernstein looked for a replacement.

Bernstein began interviewing witnesses in early April, according to testimony, and handled the bulk of the trial proceedings. Veteran prosecutor Michelle Martin tried the case with him, and they were assisted by A. Paul Pineau, a young Harvard Law School graduate recruited by Bernstein from his private firm.

Often peering over his glasses, Bernstein’s presentations were typically straightforward and conversational, while on cross-examination, he drove home his points with question-and-answer volleys with the witnesses.

“Would your faith in the detectives be shaken if you knew they’d taken juveniles out of the neighborhood against their will?” he asked prosecution witness Maj. John Hess, who replied that he would have to know the facts.

Bernstein pressed, pausing only long enough to let Hess squeeze in one-word answers:

“If you knew these detectives had broken their cellphone? If you knew they had taken a juvenile to Howard County and left them in a park with no way home? If you knew they took their shoes and socks and left them with no way home? If they’d taken them to East Baltimore, dropped them on a corner and said, ‘Thanks for the information,’ to the point where others could hear it?”

When not questioning witnesses, he and Martin did not hide their distaste for the defense team’s tactics, making faces or shaking their heads.

In legal circles, the matchup of Bernstein against defense attorneys Ravenell, Michael Belsky and David B. Irwin was something of a heavyweight bout. Several members of Bernstein’s staff sat in on the proceedings, as did various defense attorneys, including Warren Brown, a Bernstein supporter who said he was there as a fan of “good lawyering.”

“It’s important for Gregg to be on this case,” said Brown, who spoke with Bernstein before the trial. “We need to be protected from the biggest, baddest bear in the forest. People ought to fear bad cops with badges more than bad boys with guns.”

All of the attorneys involved in the case were familiar with one another. Ravenell notably threw his support behind Bernstein in the waning days of the primary election campaign at a news conference with another well-known lawyer, Billy Murphy. With Ravenell representing one of the defendants, Detective Milton Smith, the campaign allies became courtroom foes.

When Bernstein told the jurors that he represented the citizens of Baltimore, Ravenell retorted with a line that made one observer laugh out loud: “I do too. Just one at a time.”

Early in the trial, Bernstein accused the defense attorneys of gamesmanship in their attempts to get their clients’ cases heard separately. But the attorneys, in turn, raised more serious questions about Bernstein’s conduct.

Ravenell filed a motion for dismissal and a mistrial, accusing Bernstein of “knowingly failing to provide and suppressing prior inconsistent statements” by the teens to help them avoid committing perjury.

At one point, the attorneys brought to the attention of Circuit Judge Timothy J. Doory their belief that Bernstein might have been coaching a witness in the hallway. Doory, a former prosecutor, appeared unconcerned about either issue.

The trial wasn’t completely contentious. Irwin at one point asked whether he could borrow one of Bernstein’s bodyguards to escort him to the bathroom, poking fun at the members of Bernstein’s executive protection detail that sat in the back of the courtroom each day near the door.

Differing views

The defense contended that the teens were lying and that the push to charge the officers was a result of public pressure from the National Association for the Advancement of Colored People. At least one juror, in an interview with The Baltimore Sun, said the defense’s case was convincing.

Bernstein “had to know that those kids were lying,” said the juror, who did not want to be identified because the case involved police officers. “They told three or four different stories, and in my opinion they were all different. I think if it wasn’t for the NAACP, I don’t think we would’ve even been in court. They pushed the issue, and he had to do something about it.”

Bernstein handled the opening statements and questioned some of the key witnesses. But Martin cross-examined perhaps the chief witness from the prosecution’s standpoint, Tyrone Francis, the only one of the officers to take the stand in his own defense.

In that exchange, Martin made a comment that would reverberate in law enforcement circles. She asked Francis why he would leave one of the teens in a violent “drug-dealing area” such as the corner of Lafayette Avenue and Harford Road.

Francis replied that the violent, drug-dealing area “pretty much” summed up “the whole city.”

Martin laughed. “You guys have been doing a great job,” she said.

Defense attorney Ravenell called the comment snide and referred to it in his closing arguments, while Belsky called the case a betrayal, saying the state’s attorney’s office relies on good detectives like the accused to make its cases in court.

“Make no mistake,” said Belsky, whose law firm contributed $500 to Bernstein’s campaign, “this is a monumentally unfair prosecution in the way it was investigated, the way it was charged and the way it was tried.”

In acquitting Officer Gregory Hellen on all charges, Doory said he believed the teens and that the officers had acted like cowboys, but he appeared to give little consideration to the notion that they could be guilty of kidnapping, false imprisonment and assault. The judge said the case had essentially been mischarged, which some in law enforcement circles had said from the start, believing that the incident was not criminal but fell into a “gray area” of policing.

Irwin said Bernstein’s involvement in the case raised the stakes. But Hellen’s attorney disagreed with the sentiment that Bernstein had suffered a defeat.

“He got two out of three convictions,” Irwin said outside the courthouse. “If the Orioles could hit .667, we’d be doing pretty well.”

Bernstein said in closing arguments that the case was not an indictment of police officers as a whole, but of the individual officers and their bad acts. He concluded with a biting assessment of the officers, whose supervisors testified that despite the accusations, they still regarded Francis, Hellen and Smith as some of the best in the department.

“That is a sad commentary,” Bernstein said, “and an insult to thousands of professional police officers working to keep this city safe.”

justin.fenton@baltsun.com

Copyright © 2011, The Baltimore Sun

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