Baltimore prosecutors drop misconduct charges against county officers after assault trial acquittal

Cassidy Jensen

The Baltimore Sun

September 24, 2024

Baltimore prosecutors dismissed misconduct charges Tuesday against three Baltimore County officers accused of failing to intervene while a corporal pepper-sprayed a handcuffed man in the face last year.

The move came days after Baltimore Circuit Court Judge Paul E. Alpert acquitted Baltimore County Cpl. Zachary Small of assault and misconduct in the Sept. 27, 2023, incident. Body-worn camera footage captured Small pepper-spraying a man arrested on armed robbery charges in the back of a police car before throwing him to the ground and yanking him around by his hair.

County officers Justin-Graham Moore, Jacob Roos and Thomas Desmond were each charged with one count of misconduct. Trials for Roos and Graham-Moore were scheduled for this month, and Desmond’s was set for December.

“The court’s decision to find Corporal Small not guilty on all counts has created legal challenges that limit our ability to proceed with the remaining officers’ prosecutions. We remain committed to transparency and justice and are truly saddened that we could not secure justice in this case,” Baltimore State’s Attorney Ivan Bates said in a statement Tuesday.

In a hearing Tuesday morning before Baltimore Judge Cynthia Jones, Roos’ attorney, Oana Brooks, accused prosecutors of ignoring a lack of evidence against her client in order to prosecute the first case under a new state law.

“Few things are more dangerous in the criminal justice system than a prosecutor’s office that starts with what they want the outcome to be,” Brooks said.

She said the county police department’s Internal Affairs Section and its administrative charging committee, a five-member civilian board that reviews citizen complaints, both cleared Roos of having violated department policy.

Through a spokesperson, Bates said Tuesday: “We only file charges based on the testimony received in the grand jury.”

Graham-Moore’s attorney, Brandon Patterson, said in a phone interview Tuesday that internal affairs and the civilian committee also had exonerated his client.

“My client is obviously relieved that this whole ordeal is over and he can get back to work,” Patterson said.

Bates held a news conference in February announcing the indictments against the officers. Last week, he released a statement criticizing the judge’s verdict in Small’s case, noting that Alpert is 89 years old and calling him out of touch with modern policing standards.

On Sept. 17, the day before Alpert’s verdict last week, Bates’ office filed superseding indictments against Roos and Graham-Moore that included more details about the charges against them. Prosecutors dismissed those indictments Tuesday, according to online court records.

Brooks claimed prosecutors had filed the superseding indictment to avoid litigating a motion she had filed to dismiss the case against Roos. Assistant State’s Attorney Steve Trostle told Jones that was “patently untrue” and that prosecutors had filed a new indictment in Roos’ case because of concerns the initial one was “defective.”

“The reality of it is, they didn’t have the evidence,” Brooks told The Baltimore Sun after court Tuesday. “Today it’s police; tomorrow it’s going to be your cousin.”

Attorney Granville Templeton III said the state’s attorney’s office informed him Monday that prosecutors planned to throw out the charge against his client, Thomas Desmond, who he said had treated the detainee “with dignity.”

Templeton said he was “encouraged” that Bates “did the right thing” in moving quickly to dismiss the charges and said he hoped his client could get back to work quickly. The department was paying the officers, but their police powers were suspended.

“I can understand going after officers when they stand aside when something dangerous and illegal is being done,” Templeton said in a phone interview Monday. “That just wasn’t the case.”

Prosecutors called Desmond as a witness for the state during Small’s trial, when Assistant State’s Attorney Kimberly Rothwell was allowed to ask him just one question: What “fears or concerns” did he have about the armed robbery suspect?

“I don’t think I had any that day,” he testified.

In Alpert’s verdict, the judge said the treatment captured on body-camera video was “not the second coming of George Floyd or Freddie Gray,” a comment Bates called “confusing and appalling” in his own statement last week. The man who was pepper-sprayed is Black, and Small is white.

In a statement, county police spokesperson Joy Stewart said the department is “still obligated by law to complete the ongoing administrative process in these matters” despite the dismissal of charges and Small’s acquittal.

“The men and women of the Baltimore County Police Department remain committed to serving our communities while upholding the Department’s core values of integrity, fairness, and service,” Stewart said. “In addition, the Department will remain focused on its members’ development and professional growth to ensure the highest standard of service continues to be delivered.”

Although Small was cleared of the criminal charges, the county’s civilian committee that reviews complaints of officer misconduct against citizens found he had violated the department’s policy for applying force.

The board recommended he lose four days of pay for “unnecessary use of force,” two days of leave for “rude and discourteous conduct” and two days of pay for “conduct unbecoming of a Baltimore County Police” officer in the same incident, according to an Aug. 16 opinion.

Small’s attorney, Brian Thompson, said his client plans to appeal the committee’s ruling to a trial board.

“The actions of the ACC highlight how inappropriately the way the state handled this case was,” Thompson said. “He didn’t get suspended; he didn’t get fired.”

Unnecessary force is a lower-level infraction than using “excessive” or “brutal” force.

“Cpl. Small’s actions throughout this encounter were troubling and supports a violation of conduct unbecoming of a Baltimore County Police officer. His conduct has a significant negative impact on the image of the department and threatens the public trust,” the administrative charging committee wrote in its opinion.

The committee found he hadn’t violated department policy by failing to provide the man with medical attention, since none was immediately needed. Other officers later helped the man address the pepper-spray irritation at the police precinct, the board wrote.

Although the committee noted that the arrestee was “uncooperative and combative,” it found Small’s “dismissive and aggressive” behavior and rude language failed to de-escalate the situation.

Of 212 administrative charging committee opinions issued between July 2023 and June 2024, the board ruled on 33 complaints alleging unnecessary or excessive force. Its members did not find officers had violated departmental policy in any of those cases, including opinions obtained by The Sun in a Maryland Public Information Act request.