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Copyright 2005 The Baltimore Sun Company
The Baltimore Sun

Two city judges reject word of police;
2 cases said to reflect residents' `skepticism';
Gun charges then droppedJulie Bykowicz, SUN STAFF


Two Baltimore judges in separate rulings in the past two weeks have said they don't believe the police officers who investigated gun cases, prompting prosecutors to dismiss charges that could have put two convicted felons behind bars.

As police aggressively try to take guns off city streets - they have collected more than 1,400 this year - some cases aren't surviving in court because of what judges say are improper police searches, the inability to prove who was in possession of the recovered guns, and doubts about whether officers used legal methods to seize the weapons.

Prosecutors and judges said that Baltimore police generally do a good job building weapons cases, and that the most common mistakes can be explained by honest disagreements about how to interpret the complexities of laws protecting citizens from improper searches and seizures.

More disturbing, prosecutors said, are the times when a judge doubts the credibility of the investigating officer.

"There is a strong skepticism in the air about the police, transmitted through the jurors based on what they see in their communities," Circuit Judge John M. Glynn, who oversees the criminal docket, said in an interview. "Judges are citizens of those communities, too."

A review of three months of data compiled by the city state's attorney's office shows that among the 210 Circuit Court cases and 99 District Court cases involving weapons, about 40 were hampered by issues such as police officers' being unable to testify because they were under investigation or had been suspended, legal questions about who possessed a recovered weapon, and judges dismissing key evidence.

In those cases, circuit judges granted motions to suppress evidence in felony weapons cases a half-dozen times, leading to the case being dismissed or findings of not guilty. Eight more times, prosecutors dropped charges because it was unclear whose gun was recovered. Another two dozen handgun cases in District Court were affected by similar issues.

During that same period, April through June, 125 Circuit and District Court weapons and shooting cases ended in either a guilty plea or a conviction.

Police officials said they see the rulings in which judges question the credibility of officers as isolated. James H. Green, the department's director of special projects, said prosecutors have faith in the officers' work because cases are being indicted and presented to the court. But, he added, "it's always difficult" when a judge has doubts.

"Clearly, there's a concern if anyone on the bench is saying they don't believe an officer," Green said. "The department is receptive to hearing directly from the bench."

Matt Jablow, the Police Department's chief spokesman, said officers are doing a good job.

"Hundreds of gun cases are prosecuted each year based on the testimony of our police officers," Jablow said. "The officers do their job well - getting violent criminals off the streets. And they tell the truth. We stand behind our officers."

Reluctant ruling

But two recent rulings from judges caused two convicted felons who admitted carrying a loaded weapon to avoid a mandatory prison term of five years without the possibility of parole.

Circuit Judge Wanda K. Heard reluctantly ruled Wednesday that a .357 Magnum revolver found on a man who had been convicted of prior weapons violations could not be used as evidence because she thought the officer had lied about what prompted him to search the man.

"I don't believe it happened the way the officer said," Heard said in court.

Kivi Kennedy admitted in court that he did have the gun in his waistband - and 12 rounds of extra ammunition in his pockets - when uniformed officers came into a West Baltimore convenience store to shoo away loiterers. Kennedy said he tried to leave the store when one officer grabbed him by the arm and searched him.

The officer said Kennedy shoved him against a wall, and that's why he was arrested and searched.

The judge said "personal experience and common sense" led her to believe the convicted felon's version over the officer's.

Heard suppressed the gun evidence, and the prosecutor dropped three handgun charges and a second-degree assault charge. Addressing the defendant, Heard said, "I don't want you to think you got away with something. ... I have a constitutional duty to protect your right to say, `I don't want to talk to you.'"

Story didn't add up

A week earlier, Circuit Judge Thomas E. Noel made a similar decision because he said another officer's story about how he pulled a loaded weapon off a convicted felon did not make sense.

Brian Tiller said he and his girlfriend had been parked at Pimlico Road and Woodland Avenue when an unmarked police car swooped in to block him. Plainclothes officers approached with weapons drawn, he said in court testimony.

Tiller was carrying a fully loaded .22-caliber gun in his pocket, but Tiller's lawyer said they had no right to search him.

The officer said he saw a woman run to Tiller's car and that he approached to ask what was going on. Tiller replied, according to the officer, that he was driving an illegal cab and had a loaded gun on him.

Noel didn't believe that a convicted felon would volunteer information that he was doing something illegal and carrying a loaded weapon, said attorneys on both sides of the case.

"Some of these judges are frustrated by what are patently absurd stories by the police," said Richard C.B. Woods, the public defender who represented Tiller and a longtime defense attorney.

Complex nuances

State's Attorney Patricia C. Jessamy said in a statement that there are many issues that affect the successful prosecution of gun cases, including illegal searches, but also complex legal nuances in the law.

"We do the best we can with the facts, evidence and witnesses that are available to us for presentation at trial," Jessamy said in a statement. "Challenges exist because of deficiencies or expectations, real or perceived in the minds of the jurors, judges and citizens."

There are about a half-dozen officers whom Jessamy has forbidden from testifying because of allegations of perjury. She issued a memo in February saying that the credibility of two detectives had been "irrevocably compromised," and that prosecutors were not to use them as witnesses. The detectives were investigated on charges that they committed perjury last year in reference to a car search they conducted.

Jessamy's decision affected about 100 cases. While some charges survived without the officers' testimony, others, including some violent charges, had to be dropped.

This spring, five felony weapons cases were dismissed by prosecutors because other officers had been suspended or indicted for improper conduct.

"It only takes a few bad apples to discredit an entire organization," Glynn said. "Police misconduct cases tend to fulfill the expectations that jurors have."

Poor communicators

Glynn and another judge, John N. Prevas, who has been on the bench for two decades, said they believe the vast majority of police officers are well-meaning and hard-working. But Prevas said sometimes an officer's courtroom presence can convey a different message.

"It's not so much that each officer lies, it's that they appear so unbelievable to jurors because they are poorly trained and inexperienced as witnesses," Prevas said. "Some cops cut corners or embellish, but the real problem is with inferior communication skills."

Lt. Frederick V. Roussey, president of the city's Fraternal Order of Police, said the union is working to improve officers' communications skills and plans to hold training seminars.

"We're trying to teach officers how to articulate," Roussey said. "I don't believe they get the basics that we used to give them. They get a lot of stuff thrown at them, but they need more basic police work."

Green, the department's special projects director, said officers frequently train alongside prosecutors - in the art of testifying and on legal issues such as the ones surrounding search and seizure.

Sun staff writer Gus G. Sentementes contributed to this article.
 
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