… Memo to staff ‘tongue in cheek’ but raises ethical issues, expert says …
By Justin Fenton, The Baltimore Sun
10:37 PM EDT, June 2, 2011
In an unusually candid email to his staff after trying his first case, Baltimore State’s Attorney Gregg L. Bernstein criticizes the lead police detective and acknowledges miscues that, according to some legal analysts, could give defense lawyers ammunition to overturn the misconduct convictions of two city police officers.
The memo, obtained by The Baltimore Sun, also appears to suggest that the case had been wrongly charged and that there was no evidence to support convictions on serious charges against an officer who was acquitted.
Bernstein confirmed the authenticity of the email, saying it followed a tradition he experienced 20 years ago in the U.S. attorney’s office of recapping cases for the benefit of staff. He said the tone was intended to be “tongue in cheek.”
“I wrote it in the spirit of helping build morale and camaraderie,” he said.
But two former prosecutors said the message raises potentially significant appeal issues for the convicted officers and represents “locker room talk” not appropriate for mass distribution and not befitting the office of a chief prosecutor.
The memo was sent out to the entire state’s attorney’s office the day after two city police officers — charged with kidnapping, false imprisonment and assault — were convicted of lesser misconduct charges. A third officer, Gregory Hellen, was acquitted of all charges.
The officers, Hellen, Tyrone Francis and Milton Smith, were accused of picking up two teenagers on May 4, 2009, and leaving them stranded far from their homes. Michael Johnson Jr., who was 15 at the time, was left on the side of the highway in Howard County’s Patapsco Valley State Park without shoes or a cellphone.
In the email, Bernstein called the convictions of two officers on misdemeanor misconduct charges “in many ways the right result,” though he had pursued felony kidnapping charges that would have brought a maximum penalty of 30 years in prison for the officers. He said the jury’s verdict was “inconsistent” but “that’s the AG’s problem!” a reference to the attorney general’s office, which handles criminal appeals.
In reference to the acquitted officer, who also faced kidnapping charges, Bernstein wrote that “there was no evidence that Hellen in any way participated in the abductions, other than being in the minivan, but shouldn’t that be enough?”
“Oh well; from a culpability standpoint at least, the right defendants were convicted,” he wrote.
Eugene O’Donnell, a former prosecutor and police officer who teaches at the John Jay College of Criminal Justice in New York and who reviewed the email for The Sun, said it raises “serious ethical issues” about how Bernstein handled the case.
“He’s basically saying the evidence wasn’t sufficient to support those charges. That to me is a serious issue,” O’Donnell said. “There’s an ethical question about any prosecutor deliberately pursuing charges that they don’t think are founded against somebody. … A literal interpretation of what he said is that a just verdict was delivered, meaning it was a misconduct case and not a kidnapping case.”
O’Donnell said Bernstein made the mistake of putting “locker room” office talk into an email. Bernstein said it was never intended to be viewed by the public or anyone outside his office. “It’s one thing to sit over coffee and talk about the trial with your senior staff,” O’Donnell said. “This triggers some issues that are probably going to be a part of any appeal.”
In an interview, Bernstein said he handled the case appropriately. The charges were filed by his predecessor. “I can’t say this more strongly: If we did not believe that the case was properly charged, and that the culpable defendants were charged, we wouldn’t have proceeded,” he said. “We went forward with the charges that we thought we could prove, as we always do. … The defendants who were most actively involved in the case were convicted.”
Bernstein said that instead of propping up a poor case, he stuck to a campaign promise of not dropping charges in the face of adversity. On the campaign trail last fall, he frequently chastised his predecessor, Patricia C. Jessamy, for not having “courage” to try tough cases.
“I think it was important to send a message that I’m prepared to take on the difficult cases,” he said in an interview. “There were a lot of hurdles to clear, but in essence, we brought this one home.”
Page Croyder, a former Baltimore prosecutor who supported Bernstein’s candidacy, said Bernstein’s comments about the charges did not mean that he brought a malicious prosecution. But she said the email should never have been sent.
“You can start a trial in full belief of what you’re about to do, but as circumstances unfold, you come to realize maybe the jury, given what it had, made the appropriate decision,” she said. “I would hate to think that he thought the case was overcharged to begin with.”
She said Bernstein might have found it valuable to explain to his staff the setbacks he faced, “but I’m not sure it was necessary. It’s going to be dissected and will look like he has as much disdain for the Police Department as his predecessor,” Croyder said.
Hellen’s attorney, David B. Irwin, who maintained during trial that prosecutors had no evidence to charge his client, declined to comment on the memo.
“We continue to be glad that the right verdict was rendered by the judge,” Irwin said.
Bernstein, who pledged a better working relationship with police than his predecessor, derisively describes the lead investigator on the case as a “‘crack’ [internal affairs] detective” who “neglected to tell us about recorded interviews of three witnesses that we discovered during trial.”
Jessamy frequently pointed to flaws in police work as the reason for cases needing to be dropped, which Bernstein characterized during the campaign as “refusing to accept any responsibility for the inability to effectively prosecute.”
The officer, Detective Lakishna DeGraffinried, seemed to have little grasp of the case at trial, repeatedly saying she never testified before a grand jury, when there was a lengthy transcript of her testimony, then saying the testimony was prepared by someone else and given to her to read. She couldn’t explain what happened to certain evidence, and in an unusual move said she provided documents in the case to the local branch of the National Association for the Advancement of Colored People.
“I stand by what I said about the detective’s performance,” Bernstein said in an interview. The officer could not be reached for comment.
Croyder, the former prosecutor, said his assessment was “best kept in house.”
Bernstein, who vowed during his campaign to get in the courtroom and personally try cases, picked this case as his first, to the chagrin of some of his police supporters.
Defense attorneys for Francis and Smith argued at trial that they were interviewing the teens and dropped them off where they asked to be let out. They said the boys made up the stories about being abducted for fear of being labeled neighborhood “snitches.”
Michael Belsky, an attorney for the Fraternal Order of Police’s law firm who represented Francis, said during the trial that the case should have been handled as an internal disciplinary case. In a trial that at times became confrontational, Belsky and Smith’s attorney, Kenneth Ravenell, repeatedly accused Bernstein and Assistant Prosecutor Michelle Martin of misconduct and inappropriate remarks.
On Wednesday, Smith and Francis were sentenced to 18 months’ probation and 250 hours of community service. Belsky said of the email, “It’s a lot to digest.” Ravenell had no comment.
Bernstein acknowledges in the email that the case was flawed. “The case [how should I put it?] had some issues,” he writes, describing inconsistent statements given by the juvenile victims during multiple interviews. Later, he writes, “I could go on and on, but I suspect most of you are thinking, ‘Welcome to the State’s Attorney’s Office.'”
Referring to how the case was charged, Bernstein writes that there were “some rather novel charging decisions.” But he did not refile or adjust the charges before trial, which prosecutors have the option to do.
The email concludes: “Your boss … was trying his first case in a long, long time. Hopefully, I did not embarrass those of you who have been doing this for a while.”
It adds: “Can’t wait for the next one.”
Excerpts from Bernstein email
“The case (how should I put it?) had some issues … Our ‘crack’ IID detective neglected to tell us about recorded interviews of three witnesses that we discovered during the trial. She also began her examination by defense counsel (we certainly did not call her) by denying she had testified in the grand jury. … Michelle told the detective 4 times to read her friggin’ file, which she refused to do. I could go on and on, but I suspect most of you are thinking, ‘Welcome to the State’s Attorney’s Office.”
“Judge Doory (who otherwise ran an excellent trial; very impressive) stated, in essence, that he did not believe police officers were capable of ever being guilty of kidnapping, false imprisonment and assault, because by definition, this is what they do every day (I am not making this up).”
Speaking of two fellow prosecutors who helped with the case:
“Michelle Martin and Paul Pineau did a superb job of making your boss look good (and isn’t that what this is all about?) who was trying his first case as a prosecutor in a long, long time. Hopefully, I did not embarrass those of you who have been doing this for a while.”
Copyright © 2011, The Baltimore Sun